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SCA/5878/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5878 of 2011
=========================================================
PARADISE
INDUSTRIES THRO'POA RAMESHBHAI SORATHIYA - Petitioner(s)
Versus
STATE
OF GUJARAT THRO'SPECIAL SECRETARY(APPEAL) & 3 - Respondent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Petitioner(s) : 1,MRVIMALAPUROHIT for Petitioner(s) : 1,
MR PRANAV
DAVE AGP for Respondent(s) : 1 - 2.
None for Respondent(s) : 3 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 05/05/2011
ORAL
ORDER
1.
Present petition has been filed by the petitioner under Article 14,
19 as well as 226 and 227 of the Constitution of India and also under
the provisions of Bombay Land Revenue Code challenging the impugned
order passed by the respondent No.1,- Special Secretary (Appeals),
Revenue Department, State of Gujarat, dated 8th April,
2011 in revision application No.MVV/JMN/ Kutchh/ 23 of 2011 and also
challenging the stay of the operation of the order dated 11th
March, 2011 passed by the District Collector, Kutch on the grounds
set in the memo of petition inter alia, that
the District Collector has exceeded the jurisdiction and travelled
beyond the Notice issued under section 79(A) of the Bombay Land
Revenue Code. It is also contended that the respondent No.1 has also
erred in holding that there was a breach of the condition.
2. Learned
advocate Mr.Majmudar submitted that the impugned order is passed
beyond the show cause notice. He referred to the show cause notice
and submitted that the show cause notice has been issued for breach
of condition no.6 which is regarding the construction within the
stipulated period. However, he submitted that the same has also been
condoned and, therefore, impugned order could not have been passed.
He submitted that as the impugned order has been passed going beyond
the show cause notice it amounts to violation of principles of
natural justice. In support of his submissions he has referred to and
relied upon the order passed by this Hon’ble Court in a judgment
reported in 2008 (2) GLH
520 in
the case of Hill
Memorial High School and Anr. vs. District Education Officer and Anr.
and
has also referred to judgment and order reported in 2009
(0) GLHEL- HC 222728 in
the case of Taruva
Juth Telibiya Sahakari Mandli vs State of Gujarat. Learned
advocate Mr.Majmudar has also submitted that the order of Collector
dated 11th
March, 2011 is sought to be implemented by making entry on 12th
March, 2011 which suggests about highhandedness. He has submitted
that in a similar matter in Special Civil Application No.5604 of 2011
the High Court (Coram: M.R.Shah, J.) vide order dated 29th
April, 2011 has remanded the matter back and, therefore, in this case
also the matter be remanded and the impugned order may be quashed and
set aside as the revision application is pending and non-granting of
the order of status
quo would
make it infructuous. He further submitted that for grant of interim
relief in
respect of any proceedings before the competent authority the same
consideration has applied as the Civil Court like prima
facie, balance
of convenience etc. which has not been considered. He has also
submitted that proceedings under section 79(A) were initiated earlier
when the construction was made which has been regularized. Therefore,
again the said proceedings could not have been initiated. He has also
referred to and relied upon the judgment and order of the High Court
reported in 2005
(0) GLHELC- HC 206854 in
the case of Legal
Heirs and Rep. Of Decd. Sidibhai Badhabhai vs State of Gujarat and
in the case of Hill
Memorial High School and Anr. (supra) to
emphasize that the order could not have been passed without affording
opportunity of hearing.
3. Learned
advocate Mr.Majmudar has submitted that it was given not only for the
salt but also storage and process of agricultural items like rice
plant and for other industrial purpose.
4. Learned
Assistant Government Pleader Mr.Dave has submitted that the show
cause notice clearly referred to the breach of the conditions which
is at page:42 and pointedly referred to those conditions and
submitted that one of the conditions was that land to be used for the
purpose of rice plant and storage, which, in turn, would create the
employment for the local people. However, without permission of
Gandhidham Development Authority, it has been leased out after making
unauthorized construction of the godown letting out to the Renuka
Sugar Limited as well as J.M.Baxi and Company and others. Not only
that but the land has not been used for the purpose for which it was
given and in fact, unauthorized construction has been made, and,
therefore, impugned order has been passed. Referring to Annexure-E,
which is a show cause notice dtd.29.6.2010, he submitted that earlier
also suo motu
proceedings
for breach of condition was initiated and time was extended for
making use of the land for the purpose of which it has been given and
as there is no compliance with the same, again notice has been issued
pointing out the breach or violation. The show cause notice clearly
refers to these details about the breach of conditions subject to
which the land was given which again has a reference to purpose for
which it is to be used. It is also made clear that any construction
was to be made subject to the approval of the Collector or the
Government. Admittedly there is no such previous permission obtained.
