Gujarat High Court
Ranaji Bheraji Vanjara vs Bakore Gram Panchayat on 27 August, 2001
Equivalent citations: (2002)4GLR2844
Author: A.R. Dave
Bench: A.R. Dave, D.P. Buch
JUDGMENT A.R. Dave, J.
1. These four appeals have been filed against a common judgemnt dated 5.3.2001 passed by the learned single Judge in 4 Special Civil Applications. As the facts pertaining to all the four appeals are quite similar, all the appeals are heard together and they are being disposed of by this common order.
2. The appellants are original petitioners who are aggrieved by the orders whereby lands allotted to them had been forfeited and had vested in the Government by different orders. Certain undisputed facts giving rise to the present litigation are as under :
3. Special Civil Application No. 7890 of 2000 was filed by three petitioners on an apprehension that residential plots allotted to them might be forfeited in favour of the Government. Their apprehension was on account of certain internal communication which had taken place between certain Government authorities. At the time when the said petition was filed, no order cancelling the allotment had been passed. During the pendency of the said petition, orders were passed by the Taluka Development Officer, Lunawada, whereby the residential plots allotted to them were forfeited in favour of the Government. In the circumstances, the petition was amended and three more petitions were also filed by the petitioners for challenging each order passed by the TDO.
4. The petitioners had submitted before the concerned Government authority in 1981 that they were poor and landless residents of Village Bakore and in pursuance of their request, under one of the schemes framed by the Government, each of the petitioners was allotted a plot admeasuring 900 sq.ft. for the purpose of construction of a residential house. Necessary kabuliyatnama containing certain conditions, was executed by each petitioner in favour of the TDO, Lunawada in 1983. As per some of the relevant conditions, the petitioners had not to part with possession of the plots in favour of anyone without permission of the DDO, Panchmahal. The petitioners were also bound to put up construction of residential houses on the plots in question within 2 years and they were also to pay land revenue in respect of the said plots. The plots were to be used only for the purpose of their residence and it was not open to them to lease the same in favour of any person even after putting up construction on the said plots. It is not in dispute that the petitioners have not put up any construction on the plots and have not even paid any land revenue in respect of the plots allotted to them. Two of the petitioners gave possession of their plots to Shri Sitaji Jethaji Vanjara whereas the plot belonging to the third petitioner was encroached upon by Miraben Vanjara. Thus, the petitioners had permitted others to take possession of the plots. 5. When it was noticed by the Government authorities that the petitioners had not put up construction on the plots and the possession of the plots was given to someone else, proceedings for cancellation of the allotment had been initiated. In the course of the said proceedings, the petitioners had represented their case before the DDO, Panchmahal under whom the TDO, Lunawada performs his duties. It was represented by Shri Sitaji on behalf of the petitioners that the allotment should not be cancelled and he had narrated the difficulties of the petitioners and looking to the difficulties faced by the petitioners, ultimately, time up to July 2000 was granted to the petitioners for the purpose of construction of residential houses on the said plots.
6. It is not in dispute that even during the period which was granted by way of grace to the petitioners, no construction of whatsoever type was put up by the petitioners and, therefore, ultimately by orders dated 13.7.2000 passed by the TDO, Lunawada, the orders of allotment were cancelled. The said orders were subsequently challenged by the petitioners by filing three other petitions, namely, Special Civil Applications Nos. 1570, 1571 and 1572 of 2001 and after hearing the concerned advocates, the learned single Judge was pleased to reject all the four petitions by a common order dated 5.3.2001.
7. It was submitted before the learned single Judge on behalf of the petitioners that before passing the impugned orders, the TDO had not afforded any opportunity of being heard and, therefore, the impugned orders passed by the TDO were in violation of the principles of natural justice. It was also submitted that the Collector, Panchmahal, was the competent authority to cancel the orders of allotment as the plots had been allotted by the Collector and not by the TDO. It was submitted that the proper course open to the Government authority was to file a suit for the purpose of cancellation of the allotment/grant.
