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2017 DIGILAW 683 (GUJ)

Prakashchandra Kunvarji Shah v. Collector

2017-03-27

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Soni, learned advocate for the petitioner, and Mr. Mehta, learned AGP for the respondent-State. 2. In present petition, the petitioner has prayed, inter-alia, that:- "13(B) be pleased to quash and set aside the order dated 31.10.2003 passed by the respondent - Collector in Sharat Bhang Case No. 65/02, annexed at Annexure-B to this petition; as also the order passed by the Additional Secretary (Appeals), Revenue Department, Gujarat State, dated 31.07.2004, which was issued to the petitioner on 30.09.2004, Annexure-C to this petition, by issuing a suitable direction under Articles 226/227 of the Constitution of India." 3. So far as factual background giving rise to this petition is concerned, the petitioner has averred and stated that:- "2. The petitioner submits that the Deputy Collector, Vadhwan Sub-Division had submitted report to the respondent, stating that the petitioner has committed breach of conditions No. 7, 11, 12 and 14 of the order dated 08.02.1999. The petitioner was, therefore, issued a show cause notice and the hearing was fixed, asking the petitioner to present his evidence. It was alleged against the petitioner that the petitioner has committed breach of condition No. 7 by not keeping open the roads as per the lay-out plan, that the petitioner committed breach of condition No. 11 by not starting construction within six months and by not completing the construction within three years; that the petitioner committed breach of condition No. 12 by not informing within one month about commencement of the construction and about completion of the construction within one month thereafter; that the petitioner committed breach of condition No. 14 to the effect that the land was to be used for the residential purpose, still it is not used for residential purpose. The petitioner pointed out that he has already kept all the roads open as per the layout plan and only compound wall was made in order to prevent antisocial elements from encroaching upon the land and thereby he has not committed any breach of condition No. 7. The petitioner also pointed out that because of financial difficulties and unforeseen circumstances, like earth-quake and also for other circumstances beyond his control, he could not start construction within time limit as prescribed in the order and, therefore, it cannot be said that he had committed any breach of condition No. 11. As regards condition Nos. The petitioner also pointed out that because of financial difficulties and unforeseen circumstances, like earth-quake and also for other circumstances beyond his control, he could not start construction within time limit as prescribed in the order and, therefore, it cannot be said that he had committed any breach of condition No. 11. As regards condition Nos. 12 and 14, the petitioner pointed out that there was no question of complying said condition because as stated above, the construction could not be started. The respondent-Collector, however, came to the conclusion that the petitioner has committed breach of the conditions of the order by not starting construction after obtaining N.A. permission and, therefore, the petitioner is liable to pay penalty for two years, i.e. for the years 2001-02 and 2002-03. Accordingly, at the rate of 40 Patt per year, the penalty was assessed at Rs. 2,48,880/-. The petitioner has been accordingly ordered to pay the said amount as penalty and the period for construction is extended by one year. 3. The petitioner submits that the above said order was challenged by the petitioner before the Additional Secretary [Appeals], Revenue Department, State of Gujarat, by filing a Revision Application under Section 211 of the Bombay Land Revenue Code. The Additional Secretary [Appeals] has not properly dealt with the issues which had arisen in the revision filed by the petitioner and has rejected the revision application by order dated 31.07.2004. The said order was sent to the petitioner on 30.09.2004.... Under the circumstances, the petitioner is approaching this Hon'ble Court by way of this petition under Articles 226/227 of the Constitution of India, challenging the order passed by the respondent dated 30.10.2003, Annexure-A to this petition, as also the order dated 30.07.2004, Annexure-C to this petition, passed by the Additional Secretary [Appeals], Revenue Department, State of Gujarat. 4. The petitioner submits that the petitioner is not liable to be penalised for alleged breach of any of the conditions, as stated in the order passed by the respondent. The order passed by the respondent is beyond his competence and dehors his own order dated 08.02.1999, granting N.A. permission to the petitioner. The said order does not provide for imposing of penalty for breach of any of the conditions. Therefore, the respondent was not authorized to impose penalty on the petitioner for alleged breach of the conditions by the petitioner. 