Gujarat High Court
Manshukhbhai Nanjibhai Bhimani vs State Of Gujarat on 19 July, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/7900/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7900 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MANSHUKHBHAI NANJIBHAI BHIMANI
Versus
STATE OF GUJARAT
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Appearance:
MR AMIT V THAKKAR(3073) for the PETITIONER(s) No. 1,2
MR JK SHAH AGP(1) for the RESPONDENT(s) No. 1
RULE SERVED BY DS(65) for the RESPONDENT(s) No. 2,3
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 19/07/2018
ORAL JUDGMENT
Though served, the respondent Nos.2 and 3 have not appeared.
1. The petitioners by way of present petition under Article Page 1 of 9 C/SCA/7900/2016 JUDGMENT 226 of the Constitution of India, have prayed to quash and set aside the order / communication dated 15.03.2016 issued by respondent No.2 - Collector, Surat. The petitioners have also prayed to decide their application seeking NA permission within stipulated time and same may not be rejected on the ground of opinion of ULC Department dated 19.08.2014 or on the ground of pendency of Special Civil Application No.5239 of 1996.
2. Brief facts of the present petition are as under:
The land bearing Survey No.43 situated at Village Nana Varachcha, Taluka and District: Surat, was originally owned by Manilal Narottambhai and Natvarlal Jiwanbhai. On account of partition amongst them, the land of Survey No.43/1 paikee, admeasuring 5A. 10Gunthas came to the exclusive ownership of Natvarbhai Jiwanbhai and same was mutated vide entry No.324 in the revenue record. Said land was given Block No.70 admeasuring 16086 Sq. Mtr. land on the basis of application of scheme of consolidation. The respondent No.2 Collector had granted Non-Agricultural permission vide order dated 19.08.1996 Annexure O in respect of land admeasuring 9160.54 Sq. Mtr. from the total land of 16086 Sq. Mtr. It appears that the land of aforesaid Survey No.43/1, Block No.70, out of the total land admeasuring 16086 Sq. Mtr., the land admeasuring 5244.97 Sq. Mtr. is declared excess vacant vide order dated 19.10.1989 and same was given effect in the revenue record vide mutation entry No.1081 dated 10.07.1995. The DILR, Surat, vide Durasti Form No.15, divided Block No.70 into six different blocks i.e. Block Nos.70/1 to 70/6 and the same was mutated in revenue record vide mutation Page 2 of 9 C/SCA/7900/2016 JUDGMENT entry No.2492 dated 15.06.2013 (Annexure H). From the Durasti Form along with 7/12 extracts, it clearly reveals that the land, which is declared as excess vacant under the Urban Land Ceiling Act (hereinafter refrred to as "the ULC Act") is given Block No.70/5 admeasuring 3769.50 Sq. Mtr. and Block No.70/6 admeasuring 1474.80 Sq. Mtr., total 5244.30 Sq. Mtr.
land is mutated in the name of State Government, which is the subject matter of Special Civil Application No.5239 of 1996 and same is pending before this Court for adjudication. It appears that the petitioners own and possess Block No.70/3 land admeasuring 112.90 Sq. Mtr. and Block No.70/4, land admeasuring 1565.26 Sq. Mtr. by way of sale deed dated 19.03.2014 (Annexure L) and same was mutated vide mutation entry No.2529 dated 29.03.2014 (Annexure J). The said Block Nos.70/3 and 70/4 were included in T.P. Scheme No.38 (Nana Varachcha) and were given final plot No.32/1/2 and final plot No.32/1/3 admeasuring 597 Sq. Mtr. and 841 Sq. Mtr. respectively. The Surat Municipal Corporation vide its order dated 05.05.2014 granted development permission with respect to the aforesaid land (Annexure O). The petitioners sought NA permission before the respondent No.2 on 30.09.2014. Therefore, the respondent No.2 sought opinion from the concerned Authority and the information given by the ULC Department that no opinion can be given due to pendency of Special Civil Application No.5232 of 1996. Under the circumstances, the petitioners made communication on 07.10.2014 to the ULC Department by clarifying that the land of said Survey No., which is not declared excess vacant earlier, NA permission is already given in 1998 and therefore, the petitioners made communication before the respondent No.2 with a request to reopen the file seeking NA permission.
