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2014 DIGILAW 1158 (GUJ)

Shabbir Ali Mohammed Khalifa v. Union of India

2014-12-11

R.P.DHOLARIA, V.M.SAHAI

body2014
JUDGMENT : R.P. Dholaria, J. The present petition in the nature of Public Interest Litigation is filed by the petitioners praying for the following relief’s. "(A) issue a Writ of mandamus or writ in the nature of mandamus or other appropriate writ, order or direction for quashing and setting aside the order dated 28.6.2012 passed by Respondent No. 3 by holding that the Resolution dated 20.06.2012 cannot be applied retrospectively. (B) declare that act on the part of Respondent No. 2 amending the Clause 1 of the old Resolution dated 20.06.2012 suffers from vice of favouritism and further be pleased to declare that the benefit contemplated under Rule 5(7) of Central Special Economic Zone, 2006 cannot be applied in case of Respondent No.4. (C) Be pleased to declare that the Respondent No.1 Development Commissioner has no power to opine on the applicability of the Land Revenue Code and not competent to restrain the Competent Local Authority from taking any action under their jurisdiction. (D) During the pendency and final disposal of this Petition, the implementation and execution of the Order dated 28.06.2012 may kindly be stayed. (E) xxx xxx xxx" 2. The facts giving rise to the present writ petition are that respondent No.4 is a developer of notified SEZ (Special Economic Zone) located at and in the name of "Mundra Port and Special Economic Zone" and as such enjoying the status of developer in Taluka Mundra, District Kutch. The respondent No.4, to establish the Project, applied for allotment of lands out of total 17 villages initially by applications dated 14.7.1999 and 3.8.1998 and initially, 734 acres and 00 gunthas of lands were allotted from 17 villages including the village of the petitioners. It appears that by different orders, the lands have been allotted to respondent No.4 and possession thereof was handed over to respondent No.4 under Section 60 of the Land Revenue Code. It appears that thereafter, respondent No.4 - developer subsequently merged into Mundra Port and Special Economic Zone and, therefore, the change was allowed by respondent No.2 by letter dated 12.1.2009 following to which an application was moved by respondent No.4 to the Collector seeking necessary change in the Company's name. Pursuant to the application as aforesaid moved by respondent No. 4, necessary orders allowing the changes were passed in all the matters, i.e. allotment orders at Annexure-B of the compilation. Pursuant to the application as aforesaid moved by respondent No. 4, necessary orders allowing the changes were passed in all the matters, i.e. allotment orders at Annexure-B of the compilation. As per the conditions of the order passed by respondent No.3, respondent No.4 was required to complete the development work within a period of three years on the given lands, however, respondent No.4 could not even start the work within this period. Hence, as per the case of the petitioners, it was a breach of condition No.8 of the order dated 15.07.2005. 2.1. It is further case of the petitioners that in spite of taking action for breach of condition, surprisingly, respondent No.3 enhanced the time limit in favour of respondent No. 4 which is in gross violation of condition No.8 of the order dated 15.07.2005 and also in violation of mandate of Government Resolution No.3907-2621-8 dated 27.02.2008, because when the said resolution came into force, respondent No.4 had already violated condition No.8 of the allotment order dated 15.07.2005. He had even not initiated the construction activities uptil 1st September, 2008 which is reflected in the extension order dated 01.09.2008. It is averred that, therefore, respondent No.3 ought to have taken action under resolution dated 27.02.2008, but instead of taking action for breach, surprisingly, the time was extended by giving relaxation in condition No.8 of the allotment order dated 15.07.2005. It appears that thereafter, respondent No.3 issued show cause notice 5.3.2011 to respondent No.4 for breach of condition of resolution dated 27.02.2008 calling for explanation as to why the pieces of lands on which the construction work is not carried out should not be forfeited to the Government without any encumbrance. It is further averred that as respondent No.4 failed in giving any explanation within stipulated time, another show cause notice dated 27.04.2011 was issued, treating the same as final notice, asking respondent No.4 to remain present on 04.05.2011. It is the case of the petitioners that they are having no personal knowledge as to whether respondent No.4 appeared or explained anything for delay, but it reflects from the letter dated 27.02.2012 that respondent No.4 has became defaulter and necessary actions were initiated against him. It is the case of the petitioners that they are having no personal knowledge as to whether respondent No.4 appeared or explained anything for delay, but it reflects from the letter dated 27.02.2012 that respondent No.4 has became defaulter and necessary actions were initiated against him. It is averred by the petitioners that Government Resolution dated 27.02.2008 categorically states that the development activities should be started within six (6) months from the date of notification and has to complete the same within a period of three (3) years from the date of notification. If the developer fails to do so, the land on which no development work is carried out, will be forfeited to Government without any encumbrance. It is the case of the petitioners that despite the aforesaid position, the respondent authority is not taking any action against respondent No.4 developer. Therefore, the petitioners filed Writ Petition (PIL) No. 108 of 2012 and the Court issued the notice to the respondents and the matter was