8. After hearing the concerned advocates, the learned single Judge came to the conclusion that as the cases of the petitioners were represented before the DDO, Panchmahal, by Shri Sitaji Vanjara, who was in actual possession of two plots and who is also a member of the families of the petitioners, it was not necessary to afford any further opportunity of being heard to the petitioners. It was also found by the learned single Judge that the petitioners had not put up any construction on the plots in question and thereby breach of one of the conditions of allotment was committed by them. Moreover, it was also found that the petitioners were not residing at Village Bakore, where the plots in question had been allotted to them. It was observed by the learned single Judge that it was not open to the petitioners to argue that only the Collector could have cancelled the allotment because, in fact, the plots had been allotted by the TDO. It was noticed by the learned single Judge that at one point of time it was submitted by the petitioners that the allotment could have been cancelled only by the TDO and not by the Collector, but subsequently when the orders were passed by the TDO, the petitioners changed their stand and submitted that the Collector was the only authority who could have cancelled the orders of allotment.
9. For the above-stated reasons, all the petitions were rejected and, therefore, the appeals have been filed.
10. For the sake of convenience, the appellants, who were the petitioners before the learned single Judge, have been described as the petitioners hereafter.
11. We have heard Sr. Advocate Shri Sanjanwala appearing for the petitioners. It has been submitted by him that there was violation of the principles of natural justice because before the impugned orders cancelling the allotment were passed, the petitioners or their representative had not been heard. The hearing was given by the DDO and the hearing given by the DDO cannot be treated as hearing given by the TDO. Thereafter it has been submitted by him that the TDO had no power to cancel the allotment. The allotment could have been cancelled only by the Collector, Panchmahal. He has also submitted that certain formalities, which were required to be done under the provisions of the Bombay Land Revenue Code, had not been done before evicting the persons, who were in actual occupation of the plots in question. It has been also submitted by him that though the petitioners had submitted applications to Bakore Gram Panchayat for permitting them to put up construction on the plots, the applications were not entertained by the Panchayat and, therefore, the petitioners could not put up any construction. In view of the said fact, the impugned orders are bad in law. He has also relied upon certain judgments to substantiate his submissions.
12. On the other hand, learned advocate Shri M.R. Shah has appeared on behalf of the panchayat authorities whereas learned AGP Shri Premal Joshi has appeared for the State of Gujarat. It has been submitted by them that the petitioners had committed breach of the conditions on which the plots were allotted to them and it was not in dispute that the petitioners were not residing at Village Bakore. As per the policy of the Government, the residential plots were to be given to landless poor residents of Village Bakore and as the petitioners were residing at different places and not at Bakore, the petitioners could not have been allotted the plots at Bakore and even the initial allotment of the plots was absolutely improper and against the scheme under which they were allotted the plots. They have drawn our attention to the fact that Shri Babuji Nanji Vanjara, petitioner in Special C.A. No.1570 of 2001 was having residential house and land at Village Jinchudi of Bhiloda Taluka in District Sabarkantha. His name was also included in the voters' list of village Jinchudi and he was also holding ration card showing that he was residing at Jinchudi. Shri Ranaji Bheraji Vanjara, petitioner in of Special C.A. No. 1571 of 2001 was residing at Village Halol and his name was included in the voters' list of Village Halol. Even Ranaji Laxmanji Vanjara, who had filed Special Civil Application No. 1572 of 2001, was also not residing at Village Bakore. Upon perusal of the record it appears that he was staying at Lunawada. Name of his wife also appears on the Voters' List of Lunawada Legislative Constituency. The plot which was allotted to him had been encroached upon by a lady named Miraben Gopaji. It has been thus submitted that all the three petitioners were never residents of Vilalge Bakore and yet they wrongly stated before the Government authorities that they were landless poor residents of village Bakore and on the strength of the said false statements, they got the plots allotted to them perhaps due to undue influence exercised by Shri Sitaji Vanjara, who was a Dy. Sarpanch of Bakore Gram Panchayat and who is also closely related to the petitioners.
