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SCA/3474/2009 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3474 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
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 ?
=========================================================
RAMANBHAI
SAVJIBHAI JAKHWADIA, CHAIRMAN, VAGHRI BHAGWATI - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
KAVINA for MR ASIT B JOSHI
for
Petitioner(s) : 1,
MS JIRGA JHAVERI, AGP for Respondent(s) :
1-3
MR BHARAT JANI for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 25/02/2011
ORAL
JUDGMENT
By
this petition under Article 226 of the Constitution of India, the
petitioner has challenged order dated 30-3-2009 passed by the
Collector, Ahmedabad, the respondent No.2 herein, forfeiting the
land bearing Survey No.58/1 admeasuring 3630 sq.mtrs.
Short
facts arising from the present petition are that petitioner society,
a Registered Co-operative Society formed in 1977 by the members,
was allotted land admeasuring 3630 sq.mtrs. of Survey No.58 of
Vejalpur, Ahmedabad, for construction of residences of its members
on certain terms and conditions. Thereafter, non-agricultural
permission and Raja Chhiti were granted by the concerned
authorities. As the land was uneven and a Talavdi, levelling and
filling were done on the land and construction was completed upto
plinth level. As there were encroachments by hutment dwellers on
one side of the said land, several representations were made to the
authorities. On introduction of Draft Town Planning Scheme No.3 of
Vejalpur after enactment of Gujarat Town Planning & Urban
Development Act in June, 1976, there was a major change in the
boundaries of the land allotted to the petitioner society and as a
result of which, the construction of the houses made by the members
of the society on the land became invalid. When construction was
going on prior to allotment of Final Plot, the petitioner society
was directed by the respondent No.4 by notice dated 18-12-1981 to
stop construction on the land in question. Thereafter on 23-11-1984
when revised lay out plan was sanctioned, land admeasuring 900
sq.yrds. of the society was deducted by the authority and,
therefore, compensation was sought by the petitioner society to be
awarded towards said deduction. The respondent No.4 thereafter
allotted Final Plot No.89 to the petitioner society vide
communication dated 26-3-1985. As there were encroachments even
after allotment of Final Plot No.89, complaint was made to the
police for its removal apart from making representation to
respondent No.2. Due to aforesaid restraints, construction of their
residential houses could not be completed. Thereafter in 1989, a
development permission as per the revised plan was granted by the
Local Area Development Authority and it was extended for a period of
two years. Pursuant thereto, some members constructed pukka houses
and some kachha houses and they are residing therein by regularly
making payments towards taxes, electricity bills, revenues, etc.
However, on 12th/18th May, 1999, the petitioner society
requested the respondent No.2 for construction of flats on the said
land for its members. On 25-6-2000, a panchnama was drawn by
Talati-cum-Mantri that there were three pukka houses and 20 kachha
houses. Thereafter, certain details were sought by the respondent
No.3. Due to earthquake in 26-1-2001, they did not construct flats
instead decided to construct tenements as per the sanctioned plan
and sought permission to induct new members in the society for
availing financial assistance. However, the respondent No.2
initiated suo motu proceedings by issuing a show cause notice on
12-7-2001 for breach of condition No.4 of allotment order of 1971. A
reply to the said notice was given but no action was thereafter
taken by the respondent authorities. Vide notification dated
20-7-2006 issued by the State Government, land of the petitioner
society was included in the existing limits of the City of
Ahmedabad. Thereafter in 2006 when petitioner society submitted a
revised plan to the respondent No.4 for construction of flats and
commercial premises on the said laid in 2006 for its members,
existing pukka and kachha constructions were directed to be removed.
All of its members undertook to remove their pukka and kachha houses
as directed by the respondent No.4. An application submitted to
District Registrar for change of name was allowed and the members
paid Rs.19.00 lakhs to the local authority towards development and
scrutiny fees. The respondent No.4 thereafter suspended the
development permission granted to the petitioner and directed them
to obtain necessary permission from the respondent No.2. When they
approached the respondent No.2, a show cause was issued to the
petitioner society. Meanwhile, when the society requested the
respondent No.4 by representation dated 24-6-2008, NA permission was
directed to be produced. According to the petitioner, initial
allotment of land was for NA purpose and is still standing as NA in
revenue records. The petitioner on 27-2-2008 submitted an
application to respondent No.2 for construction of flats. However,
once again suo motu show cause notice was issued by the respondent
No.2 on 28-4-2008 for the alleged breach of condition of allotment
after a period of more than 38 years. In pursuance of reply
submitted by the petitioner on 6-5-2008, members of the society were
directed to remain present by the respondent No.2 with all details
of new and existing members and on 27-5-2008, they remained present
and submitted all required details. Thereafter, on 17-6-2008, the
members were required to submit their willingness to deposit the
premium as may be fixed by respondent No.2 as per the jantri for
considering the proposal of petitioner Society. All these details
were also furnished by the petitioner society. As nothing was done
by the respondent No.2, the petitioner society filed Special Civil
Application No.2590 of 2009. However, during the pendency of said
petition, the respondent No.2 passed impugned order dated 30-3-2009
whereby the land in question was vested with the State Government
for breach of condition. Hence, the present petition.
