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SCA/4774/1996 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4774 of 1996
With
SPECIAL
CIVIL APPLICATION No. 4775 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
=========================================================
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 ?
=========================================================
SANDHI
HUSEN ALARKHA - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
SANDEEP N BHATT for Petitioner(s) : 1,
RULE
SERVED for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 08/02/2007
COMMON
ORAL JUDGMENT
As
both the matters are inter-connected and common questions arise for
consideration, they are being considered by this common judgement.
The
short facts of the case are that the Plot Nos.48 and 49 were
allotted to the petitioners, admeasuring 83.82 sq. mtrs., each for
residential purpose as per the order dated 5.8.1988. The proceedings
were initiated by the District Collector against the petitioners on
the ground that they have committed breach of the conditions of the
allotment of not to use the residential premises for any other
purpose, but in spite of the same, as the petitioners were allegedly
using the premises for poultry farm together with the residence, the
petitioners were called upon to show cause as to why the land should
not be forfeited. The petitioners submitted reply and contended,
inter alia, that the aforesaid activity is with a view to maintain
the family and in one room the petitioners are already residing. It
has also been stated that it is a house-hold activity and,
therefore, the matter may be sympathetically considered and the land
may not be forfeited and the action may be regularised, if
ultimately it is found that there is a breach.
The
District Collector thereafter passed the order on 21.3.1995, whereby
the fine of 40 times revenue was imposed for breach of the condition
and the petitioners were directed to stop the activity of poultry
farm in the residential house and if there is failure on the part of
the petitioners to close down such activity, the order was passed
for forfeiting the land. The petitioners carried the matter in
revision before the State Government and the State Government as per
the order dated 28th September, 1995 observed that as the
use of house for poultry farm was admitted, the breach was proved
and, therefore, the order of the Collector did not deserve to be
interferred with and hence the revision was dismissed as per the
order dated 28th September, 1995. It is under these
circumstances, the present petition.
Heard
Mr.Sevak for Mr.Bhatt, leaned Counsel for the petitioners and
Mr.Soni, learned AGP for the State authorities.
Upon
hearing the learned Counsel for both the sides, it appears that when
the lands were allotted to the petitioners by the order dated
5.8.1988, the Condition No.3 did provide for using the land for
residential purpose and no other use was permissible without prior
permission. However, there are Government Resolutions issued for
treating the use of the land for permitting the use of the land for
poultry farm and such breach is not to be treated as a serious
breach warranting the forfeiture of the land. Further, from the
record, it appears that the petitioners were also simultaneously
using the premises for their residential purpose and in the other
portion namely; in one room, the same was used for poultry farm.
Whether it is a commercial activity together or is for maintenance
of the family of the petitioners is an aspect not properly
considered by the District Collector. It does appears from the
record that it was also for maintenance of the family of the
petitioners. Hence, Collector could not have imposed fine of 40
times revenue.
Mr.Soni,,
learned AGP during the course of hearing relied upon the order
passed by the Special Additional Magistrate, Morbi dated 23.1.1995
under Section 133(1) of Cr. P.C. Prohibiting the use of the land for
poultry farm on th alleged ground of nuisance and he submitted that
such activity was resulting into nuisance and, therefore, the
Collector had to exercise the power.
Mr.Sevak,
learned Counsel for the petitioners submitted that if the order of
the State Government is considered, in the said order, there is no
reference to the order passed by the Sub-Divisional Magistrate dated
23.01.1995 under CRPC prohibiting the nuisance.
It
appears that, if there is a direction issued to discontinue the use
of the premises for poultry farm on the ground of nuisance, the same
is binding to the petitioners and Mr.Sevak, learned counsel
appearing for the petitioners is not in a position to state as to
whether the petitioners have successfully carried the matter before
the higher forum against the order passed by the Sub-Divisional
Magistrate under CRPC or such order is stayed by higher forum.
Therefore, as such, the nuisance has got to be stopped by the
petitioner, if the order of the Sub-Divisional Magistrate is to
operate.
As
regards the order of the Collector and it s confirmation thereof by
the State Government is concerned, it was required for the Collector
to examine the aspects of running poultry farm can be said as
permissible activity in view of the Government policy or not in a
residential house, where a part of it is used for residential
purpose. In any case under such circumstances, the Collector had to
exercise proper discretion. The perusal of the order passed by the
lower authority shows that since the activity was with simultaneous
residential use and for maintenance of the family, on the aspects of
fine, the matter could be leniently viewed. However, as the use in
any case is held as nuisance by the competent authority under
Cr.P.C., such activity was required to be stopped and only upon
failure to comply the order against nuisance, the forfeiture could
be ordered.
It
appears that, the petitioners have already given opportunity to stop
the activity of poultry farm and the order of forfeiture is only a
consequential upon the non-compliance of such directions of the
District Collector.
Under
the above circumstances, the order passed by the Collector and its
confirmation by the State Government deserves to be modified to some
extent in view of the observations made hereinabove.
Hence,
the following directions:
The
order of the Collector and its confirmation thereof by the State
Government so far as they relate to imposition of fine is quashed
and set aside but the closure of the activity of poultry farm is not
disturbed and shall continue to remain in operation, but with
modification that the order so far as it relates to forfeiture of
land is concerned, the same shall not operate in the event the
petitioner, if not has discontinued the activity of poultry farm,
discontinues such activity within a period of three months from
today. Upon the failure to comply with the earlier direction, the
District Collector shall be at the liberty to take action in
accordance with law.
Petitions
are partly allowed to the aforesaid extent. Rule made absolute
accordingly. Considering the facts and circumstances of the case,
there shall be no order as to costs.
(JAYANT PATEL, J.)
*bjoy
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