13. It has been thereafter submitted by them that as per the conditions incorporated in the kabuliyatnama the petitioners were supposed to put up construction of their residential houses on the plots within 2 years from the date of allotment. The decision to allot the plots was taken somewhere in 1981 and kabuliyatnama was signed by the petitioners in 1983. Possession of the plots was given in 1983. Till today, according to the learned advocates, the petitioners have not put up construction of residential houses on the said plots. Moreover, in violation of the conditions incorporated in the kabuliyatnama, possession of the plots in question had been given to somebody else as the petitioners were not residing at Village Bakore. Shri Sitaji Jethaji Vanjara was in possession of two plots whereas Miraben Gopaji, as an encroacher, was in possession of the third plot. Though Miraben has been described as an encroacher, upon perusal of the record it is clear that she is closely related to the petitioners and Shri Sitaji Vanjara. Thus, it has been submitted that the petitioners had also committed breach of the conditions and had neither put up construction nor retained possession of the plots in question. It has been also submitted that the petitioners had not even paid land revenue in respect of the plots allotted to them. The above facts, according to the learned advocates for the respondents, clearly denote that the petitioners were never interested in having the plots but possibly Shri Sitaji or somebody else is interested in retaining possession of the plots in question.
14. It has been also submitted by the learned advocates that before it was decided to cancel the orders of allotment, Shri Sitaji Jethaji Vanjara, a representative of the petitioners, was heard by the DDO, an officer under whom the TDO, Lunawada, works. After considering the representation made on behalf of the petitioners in the year 2000, it was decided to grant a further period of 6 months to the petitioners so as to enable them to put up construction of residential houses on the plots in question, but in spite of the said extension, the petitioners did not put up construction of residential houses on the plots in question. It has been submitted that as hearing had been given to the petitioners by the DDO and by showing grace, a further period of 6 months was granted to the petitioners, it was not necessary to hear the petitioners again before passing the impugned orders. It has been, therefore, submitted by them that there was no violation of any of the principles of natural justice while passing the impugned orders.
15. It has been thereafter submitted by the learned advocates that initially when no order was passed by the TDO, Lunawada, it was submitted on behalf of the petitioners that only the TDO could have cancelled the orders of allotment and not the Collector. Subsequently, when the actual orders were passed by the TDO, the petitioners changed their stand and submitted that the orders should have been passed by the Collector. Such a different stand taken by the petitioners is not just and proper and the petitioners cannot be permitted to blow hot and cold by making different submissions at different points of time.
16. It has been further submitted by the learned advocates appearing for the respondents that the petitioners had not taken any plea with regard to formalities to be done under the provisions of the Bombay Land Revenue Code before the learned single Judge. Moreover, no such averment has been made by them in their petitions and, therefore, it was not open to the petitioners to raise such a new contention for the first time in the appeal. In absence of any such contention raised before the learned single Judge and in the petition, it has been submitted by the learned advocates, that it would not be possible for them to deal with the said submission made by the petitioners.
17. Thereafter, in relation to the application for permission for putting up construction of residential houses on the plots in question, it has been submitted by the learned advocates that there is nothing on record to show that the applications given by the petitioners for putting up construction on the plots in question were ever rejected by the panchayat. It has been submitted by them that as the applications, if any, for putting up construction on the plots in question had not been rejected, the applications should be deemed to have been granted as per the provisions of sec. 104 of the Gujarat Panchayats Act. In view of the said fact, the petitioners were never prevented from putting up construction on the plots in question.
18. It has been lastly submitted by the learned advocates that in fact the petitioners were not interested in putting up any construction on the plots in question, but they wanted to do undue favour to somebody else or Shri Sitaji Jethaji Vanjara and Miraben Vanjara by permitting them to occupy the plots in question. It has been also submitted that Shri Sitaji Jethaji Vanjara is a headstrong politician and he is Dy. Sarpanch of Bakore Gram Panchayat. He is in habit of making encroachment on panchayat lands and therefore proceedings for his removal from the post of Dy. Sarpanch had also been initiated. The learned advocates have suggested that in fact Shri Sitaji Vanjara had managed to see that the plots are allotted to the petitioners because the petitioners are his family members and upon allotment of the plots, he can use the plots as the petitioners are in fact not staying at village Bakore. Moreover, Miraben Vanjara, an encroacher, is also Shri Sitaji's brother's wife. So, according to the learned advocates, the allotment of the plots to the petitioners was at the instance of Shri Sitaji Vanjara with an oblique motive.
