Gujarat High Court
Akshat Associates vs Special Secretary (Appeals) Revenue ... on 2 March, 2020
Equivalent citations: AIRONLINE 2020 GUJ 382
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/7752/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7752 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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AKSHAT ASSOCIATES
Versus
SPECIAL SECRETARY (APPEALS) REVENUE DEPARTMENT & 1 other(s)
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Appearance:
MR SN SOPARKAR, SENIOR ADVOCATE with VIMAL A PUROHIT(5049)
for the Petitioner(s) No. 1
MR. MRUGESH A BAROT(6709) for the Petitioner(s) No. 1
MR DHAWAN JAYSWAL, AGP (1) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 02/03/2020
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Assistant Government Pleader Mr.Jayswal waives service of notice of Rule for respondent Nos.1 and 2.
2. The present petition has been filed seeking following prayers:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside order dated 29.12.2015 passed in Revision Application No. MVV/JMN /Kutch/71 of 2011 passed by the Page 1 of 10 Downloaded on : Sat Jun 13 23:52:35 IST 2020 C/SCA/7752/2016 JUDGMENT respondent no.1 as well as order dated: 12.05.2011 passed by the learned District Collector Bhuj-Kutch in suo motu Inquiry initiated under Section 79A of the BLR Code being Case No. land /5/ Udyog/ Saratbhang /Case No.28/2010;
(B) YOUR LORDSHIPS MAY KINDLY BE PLEASED TO hold and declare that the Suo-moto proceedings initiated by the Ld. District Collector is bad in law and is passed without jurisdiction;
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx"
3. The land bearing Survey No.155/1 Paiki admeasuring 19000 sq.mtrs. of Village: Kidana, Taluka: Gandhidham, District: Kachchh was alloted to the petitioner by respondent No.2 vide its order dated 18.04.2006 upon an application made by the petitioner. The purpose of allotment was for setting up a rice sorting plant and for the purpose of industrial storage. As per the condition No.6 envisaged under the allotment order, the construction was required to be completed within a period of two years from the date of allotment and the same was required to be used for the purpose of which the same was alloted. Since, the petitioner was unable to complete the construction as per condition No.6, he applied for extension of time, which was extended by the order dated 16.03.2009 passed by the District Collector, on payment of penalty of 20 times of assessment which comes to Rs.57,000/-. Accordingly, the petitioner deposited the said amount and the extension of two years was further granted for putting up construction.
3.1 It appears that thereafter a panchnama was carried out by the concerned Circle Officer, Gandhidham on 27.05.2010, whereby it Page 2 of 10 Downloaded on : Sat Jun 13 23:52:35 IST 2020 C/SCA/7752/2016 JUDGMENT was reported to the respondent No.2 by him that the allotted land in question was vacant and there was no construction carried over the same. It was also submitted that no business activity was running in the said land.
3.2 On receipt of the same, respondent No.2 initiated suo motu proceedings under Section 79A of the Gujarat Land Revenue Code , 1879 ("the Code") and thereby issued a show-cause notice dated 29.06.2010 to the petitioner. The petitioner appeared before the District Collector pursuant to the show-cause notice and submitted a detailed reply dated 10.07.2010 alongwith the necessary documents and submitted that the boundary wall is constructed and rest of the construction shall also be completed soon. Thereafter, the Collector passed the impugned order dated 12.05.2011 forfeiting the land in question and vesting in the State Government for breach of condition Nos.1 to 18 of the allotment order.
3.3 The petitioner thereafter challenged the aforesaid order passed by the District Collector by filing Revision Application before the respondent No.1 - SSRD under the provisions of Section 211 of the Code. By the order dated 29.12.2015, the SSRD upheld the order of the Collector for breach of condition No.6 of the original allotment order.
4. Learned Senior Advocate Mr.Soparkar appearing for the petitioner has submitted that on 26.07.2010, the petitioner preferred an application for availing construction permission from Gandhidham Development Authority ("GDA"), however, vide communication dated 16.06.2011, the said permission was not granted since no zoning was done by the concerned authorities for the prescribed area. The petitioner received the information under the Right to Information Act, issued by GDA, that till date zoning has not been taken place and GDA does not have requisite maps on its Page 3 of 10 Downloaded on : Sat Jun 13 23:52:35 IST 2020 C/SCA/7752/2016 JUDGMENT records and, therefore, no construction permission will be granted. He has further submitted that thus the petitioner cannot be held liable for breach of condition No.6 as the GDA has not carried out any zoning in the constructed area. He has thus, submitted that for inaction of the respondent authorities, the petitioner cannot be penalized and the land is not required to be forfeited in the State Government.
