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2015 DIGILAW 353 (GUJ)

Decora Incorporation v. State of Gujarat

2015-03-30

R.M.CHHAYA

body2015
JUDGMENT : R.M. Chhaya, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following main reliefs:- "(A) To quash and set aside the impugned order dated 20.5.2014 passed by the Collector, Surat at Annexure-A; (B) To remand the matter back to the Collector, Surat for giving opportunity of being heard to the petitioner and the application made by the petitioner may be decided afresh without being influenced by the impugned order dated 20.5.2014 passed by him at Annexure-A; (C) To take appropriate steps against the respondent No. 3-competent authority under ULC as it has given opinion contrary to admitted facts given on the record of the case;" 2. RULE. Heard Mr. J.M. Patel, learned advocate for the petitioner and Mr. Manan Mehta, learned AGP for the respondents. With consent of the learned advocates appearing for the parties, the matter is taken up for final hearing forthwith. 3. The facts which emerge from the record of this petition are as under:- The petitioner being owner of Final Plot No. 97, Sub-Plot No. B-13 and B-14, total admeasuring 708.93 sq. mtrs. applied for revised non-agricultural permission as provided under Section 65A of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as "the Code"). The application so filed came to be filed/rejected vide impugned order dated 20.5.2014 passed by the District Collector on the two grounds viz. that no certificate was produced regarding no due of land revenue or non-agricultural assessment and other taxes and secondly on the ground that the State Government has not given opinion on the judgment rendered by this Court in Special Civil Application No. 13260 of 1993 dated 14.10.1998. 4. This Court (Coram: K.M. Thaker, J.) vide order dated 14.7.2014 was pleased to issue notice. 5. The petitioner has contended that both the grounds on which the application came to be rejected is totally misleading, incorrect and contrary to the record of the case. It was contended that without even calling upon the petitioner and without giving opportunity of being heard to the petitioner, the impugned order came to be passed. It is further contended that as per the record, this Court (Coram: Kundan Singh, J. as he then was) by judgment and order dated 14.10.19998 was pleased to allow the writ petition filed by the predecessor of the petitioner. It is further contended that as per the record, this Court (Coram: Kundan Singh, J. as he then was) by judgment and order dated 14.10.19998 was pleased to allow the writ petition filed by the predecessor of the petitioner. It was contended that the State challenged the said judgment and order by way of intra-Court appeal being Letters Patent Appeal No. 394 of 1999 which came to be disposed of vide order dated 12.10.1999 and therefore, the reason for opinion of ULC is totally uncalled for. It was also contended that the District Collector without following the principles of natural justice has thus dismissed the application on non-relevant and non-germane grounds and therefore, the impugned order dated 20.5.2014 deserves to be quashed and set aside and the proceedings filed by the petitioner under Section 65A deserves to be remanded back. Mr. Patel, learned advocate for the petitioner has reiterated the aforesaid grounds before this Court and has submitted that in view of the fact that the judgment rendered by this Court in Special Civil Application No. 13260 of 1993 has become final, the District Collector has wrongly relied upon such a ground for declining the application filed by the petitioner. Mr. Patel also reiterated that there are no dues. Still however, without proper verification of the records of its own office, the District Collector has passed the impugned order without properly considering the material on record and without verification of the original record of the office of the Collector. Mr. Patel has asserted that inspite of the fact that the Letters Patent Appeal came to be disposed of, a wrong opinion was given by the ULC by a communication dated 1.2.2014. It is contended that the impugned order is result of total non-application of mind on the part of the competent authority. 6. Per contra, Mr. Manan Mehta, learned AGP for the respondents has supported the impugned order. It is contended that the impugned order is result of total non-application of mind on the part of the competent authority. 6. Per contra, Mr. Manan Mehta, learned AGP for the respondents has supported the impugned order. The learned AGP has contended that it is the duty of every authority and more so authority like the District Collector to verify all the facts before granting any change of use from one non-agricultural purpose to another non-agricultural purpose as in the present case and therefore, the impugned order is legal and proper and no interference is called for by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India and therefore, the petition being meritless deserves to be dismissed. 7. No other or further submissions are made by the learned advocates appearing for the parties. 