Gujarat High Court
Divyaben Umakant Vyas vs Special Secretary (Dispute) & 4 on 16 March, 2016
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/4189/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4189 of 2016
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DIVYABEN UMAKANT VYAS....Petitioner(s)
Versus
SPECIAL SECRETARY (DISPUTE) & 4....Respondent(s)
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Appearance:
MS HARSHAL N PANDYA, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 16/03/2016
ORAL ORDER
1. Following are the prayers made in the present petition filed under Article 226 of the Constitution of India.
"(A) quash and set aside the order dated 30.1.2016 passed by the Ld. Special Secretary (Dispute), Revenue Department, AnnexureA to the petition, and (B) quash and set aside the order dated 13.3.2006 passed by the Collector, Gandhinagar, AnnexureB to the petition, and (C) quash and set aside the order dated 21.1.2003 passed by the State Government, AnnexureC to the petition, and (D) declare and hold that petitioner is entitled for allotment of plot bearing No.111/1 admeasuring 250 Sq. Mt. Situated at Sector2A, Gandhinagar and further be pleased Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat Mar 19 01:53:06 IST 2016 C/SCA/4189/2016 ORDER to direct the authorities of the State Government to regularize the said plot in favour of petitioner, and (E) award the cost of petition, and (F) pending admission and final disposal of this petition, the Honourable Court may be pleased to grant stay against implementation, operation and execution of orders dated 30.1.2016 and 13.3.2006 and also to restrain the respondent authorities of the State Government from allotting plot to Res. No.4 by dispossessing petitioner from plot alloted to her, and/ or (G) grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case."
2. It appears that pursuant to the Government policy for allotment of the plot to the Government servants in Gandhinagar, a plot was alloted to the petitioner on petitioner filing affidavit declaring that neither the petitioner, nor her husband had any residential plot or house/flat in the limits of Gandhinagar township.
3. However, since it was found that the petitioner filed false declaration, a disciplinary action was taken against the petitioner and on conclusion of the disciplinary proceedings, order dated 09.07.1999 was passed against the petitioner for deduction of Rs.50/ Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Mar 19 01:53:06 IST 2016 C/SCA/4189/2016 ORDER from monthly pension of the petitioner with permanent effect and for taking back the plot No.111/1 alloted to her. It appears that such order was unsuccessfully challenged by the petitioner by filing Special Civil Application No.6553 of 1999 and Letters Patent Appeal No.206 of 2001, which was permitted to be withdrawn.
4. It appears that in case of other employees who were found to have filed false declaration when action was challenged and not accepted by learned Single Judge, Letters Patent Appeal No.89 of 1994 was preferred and since while disposing said Letters Patent Appeal, the Hon'ble Division Bench permitted the appellants to make representations to again apply for allotment of the Government plots in Gandhinagar as it was pointed out that the cases of other employees who were found to have filed false affidavit, were shown sympathy by the Government. Based on such observations, learned Single Judge while disposing of the petition preferred by the petitioner, also permitted the petitioner to make representation to the Government as regards the regularization of allotment of the plot. It appears that pursuant to such permission given to the petitioner, when the Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Mar 19 01:53:06 IST 2016 C/SCA/4189/2016 ORDER petitioner applied for regularization of the plot, the request of the petitioner was rejected by the Government vide order dated 21.01.2003 on the ground that no benefit of regularization was given to the employees who were found to have plot/house or flat in Gandhinagar.
5. Pursuant to such order, the Collector addressed a communication dated 13.03.2006, at Annexure:B, to the petitioner, stating that as per the order dated 16.07.2003, the possession of the plot was taken by the Government and the petitioner was though asked to surrender the sanad, was refusing to surrender such sanad and since the petitioner did not surrender the Sanad, the sanad for the plot alloted to the petitioner was cancelled. Such communication/order was challenged by the petitioner before the Additional Secretary, Revenue Department (Appeals) by preferring Revision Application No.17 of 2006. The Additional Secretary has rejected the Revision Application by the impugned order.
