Gujarat High Court
Shree Sardar Cement Industries Ltd vs The Special Secretary (Appeals) ... on 2 February, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13463 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHREE SARDAR CEMENT INDUSTRIES LTD
Versus
THE SPECIAL SECRETARY (APPEALS) REVENUE DEPARTMENT
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 02/02/2022
ORAL JUDGMENT
1. Heard learned senior advocate Mr.Anshin Desai with Mr.Satyam Chhaya, learned advocate for the petitioner and Mr.Nikunj Kanara, learned AGP for the respondent State at length.
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2. The petitioner has sought for the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the order dated 23.01.2018 passed in Revision Application No. JNR/JMN/29/2016 passed by the learned SSRD-
respondent no.1 as well as order passed by District Collector dated 4.6.2016 in Suo Motu/ Revision/1/2016-17 and further be pleased to hold and declare that the proceedings initiated by the learned District Collector invoking the provision of Section 211 of the BLRC are bad in law and without jurisdiction; In the alternative (B) YOUR LORDSHIPS may be pleased to direct the respondent authority to extend the benefit of government resolution dated 6.6.2003 to the petitioner by regularizing/ considering the alleged breach as his first breach by imposing necessary penalty and be further pleased to direct the respondent authority to consider the case of the petitioner for change of use as per the prevailing policy;
(C) YOUR LORDSHIPS may be pleased to direct the respondent authorities to consider the case of the petitioner for change of use as per the prevailing policy of the State Government and be further pleased to hold and declare that in view of the change circumstances since the land having been included in the residential zone, contract between the parties for utilizing the land for industrial use, particularly, for more manufacturing cement has got frustrated and not possible to be fulfilled;
(D) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the implementation, operation and execution of the 23.01.2018 passed in Revision Application No. JNR/JMN/29/2016 passed by the learned SSRD- respondent no.1 as well as order passed by District Collector dated 4.6.2016 in Suo Motu/ Revision/1/2016-17; and final (E) During the pendency disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent authority to place on record the order passed upon an application preferred by the petitioner for change of use and further be pleased to Page 2 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 permit the petitioner to prefer such application for change of use if at all earlier one is decided, and be pleased to direct the respondent authority to decide the same in accordance with law (F) Any other and further relief that may deem fit by this Hon'ble Court in the interest of justice;"
3. The brief facts are as under:
3.1 In the year 1995, the petitioner was allotted the land by the learned District Collector, Jamnagar vide its order dated 07.08.1995 bearing the Revenue Survey Nos.17 admeasuring Hectares 0-66-77;
Survey No.18 admeasuring Hectares 1-53-78; Survey No.70 admeasuring Hectares 0-42-50 of Survey No.72 admeasuring Hectares 01-42-61 situated in Village Jogvad, Taluka- Lalpur, District- Jamnagar. Thereafter the possession came to be handed over to the petitioner by the respondent authority on 24.05.1996 and 07.08.1995.
4. Thereafter, the kabulat in the form of "II" under Rule 43 of the Act came to be issued to the petitioner, the said lands were allotted to the petitioner for the manufacturing of the cement and therefore the petitioner sought requisite permission from the concerned departments and serious efforts were made to use the land for the purpose for which it was allotted and the petitioner had also made an application for issuance of the public issue to generate funds for effective implementation of the products however, the things could not materialize Page 3 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 since neither the State Government allotted permission for mining lease nor the Pollution Control Board issued NOC and therefore requisite permission could not be availed by the petitioner. The petitioner has also placed an order for purchase of machinery amounting to Rs.3.5 Crores as a part of implementation of the project.
5. 5.1. In the year 2010, the petitioner received show- cause notice issued by the learned Deputy Collector dated 20.07.2010 under the provisions of Section 79 (A) of the Bombay Land Revenue Code (hereinafter referred to as "the Code")whereby the petitioner was called upon to justify as to why the penal action may not be taken against it for any breach of condition no.8 of the order dated 07.08.1995. The petitioner appeared before the learned Deputy Collector and handed its representation by justifying the reasons for which the petitioner could not complete the construction and not initiate to start the business activity for which the land was allotted. Being satisfied with the reply as well as the justification rendered by the petitioner as well as the circumstances under which the petitioner was compelled not to initiate the industrial activities, the Deputy Collector vide its order dated 08.08.2010 withdrew the said show-cause notice issued under Section 79(A) of the Code.
