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2016 DIGILAW 1520 (GUJ)

Patel Kantilal Ramjibhai v. State of Gujarat

2016-07-28

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. By way of present petition, the petitioner has challenged the legality of the impugned order dated 2.8.2001 (Annexure-F) passed by the respondent No. 1 Secretary, Revenue Department (Appeals) and further sought to confirm the order dated 27.11.1999 (Annexure-D) passed by the respondent No. 2, Taluka Development Officer granting N.A. permission in respect of the land in question. 2. The short facts giving rise to the present petition are that one Shri Narberam Avichar was the holder of the land bearing Survey No. 149 admeasuring 2 acres and land bearing Survey No. 148 paiki, admeasuring 30 gunthas, situated at Village Lalpar, Taluka Morbi, District Rajkot. It appears that the said Narberam had made encroachment on the said land bearing Survey No. 148 paiki, it being situated adjacent to his land bearing Survey No. 149. The Mamlatdar, Morbi, therefore, vide his order dated 5.2.1981 had regularized the said encroachment after recovering the penalty to the extent of amount 2.5 times the prevailing market price. Similarly, one Shri Thalsi Avichar had also made encroachment on the other part of the land bearing Survey No. 148 paiki admeasuring 16 gunthas and the same was regularized by the Mamlatdar by passing similar order dated 5.2.1981. The petitioner purchased the land bearing Survey No. 149 paiki admeasuring 2 acres and the land bearing Survey No. 148 paiki admeasuring 30 gunthas from the said Narberam Avichar by executing the sale deed on 12.8.1999, and also purchased the adjacent land bearing Survey No. 148 paiki admeasuring 16 gunthas from the said Thalsi Avichar by executing the registered sale deed on the same day i.e. 12.8.1999. Since the petitioner was desirous of using the said lands for non-agricultural purpose, he had applied to the Taluka Development Officer for converting them from agricultural use to non-agricultural use. The Taluka Development Officer vide the order dated 27.11.1999 (Annexure-D) granted the said permission, subject to certain conditions including the condition for payment of conversion charge, which the petitioner had paid. According to the petitioner, the petitioner thereafter put up the construction for running the factory by spending lacs of rupees. The Taluka Development Officer vide the order dated 27.11.1999 (Annexure-D) granted the said permission, subject to certain conditions including the condition for payment of conversion charge, which the petitioner had paid. According to the petitioner, the petitioner thereafter put up the construction for running the factory by spending lacs of rupees. However, the respondent No. 1, in exercise of the suo motu powers conferred under Section 211 of the Bombay Land Revenue Code (hereinafter referred to as "the said Code"), issued a show-cause notice on 29.1.2001 (Annexure-E), calling upon the petitioner to show cause as to why the N.A. permission granted by the TDO on 27.11.1999 should not be cancelled for the reasons stated therein. The petitioner, in response to the said notice had filed the reply stating, inter alia, that there was no violation of any condition and that the petitioner had spent lacs of rupees for putting up the factory. The respondent No. 1, however, passed the impugned order dated 2.8.2001 (Annexure-F), setting aside the order dated 27.11.1999 passed by the TDO. Hence, the petitioner has filed the present petition. 3. The learned Counsel Mr. G.M. Joshi for the petitioner, taking the Court to the show-cause notice and the impugned order passed by the respondent No. 1, submitted that the respondent No. 1 had sought to exercise the suo motu power under Section 211 of the said Code after more than one year of the order passed by the TDO and in the meantime, the petitioner had spent lacs of rupees for developing the said land and putting up the factory after taking loan from the bank. Relying on the decision of this Court in the case of Evergreen Apartment Co-op. Housing Society Vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991 (1) GLR 113 and in the case of Laxmi Associates Vs. Collector, Vadodara & Anr., reported in 2006 (3) GLR 1982 , he submitted that the respondent No. 1 could not have exercised the suo motu power after the period of three months for cancelling the N.A. Permission granted by the TDO. Collector, Vadodara & Anr., reported in 2006 (3) GLR 1982 , he submitted that the respondent No. 1 could not have exercised the suo motu power after the period of three months for cancelling the N.A. Permission granted by the TDO. He further submitted that there was no condition put by any authority to consolidate the lands in question, and in any case, the petitioner had purchased the lands bearing Survey No. 149 and the adjacent land bearing Survey No. 148 from the respective owners by executing the registered sale deeds on the same day, and after consolidating both the lands, had put up the factory premise, and therefore, there was no violation of any law, much less Gujarat Prevention of Fragmentation and Consolidation of Holdings Act 1957 (hereinafter referred to as "the Fragmentation Act"). Mr. Joshi also submitted that the said construction was put up by the petitioner after obtaining due permission from the concerned authority and the N.A. Permission could not have been cancelled by the respondent No. 1, on the extraneous grounds for which no notice was given to the petitioner. He has relied upon the decision of this Court in the case of Rathod Nayamatkhan Ahmedkhan, deceased through his heirs and legal representatives, Sardarkhan Nayamatkhan Rathod & Ors. Vs. M.K. Dass, or his successor in office Deputy Collector, Dabhoi & Ors., reported in 1998 (2) GLH 459 to submit that when the petitioner had altered his position by spending huge amount for the development of the land in question, the respondent No. 1 could not have cancelled the N.A. Permission after an unreasonable period of one year. 4. However, the learned AGP Mr. Patel has submitted that the period of one year and two months could not be said to be an unreasonable period for cancelling the N.A. Permission, when the N.A. Permission was granted by the TDO in utter disregard of the provisions contained in the Fragmentation Act. Relying