posted for further hearing. By order dated 10.5.2012, this Court directed the authority to take decision within 3 weeks from the date of the order. In the said matter, respondent Nos. 2 and 3 moved an application being Civil Application No. 6357 of 2012 and sought for further 4 weeks' time (upto 28.06.2012) to pass appropriate order. It is the case of the petitioners that, thereafter, the petitioners noticed construction activities by respondent No.4 in the area. Hence, the same thing was pointed out before this Court by showing the photographs. A statement was made by the Government Pleader that decision has been taken in favour of respondent No. 4, but no copy of either order or proceedings was placed before the Court and, therefore, on the request of the petitioners' advocate, the said fact was taken on record and the matter was adjourned. It is averred that during the interregnum period, when the petitioners noticed construction activities by respondent No. 4, they thought that decision must have been taken and, therefore, respondent No. 4 is carrying out the work but when they inquired from their advocate about the matter, they came to know that no order has been placed before the Court or served on the petitioners' advocate. Therefore, the petitioners, before making any allegations against respondent No.4 in the Court, exercised their right under the Right to Information Act and gave an application to ascertain as to whether any decision has been taken or not. In pursuance of the said application, the petitioners received reply by letter dated 13.06.2012 intimating the petitioners that no decision has been taken in the given case. The petitioners, feeling aggrieved by the said reply, preferred an appeal which is decided on 9.8.2012. The petitioners are being intimated qua the fate of the appeal that since no decision has been taken, no particulars can be given. 2.2. It is averred by the petitioners that surprisingly, show cause notice was issued to respondent No.4 for forfeiting the land granted in their favour for breach of condition, but instead of taking any action, the order dated 28.6.2012 came to be passed in colourable exercise of powers. Aggrieved by the same, the petitioners have preferred the present writ petition. 3. This Court vide order dated 14.3.2013 issued notice making it returnable on 4.4.2013. In pursuance of the said notice, affidavit-in-reply is filed by Mr. Jayesh M. Mishan, Under Secretary to Government of Gujarat, Revenue Department on behalf of respondent No.2. Paragraphs 16 and 21 read as under. "16. It is stated that thereafter, amendment was brought into by the Special Economic Zone Rules, (Amendment) 2010, whereby the Ministry of Commerce and Industry (Department of Commerce) issued a notification in the official Gazette on 14th June, 2010 rule 5 of the Special Economic Zone Rules, 2006. A copy of the notification dated 14th June, 2010 is annexed herewith and marked as Annexure R-I to this affidavit in reply. It is stated that rule 5 sub rule (7) was inserted which reads as follows : "The developer or co-developer shall have to construct the minimum built up area specified in this rule within a period of ten years from the date of notification of the Special Economic Zone in which at least fifty per cent of such area to be constructed within a period of five years from the date of such notification." "21. It is submitted that as per the section 51(1) of the Special Economic Zone Act, 2005 the provision of this act shall have overriding effect over the other laws. Hence, the State Government has amended old Government Resolution dated 28.02.2008. It is submitted that as per the section 51(1) of the Special Economic Zone Act, 2005 the provision of this act shall have overriding effect over the other laws. Hence, the State Government has amended old Government Resolution dated 28.02.2008. In light of the subsequent amendment which was brought into the Special Economic Zone Rules. Hence, the contention of the petitioner that the resolution dated 20.06.2012 cannot be applied retrospectively cannot stand in view of the provisions under the Act." 3.1. Pursuant to the notice, affidavit-in-reply to the writ petition as well as supplementary affidavit is also filed by Smt. Lata Shukla, Development Commissioner, Adani Port & Special Economic Zone, Mundra, on behalf of respondent No.1, Union of India. She has submitted that letter dated 9.8.2011 issued by the office of the Development Commissioner is in accordance with the second proviso to sub-rule 2(a) of Rule 5 and clause (ii) of Rule 6A of the Special Economic Zone Rules, 2006. In view of the said provisions, the Central Government can club and add different parcels of land earlier notified as separate Special Economic Zones subject to such parcels of land are contiguous with each other. Accordingly, the Central Government vide Notification dated 27.5.2009 consolidated all the 6 Special Economic Zones mentioned therein and 258.2112 hectares of land which are contiguous to each other. On notifying it becomes single Special Economic Zone and all the provisions of Special Economic Zone Act and Rules will prevail and applicable all over the Special Economic Zone. Thus, the contention of letter dated 9.8.2011 of the Development Commissioner is absolutely correct. The argument of the petitioners is not tenable as the land procured by the developer, private or Government, for the purpose of development of Special Economic Zone gets notified by the Government of India. 