Gujarat High Court
Navyug Industries vs State Of Gujarat & 2 on 15 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10428/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10428 of 2013
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NAVYUG INDUSTRIES....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR.D K.PUJ, ADVOCATE for the Petitioner(s) No. 1
MS NISHA THAKORE, AGP for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS for the RESPONDENT(s) No. 1-2
MR HEMANG M SHAH, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/06/2017
ORAL ORDER
By this application under Article 227 of the Constitution of India, the applicant, a partnership firm through one of its partners, calls in question the legality and validity of the order dated 26/30.4.2013 passed by the Additional Secretary, Revenue Department (Appeals), Ahmedabad, rejecting the revision application filed by the applicant herein and thereby affirming the order passed by the Collector, Patan, dated 29th January 2009.
By the order dated 29th January 2009 passed by the Collector, Patan, the applicant was informed that the land admeasuring 15,300 sq.meters bearing Revenue Survey No.320 of village Gungadipadi, Taluka and District Patan, had Page 1 of 15 HC-NIC Page 1 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER been allotted to the Gujarat State Road Transport Corporation for public purpose and the same is being utilized as a pickup bus station. In such circumstances, the application filed by the applicant for grant of the possession of 15,300 sq.meters of land bearing City Survey No.1224/A came to be rejected.
The facts in details are as under :
Dates Events
03.03.1962 The land admeasuring 53,978 sq.mtrs.
bearing Revenue Survey No.320 of village Gungadipati, Taluka Patan, District Patan was allotted to the applicant by the District Collector, Mehsana for the purpose of setting up an industrial unit for manufacturing diesel engines.
1974-75 The Revenue Survey No.320 came to be included within the city survey area.
Accordingly, it was allotted the City Survey No.1224.
29.10.1979 The District Collector passed an order for forfeiture of the land admeasuring 25,674 sq.mtrs. in view of the breach of the conditions as mentioned in the allotment order. The said land admeasuring 25,674 sq.mtrs was numbered as 1224/A, whereas, the remaining land admeasuring 28,304 sq.mtrs. was numbered as 1224/B. The applicant continued to be in possession of the land bearing City Survey No.1224/B. 17.07.1985 The City Survey No.1224/A came to be reserved for the use of GIDC.
06.04.1996 The Power of Attorney of the applicant had requested the City Survey Superintendent to grant them permission to sell the City Survey Page 2 of 15 HC-NIC Page 2 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER No.1224/B. An affidavit was also sworn and filed by the Power of Attorney holder that if permission to sell is granted, then the petitioner would not demand for allotment of any land across the State of Gujarat. This fact, according to the Corporation, has not been disclosed by the applicant in the entire memo of the pleadings. It has been deliberately and intentionally suppressed as alleged. This Court was accordingly misled to pass an order of Status quo when the Special Civil Application was filed before this Court.
16.12.1996 The Collector granted permission to the petitioner to sell the City Survey No.1224/B upon payment of the premium in the Government Treasury. The petitioner sold the land bearing City Survey No.1224/B. 23.10.1997 The Gujarat State Road Transport Corporation addressed a letter to the Collector requesting for allotment of the 15,336 sq.mtrs. of land from the City Survey No.1224/A (i.e. admeasuring 25,674 sq.mtrs.) and which had been forfeited in favour of the State Government. It was also requested by the Gujarat State Road Transport Corporation that the allotment be made on lease for a period of 99 years for the purpose of developing a bus station.
20.10.2000 The Collector, Patan passed an order allotting 15,300 sq.mtrs. of land from the City Survey No.1224/A in favour of the Gujarat State Road Transport Corporation on lease for a period of 99 years at a token rent of Rs.1/- per year.
23.10.2000 The Gujarat State Road Transport Corporation took possession of the 15,300 sq.mtrs. of land of City Survey No.1224/A and for which, possession receipt was also issued.
28.04.2003 The name of the Gujarat State Road Transport Page 3 of 15 HC-NIC Page 3 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER Corporation was entered into the property card of Final Plot No.159 (i.e. City Survey No.1224/A) admeasuring 15,300 sq.mtrs.
17.03.2004 After almost 25 years, the Revision Application no.7/04 came to be filed by the applicant before the Special Secretary, Revenue Department (Appeals) challenging the order passed on 28.10.1979 by the District Collector. The petitioner had not preferred any application for condonation of delay. The Gujarat State Road Transport Corporation as alleged was deliberately and intentionally not impleaded as the party respondent.
