Gujarat High Court
Hindustan Petroleum Corp.Ltd vs State Of Gujarat & 6 on 7 April, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/1637/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1637 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of
the judgment ? YES
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
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HINDUSTAN PETROLEUM CORP.LTD.....Petitioner(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
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Appearance:
MR PERCY KAVINA , SR. ADVOCATE with MS MINOO A SHAH, ADVOCATE
for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 7
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1 - 2
MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 6 , 6.2
MR DHIRENDRA MEHTA, ADVOCATE for the Respondent(s) No. 4 - 5
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3
MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 6.3
RULE SERVED for the Respondent(s) No. 6.1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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Date : 07-21/04/2017
ORAL JUDGMENT
1. The petitioner, by way of the present petition filed under Article 226 of the Constitution, has prayed to quash and set aside the order dated 29.12.2003 passed by the respondent No.2 - SSRD (Annexure-S) and to declare that the respondent No.4 had no right to seek cancellation of N.A. Permission dated 20.5.2003 granted in respect of the land in question, by filing Revision Application under Section 211 of the Bombay Land Revenue Code (hereinafter referred to as "the Code").
2. The short facts giving rise to the present petition are that the petitioner is a Government Company having various retail outlets throughout India, marketing their products at various petrol pump sites. The deed of lease came to be made between the petitioner and the respondent No.6 Mr.Bharat Popatlal Thakkar (lessor) in respect of the lands bearing Survey Nos.140/2+6+7+8 of Village Valwada, admeasuring 4578 sq. mtrs. (hereinafter referred to as "the said lands"), on 2.6.2003 for a period of 30 years for being used as Petrol, Diesel and Lubrication service station and for constructing building structures for lubricants, equipments, etc. (Annexure-A). According to the petitioner, the possession of the said lands was handed over to the petitioner.
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It is further case of the petitioner that the lessor - respondent No.6 had purchased the said lands from the previous owners by way of sale deed dated 4.10.2001 in respect of which necessary entries in the revenue record were also made mutating the name of the lessor as the owner of the said lands. The respondent No.6 thereafter having applied on or about 10.1.2003 for permission to use the said lands for non- agricultural purpose under the provisions contained in the Code, the said application was considered by the respondent No.4 Panchayat in its meeting held on 21.2.2003 and a resolution was passed recording the consent to permit conversion of the said lands for non-agricultural purpose for running the petrol pump (Annexure-C). The Deputy Collector having intimated the respondent No.6 by his letter dated 21.3.2003 to the effect that it was decided to grant N.A. Permission on payment of premium, the respondent No.6 had made payment to the tune of Rs.6,59,232/- by way of premium. After the completion of other formalities, the Taluka Development Officer by his letter dated 20.5.2003 granted the N.A. Permission under Section 65 of the said Code (Annexure-H). The Additional District Magistrate, Valsad also issued 'No Objection Certification' to the petitioner under the Petroleum Act, 1934 on 21.5.2003 (Annexure-
I). The respondent TDO also approved the
building plans as per Annexure-J. The
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Controller, Department of Explosives had also by the licence dated 11.7.2003 permitted the storage of petroleum products on the premises of the said lands (Annexure-L). However, according to the petitioner, the respondent Nos.4 and 5 in collusion with each other and with ulterior motive wrote a letter dated 18.8.2003 addressed to the respondent No.3 that the construction work was being carried on the said lands illegally. Thereafter the respondent No.4 also filed a revision application before the respondent No.2 under Section 211 of the said Code. The respondent No.2, though had no jurisdiction, heard the said revision application and passed an interim order on 22.10.2003 directing the petitioner to maintain status quo and further directing the respondent No.3 to inspect the lands and submit the report (Annexure-N). Being aggrieved by the said order the petitioner had preferred SCA No.16362 of 2003 and the respondent No.6 - lessor had also filed SCA No.16480 of 2003 before this Court. Both the said petitions were disposed of by the common order dated 29.11.2003, whereby the Court permitted the petitioner to put up further construction at its own cost and risk and not to claim any equity on the construction that may be made, if ultimately the revision application was decided against it (Annexure-O).
3. The respondent No.2 (SSRD) thereafter heard the learned Advocates for the parties and vide the impugned order dated 29.12.2003 allowed the Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Aug 13 03:33:36 IST 2017 C/SCA/1637/2004 JUDGMENT revision application, setting aside the order dated 20.5.2003 passed by the TDO, Umargaon and directing the DDO to take necessary action after making inquiry and further directing to inquire about unauthorized construction carried out pursuant to the building plans sanctioned on 27.5.2004. The respondent No.2 permitted the petitioner and the respondent No.6 Thakkar to make fresh application seeking N.A. Permission after removing the objections in accordance with the Rules (Annexure-S). The said order dated 29.12.2003 is under challenge before this Court by way of the present petition. It appears that during the pendency of the petition, the DDO, Valsad vide the order dated 1.9.2004 had stayed the Resolution dated 30th September, 2003 passed by the Umargaon Taluka Panchayat, which order was challenged by the said Taluka Panchayat by filing Revision Application. However, the said Revision Application was rejected and the Resolution dated 30th September, 2003 passed by the Umargaon Taluka Panchayat had stood cancelled. The petitioner, therefore, had sought amendment in the petition, which was granted by the Court as per the order dated 20.4.2006.
4. The petition has been resisted by the respondent Nos.4, 6, and 7 by filing their replies. The petitioner has filed rejoinder to the said replies.
