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2017 DIGILAW 139 (GUJ)

Rameshbhai Keshavbhai Patel v. State of Gujarat

2017-01-20

ABHILASHA KUMARI

body2017
JUDGMENT Abhilasha Kumari, J. 1. Rule. Mr. Tirthraj Pandya, learned Assistant Government Pleader waives service of notices of Rule for the respondents. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally. 2. This petition under Article-226 of the Constitution of India has been preferred, inter-alia, with a prayer to quash and set aside the order dated 15.07.2015, passed by the Collector, Surat, the second respondent herein, refusing non-agricultural use permission (NA permission) to the petitioners for their plots Nos. 31, 32, 34A and 34B, situated in Final Plot No. 110 in the Town Planning Scheme No. 6 (Piplod), District Surat. 3. The matter has a rather chequered history, which is required to be narrated briefly in order to place the issue involved in the petition in proper perspective. 4. The petitioners and their deceased father Keshavbhai, were joint owners and occupants of the land bearing Survey No. 89/paiki admeasuring 2-Hectare 29-Aare and 67-Sq.mtrs. situated in village Piplod, District Surat ("the land in question", for short). After the coming into force of the Urban Land (Ceiling and Regulation) Act, 1976 ("the ULC Act", for short), the petitioners filled up the form under Section-6 of the said Act. A joint inquiry was held by the Competent Authority under the provisions of the ULC Act and, by its order dated 16.08.1996, the Competent Authority held that the petitioners were not holding any surplus land from Survey No. 89, along with other lands. The State Government, in exercise of powers conferred under Section-34 of the ULC Act, took the order dated 16.08.1996 of the Competent Authority in revision and, ultimately, by its order dated 18.01.1999, closed the inquiry under Section-34, holding that the order of the Competent Authority was not required to be interfered with or amended. In the meanwhile, the land in question was included in the preliminary Town Planning Scheme No. 6 (Piplod) and Survey No. 89 was given Original Plot No. 42, admeasuring 23368 sq.mtrs. It has now been given Final Plot No. 110 admeasuring 17757 sq.mtrs. Final Plot No. 110 was situated in the residential zone. Thereafter, the petitioners obtained development permission to develop Final Plot No. 110 from the Surat Municipal Corporation, on 21.09.1999. The petitioners have divided Final Plot No. 110 into thirty-four different Sub-plots. It has now been given Final Plot No. 110 admeasuring 17757 sq.mtrs. Final Plot No. 110 was situated in the residential zone. Thereafter, the petitioners obtained development permission to develop Final Plot No. 110 from the Surat Municipal Corporation, on 21.09.1999. The petitioners have divided Final Plot No. 110 into thirty-four different Sub-plots. Out of the said thirty-four Subplots, thirty-one plots have been transferred by the petitioners in favour of different plot-holders, by executing separate, registered Sale Deeds. 5. It so transpired that the Competent Authority and Additional Collector under the ULC Act, suspecting that some fraud had taken place and some illegality had been committed by the petitioners by submitting false certificates of age and School Leaving Certificates before the ULC authority, passed an order dated 13.06.2002, issuing an injunction and restraining the petitioners from developing the land, obtaining NA permission or transferring the land, till the criminal case is not finally decided. 6. Since thirty-one plots had already been transferred to different persons, those plot-holders preferred petitions, being Special Civil Application No. 16581/2004 to Special Civil Application No. 16602/2004 with Special Civil Application No. 16211/2004, challenging the order of the Competent Authority and Additional Collector, Surat, dated 13.06.2002, whereby the injunction had been granted, preventing them from making any construction, development or transferring the land. The present petitioners were joined as respondents Nos. 27, 28 and 29 in the said petitions, respectively. Notice was issued in the petitions and, ultimately, a common interlocutory order dated 10.05.2005 was passed after hearing the parties. By way of the said order, the present petitioners (respondents Nos. 27, 28 and 29 in those petitions) were directed to deposit the full sale consideration with the District Collector, Surat, within a period of six months from the date of the said order. It was further directed that the amount deposited by the present petitioners would be subject to the final outcome of the criminal proceedings. 