Gujarat High Court
Amit Kalyani Shah Through Poa Trilok ... vs Special Secretary (Appeals) on 2 March, 2020
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/8789/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8789 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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AMIT KALYANI SHAH THROUGH POA TRILOK KANTILAL RAWAL
Versus
SPECIAL SECRETARY (APPEALS) & 2 other(s)
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE MR VIMAL A PUROHIT(5049) for
the Petitioner(s) No. 1
MR. MRUGESH A BAROT(6709) for the Petitioner(s) No. 1
MR DHAWAN JAYSWAL, AGP (1) for the Respondent(s) No. 1,2,3
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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.Jayswal waives service of notice of Rule for respondent Nos.1 to 3.
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 23:56:18 IST 2020 C/SCA/8789/2016 JUDGMENT order or direction quashing and setting aside order dated 12.01.2016 passed in Revision Application No. MVV/JMN /Kutch/24 of 2012 passed by the respondent no.1 as well as order dated: 12.10.2011 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.59/2010;
(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 20235 sq.mtrs. of Village: Dhrab, Taluka: Mundra, District: Kachchh was alloted to the petitioner by the respondent No.2 vide order dated 01.04.2004, upon an application made by the petitioner. The purpose of allotment was for setting up asaw mill. 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.
3.1 It is a case of the petitioner the there was no permission granted in Mundra for wooden business since the same is declared as "No Timber Zone" and, therefore, the petitioner applied for NOC from the forest department and also preferred an application to become a member of Kandla Timber Association. The petitioner therefore constructed boundary wall by incurring huge expenditure in constructing two cabin-cum-office and also levelling of the plot Page 2 of 10 Downloaded on : Sat Jun 13 23:56:18 IST 2020 C/SCA/8789/2016 JUDGMENT area and constructed a temporary shed etc. over the site. However, due to unavoidable circumstances, the business could not be commenced. Suo motu proceedings were initiated by the District Collector at the relevant point of time for breach of condition No.6 of the allotment order, however, vide order dated 07.03.2009, the District Collector regularized the breach by imposing the penalty equivalent to 50 times assessment, i.e., Rs.1,51,762/- being the premium amount and further extended the time period of two years for completing the construction as contemplated in the order dated 01.04.2011. Then by virtue of the said order, the time limit was extended upto 31.03.2010 and the petitioner accordingly paid the aforesaid premium amount and started steps for putting up the construction as specified by the order.
3.2 On 25.03.2010, an application was filed by the petitioner for change of use for the purpose of container repairing and shipyard. Thereafter, the petitioner sent several applications and reminders, however, the same were not responded by the State authorities.
3.3 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.
3.4 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 05.07.2010 / 06.08.2010 to the petitioner. The petitioner appeared before the District Collector pursuant to the show-cause notice and has submitted that initially, he has filed an application on 09.01.2003 seeking change of use of land for the purpose of setting Page 3 of 10 Downloaded on : Sat Jun 13 23:56:18 IST 2020 C/SCA/8789/2016 JUDGMENT up plastic industry and thereafter, on 25.03.2010, he made an application for change of use for setting up container repairing and shipyard.
3.5 After hearing the petitioner, by the impugned order 12.10.2011, the land in question was ordered to be forfeited by the District Collector and the same was vested in the State Government for breach of condition Nos.1 to 17 of the allotment order.
3.6 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 12.01.2016, 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 25.03.2010 seeking change of use from usage of saw-mill to container repairing and shipyard, the impugned orders have been passed without considering such 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 Page 4 of 10 Downloaded on : Sat Jun 13 23:56:18 IST 2020 C/SCA/8789/2016 JUDGMENT 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.
4.2 Learned Senior Advocate Mr.Mehta has submitted that the respondent authorities without deciding the application dated 25.03.2010 have passed the impugned order, which amounts 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 an "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.
Page 5 of 10 Downloaded on : Sat Jun 13 23:56:18 IST 2020C/SCA/8789/2016 JUDGMENT 4.5 Finally, it is submitted by learned Senior advocate Mr.Mehta that the land in question came to be 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.
5. In response to the aforesaid submissions, learned Assistant Government Pleader Mr.Jayswal 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.Jayswal 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 05.07.2010 / 06.08.2010 calling upon the petitioner to provide necessary documentary evidence supporting his case. Mr.Jayswal has submitted that the petitioner had contended the reasons for not able to initiate the industrial purpose of saw-mill. Thus, it is submitted by Mr.Jayswal that as per the report, the petitioner had constructed only one small room on the said premises but 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.Jayswal has submitted that the petitioner had obtained a certificate for temporary permission, which is valid for the period of five years, from General Manager, District Industry Centre, Bhuj on 22.01.2003, Page 6 of 10 Downloaded on : Sat Jun 13 23:56:18 IST 2020 C/SCA/8789/2016 JUDGMENT which stood expired on 22.01.2008, and till that date, the petitioner would have started the business activities but the said certificate expired in the year 2008 itself as the petitioner had not started any business activities on the sail land till 2010. 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 question for undertaking the industrial purpose for establishing saw- mill. 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. The petitioner is declared 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. Ultimately, by the impugned order dated 12.10.2011, the land in question is forfeited and is vested in the State Government for breach of condition Nos.1 to 17 of the allotment order. However, on revision, the SSRD by the impugned order dated 12.01.2016 has confined the said breach to the condition No.6 only. 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 provisions of the Government Resolution have not been implemented in the case of the petitioner.
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 Page 7 of 10 Downloaded on : Sat Jun 13 23:56:18 IST 2020 C/SCA/8789/2016 JUDGMENT defaults, however, no such exercise has been 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 an "unauthorized occupant", for the so-called breach of condition No.6, an inquiry is necessitated and only after giving an opportunity of hearing to the petitioner, he has to be 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. 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 Page 8 of 10 Downloaded on : Sat Jun 13 23:56:18 IST 2020 C/SCA/8789/2016 JUDGMENT 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 with regard to declaring the petitioner 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.
11. It appears that on 09.01.2003, the initial application was preferred by the petitioner for grant of land in question for the purpose of saw mill, however, during the pendency of the aforesaid application, the industrial department vide communication dated 29.04.2003, had banned the activities of saw mill and, therefore, immediately on 20.10.2003, an application came to be preferred by the petitioner for allotting the land in question for plastic industry. Thereafter, on 25.03.2010, an application for the change of use, i.e., for the purpose of container repairing and shipyard came to be preferred, however, the same is not decided. Even thereafter, several applications and reminders were also made for change of use and extension of time by the petitioner, however, without deciding the same, the land in question was forfeited into the State Government. As per the condition No.3 incorporated in the allotment order dated 01.04.2004, the grantee 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.
Page 9 of 10 Downloaded on : Sat Jun 13 23:56:18 IST 2020C/SCA/8789/2016 JUDGMENT
12. For the reasons stated hereinabove, the impugned orders are hereby quashed and set aside. Thus, the respondents are hereby directed to decide the application dated 25.03.2010 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 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.
13. The petition is allowed accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(A. S. SUPEHIA, J) GUPTA* Page 10 of 10 Downloaded on : Sat Jun 13 23:56:18 IST 2020