Gujarat High Court
Shankarbhai Bahubhai Kahar vs District Collector & on 5 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9470/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9470 of 2017
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SHANKARBHAI BAHUBHAI KAHAR, PRESIDENT & 5....Petitioner(s)
Versus
DISTRICT COLLECTOR & 1....Respondent(s)
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Appearance:
MR JV JAPEE, ADVOCATE for the Petitioner(s) No. 1-6
MR. SHARMA for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/06/2017
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the writ applicants, office bearers of a Co- operative Housing Society, have prayed for the following reliefs;
(a) Your Lordships be pleased to issue the writ of mandamus or any other writ, order or direction of this honourable court and be pleased to direct the Collector, Sabarkantha to forthwith take appropriate steps for regularization of the construction of the houses made in the Sahyognagar Cooperative Society Ltd. by taking appropriate steps as early as possible within specific time limit as per the order dt. 15.03.2007 passed by this Hon'ble Court in Special Civil Application No.8233 of 2006.
(b) Your Lordships be pleased to direct the respondents to forthwith take appropriate steps for regularization of the constructions of the houses made in the Sahyognagar Cooperative Society Ltd pending the admission, hearing Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Jun 06 00:56:41 IST 2017 C/SCA/9470/2017 ORDER and final disposal of this petition.
(c ) Your Lordships be pleased to grant such other and further relief as may be deemed fit in the interest of justice."
2. The genesis of the litigation lies in the judgment and order passed by a learned Single Judge of this Court dated 15th March, 2007 in the Special Civil Application No.8233 of 2006. The judgment reads as under;
"The petitioner has preferred the petition for challenging the order passed by the Gujarat Revenue Tribunal in Revision Application No. 340/00 and the order passed by the Deputy Collector in Tenancy Appeal No. 104/96 and the order passed by the Mamlatdar and ALT in Tenancy Case No. 83/91.
1. Heard Mr. Japee for the petitioner and Mr. Chhaya, learned AGP for the State Authorities. The other private respondents, though are served, have chosen not to appear.
3. Upon hearing the learned advocate appearing for both the sides, it appears that as per the petitioner, on 22.02.1985, the respondent No.1 had purchased the land bearing Survey No.24/2 admeasuring 31 Gunthas from respondent Nos. 5 to 7 by Registered Sale Deed and the said land was purchased for construction of the houses of the members of the Sahyognagar Cooperative Housing Society of which the petitioner is the President at present. The entry came to be mutated in the revenue record on 20.08.1985 vide No. 481 and as per the petitioner, the said entry was also certified. It is the case of the petitioner that 31 residential houses have been constructed over the said land and the members are occupying the house for their residential use.
4. It appears that as per the petitioner, the proceedings were initiated by the District Development Officer, Sabarkantha for removal of the construction made, pending the grant of NA permission and ultimately, the matter was carried Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue Jun 06 00:56:41 IST 2017 C/SCA/9470/2017 ORDER before the State Government and vide order dated 13.12.1993, the Deputy Secretary (Appeals), Revenue Department of the State Government remanded the matter to the Collector and also observed for forwarding the proposal to the State Government for regularisation of the construction by minimum possible variation by taking humanitarian approach. It appears that pertaining to the transaction in question, Mamlatdar and Agricultural Tribunal initiated the proceedings for breach of provisions of Section 63 of the Act and ultimately, vide order dated 08.05.1995, Mamlatdar found that the transaction is in breach of the provisions of the Act, and therefore, was declared as illegal and the land is ordered to be forfeited to the State Government. It appears that the matter was carried in Appeal being Appeal No. 104/96 before the Deputy Collector, who vide order dated 28.11.1996, dismissed the Appeal and confirmed the order of the Mamlatdar & ALT. It appears that thereafter, the matter was further carried in revision and there was also delay in preferring the revision. Therefore, the application for condonation of delay was also made. The Tribunal vide order dated 29.12.2005, dismissed the revision and under these circumstances, the present petition.
5. It may be recorded that after the notice was issued by this Court, as the construction is already made over the land and as the status of the land is no more as agricultural land on site, the prayer was made by the learned counsel for the petitioner for regularisation and therefore, on 13.12.2006, this Court had passed the following order:
?Mr. Japee, learned counsel for the petitioner under the instruction of the petitioner, present President of the Society, states that if the District Collector is inclined to consider the matter for regularisation, the petitioner is ready to pay the amount of penalty, premium, as the case may be, and is also ready to preserve only permissible construction as per the municipal bye-laws and is also ready to demolish impermissible construction as as per the municipal bye-laws.
Mr. Desai, learned AGP seeks time to get the Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Jun 06 00:56:41 IST 2017 C/SCA/9470/2017 ORDER instruction from the District Collector.?
Thereafter, on 20.12.2006, the following order was passed:
?Pursuant to the order passed by this Court dated 13.12.2006, it has been submitted by Mr. Chhaya, learned AGP that as such, his instructions are that, it is not possible to regularise the construction and use of NA since the title is defective. However, he further submitted that even if this Court is inclined to consider the matter for giving of any direction, as per his instruction, the whole area is used for construction and for NA, road is required to be laid down and common plot is also required to be maintained. If such a provision is to be made, it may result into demolition of 3 to 4 tenements.