19. Thus, the learned advocates for the respondents have supported the order passed by the learned single Judge.
20. We have heard the learned advocates at length and have also considered the judgments cited by them.
21. In our opinion, the learned single Judge has not committed any error by rejecting the petitions. We are in agreement with the view expressed by the learned single Judge in the impugned judgment.
22. So far as the grievance of the petitioners with regard to violation of the principles of natural justice is concerned, we are of the view that there is no violation of the principles of natural justice for the reason that a representative of the petitioners had been heard by the DDO, Panchmahal, at the time when there was a proposal with regard to cancellation of the allotment of the plots in question. Only after hearing the representative of the petitioners, it was decided to grant further time of 6 months for putting up construction on the plots in question. As the petitioners failed to put up construction even during the said period of 6 months, final decision was taken and the impugned orders were passed by the TDO. In our opinion, it is not necessary to give hearing to a defaulter every time. Once an opportunity of being heard was given to the petitioners and Shri Sitaji Vanjara had represented the cases of the petitioners successfully because after hearing Shri Sitaji, instead of cancelling the allotment, the DDO, Panchmahal, granted further time. The petitioners failed to put up construction even during the extended period. We had asked Sr. Advocate Shri Sanjanwala whether any construction was put up on the plots in question by the petitioners even as on today. He was constrained to answer the question in the negative. We also wanted to know whether land revenue was paid by the petitioners. He was also unable to adduce any evidence to show that even the land revenue was paid by the petitioners. On the other hand, there was a specific assertion by the respondents that no land revenue or any other cess was ever paid in respect of the land in question. It is not in dispute that since 1983 the petitioners did not put up construction on the plots and in spite of the said fact, after hearing the representative of the petitioners, an opportunity was given to them for putting up construction and, therefore, 6 months time was granted. The petitioners did not even utilise the said period for putting up construction.
23. The question to be decided in the instant case is whether there was any violation of the principles of natural justice and if so, whether the impugned orders are required to be quashed on that ground. It cannot be disputed that all actions against a person which involve adverse consequences must be in accordance with the principles of natural justice but whether a particular principle of natural justice would be applicable in a particular set of circumstances is to be decided after considering the facts of the case. One has also to see whether the decision was arrived at in a particular case in a just and objective manner. In order to see whether the right of the petitioners with regard to getting an opportunity of being heard was violated, one has to see if the petitioners were given a chance to represent their case before the concerned authority. It is an admitted fact that a superior officer, who had to take a final decision, had given an opportunity to the petitioners to represent their case. The said opportunity was availed by the petitioners as their representative, Shri Sitaji, had successfully represented the petitioners' case before the DDO, Panchmahal. The representation made on behalf of the petitioners was so effective that in spite of so many irregularities committed by the petitioners, the DDO, Panchmahal, had become kind and gracious enough to grant a further period of six months to put up construction though for more than sixteen years the petitioners had not put up construction on the plots in question.
24. In spite of the grace shown by the DDO, Panchmahal, to the petitioners, the petitioners did not take due advantage of the favour done to them and did not put up construction on the plots within the extended period of six months. Looking to the said facts, by no stretch of imagination it can be said that the authorities had violated the principles of natural justice. A real and effective opportunity was given to the petitioners to deal with the case against them and the petitioners also availed that opportunity. In such a case, it is difficult to accept submission made on behalf of the petitioners that they were not heard. Merely because the TDO did not hear the petitioners again, it cannot be said that the principles of natural justice had been violated.
