Gujarat High Court
Secretary & 2 vs Rameshbhai Keshavbhai Patel & 2 on 14 September, 2017
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1475/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1475 of 2017
In SPECIAL CIVIL APPLICATION NO. 16296 of 2015
With
CIVIL APPLICATION NO. 11899 of 2017
In
LETTERS PATENT APPEAL NO. 1475 of 2017
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SECRETARY & 2....Appellant(s)
Versus
RAMESHBHAI KESHAVBHAI PATEL & 2....Respondent(s)
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Appearance:
MR KM ANTANI, AGP for the Appellant(s) No. 1 3
MR AB MUNSHI, ADVOCATE for the Respondent(s) No. 1 3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 14/09/2017
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) [1] The original respondents No.1,2 and 3 in Special Civil Application No.16296 of 2015 have filed this appeal under clause 15 of the Letters Patent, aggrieved by the order of the learned Single Judge dated 19 20.01.2017.
[2] In the aforesaid petition filed by the respondents herein - original petitioners under Article 226 of the Constitution of India, challenge is to the order dated 15.07.2015 passed by the Second Appellant - Collector, Surat, whereunder, he has refused NonAgricultural Use Permission to the respondents - original petitioners for their plot Nos.31,32,34A and 34B situated in Final Plot No.110 in the Town Planning Scheme No.6 (Piplod) of the District - Surat.
Page 1 of 7HC-NIC Page 1 of 7 Created On Sun Oct 01 18:35:50 IST 2017 C/LPA/1475/2017 ORDER [3] The respondentsoriginal petitioners were the owners and occupiers of the land bearing Survey No.89/paiki admeasuring 2 Hectare 29 Are 67 Sq.mtrs. situated in village Piplod, District Surat. After the Urban Land (Ceiling and Regulation) Act, 1976 (`the ULC Act' for short) came into force, they have filed declaration as contemplated under Section 6 of the ULC Act. The competent authority has passed order dated 16.8.1996 declaring that the respondentspetitioners were not surplus land holders. Thereafter, the State Government has invoked revisional power under Section 34 of the ULC Act and took the proceedings in revision for reviewing the order dated 16.08.1996 passed by the competent authority, but closed the proceedings subsequently without reviewing the order passed by the competent authority.
[4] The ULC Act, 1976 is repealed by Urban Land (Ceiling and Regulation) Repeal Act, 1999. After dropping the proceedings under Section 34 of the ULC Act, on the ground that the respondents - original petitioners have filed some forged documents so as to retain entire land fraudulently, criminal proceedings were initiated against them and said proceedings are said to be pending as on today also. In the land held by the respondents - original petitioners in Final Plot No.110, same was divided into 34 SubPlots, out of which 31 were sold to the third party purchasers by registered sale deeds. When such third party purchasers have moved the competent authority for grant of Non Agricultural Use Permission, same was refused. As such they approached this Court by way of filing Writ Petition being Special Civil Application Nos.16211, 16581 to 16602 of 2004. In the aforesaid petitions, detailed common order dated 10.05.2005 was passed for grant of issuance of Non Agricultural Permission on deposit of entire consideration mentioned in the sale deeds by the respondents - original petitioners who were respondent no.27, 28 and 29 in the earlier petitions. It is further observed that said deposited amount will be subject to final orders in criminal proceedings. It is not in dispute Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Oct 01 18:35:50 IST 2017 C/LPA/1475/2017 ORDER that pursuant to interim order passed by this Court in earlier Special Civil Applications, deposit of consideration amount as shown in the sale deeds were made as ordered by this Court and NA Permission was granted by the competent authority by order dated 05.05.2009. Subsequently, the petitions were disposed of and prosecution launched is still pending.
[5] The respondents - original petitioners have also in similar line filed applications for Non Agricultural Use Permission, which was rejected by competent authority vide order dated 15.07.2015. Challenging said order, the respondents - original petitioners have approached this Court by way of Special Civil Application No.16296 of 2015. The learned Single Judge vide order dated 1920.01.2017 allowed the petition by quashing the order dated 15.07.2015 with further direction to Second Appellant - Collector to consider grant of Non Agricultural Use Permission for plots Nos.31, 32, 34A and 34B situated in Final Plot No.110 in favour of the respondents - original petitioners.
[6] In this appeal, it is contended by learned Assistant Government Pleader appearing for the appellants - original respondents that as the respondents are original owners of the Final Plot and as they have deposited consideration amount received from third party pursuant to the order dated 10.05.2005 passed in Special Civil Application No.16581 to 16602 and 16211 of 2004, as such learned Single Judge committed error by allowing the petition by issuing directions. It is further submitted that as the respondents - original petitioners are seeking NA Permission, as such they are required to deposit the amount at the rate prevailing in Jantri as on today.
[7] On the other hand, learned Counsel appearing for the respondents submits that the respondents - original petitioners shall stand on the same footing as that of petitioners in Special Civil Application Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Oct 01 18:35:50 IST 2017 C/LPA/1475/2017 ORDER Nos.16581 to 16602 and 16211 of 2004, and as such, they are prepared to deposit at the rate shown in the sale deeds for the plots which are transferred in favour of third party, but not more than that. It is also submitted that in any event there is no reason for not issuing NA Permission.
[8] Having heard learned Counsel for both sides, we have perused earlier order dated 12.07.2016 passed by this Court in Special Civil Application No.16211, 16581 to 16602 of 2004, which reads as under : "1. In this set of petitions, the petitioners have challenged the order dated 13.06.2002 passed by the respondent no.1, whereby the respondent no.1 had directed the concerned authorities not to grant any development permission, NA permission or to register any sale deed in respect of the land in question, till the finalization of the criminal proceedings initiated against the original owners of the land in question.
