JUDGMENT : V.M. Pancholi, J. 1. This petition is filed under Article 226 of the Constitution of India, whereby the petitioner has challenged the order dated 16.9.2005 passed by respondent No. 2 as well as the letter dated 22.9.2005 issued by Taluka Development Officer, Vaghodia. 2. The factual matrix of the present case is as under:- "2.1 The petitioner is a charitable trust registered under the Bombay Public Trust Act and it has set up the educational institution at village Vaghodia in Vadodara district and has filed this petition through its Managing Trustee. The respondent No. 2 granted permission for non-agricultural use of land bearing survey No. 986/1A admeasuring hectare 0.18.21, survey No. 986/1B admeasuring hectare 12.43.23 and survey No. 986/2-B hectare 13.7617 on certain conditions vide order dated 8.4.2003. It is the case of the petitioner that out of total land admeasuring 2,63,761 sq. mtrs. the permission to make construction was granted on 38,508 sq. mtrs of land as per the plans which may be sanctioned by the Urban Development Authority, Vadodara. 2.2 It is the case of the petitioner that plans were sanctioned by the office of Nagar Ayojan and Valuation Department, Government of Gujarat, Vadodara which has permitted the petitioner to make construction of 31,104.44 sq. mtrs of land out of which the petitioner has put up the construction on only 14,603 sq. mtrs of land as on 20.1.2005. It is the say of the petitioner that plans were sanctioned by the competent authority and the remaining work was in progress. In the meantime, the respondent No. 2 issued notice on 1.1.2005 calling upon the petitioner to reply as to why action should not be taken against the petitioner for alleged violation of condition Nos. 3 and 5 of order dated 8.4.2003, by which the permission for non-agricultural use of land was given to the petitioner. The petitioner submitted the reply on 20.1.2005. However, the respondent No. 2 by the impugned order dated 16.9.2005 while exercising the powers under Section 67 of the Bombay Land Revenue Code directed the petitioner to pay a sum of Rs. 10,55,080/- towards the charge of regularizing the alleged illegal construction carried out by the petitioner. The petitioner was further directed to remove the construction made around the transformer unit put up by Gujarat Electricity Board. The petitioner has, therefore, filed the present petition." 3. Heard learned advocate Mr. 10,55,080/- towards the charge of regularizing the alleged illegal construction carried out by the petitioner. The petitioner was further directed to remove the construction made around the transformer unit put up by Gujarat Electricity Board. The petitioner has, therefore, filed the present petition." 3. Heard learned advocate Mr. Pradeep Patel for the petitioner and learned advocate Mr. Munshaw for respondent No. 2 and learned AGP Mr. Sharma for respondent No. 1 and 3. 3.1 Learned advocate Mr. Patel submitted that the petitioners submitted an application for grant of non-agricultural permission before the respondent No. 2. However, in anticipation of grant of such permission, the petitioner had carried out the construction work in certain portion of the land. Therefore, the respondent No. 2 vide order dated 8.11.2002 refused the non-agricultural permission. However, thereafter, the petitioner again applied on 8.1.2003 for grant of non-agricultural permission which was granted by taking fine of Rs. 4,22,020/-. The permission was granted to make construction only in 38,508 sq. mtrs. of land. However, the fine was levied on the entire piece of land admeasuring 2,63,761 sq. mtrs. as if the petitioner has carried out the construction on the entire piece of land. At that time, the petitioner without any objection paid the said amount. However, as per the order dated 8.4.2003 granting the non-agricultural permission to the petitioner, the petitioner was allowed to make construction on 38,508 sq. mtrs of land out of 2,63,761 sq. mtrs of land. Thereafter, the petitioner has started the construction as per the plan submitted before the Town Planning Authority. However, revised plans were also submitted which were sanctioned by the Town Planning Authority. It is further submitted that out of 38,508 sq. mtrs of land permitted for construction by the respondent No. 2, the petitioner carried out the construction at the relevant time only in 14,603 sq. mtrs of land. Learned advocate Mr. Patel referred to the