Heard
learned Senior Counsel, Mr.Percy Kavina, for Mr.Asit B.Joshi for the
petitioner, Ms.Jirga Jhaveri, learned AGP for the respondent Nos.1
to 3 and learned advocate, Mr.Bharat Jani, for the respondent No.4.
Learned
Senior Counsel, Mr.Kavina, submitted that no reasons were assigned
by the respondent No.2 in vesting the land in question with the
State Government. According to him, the impugned order is a
non-speaking order and is against the principles of natural justice
and hence, the same is required to be quashed and set aside. Relying
on a decision of this Court reported in 1997(2) GLH page 633, it is
submitted that condition specifying time limit for completion of
construction work is directory and not mandatory. According to him,
such breach is only a technical breach which does not warrant any
serious or severe action of cancellation of permission and it can be
regularized by imposing fine or penalty. It is further submitted
that in pursuance of representations dated 6-5-2008 and 27-5-2008,
the respondent No.2-Collector vide communication dated 17-6-2008
sought certain details from the members of the society as to whether
all the existing and new members of the petitioner Society are
willing to pay the price fixed as per the Jantri or not. In
pursuance thereof, the petitioner Society vide reply dated 23-6-2008
furnished all the details which, according to him, clearly establish
that case of the petitioner Society was considered by the Collector
for regularisation by imposing fine for the alleged breach,
however, at a subsequent stage, without application of mind and in a
mechanical manner, passed the impugned order upon the instructions
of respondent No.1 which is not an independent decision and is
contrary to the policy of Government and, therefore, prima facie,
the petitioner is entitled to relief as prayed for. It
is further submitted that the respondent No.2 has no
authority to pass the impugned order as per Sec.3A(b) of the BPMC
Act, 1949 as the land in question has been included within the city
limits of Ahmedabad Municipal Corporation after issuance of
notification dated 20-7-2006 and while demarcating, size of the land
has been deducted. It is further submitted that although the
petitioner society submitted consent of existing as well as new
members for payment of premium as may be fixed as per the jantry
vide their communication dated 23-6-2008 for regularisation in
pursuance of communication dated 17-6-2008 of respondent No.2, the
impugned order forfeiting the land ought not to have been passed by
the respondent No.2 but the land ought to have been regularised.
In
this connection, learned Senior Counsel relied on a decision of this
Court rendered in Bharat Industries Ltd. Vs. State of Gujarat
reported in 2006(1)GCD 847(Guj) wherein
it has been held in para 6 as under:
“6.
As regards the use of the land in question for manufacturing
of Badami Coal is concerned, as per the petitioner the application
was made and intimation was given which was not attended.
But, it appears that, the land is used for the other industrial
purpose. When the land is used for the industrial purpose, though
it can be said as breach, such breach, in my view, cannot be
said to be so serious which may attract the order of
forfeiture, and the reason being that the land is not only
used for the other industry, but by establishment of the industry,
the employment will be generated to the public at large.
Had it been a case where the land is used for a industry which
is prohibited under the law it may stand on different footing.
Had it been a case where the land is not actually used by the
establishment of the industry it may also stand on different
footing. When the intimation was given and the application was
made, it was expected for the authority to consider the same and
in any case when the land is actually used for industry and
even as on today is used for the industry, and there is no
material to show that by change of use for a different
industry either the public at large has suffered or the
interest of the Government would be to jeopardize, it would not be a
case where the harsh action of forfeiture of the land is called
for. Even otherwise also in a matter where there is a breach
of condition, the discretion would rest with the authority as
to whether the penalty should be imposed or the land should be
ordered to be forfeited. In the present case, it appears
that, the State Government while exercising revisional
jurisdiction has not at all considered the aspect as to
whether penalty would meet with the ends of the justice or a strong
case is made out for ordering forfeiture. In normal
circumstances if the breach of condition has resulted into a
serious loss of revenue to the Government or is against the
public interest or against any statutory provisions, it may call
for harsh action of forfeiture, but if the penalty can be a
suitable mode, then in that case, it cannot be said that in
every case the order of forfeiture must follow in the event the
breach is demonstrated. What shall be the quantum of
penalty or the mode of imposition and its recovery are
essentially for the authority to decide but it appears that when
the Quashi Judicial powers are exercised by the State
Government, it was required to be considered by the State
Government as to whether the penalty would meet with the
requirements considering the breach or not.”