5. The said order does not provide for imposing of penalty for breach of any of the conditions. Therefore, the respondent was not authorized to impose penalty on the petitioner for alleged breach of the conditions by the petitioner. 5. The petitioner submits that so far as the condition No. 7 is concerned, the petitioner cannot be said to have committed breach of said condition, because the petitioner has just constructed compound wall to prevent unauthorised elements to enter on the land, but it cannot be said that the petitioner has not kept open the roads as per the lay-out plan. So far as condition Nos. 12 and 14 are concerned, there was no question of committing breach of said conditions, because when the petitioner had at all not started construction, the conditions No. 12 and 14 were not to be complied with at this stage. So far as condition No. 11 is concerned, the petitioner has pointed out that because of unforeseen circumstances, because of financial circumstances and because of the natural calamities, the petitioner was not in a position to make construction and, therefore, the respondent ought not to have taken such a harsh action. Even apart from this, when the petitioner has already paid advance tax upto 2003, imposing of heavy penalty on the petitioner for alleged breach of the conditions is nothing but a totally arbitrary action on the part of the respondent. 6. The petitioner submits that in fact once the petitioner obtained permission under Section 29 of the Town Planning Act, the respondent was not authorised to initiate any action for alleged breach of the conditions and to impose penalty on the said basis. Therefore, the order passed by the respondent is totally illegal and is in contravention of the provisions of the Town Planning Act. Even apart from this, the conditions imposed under Section 65 could not have been taken as mandatory conditions, the violation of which would, therefore, never attract the harsh penalty imposed by the respondent. Therefore, the order passed by the respondent is totally illegal and is in contravention of the provisions of the Town Planning Act. Even apart from this, the conditions imposed under Section 65 could not have been taken as mandatory conditions, the violation of which would, therefore, never attract the harsh penalty imposed by the respondent. As per the law laid down by our own High Court, if the construction could not be made within time limit prescribed by the authority because of the circumstances beyond the control of the party, then such deficiency or defect should be treated as technical defect and harsh penalty should not be imposed and the time is required to be extended for making construction as per the order, granting N.A. permission. In view of this position, therefore, the order passed by the respondent cannot stand scrutiny of law and the same is required to be quashed and set aside by this Hon'ble Court." 4. In light of the factual backdrop involved in the petition and subsequent orders which have been passed by the Court in this proceedings and also in light of the fact that the petitioner paid/deposited the amount in compliance of the orders passed by this Court, it has emerged that the petition can be finally disposed of at this stage with appropriate observations. Therefore, rival submissions by the contesting parties i.e. the petitioner and the respondent authority are not recorded and dealt with in detail in present order. 5. Suffice it to say that after hearing the petition, this Court passed below quoted order on 10.1.2015:- "Draft amendment is allowed. Mr. Soni, learned advocate appearing for the petitioner, has submitted that so far as quantum of penalty of 40 times of N.A. assessment is concerned, considering Rule 100 of the Bombay Land Revenue Rules, at the most, the Collector can impose the penalty 40 times of N.A. assessment and in the present case, it will be 8 ps. Considering that, maximum penalty which could have been imposed by the Collector would be approximately Rs. 40,000/- p.a. and in the present case, Rs. 2,50,000/- penalty is imposed. Hence, notice for final disposal returnable on 2/2/2005. In the meantime, the respondent to file affidavit-in-reply, if any. " 6. The said order was followed by order dated 25.3.2005, which reads thus:- "Heard Mr. Soni for the petitioner and Mr. Prachhak, Ld. AGP for the respondent. 