Gujarat High Court
Haribhai Govindram Pandya vs The Collector & 3 on 31 July, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13142/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13142 of 2017
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HARIBHAI GOVINDRAM PANDYA....Petitioner(s)
Versus
THE COLLECTOR & 3....Respondent(s)
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Appearance:
MR RAJESH K SHAH, ADVOCATE for the Petitioner(s) No. 1
MS NISHA THAKORE, AGP ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 31/07/2017
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicant calls in question the legality and validity of the order dated 12/08/2016 passed by the S.S.R.D. at Ahmedabad, by which, the S.S.R.D. rejected the revision application filed by the applicant herein, thereby, affirming the order passed by the Collector, Banaskantha, dated 18/03/2015.
2. The S.S.R.D. also issued further direction with regard to the allotment of the land to one Shri Amrutbhai Devchandbhai Nayee and Shri Nagarbhai Premshankar Trivedi. The S.S.R.D. while rejecting the revision application filed by the applicant herein observed as under: The applicant Shri Pandya Haribhai Govindbhai made proposal for possession of the land of 09.00 sq.meter, for commercial purpose by way of sale, situated in southern side of City.S. No.353 of sheet No.41, at moje Tharad, Ta: Tharad. The aforesaid proposal was rejected by the District Collector, Banaskantha vide his office letter Page 1 of 6 HC-NIC Page 1 of 6 Created On Mon Aug 21 06:20:08 IST 2017 C/SCA/13142/2017 ORDER No.A/Land/2/Vashi/15256, dated 03/06/2011 and a letter No.A/Land/2/Vashi/34162, dated 29/09/2011 for the reasons as under.
(1) The land is a part of the road. By the allotment of the land, the planned disposal is not possible. In that regard, a proposal made earlier has been rejected on 18/09/1997.
(2) There was an encroachment of other person on the land in question. The encroachment has been removed during the drive held in 2011 for the removal of encroachment.
(3) As encroachment has been removed, if such land as demanded is given, it is like a hindrance.
(4) The demand is not as per the rules.
On being aggrieved by the aforesaid decision, the applicant made application to this office bearing No.MMV/JMN/BNS/57/11 and it was remanded to the office of the District Collector, Banaskantha vide order of this office dated 06/12/2013. Hence, in accordance with the remand order of this office, the District collector, Banaskantha, gave sufficient and reasonable opportunity to the applicant to make submissions by giving him different hearing dates and thereafter, applicant's demand has been rejected vide order dated 18/03/2015.
On being aggrieved by the aforesaid order dated 18/03/2015 passed by the District Collector, Banaskantha, the applicant filed revision application before this office on 31/08/2015.
Thereafter, hearing of the said case was held on 03/05/2016. Considering written and oral submissions made in revision application during the hearing of the said case by the applicant, the case was kept for judgment on the basis of its merits.
In the present case, the applicant has mainly submitted in his revision application that the order has been passed without considering details of the order remanded from this office. The land adjoining to the land demanded by me has been sanctioned by the Collector. I, the applicant, belong to the schedule caste. I brought such fact to the notice of the Collector that the Collector, Banaskantha, has regularized the land admeasuring 5.76 sq.mtr., situated on northern side of city survey no. 820, sheet no.41, at moje Tharad, to Nai Amrutbhai Devchandbhai vide his order No. A/Land/2/Vashi/31301 dated 18/09/2002. 4847 is given as its city survey number. In that regard, the order of regularizing the encroached land passed by the Page 2 of 6 HC-NIC Page 2 of 6 Created On Mon Aug 21 06:20:08 IST 2017 C/SCA/13142/2017 ORDER Collector, Banaskantha, on 18/09/2002 has been produced earlier vide the list of documentary evidence. Whereas, the land demanded by me and plan showing site and situation of granted city survey no. 4851 are enclosed vide separate document. Earlier, the said encroachment was removed and certificate issued by the Municipality in that regard is enclosed vide different documentary list. Apart from that, the land of 28' x 12', 26/75/12 of sheet No. 41 was allotted to Trivedi Nagarbhai Premshanker as he demanded the same for residential purpose and 4851 was given as its city survey number and entry of the order in this regard was made in the register of city survey, Tharad vide No.103. The impugned order has been passed without considering this fact. It is prayed to allow the revision application rejecting the impugned order.
Municipality has recommended. The disputed land is not obstructing to any one. The land bearing City Survey No.753 is given to Mr. Amrutbhai and Nagarlal. Municipality has passed a resolution for us and has not considered the facts thereof.
Considering the aforesaid facts, submissions and written arguments of both parties, record of lower court and impugned order passed by the collector, it appears that earlier, collector rejected the application as disputed land was for the road and one person has encroached thereon. As the applicant preferred appeal against it before me, same was remanded to the collector. Applicant has made same submissions before the collector which he had submitted before me, and in that respect, Collector has called for proposal as per rules and considered its papers as well as material documents. Upon examining site situation and material papers, findings of collector are such that it is not proper to give the disputed land for public purpose because the road is getting narrow. This land is for Government purpose as well as public purpose and therefore it is not proper to give the same for commercial purpose. Earlier one person has encroached thereon which was removed by the collector. Collector has drawn inference that this disputed land is useful for public purpose. Thus, preference cannot be given to private purpose against public purpose. Moreover, no one can get the government land as his right and in respect of that, the principles and observations made by the Hon'ble Court in SCA 13583/2015 are also required to be taken in consideration. Considering all the aforesaid facts, it appears that as the decision of collector is proper, reasonable and lawful, justifiable reasons do not appear for interfering therein. Hence, following order has been passed.
