Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 1977 (GUJ)

Pravinaben Maheshbhai Akhani v. State of Gujarat

2016-09-06

R.M.CHHAYA

body2016
JUDGMENT : R.M. CHHAYA, J. 1. Heard Ms. Trusha Patel, learned advocate for the petitioner and Ms. Maithili Mehta, learned AGP for the respondents. 2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 24.05.2016 passed by the learned Secretary, Revenue Department (Appeals), in Revision Application No. MVV/BKP/BNS/5/2013, whereby the learned Secretary confirmed the order dated 15.10.2013 passed by the District Collector, Banaskantha. 3. The following noteworthy facts emerge from the record of the petition. 4. As indicated in the petition, land bearing Survey No. 624/1, 630/3, 635 and 538/3 at Palanpur, District Banaskantha originally belonged to one Muman Yusufbhai Fatehmohammad and others. It is further averred in the petition that the original owners applied for conversion of use of land from agricultural to non-agricultural in the year 1981 and by an order dated 13.10.1981, the competent authority, i.e. District Development Officer, Banaskantha granted NA permission. The record further indicates that layout plan was sanctioned on 09.11.1981, which inter-alia provides that six plots of Part B were for commercial construction. The record indicates that even though the layout plan was originally for six plots, the original owner divided the land into five plots and plot no. 5 admeasured 516.19 sq. mtrs The record indicates that because of such change in the layout, the area of each plot also got changed and resultantly, the area of plot no. 1 after change in the layout admeasured 370.69 sq. mtrs. The record indicates that the original owner sold plot nos. 1 to 5 for commercial purpose to one Dinesh Babulal Agrawal by a registered sale deed dated 16.07.1983 The record indicates that in turn, Dinesh Babulal Agrawal sold the said plots to one Jamnaben Devabhai Patel on 21.07.1984 Thereafter again Jamnaben Devabhai Patel sold it to one Ranjit Ramniklal Parikh on 25.10.1988 The record indicates thats thereafter Ranjit Ramniklal Parikh sold the plots in question to one Bherumal Narumal Devnani by registered sale deed dated 21.06.2002 and thereafter, by a registered sale deed dated 05.01.2004, Bherumal Narumal Devnani sold plot no. 5 admeasuring 370.69 sq. mtrs. to Vipul Kantilal Pujara and others. As averred by the petitioner, the aforesaid transactions of plots in question were also mutated in the revenue record. It is the case of the petitioner that based upon it and relying upon the same, the petitioner purchased plot no. 5 admeasuring 370.69 sq. mtrs. to Vipul Kantilal Pujara and others. As averred by the petitioner, the aforesaid transactions of plots in question were also mutated in the revenue record. It is the case of the petitioner that based upon it and relying upon the same, the petitioner purchased plot no. 5 from Vipul Kantilal Pujara and others by registered sale deed dated 19.03.2008 5. The record indicates that the husband of the petitioner is an ayurvedic vaidya and as he wanted to establish an ayurvedic clinic, the petitioner applied for extension of time to carry out construction on the disputed plot by an application dated 10.09.2012 before the Deputy Collector. The Deputy Collector rejected the said application on the ground that till the discrepancy in relation to the area is not cleared, the time limit to make construction cannot be extended and also issued a show-cause notice dated 13.05.2013 directing the petitioner to show cause as to why the NA permission granted in the year 1981 cannot be cancelled. 6. The petitioner being the sixth purchaser in row, on coming to know about the discrepancies, got rectification deed executed, which came to be registered on 01.07.2013 The record indicates that thereafter, again a fresh show-cause notice was issued by the District Collector, Banaskantha dated Nil September, 2013 on three grounds, viz., that as per conditions No. 11 and 12 of the NA permission, the construction was to be commenced within six months and to be completed within 3 years. Secondly, as per the sanctioned layout, plan, plot no. 1 admeasures 161.12 sq. mtrs. whereas in the registered document, the plot area is 370.69 sq. mtrs. and therefore, there is discrepancy in the area. It is also alleged in the notice that in the registered sale deed, the number of the area is shown as survey no. 624 whereas in the NA permission, the Survey nos. mentioned are Survey Nos. 624/1, 538/3, 630/3, 631/3. It is also further alleged in the show cause notice that there is breach of conditions no. 11, 12 and 27 of the NA order and since 32 years, no construction is made. The said show-cause notice culminated into an order dated 15.10.2013 passed by the District Collector. In the said order, the District Collector has reiterated all the three aspects which are mentioned in the show-cause notice dated Nil September, 2013. 