Gujarat High Court
Ramilaben Somchandra Soni vs State Of Gujarat on 7 July, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/16016/2003 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16016 of 2003
[On note for speaking to minutes of order dated 27/04/2016 in
C/SCA/16016/2003 ]
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RAMILABEN SOMCHANDRA SONI....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR PRANAY SHAH FOR MS TRUSHA K PATEL, ADVOCATE for the
Petitioner(s) No. 1
MR NIRAJ ASHAR, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 07/07/2016
ORAL ORDER
1. This Note for Speaking to Minutes has been preferred by Ms.Trusha K. Patel, learned advocate for the petitioner, indicating that there is a typographical error in Paragraph2.1 of the judgment dated 27.04.2016, passed by this Court, in Special Civil Application No.16016 of 2003, inasmuch as plot number of the land in question has been wrongly mentioned as 120/1 instead of 102/1.
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2. Heard Mr.Pranay Shah, learned advocate for Ms.Trusha K. Patel, learned advocate for the petitioner and Mr.Niraj Ashar, learned Assistant Government Pleader for the respondent.
3. Having perused the Note for Speaking to Minutes and the record, the following order is passed:
In Paragraph2.1 of the abovementioned judgment, the plot number of the land in question shall be read as 102/1 instead of 120/1.
4. The Note for Speaking to Minutes is disposed of.
(SMT. ABHILASHA KUMARI, J.)
piyush
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C/SCA/16016/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16016 of 2003 FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI ================================================================ 1 Whether Reporters of Local Papers may be allowed to No see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ RAMILABEN SOMCHANDRA SONI....Petitioner(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance:
MS TRUSHA K PATEL, ADVOCATE for the Petitioner(s) No. 1 MS ASMITA PATEL, ASST.GOVERNMENT PLEADER for Respondent No. 1 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 27/04/2016 ORAL JUDGMENT
1. This petition under Article226 of the Constitution of India has been preferred, interalia, with a prayer to quash and set aside the impugned order dated 06.09.2002, passed by the Collector, Gandhinagar and the order dated 19.06.2003, passed by Page 1 of 13 HC-NIC Page 3 of 15 Created On Fri Jul 08 03:20:25 IST 2016
3 of 15 C/SCA/16016/2003 JUDGMENT the Joint Secretary, Revenue Department (Appeals), State of Gujarat, whereby the plot of land allotted to the petitioner has been directed to be forfeited and vested in the State Government.
2. The brief factual background of the petition is briefly narrated hereinbelow.
2.1 On 14.12.1988, the petitioner applied for the allotment of a plot under a policy of the State Government. On 30.01.1991, the petitioner was allotted residential plot No.120/1, admeasuring 90 sq.mtrs., situated in Sector14, Gandhinagar by the respondent at a subsidized rate, as per the Government policy. The petitioner constructed a small house on the plot, in the year 19911992, at a cost of Rs.1,32,000/ approximately, and is residing in the said house till date. In the year 2002, one N.V.Patel made a pseudonymous application to the Collector, stating that at the time of making the application for the allotment of the plot, the petitioner was holding another residential premises, therefore, the said allotment ought to be forfeited. It appears that the Collector acted suo motu on the basis of the said Page 2 of 13 HC-NIC Page 4 of 15 Created On Fri Jul 08 03:20:25 IST 2016 4 of 15 C/SCA/16016/2003 JUDGMENT application even though, after initiating an inquiry, no person of the name of N.V.Patel could be found. By the impugned order dated 06.09.2002, the Collector directed the forfeiture of the land, along with the construction and ordered that the said land, free from all encumbrances, be vested in the State Government. It was further directed that appropriate action be taken against the petitioner for the alleged unauthorized occupation of Government land and giving a false undertaking that she did not own any residential unit at the time of the making the application. Aggrieved by the said order, the petitioner filed a Revision Application against the Secretary (Appeals) who, by the second impugned order dated 19.06.2003, dismissed the same. Under the circumstances, the petitioner is before this Court. 2.2 Rule was issued in the petition on 17.11.2003 and the execution and implementation of the impunged orders was stayed.
2.3 At the time of the filing of the petition, the petitioner was a widow and was on the verge of retirement as a ClassIV employee in the Government Page 3 of 13 HC-NIC Page 5 of 15 Created On Fri Jul 08 03:20:25 IST 2016 5 of 15 C/SCA/16016/2003 JUDGMENT Hospital under the State of Gujarat. As of today, the petitioner would have superannuated from service.