25. Even if we assume that there was a violation of the principles of natural justice because the petitioners were not heard immediately before the impugned orders were passed by the TDO, no prejudice had been caused to the petitioners on account of the said violation because the petitioners could not have said anything in addition to what was stated by their representative before the DDO at an earlier occasion. The learned advocates appearing for the respondents have referred to the judgment delivered in the case of Aligarh Muslim University and ors. v. Mansoor Ali Khan, AIR 2000 SC 2783. It has been held by the Hon'ble Supreme Court that in certain cases, even if there is violation of the principles of natural justice, the order passed should not be interfered with if no prejudice is caused to the concerned person on account of violation of the principles of natural justice. The Supreme Court has observed in paras 22 and 23 of the said judgment as under :
"22. Chinnappa Reddy, J. in S.I. Kapoor's case (AIR 1981 SC 136), laid down two exceptions (at p. 395 of SCC) : (at pp. 147 and 148 of AIR) namely, "if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
23. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India, (1984) 1 SCC 43 : (AIR 1984 SC 273 : 1983 Lab IC 1680), Sabyasachi Mukharji, J. (as he then was) also laid down principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed : quoting Wade Administrative Law (5th Ed. pp. 472-475) as follows (Para 31) :
"..... it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent... There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth."
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364 : (1996 AIR SCW 1740 : AIR 1996 SC 1669). In that case, the principle of 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P., (1996) 5 SCC 450 : (1996) AIR SCW 3424 : AIR 1996 SC 2736)."
Upon perusal of the ratio of the judgment referred to hereinabove, it is clear that in the instant case no prejudice has been caused to the petitioners simply because they were not heard by the TDO again before passing the impugned orders. As stated hereinabove, the petitioners are admittedly not residents of village Bakore and they procured the plots by making false statements. After allotment of the plots, they did not occupy the plots and did not put up construction of residential houses as per the conditions on which the plots were allotted or even during the additional period granted by the authorities for putting up the construction. Admittedly the petitioners did not even pay land revenue or any other tax or cess in respect of the plots in question. In view of the abovestated admitted facts, in our opinion, the petitioners could not have made any legally justifying submission in their favour even if further hearing would have been given to them. It must be noted here that as observed by the Supreme Court in the case of K.L. Tripathi v. State Bank of India, AIR 1984 SC 273, the rules of natural justice are flexible and they cannot be put on any rigid formula. In view of the above facts, and looking to the unethical and iniquitous behaviour of the petitioners, in our opinion, no prejudice has been caused to the petitioners even if one of the principles of natural justice had been violated while passing the impugned orders.
26. We are also not impressed by the submission made by Sr. Advocate Shri Sanjanwala that the TDO was not competent to pass the impugned orders whereby the allotment of the plots in question have been cancelled. It is pertinent to note that the petitioners have not placed on record any order whereby the plots in question were allotted to the petitioners. The only document which has been placed on record is a kabuliyatnama which was executed by the petitioners in favour of the TDO, Lunawada. Upon perusal of the said kabuliyatnama, it is clear that the said kabuliyatnama was executed in favour of the TDO, Lunawada. The allotment of the plots was upon certain conditions and the said conditions have been incorporated in the kabuliyatnama. It has been also stated in the said kabuliyatnama that if breach of any of the conditions incorporated in the kabuliyatnama is committed, it would be open to the concerned authority to evict the petitioners and take possession of the plots in question.
27. Sr. Advocate Shri Sanjanwala has relied upon the word 'Collector' used in one of the paras of the kabuliyatnama. It has been stated that the Collector would be empowered to take possession of the plots in question. If one reads the entire kabuliyatnama, it is very clear that the said kabuliyatnama was executed in favour of the TDO, Lunawada. It has been signed by the TDO and the concerned petitioner. It has been addressed to the TDO. Nowhere there is a reference to the Collector but it appears that only because of some clerical mistake, instead of stating 'TDO', the word 'Collector' has been used. In our opinion, the petitioners cannot rely upon the said word used in the document because, as per the settled principles of interpretation of deeds and documents, one has to read the entire deed and a particular word or a particular line is not to be read in isolation. On the basis of the said settled principle, in our opinion, the use of the word 'Collector' at one place in the kabuliyatnama cannot help the petitioners.
