Gujarat High Court
Ranjit Bhavanji Thakkar vs Special Secretary, Revenue Department ... on 2 March, 2020
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/7504/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7504 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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RANJIT BHAVANJI THAKKAR
Versus
SPECIAL SECRETARY, REVENUE DEPARTMENT (APPEALS),
AHMEDABAD & 1 other(s)
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with MR. MRUGESH A
BAROT(6709) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, 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.Trivedi 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, Page 1 of 10 Downloaded on : Sat Jun 13 23:51:45 IST 2020 C/SCA/7504/2016 JUDGMENT order or direction quashing and setting aside order dated 08.01.2016 passed in Revision Application No. MVV/JMN /Kutch/113 of 2011 passed by the respondent no.1 as well as order dated: 25.08.2011 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.62/2010;
(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.169 Paiki admeasuring 12140 sq.mtrs. of Village: Dhrab, Taluka: Mundra, District: Kachchh was alloted to the petitioner by respondent No.1 vide order dated 01.04.2004, upon an application made by the petitioner. The purpose of allotment was for setting up industrial use for ice-plant cold 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, however, since the petitioner was unable to fulfill the condition No.6 due to unavoidable circumstances, the respondent No.2 initiated the suo motu proceedings against the petitioner vide Suo Motu Case No.22 of 2008 and by the order dated 14.08.2008, the said breach of condition No.6 was regularized by imposing a penalty of Rs.91,050/- equivalent to 20 times of the assessment tax.
Accordingly, the extension of four years was granted by the aforesaid order.
Page 2 of 10 Downloaded on : Sat Jun 13 23:51:45 IST 2020C/SCA/7504/2016 JUDGMENT 3.1 It appears that a panchnama was carried out by the concerned Circle Officer, Mundra on 26.06.2010, whereby it 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. Upon receipt of the said show-cause notice, the petitioner remained present before the District Collector and filed a reply on 26.07.2010 and submitted that due to some recession and some unavoidable circumstances, he was not able to start the industrial activity over the land in question and also submitted that the business of ice-plant was not successful in the area, where the plot is allotted and, therefore, he applied seeking change in use on 30.11.2009 for converting the storage for use of ice-plant cold storage to packaging and commodity unit.
3.3 It is a case of the petitioner that he had obtained the permission from Gram Panchayat, Dhrab for construction, which was also approved on 15.05.2010 by the competent authority. The petitioner was waiting for the appropriate orders to be passed for carrying out the necessary business, however, after a period of almost 10 months, the petitioner was communicated the order dated 25.08.2011 passed by the respondent No.2 vesting the land in question in the State Government without any encumbrances. It was observed by the respondent No.2 there there was breach of conditions No.1 to 18 of the initial order of allotment and hence, such directions were issued.
Page 3 of 10 Downloaded on : Sat Jun 13 23:51:45 IST 2020C/SCA/7504/2016 JUDGMENT 3.4 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 08.01.2016, the SSRD upheld the order of the Collector for breach of condition No.6 of the original allotment order.
4. Learned Senior Advocate Mr.Mehta appearing for the petitioner has submitted that despite his application, which was filed on 30.11.2009 seeking change of use from usage of ice-plant cold storage to storage packaging and shortex commodity unit, the impugned orders have been passed without considering the application by initiating the suo motu proceedings under Section 79A of the Code. He has submitted that the respondent No.2 had exceeded its jurisdiction and travelled beyond the contents of the notice issued to the petitioner under Section 79A of the Code since the show-cause notice itself reflects that the petitioner was only called for recording the statement and, therefore, a separate notice ought to have been issued to the petitioner for alleged breach of condition. He has submitted that as per the Resolution dated 06.06.2003, more particularly Clause (a)(a)(2) for the first breach of the 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.
4.1 Learned Senior Advocate Mr.Mehta 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.
Page 4 of 10 Downloaded on : Sat Jun 13 23:51:45 IST 2020C/SCA/7504/2016 JUDGMENT 4.2 Learned Senior Advocate Mr.Mehta has submitted that the respondent authorities without deciding the application dated 30.11.2009 have passed the impugned orders, which amounts to non-application of mind and hence, the impugned orders are required to be set aside.
4.3 Learned Senior Advocate Mr.Mehta has invited the attention of this Court to the condition No.3 of the order of the allotment dated 01.04.2004 and has submitted that it is always permissible for the allottees to apply for change of use and hence, accordingly the petitioner had applied for the same and it was incumbent upon the respondent authorities to decide the application before initiating the proceedings under Section 79A of the Code.