3. Ms.Trusha K. Patel, learned advocate for the petitioner has submitted that the petitioner is a widow who has two married daughters. The plot of land was allotted to her on 30.01.1991. The petitioner had given an Undertaking dated 21.03.1991, that neither she, nor her deceased husband, or dependents held any land or house in their names. It is submitted that this undertaking is absolutely true and correct. In fact, neither the petitioner nor her deceased husband or dependents were holding any land or residential premises in their names at the relevant point of time. It is submitted that earlier, on 01.04.1984, the petitioner was allotted a small flat admeasuring 36.95 sq.mtrs. in a Scheme floated by the Gujarat Housing Board. However, the petitioner had transferred her right of allotment in favour of one Vinodkumar Chandulal Soni, by a Deed dated 23.02.1988. The said Vinodkumar Chandulal Soni has, thereafter, paid the amount of the installments to the Gujarat Housing Board (GHB) as is evidenced by his signatures on the Challans that have been placed on the record of the Page 4 of 13 HC-NIC Page 6 of 15 Created On Fri Jul 08 03:20:25 IST 2016 6 of 15 C/SCA/16016/2003 JUDGMENT petition. It is further submitted that the petitioner had no title in the flat allotted to her by the GHB, as no Conveyance Deed had ever been executed. In fact, after the transfer of her allotment to Vinodkumar Chandulal Soni, the Gujarat Housing Board executed a Conveyance Deed in favour of the wife of Vinodkumar Chandulal Soni, which is on record at AnnexureF. The Conveyance Deed is not an outright sale but a Hire Purchase Agreement, whereby the leasehold rights of the plot have been passed on by the Gujarat Housing Board to Binaben Vinodchandra Soni, for a period of 90 years. The petitioner, therefore, was never the owner of any plot or house, at the time when she applied for allotment of the plot on 14.12.1988. She had already transferred her allotment in favour of Vinodkumar Chandulal Soni before that, on 23.02.1988. It is submitted that the petitioner has not made any false statement, or given any false undertaking, therefore, the impugned order passed by the Collector, as confirmed by the Secretary (Appeals), having been rendered on a wrong premise, deserves to be quashed and set aside. It is further submitted that the petitioner has invested her life's savings in Page 5 of 13 HC-NIC Page 7 of 15 Created On Fri Jul 08 03:20:25 IST 2016 7 of 15 C/SCA/16016/2003 JUDGMENT constructing a small house on the plot of land allotted to her and is living there. The authorities of the State Government have, apart from having proceeded on an incorrect footing, chosen to take extremely harsh action against the petitioner, for no fault of her own, which is unfair and unjustified.
4. The petition has been opposed by Ms.Asmita Patel, learned Assistant Government Pleader. She has submitted that condition No.14 contained in the allotment order, states that neither the petitioner, her husband or dependents, ought to have held any plot or residential house in their names at the time of the allotment. As is clear from the impugned orders, this condition has been breached by the petitioner, who had been alloted a flat by the Gujarat Housing Board in the year 1984. It is further submitted that the breach of this condition would entail the forfeiture of the land, along with the construction. The land, free from all encumbrances, would vest in the State Government, therefore, the impugned orders have been passed correctly. No error has been committed by the Collector or the Secretary (Appeals) in passing the Page 6 of 13 HC-NIC Page 8 of 15 Created On Fri Jul 08 03:20:25 IST 2016 8 of 15 C/SCA/16016/2003 JUDGMENT impugned orders, therefore, they require no interference.
5. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned orders and other documents on record.
6. The order of allotment of the plot in favour of the petitioner dated 30.01.1991, contains condition No.14 which is to the effect that, if it comes to the knolwedge of the authority later on, that prior to the allotment of the plot, the applicant, his/her spouse or dependents were holding a plot of land or residential house, the allotment of the plot would be cancelled and the amount paid towards the plot would stand forfeited. In addition thereto, the construction made on the plot would be removed without granting any compensation and appropriate action would be taken against the allottee. Condition No.22 in the allotment order states that if any breach of the conditions of allotment is made, the plot shall be vested in the State Government along with the construction without Page 7 of 13 HC-NIC Page 9 of 15 Created On Fri Jul 08 03:20:25 IST 2016 9 of 15 C/SCA/16016/2003 JUDGMENT compensation.
7. The petitioner has filed an Undertaking dated 21.03.1991 in the prescribed format, stating that neither she, her husband or her dependents hold any plot or residential premises in their names.
8. The impugned order has been passed by the Collector on the premise that the petitioner has given a false undertaking as, according to him, she was holding a flat of the GHB at the relevant point of time when the land was allotted to her by the State Government. It appears that earlier, a Show Cause Notice was issued to the petitioner, pursuant to which the petitioner appeared before the Collector, in person, and made submissions. However, the submissions of the petitioner did not find favour with the Collector. It is stated by the Collector in the impugned order that the petitioner has given an Undertaking on 14.12.1988. This document is not found on the record but appears to be, most probably, the application of the petitioner for allotment. What is on record is an Undertaking dated 21.03.1991. Even if the communication dated 14.12.1988 is considered to be Page 8 of 13 HC-NIC Page 10 of 15 Created On Fri Jul 08 03:20:25 IST 2016 10 of 15 C/SCA/16016/2003 JUDGMENT an Undertaking, it was made at a date later than the date on which the petitioner transferred her allotment of the flat in the GHB in favour of Vinodkumar Chandulal Soni, by a Deed dated 23.02.1988. On 14.12.1988, therefore, the petitioner no longer held the allotment of the flat in the GHB in her name.
