Gujarat High Court
Chariman/President Parshottam ... vs Collector & 2 on 16 January, 2017
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/16292/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16292 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of
the judgment ? YES
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of YES
India or any order made thereunder ?
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CHARIMAN/PRESIDENT PARSHOTTAM RATILAL PARMAR....Petitioner(s)
Versus
COLLECTOR & 2....Respondent(s)
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Appearance:
MR RAJESH K SHAH, ADVOCATE for the Petitioner(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 1 - 2
MR DILIP B RANA, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 16/01/2017
ORAL JUDGMENT
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HC-NIC Page 1 of 8 Created On Sat Aug 12 10:10:45 IST 2017 C/SCA/16292/2004 JUDGMENT
1. The petition has been filed by the petitioner Society through its Chairman/President seeking prayers as contained in Paragraph VII. The learned Advocate Mr.R.K. Shah for the petitioner does not press for the prayer contained in Clause-B of Paragraph VII. It appears that earlier the petition was filed as PIL, however, the Division Bench vide the order dated 20.12.2004 treated the petition as general petition and directed to be posted before the Single Bench. Accordingly, the petition was listed before this Court for hearing.
2. The petitioner in the instant petition has challenged the legality of the impugned order dated 5.11.2004 passed by the respondent No.1 Collector (Annexure-B) allotting the plot in question admeasuring about 88 sq. mtrs., situated in between the Survey Nos.89 and 90 to the respondent No.3.
3. As per the case of the petitioner Society, there were 22 members belonging to the Scheduled Caste and they had put up construction on the land bearing Survey No.90 admeasuring about 6070 sq. mtrs. Earlier the petitioner had filed the writ petition being SCA No.15481 of 2004 seeking necessary directions against the respondent authorities with regard to the allotment of plot in question, to the petitioner for the purpose of constructing Dr. Ambedkar Hall, apprehending that the said plot would be allotted to the respondent Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 12 10:10:45 IST 2017 C/SCA/16292/2004 JUDGMENT No.3. However, the said petition was disposed of by this Court as the petitioner had failed to produce necessary communication / decision allotting the said plot to the respondent No.3. The Court had granted liberty to the petitioner to challenge the decision, if any, taken for allotment of the said plot (Annexure-A). Subsequently, the petitioner having received the copy of the order dated 5.11.2004 passed by the Collector, Anand allotting the plot in question to the respondent No.3, the said order has been challenged in the present petition.
4. It is sought to be submitted by the learned Advocate Mr.R.K. Shah for the petitioner that the petitioner Society had made representation time and again to the Collector for allotting the said land to the petitioner for the purpose of constructing Dr. Ambedkar Hall, however, the respondent No.1 Collector arbitrarily allotted the land to the respondent No.3 by way of a special case. According to him, the respondent No.3 being a journalist and influential person, the respondent No.1 had allotted the said land to him. He also submitted that the petitioner had also filed a suit in the year 1993 for restraining the respondent authorities from allotting the said land to the respondent No.3, apprehending that it would be allotted to the respondent No.3, however, the said suit was not proceeded further by the petitioner, however the Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Aug 12 10:10:45 IST 2017 C/SCA/16292/2004 JUDGMENT said plot has been allotted to him, the apprehension expressed in 1993 has been found to be genuine. According to him, the said plot having been allotted to the respondent No.3 without following the due process of law, the impugned order was required to be set aside. Mr. Shah also submitted that the petitioner has deposited Rs.2,00,000/- to show its bona fide pursuant to the interim order dated 24.12.2004 passed by this Court.
5. However, the learned Advocate Mr.Dilip Rana for the respondent No.3 submitted that the house of the respondent No.3 was heavily damaged in the earthquake, which took place on 26.1.2001, and therefore the respondent No.1 had allotted the said plot by way of a special case to the respondent No.3. According to him, the respondent No.3 had also deposited the amount as directed by the respondent No.1 in the year 2004, which is lying with the respondent No.1, however, the possession has not been handed over to the respondent No.3 till this date because of the pendency of the present petition. According to Mr.Rana, the petitioner, having failed to obtain any relief in the suit, had filed the present petition.
