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LPA/1041/2003 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1041 of 2003
In
SPECIAL
CIVIL APPLICATION No. 3202 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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STATE
OF GUJARAT & 2 - Appellants
Versus
MAHENDRASINH
BALWANTSINH SARVAIYA - Respondent
=================================================
Appearance :
MR. H.K.
PATEL, LD. AGP for Appellants : 1 - 3.
RULE
SERVED for Respondent:
MR MB PARIKH for Respondent
:
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 23/11/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
The
present appeal arise against the order passed by learned Single
Judge of this Court dated 19/7/2001 in Special Civil Application No.
3202 of 2001, as well as the order dated 28/9/2001 in Misc. Civil
Application No. 1571 of 2001 in Special Civil Application No. 3202
of 2001, whereby the showcause notice for cancellation of the
license, as well as the decision of the District Collector for
fixation of the premium under Section 43 of the Bombay Tenancy &
Agricultural Lands Act, 1948 (herein after referred to as the
‘Act’), are quashed.
The
relevant facts are that, the agricultural land bearing Survey No.
310, admeasuring 4 acres & 15 gunthas at Amreli was held by
Mohanbhai Dharamshibhai Sidhpura (hereinafter referred to as the
‘original owner of the land’ for the sake of convenience). Out of
the said land, original owner wanted to sell one acre to Shri
Mahendrasinh Balwantsinh Sarvaiya, the appellant herein, for
commercial purpose. But, as the land was held by original owner with
a restricted tenure on 6/2/1995, he made an application to the
District Collector, Amreli, for seeking permission and for fixation
of premium under Section 43 of the Act. It also appears that the
original owner entered into an agreement for sale of the land with
the appellant, but the fact remains that the permission of the
District Collector was not granted, and it is the case of the
appellant that anticipating permission and/or subject to the
permission, the agreement was entered into. Be as it may; the
respondent-petitioner on 15/2/1995 made an application to Dy.
Collector, Amreli for grant of permission to purchase the aforesaid
agricultural land from the original owner for establishing petrol
pump, and said permission was prayed under Section 63 of the Act. It
is the case of the respondent-petitioner that, for extraneous
reasons the office of the Collector did not take any action inspite
of persuasion of the matter by original owner as well as by the
respondent-petitioner. It also appears that, as the petrol pump was
to be established over said land, license was granted by the
District Supply Officer, but one of the conditions of the license
was that the land would be required to be converted for
non-agricultural use and requisite premium as may be fixed by the
Government was to be paid. Respondent-petitioner in absence of any
conversion of the land for non-agricultural use, nor payment of any
premium, proceeded to make use of the license. Therefore a showcause
notice was issued on 11/4/2001 (Annexure-A) by District Supply
Officer for cancellation of the license on the ground that he has
not complied with the conditions as was imposed at the time when
license for sale of petrol & petroleum products was granted. At
that stage the respondent herein-original petitioner preferred the
petition before this Court challenging legality & validity of
the showcause notice dated 11/4/2001 (Annexure-A), and it was
further prayed to direct the respondents-appellants herein to
decide the application of the petitioner for converting the land for
non-agricultural use and decide the premium, and also to direct the
respondents-appellants to grant permission to the petitioner under
Section 43 of the Act by fixing the premium.
Learned
Single Judge in the Special Civil Application quashed the showcause
notice on the premise of deeming fiction of Section 65 of the Bombay
Land Revenue Code (hereinafter referred to as the ‘Code’ for the
sake of convenience) and also observed for directing the Collector
to fix the premium. It appears that the aforesaid order came to be
passed by learned Single Judge in Special Civil Application on
19/7/2001, whereas on 23/8/2001 District Collector fixed the
premium at Rs.21,56,960/-. As per the respondent-petitioner the
premium was arbitrarily fixed and, therefore, Misc. Civil
Application No. 1571 of 2001 was preferred in Special Civil
Application for further relief. Learned Single Judge after hearing
both the sides found that District Collector had fixed the premium
without properly considering the judgment in the Special Civil
Application, and therefore, quashed fixation of premium of
Rs.21,56,960/-, and further directed the Collector to decide the
matter de-novo under Section 43 of the Act. It is under these
circumstances the present appeal before us.
We
have heard Mr. H.K. Patel, learned AGP for the appellants-original
respondents and Mr. Parikh, learned counsel for the
respondent-original petitioner.
