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LPA/1382/2010 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1382 of 2010
In
SPECIAL
CIVIL APPLICATION No. 11502 of 2009
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=================================================
BABARA
TALUKA SAHAKARI KHARID VECHAN SANGH LTD. - Appellant(s)
Versus
STATE
OF GUJARAT, PRINCIPAL SECRETARY (APPEALS) & 3 - Respondent(s)
=================================================
Appearance :
MR
BM MANGUKIYA for Appellant(s) : 1,MS BELA A PRAJAPATI for
Appellant(s) : 1,
MR UNMESH TRIVEDI AGP for Respondent(s) : 1 -
4.
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 29/09/2010
CAV
ORDER
(Per
: HONOURABLE MR.JUSTICE ANANT S. DAVE)
The
challenge in this appeal under Clause 15 of the Letters Patent is the
order dated 01.12.2009 passed in Special Civil Application No.11502
of 2009 of the learned Single Judge by which prayer to quash and set
aside the order dated 15.07.2006 passed by the revisional authority
in exercise of powers under Section 211 of the Bombay Land Revenue
Code (for short, “Code”) confirming the order dated
31.08.2001 passed by the District collector, Amreli, came to be
rejected.
2. On
31.08.2001 the District Collector, Amreli ordered that, the land
bearing survey No.717 admeasuring around 1 Acre 00 Gunthas (4047 sq.
mtrs.), which was allotted to Shri Babra Taluka Kharidi Vechan Sangh
Ltd., petitioner-appellant (for short, “the Sangh”) shall
vest into Government for breach of condition No.9 of the order of
grant dated 13.06.1984 by which the petitioner was to construct
godown within a period of 2 years and for about 17 years, no
construction of godown was carried out by the petitioner and,
therefore, Mamlatdar, Babra was directed to take over possession of
the land and to make necessary entries in the revenue record.
3. The
revisional authority exercising powers under Section 211 of the
Bombay Land Revenue Code, 1879 (for short, “the Code”)
also concurred with the findings of the competent authority and came
to the conclusion that there was no valid ground to interfere and by
order dated 15.07.2006 confirmed the order dated 31.08.2001 of the
District collector, Amreli.
4. Before
the learned Single Judge contentions were raised by the petitioner
that the land in question was allotted to the petitioner society in
the year 1984 on payment of full consideration and when Sanad was
already issued, it was not open for the Collector to take any action.
It was further submitted that the revisional authority exercising
powers under section 211 of the Code could not have revised the terms
and conditions of the agreement. It is next contended that once
Sanad was issued in the matter of contractual obligation by and
between the State and the subject, the dispute if any was to be
redressed by approaching civil court. The above contentions were
raised by placing reliance on the decisions of the Bombay High Court
in the cases of; (i) The Government of Bombay v. Mathurdas Laljibhai
Gandhi [44 BLR 405] and (ii) Sambhaji Baloji Solankar v. The
Mamlatdar of Baramati [55 BLR 281]. Reliance was also placed on the
decision of this Court in case of Patel Raghav Nath v. G.F.Mankodi,
Commissioner, Rajkot [1965 GLR 34].
5. However,
the above contentions failed to persuade the learned Single Judge and
considering inordinate delay in complying with condition No.9 of the
order of allotment of the land whereby it was stipulated that the
petitioner should construct godown within a period of 2 years and
even after period of 17 years, the land was not used for the purpose
for which it was allotted; and the authorities below initiated action
against the petitioner after issuance of notice and in accordance
with law, the petition was rejected.
6. Mr.
B.M.Mangukiya, learned advocate for the appellant, virtually
reiterated the contentions raised before the learned Single Judge
while challenging the impugned orders. It is submitted that though
the order was passed on 13.06.1984, possession of the land in
question was given after 6 years and actual boundaries were earmarked
by the District Inspector of Land Records only on 01.05.1990. It is
further submitted that the office bearers of the society could not
construct godown due to financial constraint and, therefore, there
was no willful or deliberate breach of condition laid down in the
said order. However, a bore-well with a room for supply of water was
already constructed and the appellant is ready and willing to pay the
penalty and, therefore, the orders passed by the authorities below be
quashed and set aside and be further directed to regularize the title
and possession of the land on payment of reasonable premium. Learned
advocate for the appellant further submitted that the revisional
authority exercising powers under Section 211 of the Code could not
have revised the terms and conditions of the grant order.