5. The learned Sr. Advocate Mr.Percy Kavina, Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Aug 13 03:33:36 IST 2017 C/SCA/1637/2004 JUDGMENT appearing with Ms.Minoo Shah for the petitioner vehemently submitted that the respondent No.4 Panchayat of Valwada Gram Panchayat had no authority to challenge the order dated 20.5.2003 of Taluka Panchayat, Umargaon granting N.A. Permission to the respondent No.6, by filing revision application before the SSRD. According to him, though Taluka Panchayat, Umargaon had cancelled the said N.A. Permission vide the order dated 30.9.2003, the said order was set aside by the Secretary, Panchayat Department on 20.5.2005, and therefore, the very substratum of the revision application filed by the respondent No.4 Sarpanch before the SSRD did not survive. According to him, the petitioner had spent huge amount after the N.A. Permission was granted by the lessor - respondent No.6 in respect of the land in question. He also submitted that the respondent No.4 being not an aggrieved person in view of the decision of the Supreme Court in case of ADI Pherozshah Gandhi Vs. H. M. Seervai, Advocate General of Maharashtra, Bombay, reported in AIR 1971 SC 385, the revision filed by it under Section 211 of the said Code before the SSRD was not maintainable, and therefore also the impugned order deserves to be set aside.
6. However, the learned Advocate Mr.Dhirendra Mehta for the respondent No.4 submitted that the applicant need not be an aggrieved person for filing a revision application before the SSRD under Section 211 of the Code. The N.A. Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Aug 13 03:33:36 IST 2017 C/SCA/1637/2004 JUDGMENT Permission having been granted to the respondent No.6 without any application of mind and there being number of irregularities committed by the Umargaon Taluka Panchayat, while granting the N.A. Permission, the SSRD had rightly remanded the case to the DDO.
7. Mr.Dhaval Vyas, learned Advocate for the respondent No.6 submitted that the lease agreement with the petitioner was already terminated by the respondent No.6 under Section 111(h) of the Transfer of Properties Act as per the notice dated 7.9.2005, and therefore the petitioner had no locus standi to file the present petition. He further submitted that after the impugned order was passed by the SSRD and the interim order was passed by this Court, the petitioner and respondent No.6 had approached the railway authorities for necessary permission, however, the railway authorities had refused to grant any such permission. According to him, the respondent No.6 had filed the petition being SCA No.8/2004 against the order dated 29.12.2003 passed by the SSRD, however, the same has been disposed of as withdrawn by the respondent No.6.
8. In the instant case, it appears that though the deed of lease was executed by the respondent No.6 in favour of the petitioner in respect of the land in question on 2.6.2003 for a period of 30 years, the said lease was sought to be terminated Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Aug 13 03:33:36 IST 2017 C/SCA/1637/2004 JUDGMENT by the respondent No.6 by giving notice to the petitioner on 7.9.2005. It is sought to be contended by Mr.Vyas for the respondent No.6 that the said lease had stood determined under Section 111(h) of the Transfer of Properties Act, however, the Court is not inclined to entertain the said issue, as the said issue is not the subject matter of the present petition. Suffice is to say that the notice issued by the respondent No.6 on 7.9.2005, does not appear to have challenged by the petitioner.
9. Be that as it may, it is also pertinent to note that by way of interim order passed by this Court on 8.10.2004, the operation of the order passed by the respondent authority cancelling the N.A. Permission was stayed on the condition that the construction, if made by the petitioner over the land in question shall not create any additional right and will be on the same terms on which it was permitted by the Court vide the order 29.11.2003 in SCA No.16362 of 2003 and SCA No.16480 of 2003. It was further directed that the petitioners shall obtain NOC from the railway authorities for running the petrol pump and shall maintain the distance of construction from boundary of railway as it may be finally intimated by the railway authority to the petitioners and that the construction shall be altered in accordance with the NOC of the railway authority. In this regard, it has been stated by the learned Advocate Mr.Dhaval Vyas that no such Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Aug 13 03:33:36 IST 2017 C/SCA/1637/2004 JUDGMENT permission or NOC has been granted by the railway authorities, and therefore, no such construction though permitted by the Court to the petitioner was carried out. The learned Sr. Advocate Mr.Kavina is not in a position to refute the said position.
10. Under the circumstances, the impugned order passed by the SSRD as such pales into insignificance. Though the SSRD while allowing the revision application filed by the respondent No.4 had set aside the N.A. Permission dated 20.5.2003 granted by the Taluka Panchayat, this Court by way of interim order had stayed the operation of the said order regarding cancellation of N.A. Permission and permitted the petitioner to put up construction, subject to certain conditions, including obtaining the NOC from the railway authorities. However, the railway authorities having refused to grant such permission or NOC, the petitioner has not been able to put up such construction.
11. It was sought to be submitted by the learned Sr. Advocate Mr.Kavina that the respondent No.4 being not an aggrieved person, did not have any locus standi to file the revision application before the SSRD under Section 211 of the Code. However, the said submission cannot be accepted. The powers of revision under Section 211 of the Code could be exercised by the State Government or the officers mentioned therein for the purpose Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Aug 13 03:33:36 IST 2017 C/SCA/1637/2004 JUDGMENT of satisfying itself as to the legality and propriety of any decision or order passed by any subordinate revenue officer. Such powers could be exercised suo motu or on an application of any person not necessarily by the aggrieved person.
12. In the aforesaid premises, the impugned order passed by the SSRD having lost its significance in view of the interim order passed by this Court and in view of the subsequent developments having taken place pending this petition, no relief as prayed for in the petition could be granted. However, it is observed that it would be open for the respondent No.6 and/or for the petitioner to apply for N.A. Permission afresh, as may be legally permissible to the concerned respondent authority. Such application, if made, shall be decided by the respondent authority in accordance with law.
13. Subject to the said observations, the petition is dismissed.
(BELA M. TRIVEDI, J.) vinod Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Aug 13 03:33:36 IST 2017