Page 3 of 9C/SCA/7900/2016 JUDGMENT Thereafter on 09.03.2015 and again on 30.12.2015, the petitioners made application seeking NA permission before the respondent No.2. Though, the petitioners clarified and satisfied all the queries raised by the ULC Department, the respondent No.2 has ordered to file the application on the ground of negative opinion of ULC Department due to pendency of Special Civil Application No.5239 of 1996 before this Court.
3. Learned advocate Mr. A.V. Thakkar appearing on behalf of the petitioners submits that the ULC Department has given two opinions one dated 19.08.2014 and other dated 16.04.2015, wherein the only ground is stated that at present, the opinion cannot be given in view of pendency of Special Civil Application No.5239 of 1996. It is submitted that admittedly, the ULC Department has not opined that the subject land of Block No.70/3 and 70/4 is declared excess vacant at any point of time. In fact, as per the opinion, only 5244.70 Sq. Mtr. land is declared excess vacant. Admittedly, after block division, the said land, which is declared excess vacant under ULC Act, is subject matter of Special Civil Application No.5239 of 1996 and the said land is given Block No.70/5 and 70/6. The said land is separately demarcated and is different parcel of land. It is further submitted that from total land of the Survey No.43/1, Block No.70 admeasuring 16086 Sq. Mtr., the land admeasuring 5244 Sq. Mtr. is declared excess vacant by the competent Authority vide order dated 19.10.1989 and same is confirmed by the State Government vide order dated 20.10.1995, which is under challenge of the aforesaid petition. It is also submitted that even if the aforesaid petition i.e. Special Civil Application No.5239 of 1996 is dismissed only the land admeasuring 5244.70 Sq. Mtr.
Page 4 of 9C/SCA/7900/2016 JUDGMENT having Block No.70/5 will stand vested with the State Government, but the outcome of the said petition, is no way likely to affect the other Block numbers which are not declared excess vacant land under the ULC Act. It is submitted that N.A. Permission is sought for different parcel of land being Block No.70/3 and 70/4 of Survey No.43/1, which is divided into different Block Nos. 70/1 to 70/6. It is also submitted that N.A. permission is sought for the land of Block No.70/3 and 70/4 of T.P. Scheme No.38 (Nana Varacha) being Final Plot No.32/1/3 the land admeasuring 597 Sq. Mtr. and Final Plot No.32/1/3, the land admeasuring 841 Sq. Mtr., total admeasuring 1438 Sq. Mtr. land, whereas the land which is declared excess vacant is Block Nos.70/5 and 70/6. Therefore, the subject land of this petition is out of purview of ULC Act and also not subject land of petition being Special Civil Application No.5239 of 1996. It is submitted that earlier N.A. permission was granted on 18.09.1998 in respect of land admeasuring 9160.54 Sq. Mtr. of Survey No.43/1.
4. Learned advocate for the petitioners submits that the inaction of the respondent Authorities of not granting N.A. permission has resulted into freezing of the land and therefore, the petitioners are not able to develop the land. Due to which huge investment, made by the petitioner in this land blocked.
5. In view of the above submissions, learned advocate for the petitioners submits that the petitioners may be given liberty to make fresh application for N.A. permission and respondent Authority may be directed to consider the same.
6. Learned AGP strongly opposed the petition and submitted Page 5 of 9 C/SCA/7900/2016 JUDGMENT that the learned Collector has rightly passed the order rejecting the N.A. permission application on the ground of pendency of Special Civil Application No.5239 of 1996. It is also submitted that the said petition is also dismissed during the pendency of this petition. The subject matter of petition being Special Civil Application No.5239 of 1996 is the Survey No.43/1 and the subject land of the present petition is of the same Survey No. Therefore, learned AGP prays to dismiss the petition in light of observations made in Special Civil Application No.5239 of 1996.
7. Having considered the facts and circumstances of the case and submissions advanced by the learned advocates for the respective parties, it is clear that the matter i.e. Special Civil Application No.5239 of 1996 pertains to the land of Survey No.43/1 and the subject matter of the present petition is also land of Survey No.43/1. But, it is also an admitted fact that said Survey No.43/1 is divided units Block Nos.70/1 to 70/6 and the petitioners purchased the land of Block No.70/3 and 70/4 by a registered sale deed at Annexure L. The said Blocks is given T.P. Scheme No.38 (Nana Varachha) bearing Final Plot No.32/1/2 admeasuring 597 Sq. Mtr. and Final Plot No.32/1/3 admeasuring 841 Sq. Mtr., total admeasuring 1438 Sq. Mtr. The said land, which is declared excess vacant land being Block No.70/5 and 70/6 and same is vested in the name of State Government.