Page 4 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 5.2. Thereafter, in the year 2011, learned Collector taken a matter in suo motu Revision and issued a notice dated 05.03.2011 calling upon the petitioner to show cause as to why the order dated 08.08.2010 passed by the learned Collector may not be quashed and set aside. The said show-cause notice was replied by the petitioner by tendering detailed justification to the show-cause notice by order dated 20.06.2011, learned District Collector quashed the order of the Deputy Collector dated 08.08.2010 and further directed to vest the land in to the State Government without any encumbrances on the ground of alleged breach of not completing constructions within stipulated time as per initial order of grant.
5.3. The said order came to be challenged by the petitioner by preferring revision application before the Special Secretary Revenue Department (hereinafter referred to as "the SSRD") and that was the order passed below the application of stay, which also came to be rejected. Against that order the petitioner preferred Special Civil Application No.7095 of 2012 on 29.01.2013, this Court allowed the aforesaid writ petition by quashing and setting aside the order and directed the respondent authority to maintain status quo till the final disposal Page 5 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 of the application.
5.4. The petitioner has also submitted a detailed reply before the SSRD in a revision application taking various stands after considering the submissions as well as documentary evidence, while accepting the stand of the petitioner that whatever has occurred has occurred in the circumstances beyond the control of the petitioner and it was not deliberated one. It was also observed that there is need of permission to change of user and ultimately the SSRD remanded the matter back to the Collector in the year 2015.
5.5. After a period of more than 8 months, the petitioner received show cause notice issued by the learned District Collector by way of initiating suo motu proceeding No.1 of 2016-17 whereby called upon the petitioner to district as to why the order passed by the learned Deputy Collector dated 20.06.2011 may not be cancelled. The petitioner remained present and furnished documentary evidence, however, without giving proper opportunity of hearing, the Collector passed impugned order dated 04.06.2016 and rejected the case of the petitioner and quashed and set aside the earlier order of the Deputy Collector dated 08.08.2010, against that order, the petitioner preferred revision application being JMN/JNR/29 of 2016 wherein interim relief was granted in favour of Page 6 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 the petitioner and the petitioner has also raised contentions but the SSRD has rejected the revision application and confirmed the order passed by the learned Collector.
6. Learned Senior Advocate Mr.Anshin Desai with Mr.Satyam Chhaya, learned advocate for the petitioner has submitted the following points:
(i) The authorities have failed to appreciate and consider the material including relevant documents in passing the impugned orders.
(ii) The authorities have also failed to consider that the petitioner has purchased the plant and machinery worth Rs.3.5 crores to start the unit at the land in question, however due to various reasons the petitioner could not start the said plant.
(iii) The petitioner has constructed godown, servant quarter at the land in question and photographs also depicts such construction and even panchnama made by the authority reflects that the constructions are been put up by the petitioner to start the Industrial Unit at the land in question.
(iv) The application for change of use permission is still pending before the concerned authority.Page 7 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022
C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022
(v) The petitioner company has also purchased materials from the various companies to start its units and that can be reflected from the balance sheet of the petitioner company.
(vi) The petitioner company has also constructed borewells to extract water at various places of the land in question, however on account of draught, the borewells have failed and due to that construction could not be started within a stipulated period.
(vii) The proceedings initiated by the authorities is after a period of great delay.
(viii) The Government has not sanctioned grant of lease of limestone, which is a basic material for the purpose of production of cement. Thus, this factor is also beyond the control of the petitioner.
(ix) After the grant of the land in question to the petitioner, various objections were raised by local people of the village on account of pollution and other factors and due to which the petitioner could not start the industries in question. The sanad was not issued within a time and therefore there is not a question of any breach of condition no.8.
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(x) The authority has ample power to consider the first breach and may imposed a fine up to 20 times assessment of the land revenue, which can be regularized.
(xi) At present the land is included in the residential zone and therefore no industrial activities are permissible now. Thus, due to efflux of time and circumstances, the petitioner cannot be said to have committed any fault and impossible aspects cannot be imposed upon the petitioner.
(xii) Initiation of proceedings under Section 79(A) of the Code by the learned District Collector is without jurisdiction since as a matter of fact, the learned Deputy Collector had on one occasions exercising the powers under Section 79(A) of the Code he has passed then, since the Deputy Collector is derogatory of District Collector. the order passed by the Deputy Collector is deemed to be passed by the District Collector. Therefore, the District Collector could not exercise the powers under Section 211 of the Code Calling upon/ taking into consideration suo motu revision over order passed by the Deputy Collector.
(xiii)It is also submitted that summary eviction under Section 79(A) of the Code cannot be initiated as the Page 9 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 possession of the petitioner is not unauthorized.