2. The petitioners are claiming to be the owners and possessors of the subplots in the land bearing Revenue Survey No.89 paikee of village Piplod, SubDistrict Choryasi(City), District: Surat, reconstituted as the Final Plot No.110 under the T.P. Scheme No.6 (Piplod), Surat Municipal Corporation. It appears that the competent authority and Additional Collector (ULC), Surat, had passed order dated 16.08.1996 declaring that the predecessors of the respondent nos. 3 to 29, who were the original owners of the lands in question, did not hold any vacant land in excess of the ceiling limit. The State Government having taken the said order into suomotu revision under Section 34 of the ULC Act, confirmed the said order passed by the competent authority. It appears that thereafter the Surat Municipal Corporation approved the layout plan of the land in question and granted permission to the original owners to subdivide the land vide the order dated 21.09.1999. The said original owners appear to have sold out the said subplots to the petitioners and others. It further transpires that the respondent no.1 subsequently having noticed the fraud committed by the original owners in the ULC proceedings, initiated criminal proceedings against them. The respondent no.1 thereafter passed the impugned order dated 13.06.2002, directing the concerned authorities not to grant any development permission, NA permission or to register any sale deed in respect of the land in question pending the said criminal proceedings.
Page 4 of 7HC-NIC Page 4 of 7 Created On Sun Oct 01 18:35:50 IST 2017 C/LPA/1475/2017 ORDER
3. The petitioners having challenged the said order by way of present petitions, this court vide the order dated 10.05.2005 stayed the said impugned order on the condition that the respondent nos. 27, 28 and 29, who are the Power of Attorney holders of the respondent nos. 3 to 26, shall deposit the full consideration of the sale deeds executed by them in respect of the land in question, with the District Collector, Surat. It was also directed that the amount that may be deposited by the respondent nos.27, 28 and 29 shall be subject to the finalization of the criminal prosecution in respect of the land in question, and if the prosecution was terminated or finalized, it would be open to the concerned parties i.e. respondent nos. 27, 28 and 29 and or the State Authority, as the case may be, to move this court for modification of the said order. It was clarified that the said impugned order shall not prejudice the case of either side in the criminal prosecution against the parties.
4. During the course of hearing of this set of petitions, it has been brought to the notice of the court that pursuant to the said interim order dated 10.05.2005 passed by this court, thirty one plot holders have been granted NA permission by the concerned authority vide the order dated 05.05.2009, and that the respondent nos. 27, 28 and 29 were denied the said NA permission for the remaining three plots which are owned and possessed by them. The said order denying them the NA permission has been challenged by them by filing Special Civil Application No. 16296 of 2015, which is pending for admission before this court. It also appears that the said respondents had also challenged the criminal prosecution initiated against them by the respondent no.1, by filing Criminal Misc. Applications, which are also pending before this court.
5. Be that as it may, the aforestated facts have not been disputed by the learned advocates for the parties. The directions given by this court in the interim order dated 10.05.2005 having been implemented and the petitioners having also been granted the NA permission, on the respondent nos. 27, 28 and 29 having deposited the amount as directed by the court, the learned advocates for the parties have submitted that they have no objection if the present set of petitions are disposed of by directing that the amount deposited by the respondent nos. 27, 28 and 29 before the respondent no.1 shall be subject to the outcome of the criminal prosecution initiated against them.
6. In view of the above, without going into the merits of the impugned order dated 13.06.2002 and without expressing any Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Oct 01 18:35:50 IST 2017 C/LPA/1475/2017 ORDER opinion on the merits of the petitions, it is directed that the amount deposited by the respondent nos. 27, 28 and 29 pursuant to the interim order dated 10.05.2005 passed by this court, shall be subject to the outcome of the criminal proceedings initiated against them by the respondent no.1. Subject to the aforestated directions, all the petitions stand disposed of."
[9] It is not in dispute that the petitioners in earlier Special Civil Application who are also owners of subplots in Final Plot No.110 were granted NA permission pursuant to interim order passed by this Court on deposit of consideration amount as shown in the registered sale deeds. It is stated that land held by the respondents - original petitioners admeasures 1362.07 sq.mtrs. As such order passed by the competent authority has become final in view of closing of proceedings initiated under Section 34 of the Act and as further subplots owners in main plot are granted N.A. Permission on deposit of consideration amount, we are of the considered view that respondents - original petitioners are also required to deposit the amount at the rate which is fixed for third party purchasers.
[10] Accordingly, we dispose of this appeal by directing Second Appellant Collector to quantify the amount payable by the respondents - original petitioners to the extent of their plots admeasuring 1362.07 sq.mtrs. within a period of three weeks from the date of receipt of the order. On receipt of such communication, respondents - original petitioners to deposit the amount as indicated in the notice. On deposit of such amount by the respondents - original petitioners, second appellant shall consider the matter afresh and pass appropriate order granting Non Agricultural Use Permission within a period of four weeks from the date of deposit. Order passed by the second appellant shall be communicated to the respondents - original petitioners.
[11] Subject to above directions, this Letters Patent Appeal and Civil Application are disposed of. Order of the learned Single Judge dated Page 6 of 7 HC-NIC Page 6 of 7 Created On Sun Oct 01 18:35:50 IST 2017 C/LPA/1475/2017 ORDER 1920.01.2017 passed in Special Civil Application No.16296 of 2015 is modified to the extent indicated above. No order as to costs.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) satish Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Oct 01 18:35:50 IST 2017