7. Pursuant to the above order, the petitioners deposited an amount of Rs. 70,42,324/- by three separate Challans of Rs. 27,00,000/-, Rs. 6,43,324/- and Rs. 27,00,000/-, vide three different cheques in the Treasury Department on 26.10.2005. Thereafter, the thirty-one plot-holders/petitioners in the above-mentioned petitions, made an application to the Collector for the grant of NA permission for residential purposes. 7. Pursuant to the above order, the petitioners deposited an amount of Rs. 70,42,324/- by three separate Challans of Rs. 27,00,000/-, Rs. 6,43,324/- and Rs. 27,00,000/-, vide three different cheques in the Treasury Department on 26.10.2005. Thereafter, the thirty-one plot-holders/petitioners in the above-mentioned petitions, made an application to the Collector for the grant of NA permission for residential purposes. The Collector, after due inquiry and after obtaining the opinion of different authorities, including the authority under the ULC Act, granted NA permission to the thirty-one plot-holders by an order dated 05.05.2009, under Section-65 of the Gujarat Land Revenue Code, 1879 ("the Code", for short). 8. The above-mentioned petitions filed by the plot-holders were finally decided by an order dated 12.07.2016, holding that the petitioners had paid the amount which has been made subject to the final decision of the criminal proceedings and the plot-holders had been granted NA permission, without entering into the merits of the matter. 9. In the above factual background, the case of the petitioners is that when NA permission has already been granted to thirty-one plot-holders out of Final Plot No. 110, the petitioners who hold three plots in the same Final Plot may also be granted NA permission on the same grounds, as the petitioners have already deposited the amount as per the orders of this Court which has been made subject to the final decision of the criminal proceedings. Besides, the petitioners have stated on oath that the NA permission, itself, be granted subject to the final decision of the criminal proceedings. 10. In the affidavit-in-reply filed on behalf of the second respondent Deputy Collector, Land Reforms, the only ground taken for the refusal of the NA permission is contained in paragraph-20. The affidavit-in-reply filed on behalf of respondent No. 2 is dated 24.06.2016, which is before the passing of the judgment dated 12.07.2016 in Special Civil Application No. 16211/2004 and connected matters by which the group of petitions filed by the plot-holders have been finally decided. In the said affidavit-in-reply, the first objection regarding the grant of NA permission to the petitioners is that the order dated 22.12.2004, granting an injunction upon the petitioners and the plot-holders from developing or transferring the land, still stands. The second objection is that the group of petitions filed by the plot-holders is pending adjudication before the Court. In the said affidavit-in-reply, the first objection regarding the grant of NA permission to the petitioners is that the order dated 22.12.2004, granting an injunction upon the petitioners and the plot-holders from developing or transferring the land, still stands. The second objection is that the group of petitions filed by the plot-holders is pending adjudication before the Court. No other objections, on merits, have been taken for the refusal of the NA permission to the petitioners, insofar as the provisions of Section-65 of the Code are concerned. 11. In the above background, Mr. A.B. Munshi, learned advocate for the petitioners submits that when thirty-one plot-holders out of thirty-four have already been granted NA permission pursuant to the amount deposited by the petitioners, by the same standards the petitioners ought to be granted similar permission, as well. The amount deposited by the petitioners is subject to the final decision of the criminal proceedings. The petitioners have stated on oath that the NA permission can also be made subject to the criminal proceedings. 12. That in the affidavit-in-reply filed on behalf of the Collector, no other objection is raised except that the petitions are pending before the Court. Those petitions have now been finally disposed of, by the judgment dated 12.07.2016, therefore, this reason no longer exists. 13. It is further submitted that the other contention raised in the affidavit-in-reply, to the effect that the interlocutory order dated 22.12.2004, passed by the Court has not been vacated and still stands, cannot hold good, as all interim orders would merge in the final decision of the Court and have no independent existence after the final order in the petition is passed. 14. It is contended that the plots in question have been carved out of the same Final Plot No. 110 out of which the other thirty-one plots have been granted NA permission. If NA permission could have been granted to those thirty-one plot-holders, there exists no reason why it should be denied to the petitioners. 