Gujarat High Court
Makwana Maheshbhai Babubhai vs Special Secretary (Appeals) on 4 February, 2020
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/20464/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20464 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20475 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20473 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20471 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20470 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20468 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 20466 of 2018
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 NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any order
made thereunder ?
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MAKWANA MAHESHBHAI BABUBHAI
Versus
SPECIAL SECRETARY (APPEALS)
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
MR. DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4,5,6,7
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 04/02/2020
COMMON ORAL JUDGMENT
[1.0] Rule. Learned Assistant Government Pleader Mr. Dhawan Jayswal waives service of notice of Rule on behalf of the respondent- Page 1 of 9 Downloaded on : Sun Jun 14 02:22:20 IST 2020
C/SCA/20464/2018 JUDGMENT State. Since the issue involved in the captioned writ petitions are common, the same are decided analogously by this Common judgment.
[2.0] The present writ petitions are directed against the order dated 13.08.2018 passed by the Special Secretary, Revenue Department, Ahmedabad, (S.S.R.D.) in Revision Application No. MVV/JMN/AML/7/ 2018 as well as the order dated 18.06.2018 passed by the District Collector, Amreli in order No. Chi.JMN/3/Sharatbhang Case No. 16 of 2018.
[3.0] It is the case of the petitioners that the land bearing Survey No. 34 paiki, land admeasuring Acres 10-00 Gunthas, situated at Mouje-Pipavav, Taluka Rajula, District Amreli (for short "land in question") was originally Government Land. The petitioners had prayed for allotment of land, in question, for the purpose of salt harvesting/production as per the prevalent policy of the State Government in this regard. The District Collector, Amreli passed an order dated 10.07.2006 in Chi.JMN-3-VASHI-8064-06 and allowed the application of the petitioners by allotting the land in question for salt harvesting for a period of 10 years on certain terms and conditions. Pursuant to the aforesaid order, a lease agreement came to be executed between the petitioners and the concerned authority for a period of 10 years. When the period of lease had expired, the Page 2 of 9 Downloaded on : Sun Jun 14 02:22:20 IST 2020 C/SCA/20464/2018 JUDGMENT petitioners applied for renewal of the same and accordingly, the District Inspector of Land Record, Amreli (DILR) vide communication dated 10.04.2017 opined to the District Collector, Amreli that the authority do not have any objection if the lease period is renewed. Thereafter, the necessary exercise was also carried out by the concerned authorities and the DILR, prepared a map of the concerned area. The Taluka Development Officer, Rajula by opinion/communication dated 13.03.2018 to the Collector, Amreli also recommended the renewal of the lease in favour of the petitioners. The Assistant Director of Fisheries, Jafrabad, did the spot verification and sent the necessary proof, including the Raja Chhithhi of all the concerned lands by observing that the petitioners are carrying out the manufacturing the salt and their salt pans are located in the area. By the communication dated 31.03.2018, the General Manager, District Industries Center, Amreli has recommended for renewal of the lease with certain conditions as mentioned therein. The Rojkam dated 08.07.2018, which was signed by three authorities of the respondent-State i.e. Fishery's officer, Deputy Mamlatdar and Talati, Rajula opining that in the concerned land, the salt pans are located. Despite the aforesaid recommendations of all these authorities, the Collector, Amreli issued a show-cause notice to the petitioners for breach of condition No. 10 of the lease agreement dated 10.07.2006. The petitioners Page 3 of 9 Downloaded on : Sun Jun 14 02:22:20 IST 2020 C/SCA/20464/2018 JUDGMENT accordingly remained present with all their documentary evidence. Thereafter, by the impugned order dated 18.06.2018 cancelled the lease on the ground of breach of condition and the land was vested in the State Government. Being aggrieved of the aforesaid order, the petitioner approached the S.S.R.D. by filing Revision Application No. MVV/JMN/AML/7/2018 and by the order dated 13.08.2018, the S.S.R.D. has confirmed the order/observations made by the District Collector.
[4.0] Learned advocate Mr. Vimal A. Purohit appearing for the petitioners has submitted that the impugned orders suffer from non application of mind since the recommendations of the State authorities are not taken into consideration. He has submitted that initially the DILR had carried out the necessary exercise and also prepared a map of the land bearing survey no. 34 and it was found that the land has been used for harvesting the salt. He has submitted that thereafter various authorities recommended their case for further renewal of lease. However, without appreciating the aforesaid fact, the District Collector, Amreli cancelled the lease by observing that shrimp farming activities have been carried in the adjoining land to land of the petitioners, wherein the salt harvesting has been done. Thus, he has submitted that the District Collector, Amreli has totally ignored the recommendations of the authorities and has set aside the lease of the petitioners. Similar mistake has Page 4 of 9 Downloaded on : Sun Jun 14 02:22:20 IST 2020 C/SCA/20464/2018 JUDGMENT committed by the S.S.R.D., and hence, both orders are required to be quashed and set aside.