8. It appears that Surat Municipal Corporation has granted development permission for low rise scheme on 05.05.2014 (Annexure O). The petitioners sought N.A. permission for the land being Block No.70/3 (admeasuring 01-12-90 Sq. Mtr.) and Page 6 of 9 C/SCA/7900/2016 JUDGMENT 70/4 (admeasuring 01-15-65 Sq.Mtr.) of Survey No.43/1, T.P. Scheme No.38 (Nana Varachha), Final Plot No.32/1/2 admeasuring 597 Sq. Mtr. and Final Plot No.32/1/3 admeasuring 841 Sq. Mtr., total admeasuring 1438 Sq. Mtr. before the Collector by application for reconsideration dated 03.07.2014. The Collector vide communication dated 30.09.2014, informed the petitioners that no opinion can be given due to pendency of Special Civil Application No.5239 of 1996. Thereafter, the petitioners again made an application before the Collector for reopening the file seeking NA permission. The petitioners have supplied all the materials required by the ULC Department and even thereafter, the Collector passed order to file the application on ground that ULC Department has given negative opinion.
9. This Court perused the judgment and order passed by the Coordinate Bench of this Court in Special Civil Application No.5239 of 1996 dated 20.09.2016. It appears that the subject matter of the said petition pertains to the land bearing Survey No.43/1 admeasuring 10897 Sq. Mtrs. land situated at Nana Varachcha, Surat. The competent Authority and Deputy Collector (ULC) vide order dated 19.10.1989 held that the other lands were either agricultural lands or there were constructions thereon and therefore, could not be declared as vacant land. However, the land being Survey No.43/1 admeasuring 10897 Sq. Mtrs. after deduction of margin land used for canal purpose and also out of land of other Survey No.66/2, the land admeasuring 347.97 Sq. Mtrs. and in aggregate 11244.97 Sq. Mtr. of land was liable to be treated as the vacant land. The competent Authority also observed that out of the land of Survey No.43/1, the land 5244 Sq. Mtrs.
Page 7 of 9C/SCA/7900/2016 JUDGMENT being the excess vacant land, which is given Block NO.70. The competent Authority in the order dated 19.10.1989 held that the petitioners of the aforesaid petition shall not be entilted to put up any construction on the land which has been left for canal margin. In the aforesaid petition, the order dated 19.10.1989 remained unchallenged till filing of the said petition and the possession of surplus land was already taken over by the State Government after following due process of law as contemplated under Section 10(5) of the ULC Act and also after issuing the notice under Section 10(5) to the petitioners. Thereafter, the order dated 20.10.1995, which was challenged in the said petition, passed by the competent Authority. Said petition being Special Civil Application No.5239 of 1996 is dismissed vide order dated 20.09.2016. The subject matter of present petition is pertaining to the land of Block Nos.70/3 and 70/4 of Survey No.43/1 excluding the land 5244 Sq. Mtr. which was declared excess vacant land. The village form No.7/12 reflects the said land being Block Nos.70/3 and 70/4 is of old tenure land, but not declared as excess vacant land. The said land is out of purview of the ULC Act.
10. Now, the petition being Special Civil Application No.5239 of 1996 is already dismissed by the Coordinate Bench of this Court vide order dated 20.09.2016. Therefore, now, the ULC Department is able to give opinion for the lands, for which the petitioners seek NA permission. In this view of the matter, if the petitioners are permitted to make fresh application before the Collector for NA permission of the subject land of present petition i.e. land of Block Nos.70/3 and 70/4 of Survey No.43/1 and the Collector decides the same in accordance with law, then it would be meet the ends of justice.
Page 8 of 9C/SCA/7900/2016 JUDGMENT
11. In view of the above circumstances, the petitioners are permitted to make fresh application seeking NA permission for the land in question and the Collector shall decide the same after considering the documents on record and after hearing the petitioners, in accordance with law, without being influenced by its own order dated 15.03.2016. The Collector shall decide the application of the petitioners within a period of four weeks after receipt of the application from the petitioners.
With these observations, the present petition stands disposed of. Rule is made absolute to the aforesaid extent.
(P.P.BHATT, J) YNVYAS Page 9 of 9