notice issued by the respondent No. 2 and submitted that as per the notice, it is the case of the respondent No. 2 himself that the petitioner has carried out the construction as per the revised map sanctioned by the Deputy Town Planner, Vadodara qua hostel No. 1, hostel No. 2, hostel No. 3, dining hall No. 4, block 'B'1 whereas Deputy Town Planning has not sanctioned the plan qua construction of canteen admeasuring 549.16 sq. mtrs. mtrs. In spite of that, the respondent No. 2 observed in the notice that the petitioner has carried out the construction of total construction admeasuring 3754.56 sq. mtrs over and above the permission granted by the respondent No. 2. Learned advocate Mr. Patel submitted that as per the interim order passed by this Court, the petitioner has deposited the entire penalty in question with the respondent No. 2 subject to final outcome of this petition. 3.2 At this stage, it is contended that the permission for construction was granted in 38,508 sq. mtrs. out of which the petitioner has carried out the construction in only 14,603 sq. mtrs. And therefore it is not proper on the part of the respondent-authority to say that over and above the aforesaid area, the petitioner has carried out the construction of 3754.56 sq. mtrs. It is submitted that even as per the case of the respondent No. 2, only 549.16 sq. mtrs. construction with regard to canteen was without sanctioned plan. Except that, the revised plans were sanctioned by Deputy Town Planner. It is submitted that the petitioner gave reply to the said show cause notice and surprisingly the respondent No. 2 passed the impugned order by exercising the powers under Section 67 of the Bombay Revenue Code and imposed penalty of 40 pat was imposed considering the illegal construction on the entire 2,63,761 sq. mtrs. of land. Thus, the respondent No. 2 has gone beyond the show cause notice issued by him which is not permissible and therefore the impugned order be quashed and set aside. 4. On the other hand, learned advocate Mr. Munshaw appearing for the respondent No. 2 submitted that the petitioner has started the construction before non-agricultural permission was granted to it and therefore initially fine was imposed. Thereafter also, when non-agricultural permission was granted to construct the educational building on 38,508 sq. mtrs. of land. However, it was noticed by the authority that the petitioner has carried out the construction in violation of condition No. 3 and 5 of the order granting non-agricultural permission. Thus, show cause notice was issued to the petitioner and after giving opportunity of hearing and after considering the relevant material, the impugned order was passed by respondent No. 2 and therefore no illegality is committed by respondent No. 2. Hence, the present petition be dismissed. 5. Thus, show cause notice was issued to the petitioner and after giving opportunity of hearing and after considering the relevant material, the impugned order was passed by respondent No. 2 and therefore no illegality is committed by respondent No. 2. Hence, the present petition be dismissed. 5. I have considered the submissions canvassed on behalf of learned advocates appearing for the parties. I have also gone through the material produced on record. It has emerged from the record that respondent No. 2 granted permission for non-agricultural use of total 2,63,761 sq. mtrs. of land, out of which permission was granted to make construction on 38,508 sq. mtrs of land for educational purpose. The said permission was granted on certain terms and conditions. The said order dated 8.4.2003 is produced at Annexure 'A' with the compilation. The petitioner, thereafter, started the construction and out of 38,508 sq. mtrs. of land, the petitioner has made construction on 14,603 sq. mtrs of land. The respondent No. 2 issued the show cause notice on 1.1.2005 to the petitioner whereby the petitioner was asked to explain why the penalty should not be imposed upon him for illegal construction carried out in 3754.56 sq. mtrs of land is concerned. It is also stated in the said notice that the petitioner has made construction of one room for electric transformer in the parking place. It is also alleged that as per condition No. 5 of the order granting non-agricultural permission, the petitioner has not paid measurement fees. The petitioner submitted reply to the said notice and thereafter the impugned order has been passed by respondent