The aforesaid aspect shall be considered at the later stage. However, the petitioner shall produce the proposed layout for NA by making proper provision for the road and the common plot as per the provisions of the Code read with the Rules and the respondent shall inform the Court the probable premium had the permission been granted and the penalty. The aforesaid exercise shall be undertaken within a period of three weeks.?
The matter was once again heard and on 18.01.2007, this Court had passed the following order:
?1. Pursuant to the order passed by this Court dated 20th December, 2006, the petitioner shall submit permissible lay out plan for N.A., had the permission applied for N.A. The District Collector shall verify such plan. He shall also verify through the office of the District Inspector of Land Record by visiting on site as to whether the permissible open space for common plot, road etc. is available on site. If any construction is in existence over the space which is required to be kept open, the same shall also be identified in the sketch. The petitioner shall provisionally deposit the amount of Rs.10,000/- (Rupees Ten Thousand Only ) with the District Collector towards the cost of the verification etc. within one week from today. The aforesaid exercise Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue Jun 06 00:56:41 IST 2017 C/SCA/9470/2017 ORDER shall be undertaken by the District Collector within a period of one month from the receipt of revised plan and report to this Court with the sketch of District Inspector of Land Record through the officer not below the rank of Mamlatdar.
2. The District Collector shall also report to this Court the tentative amount of premium had the transfer permitted with the interest for the purpose of information of the Court and he shall also report to this Court the N.A. conversation charges etc. including N.A. assessment from the date on which the utilisation is made till today with the penalty, if any.
0. Thereafter, pursuant to the order passed by this Court, today Mr. Chhaya, learned AGP has placed on record the map prepared and verified by the DILR.
As per the said map, even if the Collector is to consider the matter for converting the status of the land as non-agricultural and for regularisation of permissible construction, there are certain constructions, which are marked in blue colour and red colour by showing A,B,C,D, are required to be demolished. Since such construction are not falling in the permissible limits of the construction and certain area is required to be kept as open. Therefore, it has been submitted by Mr. Chhaya that pursuant to the order passed by this Court on 18.01.2007 that the actual site is verified and the position is reflected in the said map.
1. Mr. Japee, learned counsel appearing for the petitioner under the instruction of his client, who is stated to be present in the Court by Mr. Japee, declared before the Court that if this Court is inclined to make observations for giving directions to the Collector to regularise the permissible construction and also for conversion of the status of the land as non-agricultural land, the petitioner is agreeable to demolish the impermissible construction, if some reasonable time of about two months is given and the petitioner is also ready to pay the premium as per the prevailing policy of the Government, if the land can be converted for NA use assessment and he further declared before the Court that the petitioner is also ready to pay the penalty as per the policy of the Government for use of the land for NA purpose for the period prior to the Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Jun 06 00:56:41 IST 2017 C/SCA/9470/2017 ORDER conversion in the revenue record from agricultural to non-agricultural use.
2. It appears from the proceedings prior to 1993 before the State Government and before the District Development Officer that the construction was already made and the land as such had actually ceased to be agricultural land prior to initiation of the proceedings under Section 84 C of the Act and not only that, but the constructions were made by the various members of the petitioner Society and the land was no more used as an agricultural land. It is true that the constructions were made without obtaining the prior permission of the competent authority and the use for NA was also without obtaining prior permission under the Land Revenue Code. However, the State Government while exercising the revisional jurisdiction, in its order passed on 13.12.1993 did observe that the matter can be considered for regularisation, since the constructions are already there and on humanitarian consideration. Even othewise also the matter at the most could be considered for regularisation of the action to the extent of permissible construction and as per the relevant laws, and the bylaws, but to the extent of impermissible construction, the matter could not have been considered for regularisation. In the matter of regularisation of the construction, even if the discretion is to be exercised, at the most can be exercised by the authority to the extent of permissible construction. To say in other words, the construction which otherwise could be made after obtaining permission of the concerned authority, would be the permissible construction for which the matter could be considered for regularisation and the construction, which otherwise also could not be made as per the relevant laws and bylaws, cannot be considered for regularisation.
3. In the present case, it does appear from the record that the construction includes impermissible construction, but as declared and recorded hereinabove, if the petitioner is agreeable to demolish the impermissible construction and is pressing only to the extent of permissible construction, I find that the District Collector can take a pragmatic view of the matter and the reason Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Jun 06 00:56:41 IST 2017 C/SCA/9470/2017 ORDER being that no useful purpose would be served in demolishing the construction on the ground that prior permission was not obtained and thereafter, to permit such person to make the very construction after obtaining the permission. It is true that in normal circumstances, the prior permission is required to be obtained even for permissible construction, but it appears in the present case that the construction is made long back and it has continued throughout and the same is coupled with the observations made by the State Government in revisional jurisdiction earlier that the matter could be considered for regularisation and therefore, I find that if the appropriate directions are issued, the matter can be considered by the Collector for such purpose.
