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SCA/12797/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12797 of 2010
=========================================================
PARMAR
MAFATLAL PARSHOTTAMDAS & 1 - Petitioner(s)
Versus
COLLECTOR
& 2 - Respondent(s)
=========================================================
Appearance :
MR
SV PARMAR for Petitioner(s) : 1 - 2.
MR RAJESH RINDANI, ASST
GOVERNMENT PLEADER for Respondent(s) : 1,
None for Respondent(s) :
2 - 3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 07/10/2010
ORAL
ORDER
By
way of this petition the petitioner has challenged the order dated
06/08/2010 passed by the Secretary, Revenue Department (Appeals),
Ahmedabad passed in Application No.MVV/JMN/MSN/8/2009 whereby the
interim application seeking stay is rejected on three counts viz.,
that the land in question which is applied by the petitioner has been
allotted by the Collector, vide his order dated 03/10/2009 to
respondent No.3 herein on their proposal; that Special Civil
Application No.12261 of 2009 preferred by the petitioner came to be
rejected by this Court and, that if the petitioner is entitled to get
land on higher price as referred in the order of the Collector then
the petitioner may apply for it.
2. Learned
Advocate appearing for the petitioner has submitted that the order of
the authority deserves to be quashed and set aside on the following
grounds.
The
authority has not applied its mind before passing the order.
Amendment
application which was moved by the petitioner (Annexure – C)
was treated as application for interim relief and it was heard while
considering the amendment application.
The
order was passed on extraneous consideration.
Submissions
made by the applicant were not recorded by the authority.
3. Learned
Advocate for the petitioner has further contended that the original
order which was sought to be reviewed was of 18/07/2009 and since the
concerned Officer was not available for hearing of the interim
application, in the meantime, the order in question was passed by the
Collector in favour of respondent No.3 dated 03/10/2009 for allotment
of the land in question.
4. Learned
Counsel for the petitioner has also submitted that order passed in
Special Civil Application No.12261 of 2009 came to be challenged by
way of LPA No.1403 of 2010 and by order dated 06/08/2010 the LPA as
well as SCA were allowed to be withdrawn.
5. Before
dealing with the contentions of the learned Advocate for the
petitioner, it would be advantageous to look into the relevant part
of the order dated 24/11/2009 passed by this Court (Coram: M R SHAH,
J.) in SCA No.12261 of 2009, which reads as under:
“…6. At
the outset it is required to be noted that petitioner has
unnecessarily made allegation of malafide by submitting that impugned
order has been passed by the Collector rejecting the application of
the petitioner and others at the behest of persons belonging to Hindu
caste / community and allotting land in favour of respondent No.2.
It is to be noted that land in question has been allotted to
respondent No.2 – Director of Tribal Development Department,
State of Gujarat for the purpose of construction of hostel for
students belonging to tribal and not in favour of any person
belonging to Hindu community. Mr.Parmar, learned Advocate for the
petitioner has submitted that as objection submitted by one
Smt.Shakuntalaben was considered by the Collector, Mehsana while
rejecting the application of one Kantilal Parmar for allotment of
land to the members of Scheduled Caste, he has made such allegation.
It is to be noted that alongwith application of one Kantilal Parmar
there was one another application of Smt.Shakuntalaben for allotment
of land for public purpose. Therefore, merely because some other
person has made application and considering the report submitted by
the Chief Officer, Visnagar Nagarpalika as well as Assistant
Collector, Visnagar opining that land in question will be needed by
the State Government for public purpose in future, application of the
petitioner for allotment of land was rejected, it cannot be said that
said order is malafide. This Court is not further expressing any
opinion on merits with respect to order passed by the Collector,
Mehsana rejecting application of one Kantilal Parmar as same is
subject matter of revision application before the State Government
and as any observation will prejudice the case of the petitioner /
said Kantilal Parmar.
7. Now
so far as challenge to the order passed by the Collector, Mehsana
dated 03.10.2009 allotting land to respondent No.2 – Director
of Tribal Development Department, State of Gujarat for construction
of hostel for students belonging to tribal is concerned, it is to be
noted that land has been allotted for construction of hostel for
students belonging to tribal, which is also public purpose. On
considering impugned order dated 03.10.2009 allotting land to
respondent No.2 – Director of Tribal Development Department,
State of Gujarat, it appears that request was made by Director of
Tribal Development Department, State of Gujarat on 12.06.2008 to
allot said Patdar land for Government Kumar Chhatralaya (Tribal
Development, Visnagar) as Government Kumar Chhatralaya is being run
in the rented premises and there is no proper facility and therefore,
Collector, Mehsana has considered the same and has alloted / granted
said land to respondent no.2 for the purpose of construction of
hostel, which in the facts and circumstances cannot be said to be
illegal and/or malafide which calls for interference of this Court in
exercise of powers under Article 226 / 227 of the Constitution of
India. Land in question has been alloted for the purpose of
Government Kumar Chhatralaya for the students belonging to SEBC (Baxi
Panch)….”
6. The
first contention of the learned Advocate for the petitioner that the
authority has passed the order without application of mind cannot
accepted as the authority has rightly struck the balance between the
public group and individual. However, an endavour is made by
referring paragraph No.4.8 of the petition that a case is made out to
segregate SCs and drive them out of developed area.
6.2 The
second contention of the learned Advocate is that the authority has
erroneously considered the ground of rejection of SCA no.12261 of
2009. In-fact the said petition was permitted to be withdrawn as per
order passed in LPA No.1403 of 2010 dated 06/08/2010. In this regard
it is required to be noted that vide order dated 14/07/2010 passed in
LPA No.1403 of 2010 only the Appeal and Civil Application stood
disposed of as withdrawn and thereafter by another order dated
06/08/2010 the appellate Bench has granted withdrawal of the SCA
No.12261 of 2009. Thus, the authority has passed its order on
06/08/2010 which was of even date on which the appellate Bench has
granted permission for withdrawal of SCA NO.12261 of 2009 and
therefore the authority ought not to have known about the said fact.
The subsequent development should have been pointed out to the
authority by the petitioner, but the petitioner has failed to do so.
7. I
am of the view that it is always open for the State Government to
grant its land for good public purpose whereas endavour is made that
without inquiry being conducted under Section 37 (2) of the Bombay
Land Revenue Code, the Collector has held that the petitioner is not
the owner of the said land. If it is so then the petitioner can
initiate appropriate proceedings under Section 37 (2) of the code.
Unless the same is initiated by the petitioner, this Court cannot
interfere with the order passed by the authority. The appeal is still
pending and the order under challenge is an interlocutory and
therefore, it will not be proper to observe anything at this stage.
The view taken by the authority is just and proper and this Court is
in complete agreement with the findings recorded and conclusions
arrived at by the authority below.
8. In
the premises above, the petition fails and stands dismissed with no
order as to costs.
(K
S JHAVERI, J.)
sompura
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