Though submission has been made by learned counsel Mr. Majmudar that
the permission for construction of the godown has been obtained from
the panchayat
which itself would reflect the conduct that when the land has been
given subject to the conditions as mentioned therein which includes
getting necessary permission from the Government for making
construction and instead of getting such permission it is contended
that permission has been taken from the panchayat. The land was to be
used for particular purpose and the underlying policy for giving such
land is to encourage the industrial use like making a salt which in
turn will help generating the local employment. It is in this context
when the land has not been used for the purpose of salt and the
construction has been made without any prior permission or approval
from the competent authority for construction of go-down which have
been leased out. Further on earlier occasion, inspite of Notice
issued and extension of time was granted to comply with the condition
the same has not been fulfilled, and, therefore, again the show cause
notice has been issued pursuant to which the impugned order has been
passed. Therefore the submission made by learned counsel Mr.Majmudar
that it is in violation of principles of natural justice and the
impugned order has travelled beyond the show cause notice without any
merits is unaccepted. In fact the impugned order itself is
self-explanatory not only with regard to violation or breach of
condition but totally frustrate the very purpose of giving such land
as it was given subject to the conditions with same purpose of
encouraging the particular area by some kind of industrial activity
or for generating the local employment. If that very purpose is
frustrated, and when the order is passed after issuing show cause
notice and again the respondent No.1 Secretary (Appeal) having
considered this aspects has passed the impugned order, it cannot be
said that it is arbitrary. Moreover there is no question of granting
any status quo as sought to be canvassed inasmuch as if such an order
is passed it would amount to allowing to perpetuate the wrong doing
for further period pending the proceeding before the authority. The
submissions made by learned
counsel Mr.Majmudar that the same criteria for grant of injunction
would apply as in the Civil Court is not disputed but there has to be
some prima facie
case,
balance of convenience etc., which are required to be considered like
while considering such an application for interim orders in the Civil
Court. Therefore impugned order cannot be said to be erroneous which
would call for any exercise of discretion under Article 226 and 227
of the Constitution of India. The submissions made by learned counsel
Mr.Majmudar that the order impugned has travelled beyond the show
cause notice is misconceived. Reliance placed upon judgments of this
Court referring to the judgment particularly reported in 2008 (2) GLH
520 is not applicable to the facts of the present case as in that
case it was a show cause notice to the institution for rejection of a
grant and this case is with regard to a breach of the condition
subject to which under a policy the land is given. Therefore this
judgment will not have any application.
5. Though
the submissions have been made by learned advocate Mr.Majmudar to
justify that the land has been given for the process of agricultural
items or the rice plants and/or storage for industrial purpose and,
therefore, there is no breach of condition, the same is without any
merit. It is required to be mentioned that the land was given for
salt or for process of agricultural items like rice and establishment
of plant for such purpose and/or for use and storage of agricultural
produce by the petitioner himself (emphasis supplied) and not for
giving such land on lease after making unauthorized construction of
godown and that too without any permission or authority. Therefore,
admittedly, when it was given for such purpose for which it has not
been utilized and the construction has been made unauthorizedly for
making a profit contrary to the underlying purpose or the scheme for
giving such land to promote the developments or the activities which
would generate the local employment.
6. The
judgment reported in 2005 (0) GLHEL-HC 206854 was again referring to
the proceedings initiated on the ground that land was not cultivated
for the whole period and that another person was allowed to
cultivate, and, therefore, the grant of land was cancelled. Again
this was considered in background of the facts of the case. Whereas
in the facts of the present case there is admittedly a breach of the
condition for which show cause notice has been issued and earlier
also opportunity was given, therefore, the present petition deserves
to be rejected in limine and accordingly stands dismissed.
(RAJESH
H. SHUKLA, J.)
Amit
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