28. One of the submissions of Sr. Advocate Shri Sanjanwala is that under the provisions of Urban Land (Ceiling and Regulation) Act, 1976, even if an allottee of the land has not put up construction, as per law laid down by this Court, it is not open to the Government to cancel the allotment. He has relied upon the judgment delivered in the case of Suvarnaben wd/o Thakorlal Gordhandas and Anr. v. The Competent Authority & Additional Collector (ULC) and Anr., 1995(2) GLH 417. The said judgment pertains to the provisions of Urban Land (Ceiling and Regulation) Act. In the instant case, the plots were allotted to the petitioners free of charge under one of the schemes of the Government. Such an allotment cannot be compared with a case covered under the provisions of the Urban Land Ceiling Act. In our opinion, reference to the said judgment made by Sr. Advocate Shri Sanjanwala is absolutely irrelevant.
29. It is pertinent to note that possession of two of the plots in question was with Shri Sitaji Jethaji Vanjara, who is Dy. Sarpanch of Bakore Gram Panchayat. It is pertinent to note here that it was argued on behalf of the respondents that Shri Sitaji Jethaji Vanjara, who was in actual occupation of two plots, is a headstrong person and is in habit of making encroachments on lands belonging to the panchayat. Our attention has been drawn to page 136 of Special Civil Applicaton No. 7890 of 2000. A sketch has been shown on the said page and the sketch denotes that there are nine different plots. Three plots were allotted to the present petitioners whereas, out of the remaining 6 plots, 2 were allotted to Shri Sitaji Jethaji Vanjara, 2 other plots were allotted to Shri Dalaji, brother of Shri Sitaji Jethaji Vanjara and other two plots were allotted to Shri Gopaji, who is also brother of Shri Sitaji. Moreover, encroachment has been made on one of the plots by Miraben Gopaji, who is the wife of the brother of Shri Sitaji Jethaji Vanjara. An effort has been made by the learned advocates appearing for the respondents to show that Shri Sitaji, a powerful politician, had made efforts to see that substantial number of plots are allotted to him and his family members under Government schemes so that his family can get the plots without making any payment. In our opinion, though the said fact might be correct, it is irrelevant for the present purpose because we are more concerned with the present petitioners and not with the conduct of Shri Sitaji Jethaji Vanjara.
30. Looking to the contents of the kabuliyatnama, it is very clear that upon committing breach of any of the conditions incorporated in the said kabuliyatnama, it was open to the Government authorities to take back possession of the plots in question. In view of the said factual position, we do not agree with the submission made by Sr. Advocate Shri Sanjanwala that the allotment could not have been cancelled.
31. Let us look at the relevant facts from a different angle. The petitioners pretended that they had no house to stay and they were residents of village Bakore. Factually, they were not residents of Bakore and had properties elsewhere. For 17 years they did not even occupy the plots allotted to them. They did not pay the land revenue and viiolated the conditions on which the plots were allotted to them free of charge. In spite of these facts, the authorities heard their representative and by showing grace, gave six months time for putting up construction. Even then no houses were constructed on the plots. Looking to the above facts, in our opinion even violation of the principles of natural justice should not help the petitioners as they had already been heard once and showing any sympathy to persons like the petitioners would amount to doing injustice to those rightful claimants who might be standing in a queue for getting plots under different government schemes. In our opinion, the learned single Judge rightly did not exercise jurisdiction under the provisions of Article 226 of the Constitution of India in favour of the persons who had made false statements before the Government authorities for getting undue benefits under one of the schemes made by the Government.
32. Looking to the facts of the case, in our opinion the TDO was absolutely justified in cancelling the allotment of the plots so that the said plots can be given to needy persons residing in Village Bakore. We do not find anything wrong in the order passed by the learned single Judge and, therefore, we dismiss the appeals with no order as to costs. Interim relief stands vacated.
33. It has been submitted by Sr. Advocate Shri Sanjanwalla that the petitioners be permitted to retain possession of the plots for some time. On the other hand, learned advocate Shri M.R. Shah has submitted that the petitioners have already been dispossessed. Without going into the controversy with regard to the possession, we direct that the plots in question shall not be allotted to anyone for a period of two months from today.