7. Learned senior advocate has also submitted that there are ample of materials on record to show that the industries could not be started due to reasons beyond the control of the petitioner. He has also vehemently submitted that when the initial order was passed by the Deputy Collector, the Collector has no authority to take in review the order of the Deputy Collector. He has also submitted that if necessary, the petitioner will file detailed application afresh. He has prayed to allow the present petition, he has relied upon following decisions.
1. Dahyabhai Laldas (Deceased) through his heirs and legal representatives : Bhikhubhai Dahyabhai Patel & Ors. Petitioners V. State of Gujarat & Anr. Respondents reported in 1997 (2) G.L.H. 633.
2. Govindbhai Nanjibhai Mekhiya V. Joint Secretary, Revenue Department (Appeals), Ahmedabad And Ors. reported in 2005 (3) GLR 2038.
3. Koli Kalaji Jamaji And Ors V. State of Gujarat And Ors reported in 2001 (3) GLR 2093.
4. Bharat Industries V. State of Gujarat reported in 2006 (1) GCD 847.
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5. Kanbi Arjan Kana & Ors. Petitioners V. State of Gujarat & Ors Respondents reported in 2000 (2) G.L.H. 593.
8. Per contra learned AGP Mr.Nikunj Kanara has vehemently submitted that the land has been remained unutilized by the petitioners for many years. He has submitted that the authority concerned has taken into consideration the factual aspects while passing the impugned order and the impugned order is in consonance with law. He has submitted that when the petitioner has not utilized the land in question for the purpose for which it was granted, the authority was within its power to take appropriate action in accordance with law. He has submitted that the action on the part of the revenue authorities is legal valid and proper and it does not call for any interference by this Court. He has prayed to dismiss the petition.
9. Considered the submissions made on behalf of both the sides and the material placed on record. There is no dispute that the land in question was allotted to the petitioner for the purpose of industrial use, the land in question belongs to the Village Jogvad, Taluka Lalpur, District Jamnagar bearing survey Page 11 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 no.17, 18, 70, 72, paiki total admeasuring 71,829 square meters of land for the purpose of cement industries. It is undisputed facts that initially the Deputy Collector, Jamnagar had issued a notice under Section 79 (A) of the Code, the same came to be withdrawn by the Deputy Collector. It appears that against the order of the Deputy Collector, the Collector, Jamnagar has taken suo motu proceedings under Section 211 of the Gujarat Land Revenue Code and has set aside the order of the Deputy Collector on the ground that it is not in consonance with the policies of the government and the said order came to be challenged by the petitioner before the learned SSRD at the relevant point of time. The learned SSRD vide its order dated 09.10.2015 remanded the matter back to the learned Collector, Jamnagar for deciding the same, at that point of time, the petitioner has also reiterated its stand that necessary permission from the Mines Department was not acceded to start the cement industries and there are other local problems and due to that it was requested to file the notice. It appears that the Collector did not acceded to their request and passed the order against the petitioner which came to be assailed before the learned SSRD. The learned SSRD has also confirmed the order of the learned Collector.
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10. It appears from the records that it is a consistent stand taken by the petitioner herein that due to non-availability of the necessary sanctions from the mines industries and other authorities, it could not start the industries. It is also their stand that even the Pollution Control Board has also not given any clearance to the petitioner. The ground of non-availability of the water is also resorted to by the petitioner. It has been specifically stated by the petitioner that it has already ordered for machineries to be used in the cement industries but due to the uncontrolled circumstances, it could not start the business of cement factory upon the land in question. It has requested to withdraw the said notice and to permit them to change the use of the land. It appears that the Deputy Collector, Jamnagar vide its order dated 08.08.2010 has withdrawn the notice and has permitted the extension of time for one year more. While withdrawing the notice, the Deputy Collector has considered all these facts and on that basis it has ruled that the stand taken by the petitioners is reasonable one and acceptable. This order has been taken in revision under Section 211 of the Code by the learned Collector, Jamnagar. At this juncture, various decisions relied upon by the learned senior advocate for the petitioner needs to be referred to.
Page 13 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 10.1. In the case of Dahyabhai Laldas (Supra) as per the fact was similar to the facts of this case. Permission for use of land for non agricultural purpose was granted and construction work could not be completed within the time specified in the order, due to reasons beyond the control of the occupants, due to that, permission came to be cancelled and the same was assailed before this Court and this Court has said that time limit for completion of the construction is not a mandatory but it is only directory therefore the order cancelling permission was held to be unjustified, hence quashed and set aside. It was observed that the non agricultural permission could not have been cancelled if the deceased could not have completed the construction work within the stipulated time period on account of certain circumstances beyond his control like non availability of the construction material in what ever form for a reasonable long period.