Mr.
Parikh for the respondent-original petitioner could not show to us
any record produced in the writ petition for making of any
application under Section 65 of the Bombay Land Revenue Code made by
either the original owner or original petitioner, i.e. his client.
The application (Annexure-F) upon which reliance has been placed
dated 15/2/1995 (it appears to be wrongly typed as 15/2/1996 in the
order of learned Single Judge), copy whereof is produced at
Annexure-D on page-38 of the compilation of the Special Civil
Application, is not under the Bombay Land Revenue Code, but is under
Section 63 of the Act. Be it noted that Section 63 of the Act
provides for grant of permission for sale of agricultural land for
non-agricultural purpose. Hence Section 63 of the Act which was
pressed into service in the application dated 15/2/1995 was
required to be considered. Whereas, unfortunately, learned Single
Judge has treated the said application as that under Section 65 of
the Code, which never existed at all. Section 63 of the Act has no
deeming fiction of automatic grant of permission. It is only section
65 of the Code which speaks for deeming fiction of automatic grant,
if the decision is not taken within the stipulated period provided
by said section. As observed earlier, there was no application
whatsoever under section 65 of the Code and the learned counsel for
the respondent-original petitioner also could not show any
application under section 65 of the Bombay Land Revenue Code.
Consequently, there is no option but to hold that the consideration
before the learned Single Judge was on a non-existent ground of
Section 65 of the Bombay Land Revenue Code, which could not have
been invoked nor could be relied upon while examining the legality &
validity of the showcause notice for cancellation of the license.
Apart
from above, it deserves to be recorded that the main petition
essentially was at the stage of showcause notice and the ground of
the showcause notice was that at the time when license for sale of
petrol & petroleum products was granted on condition of
conversion of land for non-agricultural use and payment of premium
was provided and was to be complied with within the stipulated
period, but the same was not complied with and, therefore, the
showcause notice was issued. The exercise of power under Article 226
of the Constitution is by now well settled. It is by way of
self-imposed restriction, when the matter is at a stage of showcause
notice, this Court normally would not exercise power under Article
226 of the Constitution, unless the showcause notice is without
jurisdiction or per se void.
The license was granted by the District Supply Officer and the very
authority for breach of the conditions of the license had issued
showcause notice for cancellation of the license. Therefore, it
could not be said to be without jurisdiction or could be said as per
se void. Further,
the nature of showcause notice was such that explanation was called
upon and was required to be considered by the authority who had
issued showcause notice and, thereafter, the order was to be passed.
At that stage the power has been exercised by learned Single Judge,
which in our view, can be said as against the well settled
principles of law by way of self-imposed restriction while
exercising power under Article 226 of the Constitution.
Even
if the matter was to be considered as it was before the learned
Single Judge on merits, we find that it was not a case where the
interference was called for under Article
226 of the Constitution when the petition was for challenging the
showcause notice, and no satisfactory material was produced, nor any
law was shown to us that the showcause notice was without
jurisdiction. Even if the action was said to be purported exercise
of the power, then also, it was not a case for interference to the
showcause notice while exercising power under Article 226 of the
Constitution.
The
aforesaid would lead us to the conclusion that the petition was not
required to be entertained in exercise of power under Article 226 of
the Constitution. Hence the appeal deserves to be allowed and the
order of learned Single Judge deserves to be quashed and set aside,
and the main petition deserves to be dismissed. Ordered accordingly.
It
appears that the order in Misc. Civil Application No. 1571 of 2001
came to be passed by learned Single Judge based on his order dated
19/7/2001 passed in Special Civil Application. In view of the
reasons recorded herein above, and the order passed by us herein
above, the said order dated 19/7/2001 passed in Special Civil
Application No. 3202 of 2001 is quashed and set aside by us and as
the petition has been dismissed, the order dated 28/9/2001 passed by
learned Single Judge in Misc. Civil Application No. 1571 of 2001
would also be required to be quashed, since the basis of the order
was judgment & order in the Special Civil Application, which is
quashed and set aside. Hence, ordered accordingly.
In
the result, Letters Patent Appeal is allowed. The main petition as
well as Misc. Civil Application No. 1571 of 2001 shall stand
dismissed. Considering the facts & circumstances, no order as to
cost.
[
JAYANT PATEL, J ]
[
S.R. BRAHMBHATT, J ]
/vgn
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