15. Mr. Tirthraj Pandya, learned Assistant Government Pleader has reiterated the objections raised by respondent No. 2 in the affidavit-in-reply, by submitting that the ad-interim order dated 22.12.2004, whereby this Court had directed the status-quo to be maintained has not been modified. 15. Mr. Tirthraj Pandya, learned Assistant Government Pleader has reiterated the objections raised by respondent No. 2 in the affidavit-in-reply, by submitting that the ad-interim order dated 22.12.2004, whereby this Court had directed the status-quo to be maintained has not been modified. He has further submitted that at the point of time when the affidavit-in-reply was filed, the group of petitions filed by the plot-holders was still pending. 16. This Court has heard learned counsel for the respective parties, perused the averments made in the petition as well as the documents annexed thereto. 17. It is, no doubt true that certain criminal proceedings are pending against the petitioners. However, those proceedings would have nothing to do with the grant of NA permission under Section-65 of the Code, which is an independent provision. By the judgment dated 12.07.2016, passed by this Court in Special Civil Application No. 16211/2016 and connected matters, it has been stated that the amount has been deposited by the petitioners (respondents Nos. 27, 28 and 29 in those petitions) as directed by the Court. There is no dispute regarding the fact that the parties had agreed that the amount would be subject to the final outcome of the criminal proceedings initiated against the petitioners. This position cannot be disputed or varied. It is further recorded in the said judgment that thirty-one plot-holders have been granted NA permission by the concerned authority vide order dated 05.05.2009. It has further been noted that the denial of NA permission to the petitioners has been challenged in the present petition. 18. A perusal of the order dated 15.07.2015, passed by the Collector, refusing NA permission to the present petitioners reveals that the said order has been passed on the ground that the group of petitions filed by thirty-one plot-holders was pending before the Court. No other justifiable reason, touching upon the merits of Section-65 of the Code, has been stated in the said order for refusing NA permission to the petitioners. 19. The land of the petitioners is a part of the same Final Plot out of which thirty-one plots have been carved out, for which NA permission has been granted. There is, therefore, no justifiable reason on record for the refusal of NA permission to the petitioners, as their plots have also been carved out from the same Final Plot No. 110 as have those thirty-one plots. There is, therefore, no justifiable reason on record for the refusal of NA permission to the petitioners, as their plots have also been carved out from the same Final Plot No. 110 as have those thirty-one plots. The reason stated in the impugned order no longer exist, as the petitions have now been disposed of. Further, it is a settled position of law that an interlocutory order would have no independent existence after the final decision is pronounced in a case. 20. In the affidavit-in-rejoinder filed on behalf of the petitioners, it is stated on oath in paragraph-11 thereof that NA permission can be granted subject to the pending criminal proceedings, as well. Considering the overall facts and circumstances of the case, this Court does not find any impediment in the grant of NA permission subject to the final decision of the criminal case. 21. In view of the above facts and circumstances and as there exists no legal, valid or justifiable reason for the denial of NA permission to the petitioners when the other plot-holders in the same Final Plot have been granted such permission, and as the only reasons stated in the said order regarding the pendency of the petitions and the interlocutory order no longer exists, this Court considers it just and proper to pass the following order: The order dated 15.07.2015, passed by the Collector, Surat, is hereby quashed and set aside. The Collector is directed to consider the grant of NA permission to the petitioners for plot Nos. 31, 32, 34A and 34B, situated in Final Plot No. 110 in the Town Planning Scheme No. 6 (Piplod), District Surat, on the same grounds as such permission has been granted to the other thirty-one plot-holders out of the same Final Plot, and pass appropriate orders in this regard. The needful be done as expeditiously as possible, but not later than a period of six weeks from the date of the receipt of a copy of this order. The NA permission granted to the petitioners shall be subject to the final decision of the criminal proceedings. 22. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.