Now, in this case also the petitioner has shown the circumstances which are beyond his control like non granting of permission by the mines department or excavation of limestone from the vicinity, objection by the Pollution Control Board and the local public raising the grievances against the establishment of the cement factory near vicinity, Page 14 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 non availability of sufficient water supply etc. All these facts are not in the control of the petitioner and therefore when the petitioner had no control over all these facts, there cannot be any assumption that the petitioner had deliberately not used the land in question for the purpose for which it was granted. It is pertainent to note that the reasons put forward by the petitioner were already accepted by the Deputy Collector.
10.2. In the case of Govindbhai Nanjibhai Mekhiya (Supra) by referrring Rule 100 of the Gujarat Land Revenue Rules 1972 has held that in case of any breach regarding the non agricultural permission, if there is necessity of any penalty to be imposed, it is required for the authority to consider as to whether it is on account of voluntary action on the part of the person who commits breach of the condition or it is on account of the circumstances beyond the control of the holder of the property.
10.3. In the case of Koli Kalaji Jamaji (Supra) while dealing with Section 61 of the Code, it was observed that where a provisions of law empowers an officer to levy penalty or fine and even if a minimum is prescribed, the authority should not levy unreasonable fine if the act was not dishonest or contumacious and reasonableness must be the Page 15 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 guiding principles. This Court has referred to the decision of the Hon'ble Supreme Court in the case of M/s. Hindustan Steel Ltd. V. State of Orissa reported in AIR 1970 SC 253 in which at para 7 has observed thus:
"But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of quasi criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from bona fide belief that the offender is not liable to act in the manner prescribed by the statute."
10.4. In the case of Bharat Industries (Supra) this Court has observed in para 5 and 6 as under:
"5 As such the perusal of the impugned order shows that the same is mainly on two grounds. One is that there is a change in the partnership firm and the another is that there is a change of use of the land in part from Ginning Mill to manufacturing of Badami Coal. So far as the first ground is concerned, Page 16 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 Mr.Shah, the learned Counsel for the petitioner appears to be right in contending that once the proceedings came to be dropped for the change of partnership firm, the proceedings could not have been initiated for the alleged breach for the same cause. The observations made in the impugned order passed by the State Government are that very purpose would be frustrated if the persons to whom the land are allotted would be changed and there is indirect personal of the assesses. The partnership firm is not a legal entity in the eye of law and it is not a case where the persons who were partner at the relevant point of time when the land came to be allotted are no more continued as the partner. Further, as per the petitioner they belong to one family. In any case, when for the same ground earlier the proceedings came to be initiated and were dropped and, therefore, it appears that the State Government could not have initiated the proceedings for breach of the condition for ground, for the same cause.
6. As regards the use of the land in question for manufacturing of Badami Coal is concerned, as per the petitioner the application was made and intimation was given which was not attended. But, it appears that, the land is used for the other industrial purpose. When the land is used for the industrial purpose, though it can be said as breach, such breach, in my view, cannot be said to be so serious which may attract the order of forfeiture, and the reason being that the land is not only used for the other industry, but by establishment of the industry, the employment will be generated to the public at large. Had it. been 'case where the land is used for a industry which is prohibited under the law it may stand on different footing. Had it been a case where the land is not actually used by the establishment of the industry it may also stand on different footing. When the intimation was given and the application was made, it was expected for the authority to consider the same and in any case when the land is Page 17 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 actually. used for industry and even as on today is used for the industry, and there is no material to show that by change of use for a different industry either the public at large has suffered or the interest of the Government would be to jeopardize, it would not be a case where the harsh action of forfeiture of the land is called for. Even otherwise also in a matter where there is a breach of condition, the discretion would rest with the authority as to whether the penalty should be imposed or the land should be ordered to be forfeited. In the present case, it appears that, the State Government while exercising revisional jurisdiction has not at all considered the aspect as to whether penalty would meet with the ends of the justice or a strong case is made out for ordering forfeiture. In normal circumstances if the breach of condition has resulted into a serious loss of revenue to the Government or is against the public interest or against any statutory provisions, it may call for harsh action of forfeiture, but if the penalty can be a suitable mode, then in that case, it cannot be said that in every case the order of forfeiture must follow in the event the breach is demonstrated. What shall be the quantum of penalty or the mode of imposition and its recovery are essentially for the authority to decide but it appears that when the Quashi Judicial powers are exercised by the State Government, it was required to be considered by the State Government as to whether the penalty would meet with the requirements considering the breach or not."
