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2016 DIGILAW 1049 (GUJ)

Babubhai Shivramdas Patel v. State of Gujarat

2016-06-08

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 24/30.7.2007 passed by the Special Secretary, Revenue Department (Appeals) in Revision Application No. MVV/BKP/MSN/6/2007, whereby the Secretary stay granted vide order dated 4.4.2007 has been vacated. 2. Facts which can be culled out from the record of the petition are as under:- 3. The original owners of revenue survey No. 706, 714, 704/1 of Unjha town applied for non-agriculture permission which came to be granted by the Collector by 3 separate orders dated 28.4.1984. The record indicates that those 3 plots came to be purchased by a society known as Balojnagar Cooperative Housing Society. On an application made by the said subsequent purchaser i.e. the society, by an order dated 9.11.1984, all the 3 plots were aggregated/consolidated as survey No. 704/1-1 total admeasuring 3 acres and 35 gunthas. The record indicates that thereafter, the revised layout plan was sanctioned by the Collector vide order dated 24.5.1985. The society thereafter applied for development permission with the local authority namely Unjha Nagarpalika which was granted on 11.6.1985. 4. The record further indicates that on allegation that there is a contradiction and/or breach of condition qua the layout plan as sanctioned by the Collector, a show cause notice came to be issued by the District Collector for breach of condition of N.A. order dated 30.12.2000. On receipt of the same, the petitioners filed their reply dated 16.1.2001 which culminated into the order dated 18.8.2001 directing the petitioner to remove the illegal construction to the extent as mentioned in the said order and also ordered the petitioners to pay the fine and the petitioners were further directed not to make construction. The record indicates that being aggrieved by the same, the petitioner preferred a Revision as provided under Section 211 of the Bombay Land Revenue Code, 1879 being Revision Application No. 51 of 2001 which came to be rejected by the Secretary vide order dated 13/15.11.2001. The record indicates that being aggrieved by the same, the petitioner preferred a Revision as provided under Section 211 of the Bombay Land Revenue Code, 1879 being Revision Application No. 51 of 2001 which came to be rejected by the Secretary vide order dated 13/15.11.2001. The petitioners challenged the said orders by way of filing a writ petition before this Court being Special Civil Application No. 11478 of 2001 which was ultimately allowed by judgment and order dated 21.2.2006, whereby the orders impugned in the said petition i.e. the order of the Collector, Mehsana as well as the Secretary came to be quashed and set aside and the proceedings were remanded back to the District Collector, Mehsana directing him to examine the legality of the construction and pass a fresh order. The record indicates that thereafter, the petitioner made a detailed representation dated 10.4.2006 along with the layout plan for revised permission and regularization. The area development authority namely Unjha are authority vide Resolution No. 19 dated 27.6.2006 recommended the regularization of construction. On the basis of the said recommendation, the District Collector also asked the petitioners to deposit the fees for measurement of the lands in question to DILR. The record indicates that the petitioners paid an amount of Rs. 91,800/- towards such fees and ultimately, the measurement was carried out by DILR between 7.10.2006 to 9.10.2006. The record indicates that thereafter, the District Collector again decided the matter against the petitioner by an order dated 28.2.2007 confirming the earlier order directing the petitioners to remove the alleged illegal development within a period of 21 days. Being aggrieved by the said order, the petitioners preferred a Revision before the Secretary as provided under Section 211 of the Bombay Land Revenue Code, 1879, wherein initially, the Secretary was pleased to grant stay as prayed for by the petitioners which ultimately came to be vacated. Being aggrieved by the said order, the present petition is filed. 5. It deserves to be noted that this Court (Coram: Ravi R. Tripathi, J. as he then was) by an order dated 31.8.2007 passed the following order:- "Heard learned Advocate Mr. Kavina for Mr. S.K. Patel for the petitioner. Rule returnable on 27th September, 2007. Heard Mr. Jashwant Shah, learned A.G.P. Notice as to interim relief returnable on the same day i.e. On 27th September, 2007. Ad interim relief in terms of Para: 6(C). Kavina for Mr. S.K. Patel for the petitioner. Rule returnable on 27th September, 2007. Heard Mr. Jashwant Shah, learned A.G.P. Notice as to interim relief returnable on the same day i.e. On 27th September, 2007. Ad interim relief in terms of Para: 6(C). Direct Service permitted." 