11, 12 and 27 of the NA order and since 32 years, no construction is made. The said show-cause notice culminated into an order dated 15.10.2013 passed by the District Collector. In the said order, the District Collector has reiterated all the three aspects which are mentioned in the show-cause notice dated Nil September, 2013. The record indicates that being aggrieved by the said order, the petitioner preferred revision before the Secretary, Revenue Department (Appeals) under section 211 of the Bombay Land Revenue Code. The record indicates that the order of the Collector was stayed pending the revision by an order dated 16.12.2013 7. It is pertinent to note that in order to overcome the discrepancies, on the basis of which the impugned order was passed by the Collector, the petitioner also executed a rectification deed, which is registered on 03.06.2014 The petitioner has also averred that only in case of petitioner, such objections were raised and such order was passed. Whereas in relation to plot nos. 2 and 3, the very Collector, by an order dated 25.06.2015, imposed a penalty to the tune of 40 pats and on making such payment, by an order dated 02.07.2015, the District Collector thought it fit to extend the time for construction. It is also the case of the petitioner that even the other owners applied for it and the extension was granted. Being aggrieved by the said order, the present petition is filed. 8. This Court issued notice for final disposal vide order dated 05.07.2016 9. Ms. Trusha Patel, learned counsel appearing for the petitioner has raised for the following contentions. 10. That conditions stipulated as regards time is always directory and not mandatory. It was also contended that the permission is a permission and not direction to use the land for NA purpose. 11. It was contended that the powers have been exercised by the authorities only to harass the petitioner and as such, there is no loss to the Government by not carrying out the construction in time. It was contended by Ms. Patel that except that there is no breach, which is alleged, and therefore, the impugned actions and the orders are unreasonable. 12. It was contended that NA permission was granted in the year 1981 whereas the notice to the petitioner qua her plot was given after 32 years and therefore, even such action was beyond reasonable time. Patel that except that there is no breach, which is alleged, and therefore, the impugned actions and the orders are unreasonable. 12. It was contended that NA permission was granted in the year 1981 whereas the notice to the petitioner qua her plot was given after 32 years and therefore, even such action was beyond reasonable time. 13. It was also contended that the petitioner is being discriminated as other plot holders have already been granted permission without any rectification and thus, the action of the respondents is mala-fide, discriminatory and violative of the principles of Article 14 of the Constitution of India. 14. It was contended that both the orders are based on frivolous ground and once the layout is sanctioned the survey loses its existence and therefore, both the orders are bad and illegal and the authorities have passed the order with predetermined mind to harass the petitioner even by directing the Mamlatdar to take further steps. 15. Ms. Patel, learned counsel for the petitioner has relied upon the following judgments:- (1) Dahyabhai Patel v. State of Gujarat, reported in 1997 (2) GLH 633 . (2) D.H. & Sons (Engi.) Through Partner Hemantbhai K. Bhatt v. State of Gujarat reported in (2005) 10 GHJ 248 . (3) SCA No. 14567/05 (Order dated 26.07.2005). (4) Jayantibhai Babaldasbhai Darji v. State of Gujarat, reported in (2005) 9 GHJ 70 . 16. Per contra, Ms. Mehta, learned AGP has supported the impugned order and has submitted that it is an admitted position that the petitioner has not adhered to conditions no. 11, 12 and 27 and admittedly, committed breach thereof and therefore, no interference is called for. 17. No other or further submissions are made by the learned counsel appearing for the parties. 18. Upon considering the submissions made by the learned counsel appearing for the parties and upon perusal of the record, it appears that the original owners were granted NA permission and the layout plan was sanctioned as per the permission dated 13.10.1981 It is also an admitted position that the petitioner is not the original owner, but is the sixth purchaser of the plot in question. On perusal of the first show-cause notice which was issued by the Deputy Collector and the rectification/durasti documents dated 01.07.2013 and 03.06.2014, it clearly transpires that the petitioner has rectified the same and the discrepancy to the extent of the areas of the plots in question is eradicated by the petitioner. On perusal of the order of the learned Secretary, it appears that the learned Secretary rejected the revision only on the ground of delay of 32 years and not making construction. Considering the judgment of this Court in the case of Dahyabhai Laldas (supra), while interpreting similar section, this Court has held that failure to apply for extension of time for compliance of such condition amounts to merely a technical breach and would not warrant serious action of cancellation of permission and also held that such condition is directory and not mandatory. Similarly, in the case of D.H. Sons (Engi) (supra), this Court has observed thus:- “3. The question which is required to be considered is as to whether the order for forfeiture was required to be passed by the Collector for the breach of the condition of not making the construction within the stipulated time limit and using the land for industrial purpose or whether the Collector was required to consider the matter by exercising the discretion for extension of time by imposing penalty upon the petitioner and to give the opportunity to the petitioner to complete the construction and to make the use of the land for industrial purpose for which it was granted. In view of the decision of this Court reported at 1197 (2) GLH 633 in the case of Dahyabhai Lalsas (through his legal heirs and representative v. The State of Gujarat, the condition for completing the construction within the stipulated time limit is held to be directory and not mandatory. 