6. Having regard to the submissions made by the learned Advocates for the parties and to the documents on record, it appears that the petitioner Society had filed a suit in the year Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Aug 12 10:10:45 IST 2017 C/SCA/16292/2004 JUDGMENT 1993 apprehending that the respondent authority would allot the land in question to the respondent No.3, who was a journalist and influential person. Of course, the petitioner had failed to obtain any interim injunction in its favour as per the order dated 22.12.1993 passed by the concerned Civil Court (Annexure-L). Thereafter the petitioner society had filed Special Civil Application No.15481 of 2004 challenging the recommendation made by the Collector to allot the land in question to the respondent No.3. However, in the said petition the petitioner having failed to produce on record the decision of the authority allotting the said piece of land to the respondent No.3, the Court vide the order dated 3.12.2004 had disposed of the said petition with the clarification that as and when the petitioner is in a position to produce the decision for allotment of the land in question, it would be open to the petitioner to challenge the same in accordance of law. Subsequently, the petitioner having received the impugned order dated 5.11.2004 passed by the respondent No.1 Collector allotting the said land to the respondent No.3 by way of a special case, the said order has been challenged by the present petition.
7. Now, though it has been stated by the learned Advocate Mr.Rana for the respondent No.3 that the respondent No.3 was allotted the said piece of land by way of a special case as the house of the Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 12 10:10:45 IST 2017 C/SCA/16292/2004 JUDGMENT respondent No.3 was damaged in the earthquake, the said submission can not be accepted. There is not a whisper in the impugned order passed by the Collector that the respondent No.3 was allotted the said land as a special case because his house was damaged in the earthquake. On the contrary, it appears that the respondent No.3 was bent upon obtaining the said plot since 1993 as transpiring from the suit filed by the petitioner in the year 1993. It is a different matter that the petitioner did not get any relief in the said suit filed in the year 1993, nonetheless there was an apprehension expressed by the petitioner that the said plot would be allotted by the respondent authority to the respondent No.3, he being a journalist. Since, there was no actual order of allotment passed by the authority, according to the petitioner, the said suit was not proceeded further and withdrawn by the petitioner. Be that as it may, now that the respondent No.1 Collector has allotted the said land to the respondent No.3, as a special case the said apprehension of the petitioner stands justified. It is also pertinent to note that the impugned order has been passed by the Collector without following any due process of law. When the petitioner Society had also made demand for the allotment of the said plot to the petitioner Society, it was incumbent on the part of the respondent No.1 to grant opportunity of hearing to the petitioner, or to dispose of the plot by Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 12 10:10:45 IST 2017 C/SCA/16292/2004 JUDGMENT holding auction. It is settled legal position that in case of disposal of land, the public authority must get the highest possible offer, and that the best way to obtain the highest offer is to invite offers by public auction, so that all eligible parties get an opportunity to come forward with their offers.
8. In that view of the matter, the Court is of the opinion that the impugned order passed by the respondent Collector allotting the land in question to the respondent No.3 by way of a special case being arbitrary and illegal deserves to be quashed and set aside, and is accordingly quashed and set aside. It is further directed that the land in question shall be disposed of by the respondent Collector by holding public auction in accordance with law after giving reasonable opportunity to participate to all the persons interested, as expeditiously as possible and preferably within three months from the date of receipt of this order.
9. The petitioner having deposited the amount of Rs.2,00,000/- before this Court, the petitioner shall be at liberty to withdraw the said amount. The respondent No.3 also having deposited the amount before the Collector and the allotment made to him having been set aside, the said amount shall be refunded by the Collector to the respondent No.3 with interest at the rate of 6% p.a., from the date of deposit till refund.
Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Aug 12 10:10:45 IST 2017 C/SCA/16292/2004 JUDGMENT 10. The petition stands allowed accordingly. Rule is made absolute. (BELA M. TRIVEDI, J.) vinod Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 12 10:10:45 IST 2017