8. There is nothing contrary on record showing that the petitioner held the allotment of a flat in the GHB at the time of the allotment of the plot in her favour. It appears from the record that the flat may have been allotted to the petitioner by the GHB, but no Conveyance Deed was signed in her favour. After the petitioner transferred her allotment in favour of Vinodkumar Chandulal Soni, the installments of the flat were paid to the GHB by Vinodkumar Chandulal Soni, as is clear from the copies of the Challans placed on record from pages49 to 56 of the paper book. The last line of the Challan has the words "Paid by" on them, against which the signature of Vinodkumar Chandulal Soni (V.C.Soni) is visible on the Challans. The fact that the petitioner had nothing, whatsoever, to do with the flat originally alloted to her by the Page 9 of 13 HC-NIC Page 11 of 15 Created On Fri Jul 08 03:20:25 IST 2016 11 of 15 C/SCA/16016/2003 JUDGMENT GHB is further clear from the Conveyance Deed dated 19.05.1995, executed by the GHB in favour of Smt.Binaben Vinodchandra Soni, wife of Vinodkumar Chandulal Soni, to whom the petitioner had transferred the allotment of the flat on 23.02.1988. Had the petitioner not transferred the allotment in favour of the third party, the Conveyance Deed would have been executed in her favour. The very fact that it has been executed in favour of Smt.Binaben Vinodchandra Soni, is indicative of the fact that the petitioner has transferred the allotment of the flat of the Gujarat Housing Board in favour of the third party who has, thereafter, paid the installments. The Conveyance Deed is, in fact, a Hire Purchase Agreement by which leasehold rights have been conferred by the GHB upon Smt.Binaben Vinodchandra Soni, for a period of 90 years.
9. All the above aspects appear to have escaped the notice of the Collector, while passing the impugned order. It does appear from the record that the petitioner has not given a false Undertaking as has been concluded by the Collector. The petitioner did Page 10 of 13 HC-NIC Page 12 of 15 Created On Fri Jul 08 03:20:25 IST 2016 12 of 15 C/SCA/16016/2003 JUDGMENT not hold any flat in her name in the Gujarat Housing Board either on 14.12.1988 when she made the application or on 21.03.1991, which is the date of the Undertaking. Even if 14.12.1988, which is probably the date on which the application was made, is considered to be the date of giving an Undertaking, the fact remains that she had already transferred the allotment of the flat in the GHB to Vinodkumar Chandulal Soni on 23.02.1988. In effect, therefore, the petitioner was not holding any plot or residential house in her name on the date of the allotment of the plot in her favour, or even on the date of making the application. Had that been so, the Gujarat Housing Board would not have executed the Conveyance Deed of the very same flat originally allotted to the petitioner, in favour of Smt.Binaben Vinodchandra Soni.
10. The effect of the impugned order is, that not only would the small plot of land admeasuring 90 sq.mtrs. but also the house constructed by the petitioner with her life's savings, would stand forfeited to and vest in the State Government and the petitioner would be rendered homeless.
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11. Considering the drastic effect of the impugned order, it was incumbent upon the Collector to have considered and verified all the above aspects before passing the impugned order. This has not been done as there is no discussion to this effect. The Collector ought to have taken into consideration the aspect that the petitioner had transferred the allotment of the flat in the GHB in favour of a third party even before she made an application for the allotment of a plot of land under the Scheme of the State Government. The flat in the GHB was never transferred to the petitioner and title in the said flat has never passed to her. In fact, the petitioner has never become the owner of the said flat.
12. It is stated in the petition that the petitioner has studied only upto the 6th Standard. She does not keep good health as she has an enlarged heart and is suffering from Diabetes. At the relevant point of time when the petition was filed in the year 2003, the petitioner was over 56 years of age and at the verge of retirement. Now, the petitioner would have retired and become a Senior Citizen. To oust the petitioner Page 12 of 13 HC-NIC Page 14 of 15 Created On Fri Jul 08 03:20:25 IST 2016 14 of 15 C/SCA/16016/2003 JUDGMENT from her small house built with her life's savings when, in the view of this Court, the petitioner has not given any false Undertaking, would be a travesty of justice.
12. As a result of the above discussion, this Court is of the view that the impugned orders dated 06.09.2002, passed by the Collector, as affirmed by the order of the Joint Secretary (Appeals) on 19.06.2003 deserve to be quashed and set aside.
13. Accordingly, both the above orders are quashed and set aside.
14. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.
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