4.4 It is also submitted by learned Senior Advocate Mr.Mehta that Section 79A of the Code provides summary eviction of 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.
4.5 Finally, it is submitted by learned Senior Advocate Mr.Mehta that the land in question was 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.
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5. In response to the aforesaid submissions, learned Assistant Government Pleader Mr.Trivedi has submitted that the petitioner is not entitled to any relief since he has clearly breached the conditions as mentioned in the order dated 01.04.2004. Mr.Trivedi has submitted that in fact the panchnama was carried out by the Circle Officer, Mundra by visiting the actual site and upon verification, he prepared a panchnama dated 26.06.2010 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. Mr.Trivedi has submitted that the petitioner had only contended that the construction will initiate at the earliest, as he had already obtained permission from the Gram Panchayat. Thus, it is submitted by Mr.Trivedi that as per the report, there was no industrial activities going on the land in question 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.Trivedi has submitted that the petitioner had not taken necessary and required permission for approving building plan from the competent authority as well as not initiated construction within the extended period granted by the authority and admittedly the petitioner did not even start the construction on the land in question for which the land was allotted to the petitioner in the year 2004 till the year 2010 and, therefore, at this stage the petitioner cannot take shelter of the time taken by the State Authority to pass an order to decide the issue. 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 01.04.2004 was allotted the land in Page 6 of 10 Downloaded on : Sat Jun 13 23:51:45 IST 2020 C/SCA/7504/2016 JUDGMENT question for undertaking the industrial purpose for establishing ice- plant cold storage. Since it was found by the authorities that no such activities were undertaken, a show-cause notice under the provisions of Section 79A of the Code was issued to the petitioner. It is also established that the petitioner is treated to have breached the condition No.6 of the allotment order, which specifies that the construction has to be completed within a period of two years. It is also not in dispute that the application of the petitioner which was filed on 30.11.2009 seeking change of use was never decided and instead, the suo motu proceedings were initiated. The petitioner had obtained the approval of necessary plan from the concerned Panchayat and, thereafter, he had requested the Collector to extend the time limit by the letter dated 26.07.2010 and accordingly, he had also forwarded the appropriate plan, which was approved by the concerned Panchayat to the Collector. However, nothing was done by the Collector and ultimately, by the impugned order dated 25.08.2011, the land in question is forfeited and vested in the State Government for breach of condition Nos.1 to 18 of the allotment order. In revision, the SSRD by the impugned order dated 08.01.2016 has confined the said breach to the condition No.6 only of the original allotment order. It is also come on record that in the similarly situated cases, the respondent authorities have imposed penalty of 20 times of the assessment tax for first breach and the petitioner has annexed the said orders in the writ petition, which are not controverted by the respondent authorities. 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 provisions of the Government Resolution has not been implemented in the case of the petitioner, though similarly situated persons are conferred the benefit of Resolution.
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7. 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 was undertaken by the Collector and hence, the impugned orders are required to be set aside.
8. 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:
"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.
9. 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 Page 8 of 10 Downloaded on : Sat Jun 13 23:51:45 IST 2020 C/SCA/7504/2016 JUDGMENT opportunity of hearing, the petitioner could have been 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.
10. 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. The petitioner was in the process of obtaining necessary funds and after obtaining necessary approval from the concerned Panchayat, though it may not be required, has forwarded the Collector alongwith the representation, however, nothing was done on the representation and finally the impugned orders vesting the land into the State Government have been passed.
11. As per the condition No.3 incorporated in the allotment order dated 01.04.2004, the allottee can always apply for change of use of the land in question and hence, it was necessary for the authorities to decide such application preferred by the petitioner for change of use instead of initiating the proceedings under Section 79A of the Code.
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12. For the reasons stated hereinabove, the impugned orders are hereby quashed and set aside. The respondents are hereby directed to decide the application dated 30.11.2009 filed by the petitioner seeking permission of change of use. After the application of the petitioner is decided seeking change of use, the respondents shall pass a fresh order in terms of the Government Resolution dated 06.06.2003 for regularizing the land in question after collecting necessary penalty as prescribed therein. Necessary order shall be passed within a period of three months as per the policy of the State Government and the same shall be communicated to the petitioner forthwith. Rule made absolute to the aforesaid extent. Direct service is permitted.
(A. S. SUPEHIA, J) GUPTA* Page 10 of 10 Downloaded on : Sat Jun 13 23:51:45 IST 2020