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2016 DIGILAW 1783 (GUJ)

Ishvarsinh Prahladsinh Chavda v. State of Guajrat

2016-08-22

V.M.PANCHOLI

body2016
JUDGMENT : V.M. Pancholi, J. 1. By way of this petition which is filed under Article 226 of the Constitution of India, petitioner has prayed for the following reliefs: "A. admit and allow this petition; B. issue a writ of mandamus and/or writ of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the orders dated 29.11.1996, 10.9.2004 on the ground that both the orders are contrary to the condition of sanad and passed merely on making an application for change of use and therefore, for application for change of use does not amount to change of use as well as the order dated 6.9.2005 may also be quashed and set aside as the reason assigned is the subject matter of panchayat while granting permission for construction and the same is contrary to the order passed by this Hon'ble Court in Special Civil Application No. 14379 of 2004 and further be pleased to direct the respondent - authorities to pass necessary order for change of use as prayed for in the application; C. Stay the operation, implementation and execution of the order 29.11.1996, 10.9.2004 and 6.9.2005 passed by the respondent No. 2 herein, pending admission, hearing and final disposal of this petition; D. Pass such other orders that may be just and necessary in the facts and circumstances of the case." 2. Brief facts of the present case are as under: "2.1. That land admeasuring 80 x 60 feet was allotted to the petitioner by an order dated 22.11.1989 by the Collector, Mehsana on certain terms and condition for commercial purpose for which the respondent authorities have recovered Rs. 30,000/- by way of price of the said land. Condition No. 2 of the said order provides that the land in question is to be used by the petitioner for the purpose of flour mill as well as plastic business and no other industry is permissible. It is the case of the petitioner that as it was not possible for him to run the business of flour mill and/or plastic business on the land in question, he submitted an application whereby he has requested to use the land in question for some other purpose. 2.2. It is the case of the petitioner that as it was not possible for him to run the business of flour mill and/or plastic business on the land in question, he submitted an application whereby he has requested to use the land in question for some other purpose. 2.2. The Collector, Mehsana, by an order dated 29.11.1996, rejected the application of the petitioner for change of use on the ground that the land is not used by the petitioner for the purpose for which the land was granted. Petitioner, therefore, filed revision application before the SSRD. The said revision application came to be dismissed by SSRD and therefore, the petitioner filed petition being Special Civil Application No. 14379 of 2004. This Court, by an order dated 11.01.2005, allowed the said petition and thereby quashed and set aside the order passed by the Collector as well as Revisional Authority. This Court also directed the Collector, Mehsana to decide the application submitted by the petitioner afresh in light of the observations made by this Court in the said order and also directed to consider the change of user even on payment of penalty and/or any other amount to be paid by the petitioner. 2.3. It is the grievance of the petitioner that though this Court has directed the Collector to decide the application of the petitioner afresh for change of use, his application came to be rejected by the impugned order dated 06.09.2005 on the ground that the petitioner has not kept margin which is required for using the land for residential purpose. Petitioner has, therefore, filed the present petition." 3. Heard learned advocate Mr. R.C. Jani for the petitioner and learned AGP Mr. Utkarsh Sharma for the respondents. 4. Learned advocate Mr. Jani submitted that initially the petitioner has requested for grant of land for flour mill and/or plastic industry. The Collector, therefore, by an order dated 22.11.1989, granted such permission on certain terms and conditions. Learned advocate referred to the said order which is produced at page 20 of the compilation. It is submitted that thereafter the petitioner got development permission from the concerned Gram Panchayat, whereby permission was granted to make construction on the land in question. The Collector, therefore, by an order dated 22.11.1989, granted such permission on certain terms and conditions. Learned advocate referred to the said order which is produced at page 20 of the compilation. It is submitted that thereafter the petitioner got development permission from the concerned Gram Panchayat, whereby permission was granted to make construction on the land in question. Learned advocate thereafter referred to the sketch, which is produced at page 49 of the compilation, and submitted that petitioner has kept the margin as per the rules and regulations and therefore, the reason given by the respondent authority while rejecting the application of the petitioner in the impugned order is not correct. At this stage, he submitted that now the petitioner has given an undertaking before this Court on 11.06.2014 wherein he has stated that petitioner will keep the margin as required under the law for the residential purpose. He, therefore, requested that this petition be allowed by quashing and setting aside the order passed by the respondent authority. 5. On the other hand, learned AGP submitted that it is true that this Court vide order dated 11.01.2005 has quashed and set aside the orders passed by the Collector and SSRD and thereby directed the Collector to decide the application submitted by the petitioner afresh. The Collector has decided the said application and it was found that petitioner has not kept the required margin. Hence, no error is committed by the respondent Collector and therefore, this petition be dismissed. 6. I have considered the submissions canvassed on behalf of the learned advocates for the parties. I have also gone through the material produced on record. It is revealed that initially the petitioner submitted an application for grant of land for the purpose of flour mill and plastic industry. Collector, therefore, passed an order on 22.11.1989 and granted the land in dispute to the petitioner on certain terms and conditions and Rs. 30,000/- was also recovered from him. Petitioner thereafter obtained the development permission from the Panchayat and constructed two small rooms on the land in question. However, it is clear from the record that thereafter the petitioner has carried out the activity of flour mill for a period of two years but he failed to obtain loan for plastic industry and therefore, he could not start the said business. However, it is clear from the record that thereafter the petitioner has carried out the activity of flour mill for a period of two years but he failed to obtain loan for plastic industry and therefore, he could not start the said business. He, therefore, voluntarily requested the Collector to permit him to change the use of the land from commercial purpose to residential purpose. Such application was rejected by the Collector and it was confirmed by the SSRD. This Court quashed and set aside both the aforesaid orders and directed the Collector to decide the said application of the petitioner afresh in light of the observations made by this Court in the said order. However, by the impugned order dated 06.09.2005, the Collector has rejected the application on the ground that the petitioner has not kept required margin for residential purpose. It is borne out from the record that the petitioner has shown willingness to keep the required margin which is necessary for residential use of the land in question. Such undertaking is also filed by the petitioner before this Court. Even otherwise, if the order dated 22.11.1989 passed by the Collector is carefully seen, it is clear that even if there is a breach of condition by the petitioner, the Collector can impose penalty and recover an amount at the rate prescribed by the Government for change of use of the land in question. In the present case, the land was granted for commercial/industrial purpose. However, petitioner failed to obtain the loan and therefore, he has requested for using the said land for residential purpose. Thus, in view of the peculiar facts of the present case, the petition is allowed. The impugned order dated 06.09.2005 is hereby quashed and set aside and the respondent Collector is hereby directed to consider the order dated 11.01.2005 passed by this Court in Special Civil Application No. 14379 of 2004 and even the first order dated 22.11.1989 passed by the Collector himself while granting permission to use the land for a particular purpose. Collector shall also consider the undertaking given by the petitioner before this Court. Petitioner shall also file similar type of undertaking before the Collector. Collector shall examine the aforesaid aspects and pass an order afresh within a period of 8 weeks from the date of receipt of this order. 7. With this observation, petition is allowed. Collector shall also consider the undertaking given by the petitioner before this Court. Petitioner shall also file similar type of undertaking before the Collector. Collector shall examine the aforesaid aspects and pass an order afresh within a period of 8 weeks from the date of receipt of this order. 7. With this observation, petition is allowed. Rule is made absolute to the aforesaid extent.