30.09.2004 The Special Secretary, Revenue Department (Appeals) quashed the forfeiture order dated 29.10.1979 as was passed by the District Collector and remanded the same for fresh consideration of the District Collector. The matter was not argued by the State Government and the proceedings had progressed in default.
20.10.2006 The Collector withdrew the order dated 29.10.1979 by which forfeiture of 24,674 sq.mtrs. had been ordered and thereby allotted the remaining area of land admeasuring 10.374 sq.mtrs in favour of the petitioner upon payment of the non-
agricultural charges, whereas 15,300 sq.mtrs. of land that had been allotted to the Gujarat State Road Transport Corporation would continue to remain in possession of Gujarat State Road Transport Corporation.
29.01.2009 The Collector addressed a letter to the applicant informing that 15,300 sq.mtrs. of land of City Survey No.1224/A cannot be granted as the same had been granted in favour of the Gujarat State Road Transport Corporation. It had also been recorded that 15,300 sq.mtrs. of land cannot be re-allocated Page 4 of 15 HC-NIC Page 4 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER in favour of the applicant in view of the affidavit filed by the power of attorney holder declaring that the applicant would not claim any land across the State of Gujarat if permission to sell the land (i.e. 1224/B) is granted.
18.03.2009 The Revision Application No.3/09 came to be filed by the applicant against the letter dated 29.01.2009.
26/30.04.2013 An order came to be passed by the Special Secretary, Revenue Department (Appeals) rejecting the Revision Application filed by the petitioner.
17.01.2014 This Hon'ble Court had passed an order to maintain status-quo with regard to disputed land.
On 17th January 2014, the following order was passed :
"Heard Mr. D.K. Puj, learned Advocate, for the petitioner. NOTICE returnable on 4.2.2014. Till the next date of hearing, the parties are directed to maintain status quo with regard to the disputed land. D.S. is permitted."
Before the above referred order came to be passed, the matter was once dismissed for default on 9th October 2013. Thereafter, on 29th April 2014, the following order was passed :
"Mr. Rakesh R. Patel, learned AGP, states that the issue is with regard to the allotment of land, which has been observed in the letter dated 26.11.2009 issued by the Urban Development and Urban Housing Department, Gandhinagar, is pending with the Revenue Department. He requests for time. S.O. to 20.6.2014. In the meanwhile, the Revenue Department shall file an affidavit-in-reply about the decision taken by Page 5 of 15 HC-NIC Page 5 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER Department, which is also referred in the proposal dated 9.11.2011 by Collector, Patan.
Status quo granted earlier to continue till then."
On behalf of the respondent no.2, an affidavit-in-reply has been filed duly affirmed by Shri Prakashbhai Prabhudas Patel, Mamlatdar, Patan, inter alia, stating as under :
"3. I say and submit that by an Order dated 29.01.2009, the Collector had declined the request of the petitioner for allotment of subject matter of land against the above referred order passed by the Collector, Patan. The petitioner herein had filed revision before the Special Secretary Revenue Department (Appeals), Gujarat State. It is submitted that since the revision was pending before the Learned Special Secretary, the decision of the Revenue Department dated 03.12.2011 was not communicated to the Mamlatdar by the Office of the Collector. And, therefore the said decision of the State Government dated 03.12.2011 was not brought to the notice of this Hon'ble Court.
4. I say and submit that by an order dated 26.04.2013 passed by Learned Special Secretary Revenue Department (Appeals), the pending revision has been decided and thereby it has been rejected. Hereto Annexed and marked with "ANNEXURE R-2", is the copy of the Order dated 26.04.2013 passed by the Special Secretary Revenue Department (Appeals).
5. I say and submit that in between , as stated above, the State Government has taken the decision dated 03.12.2011 with respect to the proposal of the Collector dated 09.11.2011, whereby stated therein that if some other land is available in the industrial zone of Patan or nearby of Patan, then the same can be allotted after following the procedure and determination of land value.
6. I submit that by communication dated 03.12.2011 addressed by the City Survey Superintendent, Patan, it has been informed to the Collector, Patan, that in the city survey area of Patan, no Government land admeasuring Page 6 of 15 HC-NIC Page 6 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER about 1000 sq. mts, is available. Hereto Annexed and marked with "ANNEXURE R-3", is the copy of the letter dated 03.12.2011. Similarly, Mamlatdar, Patan has also by his letter dated 20.03.2012, informed to the Collector that no Government waste land, is available which can be allotted to the petitioner. Hereto Annexed and marked with "ANNEXURE R-4".