4. It deserves to be recorded that, if over an agricultural land, unauthorised non-agricultural use has continued for a very long time inspite of the conscious knowledge on the part of the concerned authority, and if the construction is not actually demolished, nor it is regularised, the consequence would arise for deprivation of the revenue income of the State Government including for recovery of the premium and it would further complicate the issue inasmuch as though actually the land is used for NA purpose, the occupier would continue to pay all taxation liability as if it it is an agricultural land, though in reality, as such the person is to enjoy the benefit of the land, as if the land is used for NA purpose. Such situation would also consequently cause loss to the State Government by not only loss of revenue of the NA assessment but also for the loss of premium etc. Therefore, in the matter where the situations have become irreversible, and if the pragmatic view is taken, it would generate more income to the State by regularising such circumstances and the construction. Of course, such would be extraordinary exceptional case, where the the construction is very old and it cannot be a routine action on the part of the authority. However, the fact remains that in either of the cases, when the agricultural land is used for non-agricultural purpose, but on the record is an agricultural land, the financial loss is caused to the State Government for indefinite period either until the litigation Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue Jun 06 00:56:41 IST 2017 C/SCA/9470/2017 ORDER continues or until the action is not regularised.
5. I find that it may not be necessary for this Court to conclude on the said aspects since the discretion is ultimately to be finally exercised by the authority for regularisation. So far as the alleged breach of the provisions of Section 63 of the Act are concerned, I find that no useful purpose would be served in continuing with the proceedings under Section 84C of the Act, when the land is actually used for NA purpose since more than 15 years.
6. In view of the above, I find that the following directions shall meet with the ends of justice:
A) The petitioner shall be at the liberty to make a detailed representation/application to the Collector for conversion of the land for NA use but, before making such application, the petitioner shall ensure that the impermissible construction as per the map, produced and verified by DILR, is demolished within a period of two months from today and the application may be made within a period of two weeks after the demolition is already made by the petitioner.
B) If such an application is made by the petitioner to the District Collector, the same shall be verified by the District Collector to the effect that the petitioner has demolished all impermissible construction and on actual site, the construction is not exceeding the permissible limit as per the said map.
C) After such verification, the District Collector shall examine the matter for grant of permission for NA use by regularising the construction already made and the use already made, keeping in view the observations made hereinabove on the payment of requisite premium by the petitioner to the State Government as if the land is a restricted tenure and the interest on such premium, if any, and the penalty for actual NA use prior to the application.
D) The District Collector shall undertake the exercise of the scrutiny of the plan and examination of the other relevant aspects and shall pass the order upon the application of the petitioner as early as possible preferably within a period of six months from the receipt of such application.Page 8 of 10
HC-NIC Page 8 of 10 Created On Tue Jun 06 00:56:41 IST 2017 C/SCA/9470/2017 ORDER E) In the event, the permission is granted by the District Collector for NA and upon the petitioner complying with such condition, including for premium payment etc. the proceedings under Section 84C of the Act would not survive and so will be situation for operation of the orders passed by the authority under the Act since the status of the land would stand as converted for other than agricultural use. Until the period of two months from today, no action shall be taken by the District Collector. However, if the petitioner fails to make the application by demolishing the impermissible structure, it would be open to the District Collector to take recourse of law for appropriate action.
F) Until the application, if made, is considered by the District Collector and the order is passed, the order passed by the authority under the Act for breach of the provisions of Section 63 of the Act shall continue to remain in abeyance, except to the extent of liability on the part of petitioner to pay the premium and the consequential interest, if any.
The petition is disposed of in terms of the aforesaid direction with no order as to costs. D.S."
3. My attention is drawn to an order passed by the Collector, Sabarkantha dated 9th October, 2015, wherein the Collector has observed that the necessary inquiry at the end of the Mamlatdar and the DILR is necessary for the purpose of giving effect to the directions issued by this Court in the judgment referred to above.
4. Mr. Japee, the learned counsel appearing for the writ applicants submits that his clients have complied with the directions issued by the learned Single Judge in the judgment and order dated 15th March, 2007. Mr. Japee submits that the impermissible construction, which was put up by the Society Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue Jun 06 00:56:41 IST 2017 C/SCA/9470/2017 ORDER on the land in question was demolished pursuant to the directions issued by this Court. The clients of Mr. Japee, thereafter, preferred a representation addressed to the Collector for conversion of the land for NA use.
5. It appears that the matter is still pending at the stage when the Collector has yet to take the final decision whether to grant the NA Permission or not. The Collector is awaiting certain information from the authorities concerned like the Mamlatdar and the DILR etc. Since this litigation is going on past almost a decade, I expect the authorities concerned to now put an end to this matter by an appropriate inquiry and the final order. The Collector, Sabarkantha shall see to it that the necessary information is called for at the earliest and an appropriate decision is taken in accordance with law for the purpose of converting the land to NA.
6. Let this exercise be completed within a period of four months from the date of the receipt of the writ of the order.
7. With the above, this writ application is disposed of. It is needless to clarify that if any information is required from the writ applicants herein, the same shall be called for at the earliest and the writ applicants shall immediately provide the necessary information.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Jun 06 00:56:41 IST 2017