4.1 Learned Senior Advocate Mr.Soparkar has submitted that as per the Resolution dated 06.06.2003, more particularly Clause (a)(a) (2) for the first breach of allotment order, the defaulter is liable to pay penalty to the tune of 20 times of assessment and as per the provisions of Clause (b)(b)(2), if the breach occurs for the second time, the defaulter is required to deposit 50 times of assessment of the land revenue.
4.2 Learned Senior Advocate Mr.Soparkar appearing for the petitioner, on instructions, has submitted that the petitioner is ready and willing to pay the penalty as specified in the said Resolution, however, no such opportunity was granted to the petitioner by the respondent authorities and hence, the impugned orders are required to be set aside.
4.3 It is also submitted by learned Senior Advocate Mr.Soparkar that Section 79A of the Code provides for summary eviction of a person unauthorizedly occupying the land, however, in the instant case, for the alleged breach of the order of original allotment, no separate inquiry came to be conducted and the petitioner is also not declared as "unauthorized occupant". It is submitted that in the instant case, straightway the order of eviction is passed, which is not permissible in the eyes of law and the proceedings under Section 79A of the Code are not maintainable.
Page 4 of 10 Downloaded on : Sat Jun 13 23:52:35 IST 2020C/SCA/7752/2016 JUDGMENT 4.4 Finally, it is submitted by learned Senior Advocate
Mr.Soparkar that the land in question came to be allotted by the District Collector upon payment of full consideration equivalent to the market price as determined by the District Land Valuation Committee and it is not that the land is allotted on concessional basis and hence, the impugned orders suffer from non-application of mind on these aspects and hence, the respondents may be directed to accept the penalty as provided in the Resolution and regularize the land in question as per the original allotment order.
5. In response to the aforesaid submissions, learned Assistant Government Pleader Mr.Jayswal has submitted that the petitioner is not entitled to any relief since he has clearly breached the conditions as mentioned in the order dated 18.04.2006. Mr.Jadeja has submitted that in fact the panchnama was carried out by the Circle Officer, Gandhidham by visiting the actual site and upon verification, he prepared a panchnama dated 27.05.2010 and it was found that there was no construction on the site and hence, the Collector issued a notice under Section 79A of the Code on 29.06.2010 calling upon the petitioner to provide necessary documentary evidence supporting his case. Thus, it is submitted by Mr.Jayswal that as per the report, the petitioner had constructed two industrial sheds on the site but no industrial activities were yet initiated for which the land in question was granted vide order dated 18.04.2006 and hence, the petitioner was not eligible to further accommodate the land and hence, the impugned orders were passed.
5.1 Learned Assistant Government Pleader Mr.Jayswal has submitted that the Circle Officer, Gandhidham had also taken a statement of the partner of the firm namely, Shri Sanjay Dave that two industrial sheds were constructed on the site but business activities were yet not initiated.
Page 5 of 10 Downloaded on : Sat Jun 13 23:52:35 IST 2020C/SCA/7752/2016 JUDGMENT 5.2 Learned Assistant Government Pleader Mr.Jayswal has further submitted that competent authority for taking a permission is not the Gram Panchayat since the original order was passed by the Collector and hence, even if the plans are passed, the same would not fulfill the conditions and hence, the impugned orders were rightly passed. Thus, he has submitted that the impugned orders may not be interfered.
5.3 Learned Assistant Government Pleader Mr.Jayswal has submitted that the petitioner had obtained an ad hoc certificate from Regional Industrial Centre on 17.06.2005, which stood expired in the year 2010, and till that date, the petitioner would have started the business activities but the said certificate expired in the year 2010 itself as the petitioner had not started any business activities on the said land till 2010. Thus, he has submitted that the impugned orders may not be interfered.
6. The facts, which are established from the pleadings, are that the petitioner vide order dated 18.04.2006 was allotted the land in question for carrying out the industrial purpose of rice sorting, processing of agricultural items and for the purpose of industrial storage. Since it was found by the authorities that no such activities were carried out, a show-cause notice under the provisions of Section 79A of the Code was issued to the petitioner. It is also come on record that the petitioner is treated to be having breached the condition No.6 of the allotment order, which specifies that the construction has to be completed within a period of two years. The petitioner had obtained the approval of necessary plan from the Gram Panchayat and, thereafter, he had requested the Collector to extend the time limit, however, nothing was done by the Collector and ultimately, by the impugned order dated 12.05.2011, the land in question was forfeited and is vested in the State Government for Page 6 of 10 Downloaded on : Sat Jun 13 23:52:35 IST 2020 C/SCA/7752/2016 JUDGMENT breach of condition Nos.1 to 18 of the allotment order. However, on revision, the SSRD by the impugned order dated 29.12.2015 has confined the said breach to the condition No.6 only of the original allotment order. The State Government has issued a Resolution dated 06.06.2003 specifically prescribing that for the first breach of such allotment orders, the defaulter is liable to pay penalty to the tune of 20 times of assessment and for the second breach, the defaulter is required to pay 50 times of the assessment of land revenue. It appears that the aforesaid provision of the Government Resolution has not been implemented in the case of the petitioner.