7. Apart from what has been stated herein above, it also deserves to be submitted that so far as the loan granted by the Collector as per the Order, passed by the Learned Special Secretary, is concerned, it is submitted that the admeasuring of Navyug industries, petitioner herein through his power of attorney holder had sought permission from the Collector, Patan, to sell the land for commercial purpose. However, at the relevant time while seeking such permission, the admeasuring of petitioner through his Power of Attorney holder had filed the undertaking and whereby had stated therein that if the State Government will grant the permission to sell the above referred land for commercial purpose, then in future, he will not demand for any Government land for same purpose. Annexed hereto and marked as "ANNEXURE R-5", is the copy of undertaking filed by the power of Attorney holder.
8. In the above circumstances, therefore, it is pertinent to note that at present requisite government waste land is not available. It can be granted to the petitioner. Moreover, as stated above, once he files an undertaking, not to demand any land in future, he is not entitled to get any relief in the present petition."
On behalf of the Corporation, an affidavit-in-reply has been filed duly affirmed by the Divisional Controller, inter alia, stating as under :
"2. I say and submit in addition to the regular services, a decision was taken to provide international facilities to the passengers travelling in bus stations at taluka level through public partnership. I say and submit that the decision was referred to managing committee organized on 12.10.2007. I say and submit that in order to develop Page 7 of 15 HC-NIC Page 7 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER the 10 bus stations including Patan Depo through resolution no.8778 an R.F.P. projects conceptual plan and bid documents and the proceedings to finalize it were prepared and sent to the State Government through G.I.D.B., a copy of which is annexed herewith and marked as Annexure-I to this reply. I say and submit that through the resolution no.8778 a decision was taken to make bus station through public-private partnership on land in the present depo/bus station bearing survey no.56 admeasuring 15974 sq.mtrs.
3. I say and submit in order to develop present depo/bus station on land bearing survey no.56 admeasuring 15974 sq.mtrs. through public-private partnership and to provide facilities to the passengers travelling through present depo, the present depo (workshop) is immediately required to be shifted on another land bearing survey no.320 admeasuring 15300 sq. mtr which is acquired by the GSRTC.
4. I say and submit that in order to develop the bus station through public-private partnership I.D.F.C. institute is appointed as technical adviser. A copy of order dated 1.3.2014 is annexed herewith and marked as Annexure-II to this reply. I say and submit an agreement was made by the GSRTC with I.D.F.C. on 4.3.2014, a copy of which is annexed herewith and marked as Annexure-III to this reply. I say and submit that pursuant to the agreement a work order dated 4.3.2014 was given to I.D.F.C. I say and submit looking to future developments and requirement of the GSRTC and for providing international services at bus stations at taluka as per directions the procedure is going on at present. Therefore I say and submit that in order to develop modernized bus stations the existing bus station is required to be shifted to another place therefore land bearing survey no.320 admeasuring 15300 sq.mtr which is acquired by GSRTC cannot be returned back."
There is one additional affidavit filed by the Gujarat State Road Transport Corporation duly affirmed by the Deputy Estate Manager, inter alia, stating as under :
"(2) On 03.03.1962, the Collector, Mehsana had allotted Page 8 of 15 HC-NIC Page 8 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER land bearing survey no.320, admeasuring 14 acres 11 gunthas (53978 sq.mtrs.) to the petitioner for establishing an Oil Engine Industry pursuant to the approval granted by the State Government.
(3) During 1974-75, the area was covered under Town Planning Scheme. Therefore, survey no. 320 was numbered as city survey no. 1224.
(4) On 29.10.1979, due to breach of conditions in allotment, the Collector, Mehsana passed an order by which land admeasuring 25,674 sq. mtrs. was forfeited in favour of the State Government. The entire land bearing city survey no. 1224 was divided into two parts i.e. 1224/A (25,674 sq. mtrs.) and 1224/B (28,304 sq. mtrs.).
Therefore, city survey no. 1224/A admeasuring 25,674 sq. mtrs. was forfeited from the petitioner while city survey no. 1224/B continued to be in possession of the petitioner.