7. Mr.
Umesh Trivedi, learned AGP appearing for the respondents, would
submit that no illegality, even procedural, is committed by the
authorities below and when there are concurrent findings of
authorities below about breach of condition of the order of the
grant, as confirmed by the learned Single Judge, this Court in appeal
would not take a different view other than that was taken by the
authorities and the learned Single Judge. It is further submitted
that the revisional authority exercising powers under Section 211 of
the Code has not revised any terms and conditions of the agreement
and action was taken in accordance with law after issuing show cause
notice and within four corners of the order of the grant. Therefore,
the decisions relied upon by the learned advocate for the appellant
have no application to the facts of the present case.
8. Having
heard learned advocates for the parties and upon perusal of the
record, admittedly the allotment of the land in question was on
certain terms and conditions enumerated in the order dated 13.06.1984
passed by the District Collector, Amreli. That condition Nos.9 &
11 read as under:
“9.
That construction and use of the godown is to be completed within 2
years from the date of the order of the grant; and
11. The
Collector is empowered to take over the possession of the land with
construction without awarding any compensation and the approval is to
be treated as cancelled”.
9. If
the impugned orders are perused, it is revealed that the appellant
failed to construct godown as per condition No.9 within 2 years from
the date of the allotment and even after handing over the possession
of the land in question by Mamlatdar, Babra, District Amreli in the
year 1990-91, no construction was made. Therefore, a show cause
notice was issued on 05.07.2001 to the appellant to show cause as to
why action should not be taken in accordance with law for breach of
condition No.9 and having rendered no satisfactory explanation, the
competent authority viz. the District Collector passed the order to
forfeit the land. Even, revisional authority exercising powers under
section 211 of the Code also found that order of the District
Collector of forfeiting the land was in consonance with terms and
conditions of the order dated 13.06.1984. Condition Nos.9 and 11 of
the order dated 13.06.1984, which are reproduced herein above, are
specific and clear and breach thereof empowers the competent
authority to take over possession of the land with construction even
without ordering any compensation. Therefore, the decisions relied by
the learned counsel for the appellant in case of Patel Raghav Natha
(supra) have no application in the facts of this case. That in the
above decision, the Court has considered the decisions of the Bombay
High Court in cases of Mathurdas Laljibhai Gandhi (supra) and and
Sambhaji Baloji Solankar (supra) and held that, exercise of
revisional powers was beyond reasonable time.
10. We
find that this is a gross case where the appellant has not acted as
per the terms of grant of land, completely failed to put the land to
any meaningful use. After 17 years of grant of land, the same
remained un-utilized. Entire purpose for grant of land thus
frustrated. As per the conditions of the allotment order as well as
terms of agreement, it was open for the Collector to recall grant of
land, if any of the conditions was violated. We may recall that the
land was to be developed within two years of taking possession. It
is not even the case of the appellant that any extension was sought
and granted by the Collector for development of the land. Thus,
without any extension of time limit, against requirement of
development of land within two years, the appellant did not develop
the same for 17 years. We see no error in the view of the Collector
as well as the Government. Learned Single Judge rightly dismissed the
petition.
11. Further,
in the facts of this case, neither the competent authority nor the
revisional authority has revised any term or condition of the order
of grant and action taken by both the authorities is within
reasonable time limit. While passing the order dated 31.08.2001, the
District Collector acted within the frame work of the order of the
grant and the revisional authority was therefore justified in
confirming the order of the Collector. Considering the totality of
facts and circumstances of the case, we are in full agreement with
the reasoning adopted by the learned Single Judge.
In
the result, in absence of any merit, the appeal fails and is hereby
dismissed. No costs.
[S.J.Mukhopadhaya,
C.J.]
[Anant
S. Dave, J.]
*pvv
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