4. Apart from the above, it was also required for the District Collector to consider as to whether there were circumstances beyond the control of the petitioner due to which the construction could not be completed within the stipulated time limit. If the construction is not completed within the stipulated time, as a consequence thereof the land not would be used for the industrial purpose. If the construction is not completed within the stipulated time, as a consequence thereof the land not would be used for the industrial purpose. Therefore, it appears that, in view of the above referred decision of this Court, the order of forfeiture ought not have been passed by the Collector and the Collector ought to have extended the time by imposing suitable penalty upon the petitioner. It may be that while exercising such discretion the Collector may also require the defaulted person to pay the difference of the market price with a view to see that the defaulter may not be in a position to take any undue benefit of his own default. However, it appears that the aforesaid aspects is not considered by the Collector while exercising the power of forfeiture of the land. 5. Mr. Prajapati, the learned Counsel for the petitioner during the course of the hearing under the instruction of the his client has stated that the petitioner undertakes to complete the construction and to start using the premises for industrial purpose if it is so permitted. Therefore, considering the stands of the petitioner, I find that keeping in view the above referred decision of this Court when the position of law is settled no useful purpose would be served in remanding the matter and therefore if the petitioner is directed to pay the difference of the market price as referred hereinabove and if the petitioner pays the penalty of Rs. 5,000/-, the time for completing the construction can be extended for a period of one year. The aforesaid will not put the State into the loss of the revenue at the same time after recovering the penalty the land can be made used for industrial purpose. In any case such extension cannot be considered for seeking further extension and in any case if the petitioner fails to complete the construction and use the land for industrial purpose within time which may be extended, the petitioner would be required to surrender the land to the State Government. 6. In any case such extension cannot be considered for seeking further extension and in any case if the petitioner fails to complete the construction and use the land for industrial purpose within time which may be extended, the petitioner would be required to surrender the land to the State Government. 6. In view of the above, the order passed by the Collector and its confirmation thereof by the State Government for forfeiture of the land in question are quashed and set aside on condition that the petitioner deposits the amount of Rs.13,160/- being the difference of the market value at the time when the land was allotted and the price prevailing now and further deposits the amount of Rs.5,000/- total Rs.18160/- within period with the District Collector within period from one month from today. The aforesaid shall be with the additional condition that the petitioner files undertaking to this Court for conceding that upon failure to complete the construction within period of one year after the plants are sanctioned or revalidated by the District Collector and upon failure to use the land therefrom within period of 1 year for industrial purpose, Government shall be at the liberty to take the possession of the land in question on the ground of breach of the condition and such undertaking shall be filed within period of 10 days from today. 7. After the aforesaid amount is deposited and the undertaking is filed with this Court, it would be open to the petitioner to move the Collector for afresh sanction or revalidation of the construction plan and the Collector shall pass consequential order for such purpose within 4 weeks from making of such application by the petitioner with the copy of the order of this Court and shall complete the construction within period of 1 year therefrom.” 19. Similar view is also expressed by this Court in the case of Jayantibhai Babaldasbhai Darji (supra), wherein this Court has observed thus - “3. When the matter was considered for the first time on 30.11.2004, a declaration was made on behalf of the petitioner that the petitioner is ready to make construction within a period of two years from today if the period is extended and the petitioner is also ready to pay the amount of penalty, which may be found appropriate by this Court for extension of the period for completion of the construction. It appears that the question raised in this petition is covered by the decision of this Court in case of Dahyabhai Laldas (Deceased) through his heirs and legal representatives v. State of Gujarat, reported in 1997 (2) GLH, 633, whereby the view taken is that the condition providing for completion of the construction can be said as directory and not mandatory and N.A. permission cannot be cancelled if construction could not be completed within the stipulated time limits on account of certain circumstances beyond the control like lack of availability of construction material in whatsoever form for a reasonably long period. At para 8 of the said decision it was