(5) On 06.04.1996, the Power of Attorney holder Shri Rameshbhai Dahyalal Pandya of the petitioner had requested the City Survey Superintendent to grant approval for selling land bearing City Survey no. 1224/B (28,304 sq. mtrs.). The Power of Attorney holder had submitted an affidavit/declaration declaring that in the event if approval is granted for selling the said land (i.e. city Survey no. 1224/B), then, they would not demand for any piece of land across the State of Gujarat. A copy of the affidavit/declaration submitted by the Power of Attorney holder is annexed hereto and marked as Annexure-Z. While filing the present petition, the petitioner has deliberately not placed on record copy of the affidavit/declaration. This action on the part of the petitioner clearly amounts to suppression of material facts so as to mislead this Hon'ble Court. On perusing the pleadings, all that the petitioner has averred that "the petitioner has given undertaking in past at the time when permission for sale of balance land of the said survey number was granted, that the petitioner would not claim any land in any part of the State, hence the petitioner's application for allotment of said land has been rejected by the Revenue Department of the State Government." No averments about the power of attorney holder or the Page 9 of 15 HC-NIC Page 9 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER affidavit/declaration filed by the power of attorney holder is placed on record or pleaded by the petitioner. By not stating true and correct facts, the petitioner has, thus, misled this Hon'ble Court for passing an order of status- quo. Hence, the order dated 17.01.2014 passed by this Hon'ble Court granting status quo is required to be vacated forthwith.
(6) On 16.12.1996, the Collector, Mehsana passed an order granting sanction to the request put forth by the Power of Attorney holder for sale of land bearing City Survey no. 1224/B admeasuring 28,304 sq. mtrs.. Accordingly, an amount of Rs.77,21,634.58 came to be deposited with the Government Treasury.
(7) Upon payment of the aforesaid amount, the petitioner is, thus, bound by the affidavit/declaration tendered by the Power of Attorney holder on its behalf.
(8) On 23.10.1997, the Corporation addressed a letter to the Collector, Mehsana requesting him to hand over 15,336 sq. mtrs. of land from Final Plot no. 159 of Survey no. 320 for the purpose of developing Bus Station. The Corporation had requested the Collector to allot the said land at a token rate of Re.1/-. A copy of the letter dated 23.10.1997 is annexed hereto and marked as Annexure- Z1.
(9) Accordingly, on 20.10.2000, the Collector, Patan allotted 15,300 sq. mtrs. of land of Final Plot no. 159 of Survey no. 320 in Town Planning Scheme no. 1 to the Corporation for a period of 99 years at a token rate of Re.1/- per year. The Corporation had taken over open and vacant possession of the said City survey no. 1224 A 15,300 sq mt. land. Pursuant thereto, the name of the Corporation had also been entered into the property card on 28.04.2003. A copy of the allotment letter, a copy of receipt and a copy of property card is annexed hereto and marked as Annexure-Z2.
(10) On 27/30.10.2004, the Additional Secretary, Revenue Department (Appeals) passed an order allowing the Revision Application that had been filed by the petitioner. The Additional Secretary, Revenue Department (Appeals) quashed and set aside the order dated 29.10.1979 passed by the Collector for forfeiting Page 10 of 15 HC-NIC Page 10 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER land admeasuring 25,674 sq. mtrs. (City Survey no. 1224/A) in favour of the State Government and remanded the matter for a de novo hearing. While remanding the matter, the Additional Secretary, Revenue Department (Appeals) had not quashed and set aside the allotment of 15,300 sq.mtrs. of land that had been made in favour of the Corporation. (Page 25-28).
(11) Pursuant to aforesaid order, the Collector, Patan addressed a letter to City Survey Superintendent to provide necessary details pertaining to land bearing City Survey no.1224.
(12) Upon receipt of the details pertaining to the land bearing City Survey no. 1224, the Collector, Patan allowed the application filed by the petitioner and recalled his notice that had been issued for the breach in conditions of allotment. While passing the order on 20.10.2006, the Collector had recorded that the petitioner would be entitled to re-possession of 10,374 sq. mtrs. out of 25,674 sq. mtrs. of land, whereas for the remaining portion of land admeasuring 15,300 sq. mtrs. (allotted to the Corporation) and the area deducted for road widening a special proposal would be forwarded to the State Government for appropriate decision. (Page no. 31-33).
(13) Despite the aforesaid, the petitioner submitted an application to the Collector for getting back possession of 15,300 sq. mtrs. of land that had been allotted to the Corporation. On 29.01.2009, the Collector, Patan rejected the application submitted by the petitioner and informed him that he was bound by the affidavit submitted by the Power of Attorney holder at the time of seeking permission for sale of the land bearing City Survey no. 1224/B. A copy of the letter dated 29.01.2009 is annexed hereto and marked as Annexure-Z3.
(14) Thus, the action on the part of the petitioner for submitting an application for getting back possession of 15,300 sq mtrs of land was contradictory to the affidavit/declaration submitted by its Power of Attorney holder. The petitioner is thus, estopped from claiming possession of 15,300 sq. mtrs. of land that had been allotted to the Corporation. Moreover, at no point of time, has the petitioner filed any application for challenging Page 11 of 15 HC-NIC Page 11 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER the action of the Power of Attorney holder nor has the petitioner filed any Suit for declaring that the said affidavit/declaration be declared as null and void. Thus, the petitioner is bound by the action performed by the Power of Attorney holder on its behalf. A Power of Attorney holder is an agent and the donor (petitioner in this case) is the principal. Acts of agent bind the principal. Acts of agent should count as those done by the principal.