40,000/- p.a. and in the present case, Rs. 2,50,000/- penalty is imposed. Hence, notice for final disposal returnable on 2/2/2005. In the meantime, the respondent to file affidavit-in-reply, if any. " 6. The said order was followed by order dated 25.3.2005, which reads thus:- "Heard Mr. Soni for the petitioner and Mr. Prachhak, Ld. AGP for the respondent. Prima-facie, it appears that the contention as sought to be canvassed on behalf of the petitioner that the condition of making construction within a stipulated time limit by the Collector after the land was converted into NA purpose is without authority cannot be accepted because the petitioner has accepted the order of NA and has acted upon the same and therefore merely because when the penalty is imposed, the petitioner cannot be allowed to raise said contention. 2. However, it also prima-facie appears that even if the penalty is to be considered, it can be imposed at the rate prevailing on the date when the alleged breach is committed. Merely because the penalty could not be recovered and in the mean time there is modification in the rates of NA assessment cannot be said to be a ground for recovering higher amount of penalty as sought to be canvassed by the Ld. AGP. 3. Under the circumstances, Rule. 4. By interim order, the status quo qua the recovery of penalty shall be maintained on condition that the petitioner, without prejudice to his rights and contentions in the petition, deposits 40 times of NA revenue assessment as prevailing for the years 2000-01, 2001-02 and 2002-03 with the District Collector within a period of two months from today." 7. After the said order dated 25.3.2005 was passed, the petitioner herein filed Civil Application (for orders) No. 12928 of 2005. In the said civil application, the applicant prayed, inter-alia, that:- "8(B) be pleased to make clarification in the order dt.25.03.2005 passed in Special Civil Application No. 74 of 2005 to the effect that the applicant is required to deposit the amount of penalty as per the old rate and not for three years and the amount deposited by the applicant is as per the order passed by this Hon'ble Court and grant further direction to the opponent to extend time of one from the date of this application and also grant N.O.C. to the applicant to make construction." 8. After hearing the applicant-petitioner in respect of civil application, the Court passed below quoted order on 24.1.2006:- "1. Notice has been issued returnable as back as on 13.1.2006. When the matter is further taken up for hearing, Mr. Desai, learned AGP states that in spite of the communication by him nobody has remained present for giving instructions to him from the office of the Collector. 2. Hence, as a last opportunity, the respondent District Collector, Surendranagar is directed to file the reply to the Civil Application on or before 8.2.2006. S.O. to 10.2.2006. If the affidavit-in-reply is not filed, the Officer not below the rank of Deputy Collector shall remain personally present on 10.2.2006." 9. After the order dated 24.1.2006, the respondent filed affidavit dated 9.2.2006. The relevant paragraphs of the said affidavit read thus:- "5. It is submitted that the applicant herein-original petitioner had challenged the order dated 30.10.2003 passed by the answering respondent, whereby penalty of Rs. 2,48,880/- was imposed being the amount equivalent to 40 times the revenue assessment at the rate which was applicable from 01.08.2003. It is submitted that the said order was confirmed by the State Government vide its order dated 31.07.2004 and the Revision Application preferred by the applicant herein was rejected. 6. It is submitted that in the main Special Civil Application being S.C.A. No. 74/2005, this Hon'ble Court (Coram: Hon'ble Mr. Justice M.R. Shah) passed following order on 10.1.2005: "Draft amendment is allowed. Mr. Soni, learned advocate appearing for the petitioner, has submitted that so far as quantum of penalty of 40 times of N.A. assessment is concerned, considering Rule 100 of the Bombay Land Revenue Rules, at the most, the Collector can impose the penalty 40 times of N.A. assessment and in the present case, it will be 8 ps. Considering that, maximum penalty which could have been imposed by the Collector would be approximately Rs. 40,000/- p.a. and in the present case, Rs. 2,50,000/penalty is imposed. Hence, notice for final disposal returnable on 2.2.2005. In the meantime, the respondent to file affidavit-in-reply, if any. " 7. Hence it was contention of the petitioner that the rate at which the penalty can be imposed should be 8 ps. However, the District Collector had imposed penalty at the rate of 25 ps. Which was applicable from 01.08.2003. 8. The said petition was further heard by this Hon'ble Court (Coram: Hon'ble Mr. " 7. Hence it was contention of the petitioner that the rate at which the penalty can be imposed should be 8 ps. However, the District Collector had imposed penalty at the rate of 25 ps. Which was applicable from 01.08.2003. 8. The said petition was further heard by this Hon'ble Court (Coram: Hon'ble Mr. Justice Jayant Patel) on 25.03.2005 and the Hon'ble Court admitted the petition and passed the following interim order: "4. By interim order, the status quo qua the recovery of penalty shall be maintained on condition that the petitioner, without prejudice to his rights and contentions in the petition, deposits 40 times of NA revenue assessment as prevailing for the years 2000-01, 2001-02 and 2002-03 with the District Collector within a period of two months from today." 