observed by the Court as under: “8. Besides, fixation of the time-limit for the purpose of completion of the construction work pursuant to the order at Annexure A to this petition was a directory condition and not a mandatory condition. The N.A. permission could not have been cancelled if the deceased could not have completed the construction work within the stipulated time-limit on account of certain circumstances beyond his control like non-availability of construction material in whatever form for a reasonably long period. In that case, the authority might have been required to extend the time-limit on being satisfied about the genuineness of the ground for its extension. In that view of the matter, omission on the part of the deceased in making an application for extension of the time-limit for completion of the construction work can be said to be a mere technical breach not warranting any serious or severe action of cancellation of the N.A permission. Respondent No. 2 appears to have remained oblivious to this aspect of the matter. The impugned order at Annexure F to this petition as affirmed in revision by the order at Annexure G to this petition cannot therefore be sustained in law on the ground of non-application of mind on the part of its author.” 4. If the impugned orders are examined in light of the observations made by this Court it is apparent that the matter is not considered accordingly and no examination is made by the District Collector or by the State Government while confirming the order that whether the circumstances were beyond the control of the petitioner and/or whether there was genuineness for grant of extension. It appears that if the ground is non-availability of water and drought situation and on account of the same if the construction could not be made, it can be said that such ground was beyond the control of the holder of the land. Therefore, in any case the permission for N.A. permission could not have been cancelled and at the most, the matter could be considered for the purpose of imposing penalty upon the petitioner, even as recorded hereinabove the petitioner has also agreed for payment of the penalty. 5. Considering the facts and circumstances, the time limit has expired as the limit for completing the construction expired as back as in the year 1987 and as per the provisions of Rule 100 there are enabling power with the District Collector to impose the penalty upto 40 times revenue assessment and as the petitioner has shown willingness to pay the penalty and as the petitioner is ready to complete the construction within a period of two years, I find that no useful purpose would be served in remanding the matter once again to the District Collector for considering the matter for imposition of penalty and for extension of period.” 20. The ratio laid down in the aforesaid judgments squarely applies to the present case. The District Collector as well as the learned Secretary, Revenue Department (Appeals), with respect, have overlooked the aforesaid ratio as it is held that the conditions on which the show cause notice was issued is directory and not mandatory and in facts of the case that the discrepancies even with regard to the discrepancy in area has been removed, both the authorities ought to have considered the same. It is also noteworthy that in case of the plots which were plotted as per the same layout, the extension of time is granted on payment of 40 pats by the District Collector and therefore, the impugned orders are also violative of Article 14 of the Constitution The ratio laid down by this Court in the case of Dahyabhai Laldas (supra) as well as catena of decisions which has been rightly relied upon the learned counsel for the petitioner Ms. Patel are binding upon the authorities and the same should have been taken into consideration while passing the impugned orders. 21. Patel are binding upon the authorities and the same should have been taken into consideration while passing the impugned orders. 21. It also deserves to be noted that the reasoning for 32 years' delay is also wrongly attributed to the petitioner in facts of this case. On the contrary, the NA permission which was granted in the year 1981 and the layout which was sanctioned immediately thereafter and it is an admitted position that the present petitioner is the sixth owner, the authorities have not taken any action whatsoever and on an application made by the petitioner, he is met with a show cause notice whereas in case of similarly situated plot holders from the same survey numbers, the permission is granted and the extension of one year is granted on payment of penalty of 40 pats. 22. In light of the aforesaid observations therefore, the order dated 15.10.2013 passed by the Collector in Breach of Condition Case No. 21/13-14 and confirmed by the Secretary in Revision Application No. MVV/BKP/BNS/5/2013 by an order dated 24.05.2016 are hereby quashed and set aside and the Collector, Banaskantha is hereby directed to pass an order in line of the order dated 25.06.2015 by imposing penalty of 40 pats and extend the time for construction for a period of one year from the date of such permission on an undertaking filed by the petitioner that construction over plot in question shall be made within such extended time. Such exercise shall be undertaken by the Collector, Banaskantha within a period of four weeks from the date of the receipt of this order. 23. The petition is allowed in the aforesaid terms. However, there shall be no order as to costs. D.S. permitted.