4. In view of the aforesaid factual scenario, Mr. Ekrama Qureshi, learned counsel for the petitioners has vehemently argued that the aforesaid Government land came to be allotted to respondent No.4 by different orders for the purpose of development of Mundra for setting up special economic zone and respondent No.4 has committed breach of conditions wherein it was specifically provided that construction and development work is to be carried out within a period of three years from the date of allotment of the land. He submitted that respondent No.4 has failed to carry out development work within stipulated period and consequently, therefore, there is a breach of grant of land in question in favour of respondent No.4. In his submission, the proceedings for breach of condition was initiated against respondent No.4 wherein the respondent authority has wrongly granted the benefit of Rule 5(7) of the Special Economic Zones Rules, 2006 ("the Rules" for short) as amended by (Sixth Amendment) Rules, 2010 and extended the period of 10 years from the date of the notification of SEZ in which at least 50% of such area to be constructed within a period of five years from the date of such notification. He further argued that virtually, grant of aforesaid extension has been given with retrospective effect to previous order of allotment passed in favour of respondent No.4 which is not permissible under the provisions of law. 5. Against the aforesaid arguments, Mr. Utkarsh Sharma, learned AGP has argued that the Mamlatdar, Mundra has taken inspection of the site and he found that rail track is made in earlier parcel of land allotted to respondent No.4. He further argued that the amendment in the Rules was brought into effect by Sixth Amendment Rules 2010 whereby the Ministry of Commerce and Industries issued notification in the official gazette dated 14.6.2010 whereby Rule 5 provides that the Developer or co-developer shall have to construct the minimum built up area specified in this rule within a period of ten years from the date of notification of the Special Economic Zone in which at least fifty per cent of such area to be constructed within a period of five years from the date of such notification. He also submitted that the Government has extended the period in favour of respondent No.4 in view of clear provisions of Section 51(1) of the Special Economic Zones Act, 2005 ("the Act" for short) which provides for overriding effect over other laws. 6. Mr. R.S. Sanjanwala, learned Senior Counsel appearing on behalf of respondent No.4 submitted that condition of grant No.2 of the order dated 15.7.2005 stipulates that they have to follow the provisions of Act/Rules and the decision of Special Economic Zone and instructions of the Government in this context from time to time. 6. Mr. R.S. Sanjanwala, learned Senior Counsel appearing on behalf of respondent No.4 submitted that condition of grant No.2 of the order dated 15.7.2005 stipulates that they have to follow the provisions of Act/Rules and the decision of Special Economic Zone and instructions of the Government in this context from time to time. Thus, after the State Government grants the land, which is indisputably waste land of the Government, it is under the authority of Special Economic Zone and on such land, provisions of the Gujarat Land Revenue Code cannot be made applicable. Mr. Sanjanwala also submitted that issuance of notification is an ongoing process. From time to time, various notifications were issued for different parcels of land. The waste land granted by the Government is developed phase-wise. Mr. Sanjanwala further emphasised on the point that entire Special Economic Zone is at present at a very advanced stage. 7. In view of the aforesaid factual position, the question arises for consideration of this Court is whether extension of period in view of the provisions of Rule 5(7) of the Rules granted to respondent No.4 is legally tenable ? 8. Indisputably, respondent No.4 was granted Government waste land by different orders and the allotment was made subject to the condition to carry out construction within a period of three years. The aforesaid grant of land was made in favour of respondent No.4 for the purpose of development of SEZ. 9. It is not in dispute that upon acceptance of possession, respondent No.4 has developed part of the land for rail track and rest of the land remained unused. In consequence thereof, proceedings for breach of condition was initiated by issuing show cause notice to respondent No.4. While considering the show cause notice, the competent authority, i.e. Collector, Bhuj - Kutch in view of the provisions of Rule 5(7) of the Rules which came to be amended in 2010 as well as considering the provisions of section 51 of the Act granted extension in favour of respondent No.4. 10. Rule 5(7) of the Rules reads as under. While considering the show cause notice, the competent authority, i.e. Collector, Bhuj - Kutch in view of the provisions of Rule 5(7) of the Rules which came to be amended in 2010 as well as considering the provisions of section 51 of the Act granted extension in favour of respondent No.4. 10. Rule 5(7) of the Rules reads as under. "Rule 5(7) : The Developer or co-developer shall have to construct the minimum built up area specified in this rule within a period of ten years from the date of notification of the Special Economic Zone in which at least fifty per cent of such area to be constructed within a period of five years from the date of such notification." Section 51 of the Special Economic Zones Act, 2005 reads as under. "Section 51 : Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." 11. The land in question was Government waste land and came to be allotted for special purpose of development of SEZ corridor under the provisions of the Act of course, it was also subject to terms and conditions viz., making of construction within a period of three years. During pendency of the aforesaid proceedings before the competent authority, i.e. the Collector, aforesaid Rule 5(7) of the Rules came to be introduced and considering overriding effect by virtue of section 51 of the Act, the condition came to be extended as provided under Rule 5(7) of the Rules in favour of respondent No.4. 