9. Therefore the Hon'ble Court directed that the status quo qua recovery shall be maintained on the condition that the applicable deposits 40 times the N.A. revenue assessment, as prevailing, for the years 2000-01, 2001-02, 2002-03 within period of two months. 10. Therefore the office of the answering respondent vide its letter dated 03/05/2005 directed the applicant to deposit an amount of Rs. 1,19,463/- which is the amount of penalty at the prevailing rate of 8 ps. For the years 2000-01, 2001-02, 2002-03. 11. The applicant, however, only deposited an amount of Rs. 39,821/- which was equivalent to penalty for only one year and therefore vide letter dated 02/12/2005, the office of the answering respondent directed the applicant to deposit the remaining amount of Rs. 79,642/- for the remaining two years. The said demand is absolutely just and proper as the Hon'ble Court by way of order dated 25.03.2005 has clearly directed that the applicant shall have to deposit revenue assessment as prevailing, for the year 2000-01, 2001-02, 2002-03. Therefore when the Hon'ble Court has directed the applicant to deposit the penalty for three years, the demand made by the answering respondent is absolutely just and proper and no illegality has been committed by the office of the answering respondent in interpreting the order passed by this Hon'ble Court." 10. After considering the said affidavit dated 9.2.2006, the Court passed order dated 23.2.2006, which reads thus:- "1. After considering the said affidavit dated 9.2.2006, the Court passed order dated 23.2.2006, which reads thus:- "1. The present application is preferred by the applicant praying inter-alia to clarify the order dated 25.03.2005 passed in Special Civil Application No. 74 of 2005 and to direct the opponent to extend the period of one year from the date of the application and to grant NOC to the applicant to make construction. 2. Upon hearing Mr. Soni, learned counsel for the applicant and Mr. Desai, learned AGP, it appears that there is dispute amongst the parties for interpretation of the order dated 25.03.2005, more particularly for imposition of the condition for interim order. The contention of the applicant is that 40 times, NA Assessment is to be deposited, but for the year for which the reference is made in the year is for the prevailing rate and not for three sets of 40 times because in the original order of the Collector, the penalty was in two sets whereas, it is the contention of the opponent that they have understood the order as if 40 times NA Assessment is to be deposited in three sets for the prevailing rate as referred to in the order. 3. It appears that the imposition of penalty of 40 times NA Assessment is ordered by the Collector even in the original order, which is impugned alongwith the petitions in two sets and therefore, it cannot be three sets and the reference to the year 2000 to 2001, 2001 to 2002 & 2002 to 2003, pertains to the applicability of the rates of revenue assessment. 4. With a view to make the position more clear, the Order dated 25.03.2005 is clarified, more particularly, qua para 4 that the applicant shall deposit 40 times NA Revenue Assessment in two sets as per the rates prevailing for the period from 2000 to 2001, 2001 to 2002 & 2002 to 2003, as the applicant has already deposited the amount of Rs. 39,821, which comes to 40 times NA Assessment in one set, the another set will be required to be deposited of Rs. 39,821/-. Hence, the applicant shall deposit the said amount of Rs. 39,821/- within two weeks from today and after the amount is deposited, the extension for construction shall be granted for a period of one year. 5. Application is allowed to the aforesaid extent. " 11. 39,821/-. Hence, the applicant shall deposit the said amount of Rs. 39,821/- within two weeks from today and after the amount is deposited, the extension for construction shall be granted for a period of one year. 5. Application is allowed to the aforesaid extent. " 11. From paragraph No. 4 of the order dated 23.2.2006, it comes out that after considering all relevant aspects and rival contentions, Hon'ble Court had clarified that actually, the petitioner is required to pay penalty in two sets and not in three sets i.e. Rs. 39,821/- in one set and Rs. 39,821/- in second set. 11.1 It is also not in dispute that the petitioner has paid the said amount in two sets. Mr. Soni, learned advocate for the petitioner clarified that Rs. 39,821/- in first set was paid by the petitioner on 16.5.2005 and second set of Rs. 39,821/- was paid by the petitioner on 4.3.2006. 