6. Learned advocate Ms.Pandya for the petitioner submitted that the petitioner has not filed any false Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Mar 19 01:53:06 IST 2016 C/SCA/4189/2016 ORDER declaration for the purpose of allotment of the plot under the policy of the Government. Ms.Pandya submitted that when the petitioner filed declaration, neither the petitioner, nor her husband was holding any plot in Gandhinagar, but on the basis of the will executed by the fatherinlaw of the petitioner in favour of children of the petitioner, it was believed that the petitioner filed false declaration. Ms.Pandya submitted that under the will, neither the petitioner nor her husband got plot either at the time of filing of the declaration, nor holds any plot as on today and therefore, the petitioner is entitled to continue with the plot alloted to her. Mr.Pandya submitted that simply because order of cancellation of plot was made, the concerned authority has refused to consider the application of the petitioner for regularization of the plot by considering irrelevant grounds. Ms.Pandya submitted that there is no difference between the case of the petitioner and other employees who have been granted benefit of regularization pursuant to the observations made by the Hon'ble Division Bench of this Court, based on which, the petitioner was permitted to make Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Mar 19 01:53:06 IST 2016 C/SCA/4189/2016 ORDER representation for regularization of the plot and it has wrongly construed that the petitioner was beneficiary of the will executed by her father in law.
7. Learned AGP Mr.Ronak Raval on the other hand submitted that the issue as regards filing of the false declaration by the petitioner had attained finality till by the judgment of this Court in the petition filed by her and only liberty granted to the petitioner was to apply for regularization of the plot. Mr.Raval submitted that pursuant to the direction issued by the learned Single Judge in the case of the petitioner, the concerned authority had examined the case of the petitioner on the question of regularization of the plot, however, for valid reason, the request was rejected as it was found that no employee, who was found to have plot in Gandhinagar, was given benefit of regularization.
8. The Court having heard learned advocates for the parties, finds that undisputedly on the charge of filing false declaration to get the allotment of the plot under the policy of the State Government, the petitioner was departmentally proceeded and by order Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat Mar 19 01:53:06 IST 2016 C/SCA/4189/2016 ORDER dated 09.07.1999, pension cut was imposed upon the petitioner and plot No.111/1 alloted to the petitioner, was ordered to be taken back. Such order has attained finality till the stage of Letters Patent Appeal preferred by the petitioner. However, based on the observations made by the learned Single Judge permitting the petitioner to make representation for regularization of the plot, the petitioner made application for regularization of the plot. But such representation for regularization of the plot following the observations made by the Learned Single Judge, would not permit the petitioner to reagitate the issue whether what was termed as false declaration, was in fact a false declaration or not. Ms.Pandya however would argue that will executed by the fatherinlaw of the petitioner for his properties in favour of the children of the petitioner could not be construed to have conferred any right upon the petitioner or upon her husband to hold any property of her fatherinlaw in the Gandhinagar township and therefore, when the petitioner had not held any plot or residential house in Gandhinagar Township, the request of the petitioner for regularization could not Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Mar 19 01:53:06 IST 2016 C/SCA/4189/2016 ORDER have been denied relying upon the will executed by the fatherinlaw. Ms.Pandya also submitted that based on the will of the fatherinlaw, still the property is not recorded in the name of the either of the children of the petitioner or her name or in the name of her husband and the property still continues to be in the name of her fatherinlaw and therefore it is not correct to say that the petitioner hold property in the Gandhinagar Township. However, such aspects can not be considered as the issue as regards the filing of the false declaration was finalized. Then remain the question of consideration of the request of the petitioner for regularization. Dealing with such request when the authorities have found that no other person who was found to have plot or residential house in the Gandhinagar Township was granted benefit of regularization and therefore, the petitioner could not be made entitled to the regularization of allotment of her plot. In such view taken by the authorities below, no interference is required in exercise of powers under Article 226 of the Constitution of India.
9. The petition is therefore rejected.
Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Mar 19 01:53:06 IST 2016 C/SCA/4189/2016 ORDER (C.L.SONI, J.) ANKIT Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Mar 19 01:53:06 IST 2016