It
is further submitted that suo motu proceedings for alleged breach of
condition has been initiated after an inordinate delay of more than
38 years and hence also, the impugned order is without jurisdiction
and contrary to the settled legal position by this Hon’ble Court. It
is therefore prayed that the impugned order be quashed and set
aside.
It
is submitted by learned AGP, Ms.Jirga Jhaveri, that the petitioner
society did not complete the construction within a period of two
years from the date of allotment of land and thereby committed
breach of condition No.4 and hence, in view of the continued breach
of conditions of allotment order for these long years, the Collector
passed the order vesting the land with the State Government. It is
further submitted that when request was made by the petitioner to
construct flats by inducting new members in the society in the land
in question, it was forwarded to the State Government by the
Collector as the original allotment order was of the Revenue
Department of State Government and it was opined by the Government
that as there was a breach of condition of allotment of land and as
the purpose was changed, request was not considered and in turn,
Collector, Ahmedabad passed impugned order resuming the land in
favour of State Government. According to her, all the
representations made by the petitioner society were considered
before passing the impugned order. She, therefore, submitted that
the present petition be dismissed.
Learned
advocate, Mr.Bharat Jani, supported the submissions made by learned
AGP.
This
Court has gone through the entire correspondences of the petitioner
Society with the respondent authorities. It is to be noted that in
pursuance of representations made by the petitioner society, the
Collector asked to provide certain details. Asking for details can
by no stretch of imagination be construed that Collector has taken
decision in favour of the petitioner Society. It is pertinent to
note that only Government can decide regarding allotment of plot to
the members of the Society and therefore, after fulfilling all the
formalities, the Collector sent the case of the petitioner Society
to the Government. Considering the fact that there is a breach of
condition of allotment and also various other aspects, Government
has taken decision to reject the demand made by the petitioner and
asked the Collector to pass a reasoned order and convey the
petitioner Society. It is also pertinent to note that the petitioner
had changed the constitution as well as the purpose and at present,
they intended to construct flats instead of residences and also
sought permission to use some portion of the land for commercial
purpose. However, later on, though the demand for use of the land
for commercial purpose was withdrawn by the petitioner society, the
entire proposal was changed and sought for allotment of land to
them.
It
is also to be noted that at the end of arguments, learned Senior
Counsel for the petitioner sought to remand the matter. However,
looking to the facts and circumstances, as this Court is of the
opinion that remanding the matter would be a futile exercise, matter
is not being remanded.
A
submission has been made on behalf of the petitioner that as the
petitioner Society had deposited the amount, their demand ought to
have been met by AUDA. However, it is to be noted that AUDA is a
different authority and has no authority to take any decision till
final decision is taken by the Government for allotment of land as
it is the State Government which has the authority to decide about
allotment of land. In the present case, the State Government has
decided decision and asked the Collector to pass a reasoned order
forfeiting the land. In view of the facts and circumstances narrated
hereinabove, though this Court is in agreement with the principle
laid down in the decision cited by the learned Senior Counsel for
the petitioner, the petitioner society would not be entitled to any
benefit.
A
submission has also been made that construction has been made by the
petitioner Society. However, it is to be noted that panchnama on
record indicates that only partial construction by one or two
members is made. Thus, total situation is now changed and,
therefore, after more than 38 years, the petitioner is not entitled
to any relief and hence, the Government has rightly decided the
matter and ordered the respondent No.2 to pass reasoned order and
the respondent No.2-Collector passed the impugned order. No
illegality or irregularity has been committed in passing the said
impugned order. Hence, the present petition is required to be
dismissed.
This
petition is dismissed. Rule is discharged. Ad-interim relief stands
vacated. Remedy is available to the petitioner society to approach
the concerned respondent authority/ies for refund of amount which
has been deposited.
(M.D.SHAH,J.)
radhan
Further
Order
After
pronouncement of this judgment, learned Senior Counsel, Mr.Kavina,
requested that ad-interim relief may be extended for two weeks.
Considering the facts and circumstances, ad-interim relief granted
earlier is extended for a period of two weeks.
(M.D.SHAH,J.)
radhan
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