12. Before proceeding further, it is relevant to note that so far as the controversy or confusion with regard to payment of penalty for two sets or three sets is concerned, the said aspect is not only clarified by the Court vide order dated 23.2.2006, but even from the affidavit dated 18.2.2005 filed by the Resident Dy. Collector, Surendranagar also it becomes clear that the penalty was required to be paid for two years/two sets namely 2001-02 and 2002-03. 12.1 In this context, it would be profitable to refer to the paragraph No. 6 of the affidavit dated 18.2.2005 which reads thus:- "6. I say and submit that the petitioner had further committed breach of the Order by not leaving space for, as the approach road upon them so demonstrated in the layout plan by putting up a compound wall. The Collector, Surendranagar, therefore passed and Order dated 30.10.2003 imposing a penalty for period of 2 years viz. for the year 2001-02 & 2002-03, the calculation of the same is shown in a separate Schedule, which is annexed hereto and marked as Annexure-I. I say and submit that the penalty is proposed at the rate, which was published vide notification dated 26.12.03 issued by the Revenue Department, State of Gujarat. Annexed hereto and marked as Annexure-II is a copy of the said notification. I say and submit that petitioner would fall in Category - B and therefore he would have to pay a penalty of O.25 Ps. Annexed hereto and marked as Annexure-II is a copy of the said notification. I say and submit that petitioner would fall in Category - B and therefore he would have to pay a penalty of O.25 Ps. (25 N.P.) only for square meter per year. I say and submit that from the said fact it is clear that the same has come into force from 1.8.03 based on which the Order is passed by the Collector, Surendranagar on 20.10.2003, at the prevailing rate, i.e. after the new rate having come into force. I say and submit that therefore the Order of the Collector is just, legal and proper." 13. Thus, so far as the issue as to whether the petitioner has to pay penalty in three sets or two sets is concerned, the said aspect is clarified by the above mentioned orders of the Court. 14. However, the controversy still survives as to whether the calculation should be made by applying rate at 8 ps. or 25 ps. 14.1 According to the respondents, as per relevant circular, the land in question is situate in district Surendranagar and therefore it would fall under category B and hence, 25 ps. would be the applicable rate for imposing penalty. 14.2 From the material available on record of the petition alongwith the affidavit filed by the respondent, it appears that the rate 25 ps. is applicable on the basis of the notification dated 26.12.2003. 15. According to the petitioner, the rate which came into force by virtue of notification dated 26.12.2003 cannot be applied to the case of the petitioner because even according to the respondents, the breach occurred in 2001-02 and that therefore, circular of 2003 should not be applied to his case. 15.1 Learned advocate for the petitioner submitted that at the relevant time, when the breach occurred, the relevant rate applicable in 2000-01 was 8 ps. 16. Unfortunately, any material to support the said contention is not available on record. 16.1 Therefore, for the said limited purpose, the matter deserves to be remanded to the original authority with clarification that the appropriate calculation is required to be made by the competent authority by applying rate which was prevailing in 2001-02 as applicable to the land situate in district Surendranagar. Consequently, following order is passed:- "(a) The impugned orders are set aside. Consequently, following order is passed:- "(a) The impugned orders are set aside. (b) The matter is remanded to the competent authority for re-consideration and fresh order. (c) It is clarified that the calculation for amount of penalty shall be made on the basis of the rate of penalty which was prevailing in 2000-01 and 2001-02 in respect of the land situate in district Surendranagar and not on the basis of the notification issued in 2003. (d) It is further clarified that the petitioner would be called upon to pay penalty only in respect of two sets as clarified by this Court in above mentioned orders. (e) If after calculating the amount payable by the petitioner towards penalty for breach of condition in 2000-01 and 2001-02, the total amount payable by the petitioner is less than the amount already deposited by the petitioner, then, the appropriate refund shall be made to the petitioner. Whereas if the amount deposited by the petitioner falls short of the amount calculated by the competent authority in accordance with above clarification, then, the petitioner will pay such balance amount to the concerned authority within four weeks from the date of the order." 17. With aforesaid observations, clarifications and direction, present petition is partly allowed and accordingly stands disposed of. Rule is made absolute to the aforesaid extent. Petition Partly Allowed.