ORDER Revision application of applicants is rejected. The order no.A. Land.2.Remand Case.7/2015 dated 18032015 passed by the District Page 3 of 6 HC-NIC Page 3 of 6 Created On Mon Aug 21 06:20:08 IST 2017 C/SCA/13142/2017 ORDER Collector of Sabarkantha is confirmed.
Further, applicant has submitted that the disputed land is given to Shri Amrutbhai Nayi and Shri Nagarbhai Premshankar Trivedi, in respect of that, it is directed to carry out the necessary procedure within three months.
3. The Collector, Banaskantha at Palanpur, by his order dated 18/03/2015 held as under: Read:
1. Letter No.A.Jamin.2.Vashi.15256, dated 3/6/2011 and Letter No.A.Jamin.2.Vashi.34162, dated 29/9/2011 of this office.
2. Order No.MVV/JMN/BNS/57/11, dated 6/12/2013 of the Additional Secretary, Revenue Department (Dispute), Ahmedabad.
3. Letter No.A.Jamin.2.Remand Case. 7/1415, dated 20/11/2014 of this office.
4. Written reply submitted of Pandya Haribhai Govindbhai, dated 31/12/2014.
:O R D E R :
Application of applicant Pandya Haribhai Govindbhai for getting, by way of sale, the land admeasuring 9.00 sq.mtr. situated toward the Southern side of land bearing City Survey No. 353, Sheet No.41 at TalukaTharad, Mouje Tharad, for commercial purpose, had been rejected vide letter cited in the Preamble1 due to following reasons.
(1) This land is a part of the road. The planned disposal is also not possible by giving the land. The demand made in this regard has been rejected previously on 18/9/1997. (2) There was encroachment of other person on this land in question and such encroachment has been removed in 2011 in encroachment removal drive.
(3) As encroachment has been removed, if such land as demanded is given, it is like a hindrance.
(4) Demand is not as per rules.
Against aforementioned decision of this office, the applicant had filed an application bearing No.MVV/JMN/BNS/57/11 before the Court of Secretary, Revenue Department (Dispute) Ahmedabad wherein, by way of order dated 6/12/2013, the Secretary (Dispute) had stated that previously in the remanded procedure, the applicant was not given an opportunity to make representation, and thereby, he rejected the order dated 3/6/2011 and the order dated 29/9/2011, Page 4 of 6 HC-NIC Page 4 of 6 Created On Mon Aug 21 06:20:08 IST 2017 C/SCA/13142/2017 ORDER wherein, it was directed to seek relief by way of filing the suit, and remanded the case with the direction to hear the applicant and take decision accordingly.
In connection with this remand procedure, the applicant was given dates of hearing on 9/12/2014, 20/1/2015, 27/1/2015 and 28/1/2015. Learned Advocate on behalf of the applicant has submitted a written reply, wherein, it is mainly submitted that the applicant belongs to a Scheduled Caste. The Municipality has, by passing a resolution, recommended to allot land near Hanuman temple in Tharad City on rent for twelve months. The land admeasuring 5.76 Sq. mtr. at Mauje Tharad, Taluka Tharad, situated at the Northern side of the land bearing Sheet No.41, City Survey No.820, has been regularized to Nayee Amrutbhai Devchanbhai vide order of District Collector, Banaskantha bearing No. A/land/2/Vashi/31301, dated 18/9/2002, which is registered as City Survey No.4847. The order of District Collector, Banaskantha, dated 18/9/2002 regularizing the encroachment is submitted with this application by separate list and the map showing the site condition of the land demanded by applicant and granted City Survey No.4851 is attached herewith. The certificate of the Municipality regarding the previous removal of the said encroachment is attached herewith. Apart from that, as Trivedi Nagarbhai Premshankar sought the land bearing Sheet No.41 admeasuring 28' x 12' for residential purpose, the same land has been granted to him, which has been registered as City Survey No.4851. He has requested to grant the land, which was demanded by him.
The submission of the applicant and the details of the case have been considered. The applicant has requested to allot the land for the commercial purpose on permanent basis. Looking to the site condition, the demanded land is not suitable to be allotted for public purpose because the road becomes narrow. It is not appropriate to permanently dispose the lands within the limits of Municipality area for Government/public purpose. The applicant could not mention the reasonable cause of the said land for his requirement. Previously, there was encroachment of other person on this land, which has been removed in the public interest. As this land is useful for Government/public purpose, the request is rejected.
Dispatched, Sd/
Sd/ Illegible (Dilip Rana)
Chitnish to Collector Collector, Banaskantha
To,
Pandya Haribhai Govindbhai
Residing Opp. Gayatri Vidhyalay,
Page 5 of 6
HC-NIC Page 5 of 6 Created On Mon Aug 21 06:20:08 IST 2017
C/SCA/13142/2017 ORDER
Saraswati Housing Society,
Tharad, Taluka Tharad
Copy forwarded to:
(1) City Survey Superintendent, Tharad
(2) Chief Officer, Nagarpalika, Tharad
(3) Deputy Collector, Tharad
(4) Select File
4. This Court in the first place disapproves the policy of the Nagarpalika in allotting the land to an individual on the basis of an application. The grievance of the applicant herein is that the two other individuals have been allotted land pursuant to the resolution passed by the Nagarpalika, but the Collector has not thought fit to question the legality and validity of such allotment.
5. Well, it appears that the S.S.R.D. has taken cognizance of the allotment of the land by the Nagarpalika to the two individuals and has asked the Collector to initiate an appropriate inquiry and do the needful in accordance with law. I do not find any good reason to interfere with the impugned orders in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. This application therefore fails and is hereby rejected.
(J.B.PARDIWALA, J.) aruna Page 6 of 6 HC-NIC Page 6 of 6 Created On Mon Aug 21 06:20:08 IST 2017