No. 2. If the show cause notice dated 1.1.2005 is carefully examined, it is revealed that respondent No. 2 himself has stated in the said notice that petitioner has carried out the construction as per the revised plan which was sanctioned by Deputy Town Planner, Vadodara. The details of the same are as under:- (1) Hostel No. 1 379.64 sq. mtr. (2) Hostel No. 2 379.64 sq. mtr. (3) Hostel No. 3 379.64 sq. mtr. (4) Dining Hall (4) 514.12 sq. mtr. (5) Block B-1 1532.36 sq. mtr. As per the notice, the aforesaid construction was as per revised sanctioned plan. Immediately thereafter, it has been stated in the notice that construction of canteen admeasuring 549.16 sq. mtrs. is made without sanctioned plan by Deputy Town Planner. mtr. (3) Hostel No. 3 379.64 sq. mtr. (4) Dining Hall (4) 514.12 sq. mtr. (5) Block B-1 1532.36 sq. mtr. As per the notice, the aforesaid construction was as per revised sanctioned plan. Immediately thereafter, it has been stated in the notice that construction of canteen admeasuring 549.16 sq. mtrs. is made without sanctioned plan by Deputy Town Planner. It is alleged that therefore the petitioner has carried out total 3754.56 sq. mtrs. construction over and above permitted by the respondent No. 2. 6. On the basis of the said show cause notice, the impugned order has been passed by respondent No. 2 in which the respondent No. 2 has imposed the penalty considering total 2,63,761 sq. mtrs. of land. There was no reference of taking penalty considering the total area of the land for which non-agricultural permission was granted and therefore respondent No. 2 has gone beyond the show cause notice. 7. At this stage, it is also relevant to note that the petitioner has not carried out the construction of 3754.56 sq. mtrs. over and above 38,508 sq. mtrs of land permitted by respondent No. 2 and therefore the said finding given by respondent No. 2 is also not correct. Respondent No. 2 has stated that except the construction of canteen admeasuring 549.16 sq. mtrs. the other construction referred in the show cause notice is as per the sanctioned revised plan. Thus, the said construction cannot be said to be unauthorized as referred by respondent No. 2 in his affidavit-in-reply. In view of the aforesaid facts and circumstances of the case, this Court is of the opinion that the respondent No. 2 has not properly considered the terms and conditions of the order granting non-agricultural permission and also not properly considered the revised plan sanctioned by the Deputy Town Planner, Vadodara. Further, respondent No. 2 has gone beyond the show cause notice. 8. It is further revealed from the record and the order dated 16.6.2006 passed by this Court in the present petition that for additional construction carried out without permission of 549.16 sq. mtrs. is concerned, the revised lay out plan is subsequently sanctioned during the pendency of the petition. Thus, when the revised lay out plan is sanctioned qua 549.16 sq. mtrs. after filing of the petition, it cannot be said that the said construction is now unauthorized. 9. mtrs. is concerned, the revised lay out plan is subsequently sanctioned during the pendency of the petition. Thus, when the revised lay out plan is sanctioned qua 549.16 sq. mtrs. after filing of the petition, it cannot be said that the said construction is now unauthorized. 9. In view of the above, this petition deserves to be allowed and is accordingly allowed. The order dated 16.9.2005 passed by respondent No. 2 as well as the letter dated 22.9.2005 issued by Taluka Development Officer, Vaghodia are quashed and set aside. Rule is made absolute. 10. This Court, while admitting the petition by order dated 16.6.2006, directed the petitioner to deposit the amount of penalty with the respondent No. 2 and respondent No. 2 was directed to deposit the said amount in separate bank account and invest the same in Fixed Deposit Receipts. It is reported that the amount of penalty is already deposited as per the direction given by this Court and is kept in Fixed Deposit Receipts as per the direction. The respondent No. 2 is therefore directed to refund the amount of penalty i.e. Rs. 10,55,080/- deposited by the petitioner and invested by respondent No. 2 in Fixed Deposit Receipts with interest accrued thereon until the date of encashment of the Fixed Deposit Receipts from the bank, within a period of three weeks from the date of receipt of this order, to the petitioner-Trust.