[5.0] Learned Assistant Government Pleader Mr. Dhawan Jayswal, in response to the aforesaid submissions, has submitted that since it was found that shrimp farming activities have been carried out in the adjoining land, and there was breach of condition No. 10, the District Collector, Amreli cancelled the lease, which was granted earlier to the petitioners for a period of 10 years. Thus, he has submitted that no illegality is found in the orders of the District Collector as well as by the S.S.R.D. confirming the same.
[6.0] From the record it is established that the petitioners had made an application for renewal of their lease on 05.10.2016 and the Collector, Amreli has carried out the entire exercise calling for opinions from the various authorities, which are favouring the petitioners. Thus, in the application filed for renewal, the Collector has called upon the petitioners to explain for breach of condition No. 10 and though all the authorities have recommended in favour of the petitioners, the Collector, Amreli has passed the impugned order without referring to all these recommendations on a premise that the shrimp farming is carried out in the adjoining land to that of the land of the petitioners.
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C/SCA/20464/2018 JUDGMENT [7.0] The genesis of the dispute raised in the writ petition lies in the show-cause notice dated 29.05.2018 issued by the Collector, Amreli, to the petitioners. A perusal of the show-cause notice reveals that the petitioners are called upon to explain the breach of condition no. 10 of the lease agreement dated 10.07.2006. This Court has perused the order dated 10.07.2006 by which the land in question has been allotted to the petitioners for carrying out the salt harvesting for a period of 10 years. The condition No. 10 as incorporated in the said order stipulates that the land in question should be only issued for manufacturing the salt and it shall not be used for any purpose. Thus, the show-cause notice is specifically issued for the breach of condition No. 10 of the order dated 10.07.2006. This court has perused the various orders passed by the various authorities in favour of the petitioners, the first is the report filed by the DILR, wherein he has prepared the map specifying the area and he has opined that in the land in question, the activities of harvesting the salt has been undertaken. Similarly, the Taluka Development Officer, Rajula vide communication dated 13.03.2018 addressed to the Collector, Amreli has asserted the aforesaid facts and has recommended that the necessary orders for renewing the lease shall be passed. Thereafter, the Assistant Director of Fisheries, Jafrabad after spot verification done by him on 08.06.2018 sent all the proof, including the photograph and videography and recommended that on Page 6 of 9 Downloaded on : Sun Jun 14 02:22:20 IST 2020 C/SCA/20464/2018 JUDGMENT the land in question, the salt harvesting is being undertaken. The Maritime Board vide communication dated 06.09/10.2017 addressed to the Collector, Amreli has asserted the aforesaid facts. The Gram Panchayat vide communication dated 22.05.2018 also recommended and asserted the facts to the District Collector, Amreli. From all these communications issued by the responsible authorities of the State Government, it is established that except the activity of carrying out the salt manufacturing, no other activities are done on the land in question. A perusal of the impugned order passed by the District Collector reveals that the District Collector is influenced with the shrimp farming which is carried out in the adjoining land to the land in question. Thus, the reason on which the impugned order is premised is itself misconceived as no activities of shrimp farming is found by all the authorities on the land in question for which the petitioners have been granted the lease to carry out the salt harvesting. The District Collector, Amreli has also brushed aside the orders passed by the various authorities in favour of the petitioners and, in fact, nothing is observed with regard to the same. Hence, the impugned order passed by the District Collector, Amreli suffers from non application of mind and is mis-conceived and the same is required to be quashed and set aside. Similarly, the S.S.R.D. by following the order passed by the District Collector has committed the same mistake. The documents produced in their favour of the Page 7 of 9 Downloaded on : Sun Jun 14 02:22:20 IST 2020 C/SCA/20464/2018 JUDGMENT petitioners do not suggest that they have violated the condition No. 10 vide order dated 10.07.2006, by which the land in question was granted on lease for carrying out the salt harvesting for a period of 10 years.
[8.0] Under the circumstances, the writ petitions are allowed and the impugned orders passed by the Special Secretary Revenue Department, in Revision Application No. MVV/JMN/AML/7/ 2018 as well as the order dated 18.06.2018 passed by the District Collector, Amreli in order No. Chi.JMN/3/Sharatbhang Case No. 16 of 2018 are hereby quashed and set aside. The Collector, Amreli is directed to consider the application of the renewal filed by the petitioners on 05.10.2016, in accordance with law, without referring to the breach of condition No. 10.
[9.0] It is further clarified that if the Collector, Amreli, while considering the renewed application made by the petitioner, finds any other activities except salt harvesting on the land in question, it is always open for him to take appropriate action against such defaulter.
[10.0] The renewal application shall be decided within a period of two months from the date of receipt of the writ of this Court. Till the final orders are passed by the Collector, Amreli, on the application filed by the petitioners, the respondent authorities are directed to Page 8 of 9 Downloaded on : Sun Jun 14 02:22:20 IST 2020 C/SCA/20464/2018 JUDGMENT maintain status-quo with regard to the land in question. Direct service is permitted.
Sd/-
(A. S. SUPEHIA, J) VISHAL MISHRA Page 9 of 9 Downloaded on : Sun Jun 14 02:22:20 IST 2020