8. Considering the submissions made by the learned advocates appearing for the parties and on perusal of the impugned order dated 20.5.2014, it appears that the application filed by the petitioner under Section 65A of the Code is dismissed on two grounds. As far as first ground on the basis of which the application of the petitioner came to be rejected/filed is concerned, it clearly appears that the authority ought to have either called upon the petitioner or could have called for the details of any dues from the authorities which are subordinate to the District Collector himself. Considering the fact that the petitioner had purchased the plot in question by a registered sale deed dated 11.7.2012 and as the transaction is also mutated in the city survey record on 23.9.2012 which is duly certified by the competent authority, the District Collector ought to have either called for the details from the petitioner as regards no due or should have given an opportunity of being heard. As far as the second reason-of opinion given by in-charge of ULC Branch at Annexure-B to the petition dated 11.2.2014 is concerned, it clearly appears that the same is given without verifying the record. Though the reporting officer has mentioned about the judgment rendered by this Court in Special Civil Application No. 13260 of 1993 dated 14.10.1998, with respect, the officer has not examined, whether the said judgment is accepted or was challenged by the State Government. Though the reporting officer has mentioned about the judgment rendered by this Court in Special Civil Application No. 13260 of 1993 dated 14.10.1998, with respect, the officer has not examined, whether the said judgment is accepted or was challenged by the State Government. The record reveals that the judgment of this Court rendered in Special Civil Application No. 13260 of 1993 was challenged by the competent authority and Additional Collector, Surat by way of filing Letters Patent Appeal No. 394 of 1999 which came to be disposed of by the Division Bench of this Court, in fact on a communication addressed by the State Government, which was placed on record by the learned AGP. The Division Bench was pleased to pass the following order on 12.10.1999. "Learned AGP places on record a communication addressed by the Section Officer, Revenue Department, Government of Gujarat, dated April 30, 1999 and states that this appeal does not survive in view of the fact that Urban Land (Ceiling and Regulation) Act, 1976 has been repealed. On our part, we express no opinion in view of the statement made by the learned advocate for the appellant. LPA deserves to be disposed and is accordingly disposed of." 9. It is no doubt true that the application under Section 65A is to be dealt with by the District Collector in accordance with law and in fact it is not the quasi judicial function, but at the same time, the authority has to take into consideration the germane issues and has to take into consideration the correct position of the record. This Court fails to believe that, the officer who has given opinion, if he is aware about the judgment rendered in Special Civil Application No. 13260 of 1993 was not aware about the Letters Patent Appeal having been filed by the competent authority and its disposal vide order dated 12.10.1999 as observed hereinabove. Therefore, even if the principles of natural justice in stricto-senso may not apply to an authority while dealing with application-on-hand and passing of the administrative orders but when the authority decides to reject it on some ground, at least, the parties should have been made aware about such aspect. Therefore, even if the principles of natural justice in stricto-senso may not apply to an authority while dealing with application-on-hand and passing of the administrative orders but when the authority decides to reject it on some ground, at least, the parties should have been made aware about such aspect. In opinion of this Court, if the District Collector would have informed the petitioner about these two grounds on which the application filed by the petitioner has been rejected, the petitioner could have informed the Collector about the disposal of the Letters Patent Appeal and the judgment rendered in Special Civil Application having become final. Similarly, no due certificate as regards the education or non-agricultural assessment is to be given by one of the inter-department/branch of the District Collector itself. Having failed to do so, the impugned order deserves to be quashed and set aside as prayed for. 10. In light of the aforesaid therefore, the order dated 20.5.2014 passed by the District Collector is hereby quashed and set aside and the proceedings of the application filed by the petitioner under Section 65A of the Gujarat Land Revenue Code, 1879 stands restored to the file of District Collector, Surat. The District Collector, Surat shall decide the said application de novo after giving an opportunity of being heard to the petitioner keeping in mind the judgment of this Court rendered in Special Civil Application No. 13260 of 1993 and of Letters Patent Appeal No. 394 of 1999. The District Collector shall also consider the order of the Division Bench as observed in this order and decide the application de novo within a period of 90 days from the date of the receipt/production of this order and being uninfluenced by the aforesaid reasons of ULC. It would be open for the petitioner to produce appropriate record before the District Collector, Surat to show that there are no dues of any agricultural or non-agricultural assessment or revenue. The District Collector shall decide the said application so remanded in accordance with law without in any manner being influenced by the impugned order dated 20.5.2014, afresh. As far as the prayers prayed for in Paragraph 25(C) is concerned, the same is not granted in view of the observations made in this petition. 11. The District Collector shall decide the said application so remanded in accordance with law without in any manner being influenced by the impugned order dated 20.5.2014, afresh. As far as the prayers prayed for in Paragraph 25(C) is concerned, the same is not granted in view of the observations made in this petition. 11. It is however clarified that this Court has not expressed any opinion on merits of the application filed by the petitioner under Section 65A of the Code which now stands remanded for its reconsideration afresh. 12. Resultantly, this petition is partly allowed. Rule is made absolute to the aforesaid extent only. No costs. Petition Partly allowed.