6. It is an admitted position that the said order has continued till date and the Revision Application is still pending for its final disposal before the Secretary. 7. Mr. S.K. Patel, learned advocate for the petitioners has taken this Court through the factual matrix as noted hereinabove in particular and has relied upon the grounds which are raised in this petition. Mr. Patel further submitted that during pendency of the petition, the petitioners in fact had applied for regularization of the construction in question under the provisions of the Gujarat Regularization of Unauthorized Development Act, 2001 and such applications filed by each of the petitioners have been sanctioned and e-certificate has been issued by the competent authority under the Gujarat Regularization of Unauthorized Development Act dated 9.12.2013, photocopies of such e-certificates are produced before this Court for its perusal. Mr. Patel further submitted that the stay which is granted by this Court has been in operation for almost 9 years and therefore, the same may be confirmed by this Court till hearing of the Revision by the revisional authority and the petition may be allowed to the aforesaid extent. 8. Per contra, Mr. Tejas Satta, learned advocate has candidly submitted that the impugned order has been stayed by this Court since 31.8.2007 and the same is continued. Mr. Satta submitted that keeping the rights of respondents No. 3 and 4 open before the revisional authority, this Court may pass appropriate orders. Mr. Satta further submitted that this Court may clarify that this Court has not expressed any opinion on merits of the main Revision Application. 9. Mr. Shirish Gohil, learned Assistant Government Pleader also submitted that considering the fact that the present petition is filed against the interim order and the Revision is pending, this Court may pass appropriate orders. 10. Having considered the record of this petition and having heard the learned advocates appearing for the respective parties and so also on perusal of the impugned order, it clearly appears that the Revision is still pending before the revisional authority. 10. Having considered the record of this petition and having heard the learned advocates appearing for the respective parties and so also on perusal of the impugned order, it clearly appears that the Revision is still pending before the revisional authority. The order impugned before the revisional authority is an order passed by the District Collector on 28.2.2007. 11. In light of the aforesaid facts therefore, without expressing any opinion on merits, in opinion of this Court, the following directions would subserve the ends of justice. Hence, the following directions are given:- [a] The order dated 31.8.2007 shall remain in operation till Revision Application No. MVV/BKP/MSN/6/2007 is decided by the Secretary, Revenue Department (Appeals). [b] The Secretary, Revenue Department (Appeals) shall give utmost priority to the said Revision Application and after hearing all the parties, dispose of the said Revision Application, as expeditiously as possible, but not later than 30.11.2016. [c] The Secretary, Revenue Department (Appeals) shall decide the Revision independently on its own merits, without in any manner being influenced by any of the observations made in this judgment and order and/or the fact that the interim relief was granted by this Court. [d] It would be open for all the parties before the revisional authority to take all contentions available in law and the same shall be dealt with independently, as observed hereinabove. 12. Mr. S.K. Patel, learned advocate for the petitioners as well as Mr. Tejas Satta, learned advocate for respondents No. 3 and 4 assure this Court that the parties shall cooperate with the revisional authority in disposal of the aforesaid main Revision Application as early as possible. 13. The parties shall remain present either in person or through their learned advocates before the Secretary, Revenue Department (Appeals) on 27.6.2016. The petitioners shall submit a certified copy of the judgment on the said date. The Secretary, Revenue Department (Appeals) shall fix the next date of hearing and dispose of the main Revision Application, as observed in this judgment. 14. With these observations and directions, this petition is disposed of. Rule is made absolute to the aforesaid extent only.