10.5. In the case of Kanbi Arjan Kana & Ors. (Supra) this Court has dealt with provisions of Section 211 of the Code in para 11, 12 and 18 as under:
"11. It is not in dispute that as per the provisions of Section 211 of the Code, the State Government and Page 18 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 any revenue officer, not inferior in rank to an Assistant or Deputy Collector may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer so as to examine the legality or propriety of the decision taken by such an officer. The relevant portion of Section 211 of the Code is reproduced hereinbelow:-
"The State Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in the respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer for the purpose of satisfying itself or himself, as the case may be, as to the legality or propriety of any decision or order passed, and as to the regularity of the proceedings of such officer.
12. Upon perusal of the said section, it is very clear that the State Government can take into revision a decision which has been taken by an officer subordinate to the State Government but the State Government has no power to reconsider its own decision. In other words, it is not open to the State of Gujarat to review its own decision under the provisions of Section 211 of the Code.
18. Section 211 of the Code empowers the State Government and certain revenue officers to call for and examine record of any inquiry or the proceedings of any subordinate revenue officer. Thus, the State Government, under the provisions of Section 211 of the Code, can examine legality of an order or proceedings of any of its subordinate officers. If the decision is taken by the State Government itself, or if someone has taken the decision for the State Government as its delegate, the provisions of Section 211 of the Code would not empower the State Government to consider legality or propriety of such a decision. Thus, it is clear that the State Government cannot take into revision its own decision under the provisions of Section 211 of Page 19 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 the Code."
Now in the present case, the order of the Deputy Collector has been taken into revision by the learned Collector under Section 211 of the Code, however in view of the provisions of Section 211 of the Code, the Collector could not have taken in revision the order of the Deputy Collector whose power is equivalent to the Collector under the Code. It was not open for the Collector to review its own decision under provisions of Section 211 of the Code. The order of the Deputy Collector, Jamnagar is deemed to be order of the Collector and therefore the Collector cannot review its own order. The exercise taken by the Collector against the order of the Deputy Collector is dehors the provisions of Section 211 of the Code.
11. One of the submissions made on behalf of the petitioner is that Section 79 A of the Code does not apply to the facts of the case as the petitioners are not in any way unauthorized occupant or wrongfully in possession of the land as the land was allotted to it as per the order by the concerned revenue authorities. Section 79 A of the Code reads as under:
"79 A. Summary eviction of person unauthorizedly occupying land.- Any person unauthorizedly Page 20 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 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 73AB] 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]:
[Provided that this section shall not apply in the case where the tribal transferor does not make an application under clause (a) of sub section (3) of section 73 AA within the time specified in that clause for restoration of possession.]"
12. In view of the aforesaid provisions of Section 79A of the Code, it clearly reveals that the occupation of the petitioner of the land in question cannot be termed as unauthorized occupation or unauthorized possession since the same was granted to it in accordance with law by the concerned revenue authorities. It is not the case of the revenue authorities that the land was not transferable under Section 73A or Section 73AA or Section 73AB of the Code or it was made without the sanctions of the authorities in the tenure under the provisions of Section 62, 67 or 68 of the Bombay Land Revenue Code. Admittedly, when the land was granted to the petitioner in accordance with law by the revenue authorities, the provisions of Section 79A of the Page 21 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 Code would not be applicable to the facts of the present case.
13. In view of the aforesaid discussions, the impugned orders are liable to be set aside and the matter needs to be remanded back to the concerned authorities to decide afresh after affording proper opportunity of being heard to the petitioner. The petitioner may file appropriate composite application to the authorities in accordance with law. In case of filing of such application, the authorities need to decide the same in accordance with law after affording an opportunity of being heard to the petitioner. Such exercise needs to be completed as early as possible, preferably within a period of three months from the date of receipt of such application by the petitioner.
14. In view of the aforesaid discussions, the impugned order dated 23.01.2018 in Revision Application No.JNR/JMN/29/2016 passed by the learned SSRD- respondent no.1 as well as order passed by the District Collector dated 04.06.2016 in Suo Motu/ Revision/1/2016-17 are hereby quashed and set aside. In case of filing of the detailed application by the petitioner, the respondent authorities are hereby directed to consider the same in accordance with law, after affording appropriate Page 22 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022 C/SCA/13463/2018 JUDGMENT DATED: 02/02/2022 opportunity of being heard to the petitioner. Such exercise be completed as early as possible, preferably within a period of three months of the receipt of the application from the petitioner, keeping in mind the observations made hereinabove.
15. With the aforesaid observations and direction, the petition stands disposed of. No order as to costs. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) URIL RANA Page 23 of 23 Downloaded on : Thu Feb 03 20:40:23 IST 2022