(15) Being aggrieved by the order dated 20.10.2006 passed by the Collector, Patan the petitioner filed Revision Application before the Additional Secretary, Revenue Department (Appeals) for re-grant of 15,300 sq. mtrs. of land in its favour. Since the proposal that was forwarded to the State Government pursuant to the order dated 20.10.2006 was pending for an appropriate decision, the Additional Secretary, Revenue Department (Appeals) did not take any decision.
(16) Aggrieved by the aforesaid stand taken by the Additional Secretary. Revenue Department (Appeals), the petitioner had filed Special Civil Application no. 18793/11 before this Hon'ble Court. On 13.01.2012, the petitioner withdrew Special Civil Application no. 18793/11 so as to approach the Additional Secretary, Revenue Department (Appeals) (Page no. 45).
(17) On 28.03.2012, the petitioner submitted his written arguments before the Additional Secretary, Revenue Department (Appeals) (Page no. 46-49).
(18) Ultimately, on 30.04.2013, after perusing the entire record of the land bearing City Survey no. 1224, the Collector, Patan rejected the application of the petitioner for re-grant of 15,300 sq. mtrs. of land that had been allotted to the Corporation.
(19) As can be seen from the aforesaid, the petitioner had deliberately suppressed material facts about the declaration/affidavit submitted by the Power of Attorney holder while seeking permission to for sale of land bearing City Survey no. 1224/B. Thus, the petitioner is bound by the action on the part of the Power of Attorney holder and he is estopped from claiming possession of 15,300 sq. mtrs. of land that has been allotted to the Page 12 of 15 HC-NIC Page 12 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER Corporation for developing Bus Station."
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the authorities committed any error in passing the impugned order.
The applicant herein is at his best in abusing the process of law. The allotment of the land in the year 1962 admeasuring 53,978 sq.meters to put up an industrial unit was nothing but a charity of the State largesse by the Government. Even if such allotment was in accordance with some industrial policy prevailing at the relevant point of time, then the same cannot be said to be in conformity with Article 14 of the Constitution of India.
I take notice of the fact that the industry came to be wounded up way back in the year 2001. The applicant is in possession of a huge parcel of land past almost 17 years without utilizing the land.
I am of the view that the applicant is not entitled to even hold 10,374 sq.meters of land. However, in this regard I would not like to comment anything as I am told that a petition is pending in this regard before a coordinate bench. The demand of 15,300 sq.meters of land in the present proceedings is without any legal basis. The land has already been allotted to the Gujarat State Road Transport Corporation. They have taken over the possession since long and are utilizing the land as a pickup bus station. Atleast it could be said that the Government land is being used for a public purpose rather Page 13 of 15 HC-NIC Page 13 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER than allotting such a huge parcel of land to an individual who has defaulted or rather breached the conditions of the original allotment. Why should the Government allot such a huge parcel of land to an individual, and that too, for putting up an industrial unit. Lacs of people in this country are without shelter. They have to brave the scorching heat in the summer, torrential rains during monsoon and biting cold in the winter. Why this charity of such a huge Government largess to an individual.
This is a fit case in which the State Government should look into the validity and validity of the order passed by the Collector dated 20th October 2006 virtually reviewing its order of forfeiture of 24,674 sq.meters of land passed way back on 29th October 1979. There was no reason worth the name for the SSRD to remit the matter to the Collector after a lapse of 25 years for the purpose of reconsidering the forfeiture order dated 29th October 1979. It appears that the State Government took the matter very lightly and with no sense of responsibility.
Let me remind the authorities concerned of the two maxims 'salus populi est supreme lex' which means, 'the welfare of the people is the supreme law' and 'necessitas publica major est quam privata', which means 'public necessity is greater than private'.
I see no good reason to interfere with the impugned orders in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. No error, not to speak of any error of law, could be said to have been committed by the authorities in passing the impugned orders. No jurisdictional Page 14 of 15 HC-NIC Page 14 of 15 Created On Fri Aug 18 11:08:02 IST 2017 C/SCA/10428/2013 ORDER error or any miscarriage of justice has been pointed out.
In view of the above, this application fails and is hereby rejected.
(J.B.PARDIWALA, J.) MOIN Page 15 of 15 HC-NIC Page 15 of 15 Created On Fri Aug 18 11:08:02 IST 2017