upon Rule 11 of the Gujarat Land Revenue Rules, 1972, he submitted that there is procedure prescribed for amalgamation of the two survey numbers of the land, which the petitioner had failed to follow, which had resulted into violation of the Fragmentation Act. 5. Relying upon Rule 11 of the Gujarat Land Revenue Rules, 1972, he submitted that there is procedure prescribed for amalgamation of the two survey numbers of the land, which the petitioner had failed to follow, which had resulted into violation of the Fragmentation Act. 5. In the instant case, it appears that initially the Mamlatdar had regularized the encroachment made by one Shri Narberam Avichar on the land bearing Survey No. 148, admeasuring 35 gunthas by charging penalty and similarly regularized the encroachment made by Thalsi Avichar on the other part of the said land bearing Survey No. 148 paiki, admeasuring 16 gunthas by charging penalty as per the orders dated 5.2.1986. It appears that the said Narberam Avichar was already the holder of the land bearing Survey No. 149, which was an agricultural land and the land bearing Survey No. 148 was situated adjacent to the said Survey No. 149. The petitioner purchased the land bearing Survey No. 149 admeasuring 2 acres and the Survey No. 148 paiki admeasuring 30 gunthas from Narberam Avichar, and also purchased Survey No. 148 paiki admeasuring 16 gunthas from the said Thalsi Avichar by executing two separate sale deeds on 12.8.1999. The petitioner thereafter obtained the permission from the TDO for using the said land for N.A. Purpose on 27.11.1999. It is pertinent to note that neither in the orders passed by the Mamlatdar regularizing the encroachments made by the said Narberam Avichar and Thalsi Avichar, nor in the order dated 27.11.1999 passed by the TDO granting N.A. Permission to the petitioner, there was any condition incorporated that the lands had to be amalgamated, however, it appears that when the entries were made in respect of the said sales made in favour of the petitioner, the Circle Officer had certified the said entries subject to amalgamation of the said two Survey numbers. 6. Having regard to the submissions made by the learned Counsel for the parties and to the documents on record, it appears that the respondent No. 1 has sought to revise the order dated 23.11.1999 passed by the TDO granting N.A. Permission to the petitioner in respect of the lands in question, by issuing the show-cause notice on 29.1.2001 after one year and two months of the said order passed by TDO. At this juncture, a very apt observations made by the Supreme Court in this regard in case of State of Gujarat Vs. Patil Raghav Natha and Ors., reported in 1969 (2) SCC 187 , are required to be reproduced. Paragraph 12 thereof reads as under:- "12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under, Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the 'Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late." 7. In the instant case, the respondent No. 1 having exercised the suo motu powers seeking revision of the order granting N.A. Permission, after one year and two months, as rightly submitted by Mr. Joshi, the said period could not be said to be reasonable period, inasmuch as in the meantime, the petitioner had already spent lacs of rupees for developing the said land and putting up the factory. The impugned order, therefore, deserves to be set aside on that ground alone. 8. Joshi, the said period could not be said to be reasonable period, inasmuch as in the meantime, the petitioner had already spent lacs of rupees for developing the said land and putting up the factory. The impugned order, therefore, deserves to be set aside on that ground alone. 8. So far as the merits of the case are concerned, it appears that the respondent No. 1 has sought to revise the order of the TDO on the ground that the petitioner had not consolidated the two lands i.e. land bearing Survey No. 148 and land bearing Survey No. 149 before obtaining the N.A. Permission, and on the ground that the petitioner was not an agriculturist, and therefore, could not have purchased the said lands. In this regard it is required to be noted that no such condition for amalgamation was imposed either by the Mamlatdar while regularizing the encroachments made by the original owners Narberam Avichar and Thalsi Avichar, or by any TDO while granting N.A. Permission to the petitioner. In any case, the petitioner had purchased both the lands on the same day from the said two owners Narberam Avichar and Thalsi Avichar by executing the sale deeds and had without any formal amalgamation utilized the same for running the factory and, therefore, it could not be said that there was violation of any order passed by any authority. The learned AGP has also failed to point out as to how the petitioner had committed any violation of the provisions contained in the Fragmentation Act. 9. From the certificate - Annexure-G issued by the Lalpar Gram Panchayat, Morbi, it appears that the petitioner was already an agriculturist, his father being an agriculturist. There is also mention in the Entry No. 1119 made in the Form No. 6 to the effect that the father of the petitioner was an agriculturist having Khata No. 87. Hence, the finding of the respondent No. 1 that the petitioner was not an agriculturist and, therefore, he could not have purchased the lands from the original owners, does not appear to be the correct finding. The order of TDO was sought to be revoked also on the ground that the petitioner had started putting up construction before the permission was granted. In this regard, as rightly pointed out by Mr. The order of TDO was sought to be revoked also on the ground that the petitioner had started putting up construction before the permission was granted. In this regard, as rightly pointed out by Mr. Joshi, the petitioner had already paid penalty and, therefore, the concerned authority had already condoned the said irregularity. Under the circumstances, the impugned order passed by the respondent No. 1 in cancelling the N.A. Permission granted by the TDO, does not appear to be justified and legal. 10. In that view of the matter, the impugned order passed by the respondent No. 1 being illegal, deserves to be set aside and is hereby set aside. The petition stands allowed accordingly. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.