Gujarat High Court
Kanoria vs The on 26 August, 2008
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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SCA/2751820/2007 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 27518 of 2007
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KANORIA
CHEMICALS & INDUSTRIES LIMITED - Petitioner(s)
Versus
THE
COLLECTOR & 3 - Respondent(s)
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Appearance
:
NANAVATI
ASSOCIATES for
Petitioner(s) : 1,
MR APURVA DAVE, AGP for Respondent(s) : 1 -
2.
MR CH VORA for Respondent(s) : 3,
MR DHAVAL D VYAS for
Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 26/08/2008
ORAL
ORDER
The petitioner by this petition has challenged the order dated 20.10.2006 passed by the Collector, whereby the lease, which was granted in favour of respondent No.3 is extended for a further period of ten years up to 2013-14.
Heard Mr.Mehta, learned Counsel for Nanavati Associates for the petitioner, Mr.Dave, learned AGP for respondents No.1 and 2, Mr.Vora, learned Counsel for respondent No.3 and Mr.Vyas, learned Counsel for respondent No.4.
Upon hearing the learned Counsel appearing for both the sides, it appears that the exercise of the power by the District Collector is under Bombay Land Revenue Code for grant of lease and the petitioner, if aggrieved by the order, has express remedy provided under Section 211 of the Bombay Land Revenue Code before the State Government. The petitioner has not exhausted such remedy and, therefore, as such by way of a self-imposed restriction in exercise of the power under Article 226 of the Constitution of India, the petition does not deserve to be interfered with.
However, Mr.Mehta, learned Counsel appearing for the petitioner contended that the petitioner was having the right over the land since Kandla Port Trust respondent No.4 has resolved for extension of the lease. As per the petitioner, the land is not of the State Government, but has vested to the Central Government and consequently respondent No.4 has power to allot the land. It was submitted that though such period of lease in favour of petitioner has expired in the year 2000, it is resolved by respondent No.4 to extend the lease and, therefore, the order passed by the Collector for renewal of the lease is without jurisdiction. It was submitted that as per the affidavit-in-reply filed on behalf of respondent No.4 since the claim over the land is made by respondent No.4, it would be essentially a dispute between the State Government on the one hand and respondent No.4 on the other hand and, therefore, this Court may refer the matter to the high-power Committee as per the view taken by the Apex Court in the case of Mahanagar Telephone Nigam Limited v. Chairman, Central Board, Direct Taxes and Another , reported in AIR 2004 SC, 2434 and, therefore, this Court may interfere with. Mr.Mehta submitted that the suit, which is filed by respondent No.3 in Civil Court at Anjar being Suit No.39 of 2007 is based on the order of the District Collector, which is impugned in the present petition and, therefore, the present petition would not result into frustrating the rights of the plaintiff, if ultimately this Court finds that the order of the Collector dated 20.10.2006 is illegal. It was submitted that if the reference is made to the high-power Committee on the aspects for clarification as to whether the land vests to the State Government or it vests to the Central Government, the petitioner would be satisfied and till then, the interim relief may be continued.
Whereas on behalf of the respondents No.1 and 2, the learned AGP by placing reliance upon the affidavit-in-reply and the map prepared by the Land Records Office, contended that the land does vest to the State Government and the State Government has power to renew the lease.
On behalf of respondent No.3, it was submitted that it is not a matter of grant of lease for the first time, but is a matter of renewal of the lease already granted. The lease was granted earlier in the year 1993-94 and as the period was expiring, the same is renewed. It refers to a specific Survey No.1039 and, therefore, when the respondent No.3 was granted lease for the first time, at that time, no dispute was raised by the respondent authorities and the dispute is now sought to be raised for the first time when the lease is renewed. Therefore, the dispute cannot be said to be genuine on the ground that the land belongs to the Central Government and not of the State Government.
As such when the Land Revenue Code itself provides for express remedy to the State Government, the Revenue Department of the State Government, will be in a better and convenient position to examine the aspect, including the aspect as to whether the land is of the State Government or has vested to respondent No.4 or the Central Government. It is not a matter for grant of lease for the first time, but it is a matter for renewal of the lease, which was already granted. Even otherwise also this Court, in a petition under Article 226 of the Constitution of India, cannot examine such dispute of facts about vesting of the land either in the State Government or in the Central Government. If the petitioner succeeds in establishing that the land vests to the Central Government, it would be required for the higher authority under the Land Revenue Code to modify the impugned order, but merely because the dispute is raised, may be with the support of the affidavit filed by respondent No.4 against the allotment of the land granted under the Land Revenue Code by the Collector, it cannot be termed as a dispute brought to this Court between the State Government and the Central Government, as sought to be canvassed. Such, if permitted, would result into bypassing the normal statutory remedy available to the petitioner. Since it is not a dispute between the State Government and the Central Government, the reliance placed upon the decision of the Apex Court in the case of Mahanagar Telephone Nigam Limited v. Chairman, Central Board, Direct Taxes and Another (supra) is ill-founded.
Apart from the above, the rights of the petitioner over the land in question are yet to be crystallized, even if the contention of the petitioner is considered that respondent No.4 has recommended for extension of the lease, keeping in view the provisions of Section 34 of the Major Port Trust Act, requiring prior approval of the Central Government, which, in any case, is not obtained.
Under these circumstances, as the petitioner has not exhausted the remedy under Section 211 of the Bombay Land Revenue Code, the present petition does not deserve to be entertained and hence, dismissed. The interim relief stands vacated.
26.8.2008 (Jayant Patel, J.) vinod Top