12. We have thoughtfully considered the provisions of law applicable to the facts and circumstance of the present case. We have also considered the fact that the aforesaid land was Government waste land and that has been allotted for special purpose of development of SEZ. As noticed above, the land was allotted under the provisions of the Gujarat Land Revenue Code and the Rules thereof by imposing necessary conditions. The respondent No.3 initiated the proceedings for breach of condition by issuing show cause notice dated 5.3.2011 to respondent No.4. It is settled legal position that proceedings initiated under the provisions of the particular Act/Code is required to be determined under the provisions of the said particular Act/Code. The respondent No.3 initiated the proceedings for breach of condition by issuing show cause notice dated 5.3.2011 to respondent No.4. It is settled legal position that proceedings initiated under the provisions of the particular Act/Code is required to be determined under the provisions of the said particular Act/Code. Admittedly, in the present case, respondent No.3 has initiated the proceedings under the provisions of the Gujarat Land Revenue Code and the Rules framed thereunder and naturally, the said proceedings are to be determined under the provisions of the Gujarat Land Revenue Code and the Rules framed thereunder and generally, the provisions of the Gujarat Land Revenue Code and the Rules framed thereunder would prevail over other inconsistent provisions of other enactment. In the present case, by virtue of the provisions of the Special Economic Zones Act, 2005 almost 22 such Special Economic Zones have been developed across the country and the case on hand is one of them. Special Economic Zone is required to be developed under the provisions of the Special Economic Zones Act, 2005 as well as Rules and the notifications issued thereunder. Indisputably, the land in question was granted for the purpose of development of Special Economic Zone subject to certain terms and conditions. As stated above, respondent No.4 has failed to comply with the conditions and for breach of the same, the proceedings have also been initiated by respondent No.3 and in the meantime, the amendment came to be introduced in the Rules and the benefit is extended to the allottee by virtue of Rule 5(7) of the Rules for development of the Special Economic Zone. Therefore, question arises whether the provisions of the Gujarat Land Revenue Code and the Rules framed thereunder would prevail or the provisions of the Special Economic Zones Act, 2005 and the Rules framed thereunder would prevail in the facts and circumstances of the present case. 13. Apart from the above factual and legal position, it would be fruitful to note that admittedly, the land in question is a Government waste land which was lying vacant and there was no usage of the said land. The respondent No.4 was granted the land in question for development of Special Economic Zone and it is not in dispute that the development work is not going on, however, respondent No.4 has failed to comply with the conditions imposed while granting the land in question. The respondent No.4 was granted the land in question for development of Special Economic Zone and it is not in dispute that the development work is not going on, however, respondent No.4 has failed to comply with the conditions imposed while granting the land in question. If the land is granted to a particular person for particular purpose and if there is breach of condition imposed while granting the land, normally, the Government appears to be strict in compliance of the said conditions. In the instant case, the land in question is a Government waste land which was lying vacant without any usage. However, the Government has granted the said land for development of Special Economic Zone and entire Special Economic Zone is at present at a very advanced stage as argued by Mr. Sanjanwala and if there is breach of condition, the Government while exercising the powers conferred upon it by virtue of Rule 5(7) of the Rules has extended the benefit and in our considered opinion, the same cannot be said to be against the law prevailing for the time being in force. Considering the totality of the facts and circumstances of the case and the provisions of the Rules and the Act, as referred hereinabove, we are of the considered view that benefit extended to respondent No.4 is within the purview of Rule 5(7) of the Rules read with section 51 of the Act which provides overriding effect. It is by now well settled that a non-obstante clause only enables the provisions of the Act containing it to prevail over the provisions of another enactment in case of any conflict in the operation of the Act containing non-obstante clause. If the provisions of both the enactments apply in a given case and there is a conflict, the provisions of the Act containing non-obstante clause would prevail. 14. If the provisions of both the enactments apply in a given case and there is a conflict, the provisions of the Act containing non-obstante clause would prevail. 14. Having regard to the aforesaid factual and legal aspects and keeping in mind the purpose for which such Act is enacted, we are of the considered view that on the facts of this case, the extension of period granted to respondent No.4 by virtue of the provisions of Rule 5 (7) of the Rules and the order dated 28.6.2012 passed by respondent No.3 cannot be construed as suffering from any vice as the Special Economic Zones Act, 2005 is a special enactment for the purpose of development of Special Economic Zone and the provisions of the Special Economic Zones Act, 2005 would prevail over the provisions of the Gujarat Land Revenue Code and the Rules framed thereunder which has overriding effect. In this view of the matter, this writ petition fails and is accordingly dismissed. Notice is discharged. However, there shall be no order as to costs. Petition dismissed.