7. From the facts narrated hereinabove, it is manifest that the petitioner was not granted any development permission / construction permission since there is no zoning done by the concerned authorities of the area. The petitioner cannot be penalized for the inaction of the respondent authorities for not carrying out the construction. The petitioner is denied the permission to construct since the GDA had not carried out the zoning of the area.
8. Unquestionably, in the present case, the petitioner was not given an opportunity to take shelter under the provisions of the Resolution dated 06.06.2003. Before passing the aforesaid order of forfeiting the land, it was incumbent upon the respondent authorities to call upon the petitioner whether he would like to pay the penalty as specified in the Resolution dated 06.06.2003 for the defaults, however, no such exercise has been undertaken by the Collector and hence, the impugned orders are required to be set aside.
9. It is pertinent to note that the genesis of the impugned proceedings are premised on the breach of Section 79A of the Code, which reads as under:
Page 7 of 10 Downloaded on : Sat Jun 13 23:52:35 IST 2020C/SCA/7752/2016 JUDGMENT "79A. Summary eviction of person unauthorisedly occupying land. :- Any person unauthorisedly occupying, or wrongfully in possession of, any land-(a) to the use or occupation of which by reason of any of the provisions of this Act he is not entitled or has ceased to be entitled, or
(b) which is not transferable without previous sanction under Section 73A or section 73AA or section 73-AB by virtue of any condition lawfully annexed to the tenure under the provisions of section 62, 67 or 68, may be summarily evicted by the Collector:"
The provision is enacted for summary eviction of a person "unauthorizedly occupying land". Thus, the same prescribes the procedure for eviction of a person, who has unauthorizedly occupied the land in question.
10. In the considered opinion of this Court, before declaring the petitioner as unauthorized occupant, for the so-called breach of condition No.6, an inquiry is necessitated and only after giving an opportunity of hearing to the occupant, he can be declared as an unauthorized occupant. However, in the present case, the entire proceedings are premised on breach of condition No.6, which stipulates that the construction was required to be completed within a period of two years and hence, ultimately after initiating the proceedings under Section 79A of the Code, by the impugned order, the land is forfeited and vested in the State Government. The authorities have misapplied the provisions of Section 79A of the Code and have illegally and arbitrarily declared vesting of the land in the State Government without arriving at a finding that the petitioner can be declared as an "unauthorized occupant". The proceedings suffer from non-application of mind of such aspect and hence, the impugned orders are liable to be set aside.
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11. It is also not in dispute that after the petitioner filed a reply to the show-cause notice on 10.07.2010, and between the period i.e. 10.07.2010 i.e. the reply filed by the petitioner seeking extension and passing the impugned order dated 16.06.2011 by the Collector, the petitioner had already completed the construction and also installed the concerned machinery and has undertaken the industrial activities, which are continued till today.
12. It is pertinent to note that the petitioner has paid full consideration equivalent to the market price of the land in question as determined by the District Land Valuation Committee. It is a very vital aspect in the entire controversy, which has been ignored by the respondent authorities. It is not a case that the petitioner has been allotted the land on concessional basis or in charity.
13. For the reasons stated hereinabove, the impugned orders are quashed and set aside. The respondents are directed to finalize the lay-out plan as submitted by the petitioner to the concerned authorities and in case, it is found that the zoning is finalized, then the lay-out plan shall be approved, which was submitted by the petitioner for carrying out the necessary industrial activity. It is also open for the petitioner to approach the authorities for paying the penalty as specified in the Resolution dated 06.06.2003 and upon receiving the aforesaid penalty, the respondent authorities shall pass fresh orders directing the petitioner to complete the construction as per the period specified by the authorities. It is clarified that if the authorities deem it fit to impose penalty, then the same shall be calculated from the date of passing of the lay-out plan or approving of the plan, which was submitted by the petitioner. It will also open for the petitioner to file fresh plan, if required in case, the authorities demand from the present petitioner.
Page 9 of 10 Downloaded on : Sat Jun 13 23:52:35 IST 2020C/SCA/7752/2016 JUDGMENT
14. The petition is allowed accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(A. S. SUPEHIA, J) GUPTA* Page 10 of 10 Downloaded on : Sat Jun 13 23:52:35 IST 2020