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SCA/5845/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5845 of 2011
=========================================================
BHOOMI
ENTERPRISE THROUGH POA RANJIT SINGH BATH - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SPECIAL SECRETARY & 3 - Respondent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Petitioner(s) : 1,MRVIMALAPUROHIT for Petitioner(s) : 1,
MR PATEL
AGP for Respondent(s) : 1,
None for Respondent(s) : 2 -
4.
=========================================================
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 to the Civil Court like prima
facie, balance
of convenience etc. which has not been considered. He has also
submitted that in fact, the proceedings under section 79(A) were
initiated earlier which were subsequently, when the construction was
made, were regularized, and, 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
Assistant Government Pleader Mr.Patel 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 salt which, in turn, would create the employment for the
local people. However, it has been leased out after making
unauthorized construction of the godown letting out to the shipping
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.
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 underlined
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 instead of using the land for the
purpose of salt and making the construction without any permission of
the godown which are to be let out and on earlier occasion inspite of
notice issued and granting of extension of time when the condition or
proceedings have not been changed, again 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 as in such matter if such order is passed it
would be wrong doing for some further period pending the proceedings
before the authority. The submission made by learned counsel that the
same criteria for grant of injunction would apply as in the civil
court though procedure is required to be accepted but there has to be
some prima facie
case,
balance of convenience and 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. 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 with regard to the record whereas in the facts of the
present 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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