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2017 DIGILAW 944 (GUJ)

Girdharlal Mohanlal Patel v. State of Gujarat

2017-05-02

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Bhatt learned advocate for petitioner and Mr. J.M. Patel, learned advocate for respondent and Mr. Rakesh Patel, learned AGP for respondent No. 1 to 4. 2. In Special Civil Application No. 2083 of 2007, the petitioner has prayed, inter alia, that: "12(a) Your Lordships may kindly be pleased to issue an appropriate writ, order and direction and thereby quashed and set aside the order dated 21/27/11/2006 passed by the Secretary, Revenue Department (Dispute) order of remand and thereby restore order passed by the Collector dated 10.6.2005 of granting revised N.A. Permission for survey No. 620 of village Tarapur Dist: Anand of the petitioner in the interest of justice." 3. Whereas in Special Civil Application No. 2089 of 2007, the petitioner has prayed, inter alia, that: "13(a) Your Lordships may kindly be pleased to issue an appropriate writ, order and direction and thereby quashed and set aside the order dated 21/27/11/2006 passed by the Secretary, Revenue Department (Dispute) order of remand and thereby restore order passed by the Collector dated 10.6.2005 of granting revised N.A. Permission for survey No. 620 of village Tarapur Dist: Anand of the petitioner in the interest of justice." 4. Even according to the submission by learned advocate for petitioner, the petitioner, in both the petitions, is the same person and the petitioner has challenged very same order i.e. order dated 21-27/11/2006 passed by Secretary (Appeals) in both the petitions. 5. Learned advocate for petitioner further clarified that though very same order is under challenge, the petitioner has filed two petitions because there are separate complainants in both cases. 6. In view of the fact that subject matter of both petitions is similar and identical and the petitioner in both the petitions is also same person and the complainants in both the petitions are represented by same learned advocate Mr. J.M. Patel and since both sides have raised similar contentions for both cases, the petitions are heard and decided together with consent of learned advocates for petitioner and respondents. 7. By way of the order which is impugned in both the petitions, the Secretary (Appeals) has remanded the proceedings for fresh consideration and fresh decision by the Collector. 8. So far as factual backdrop involved in this two cases is concerned, the petitioner has narrated the facts in Para-2 to 7 of the petition, which read thus: "2. 7. By way of the order which is impugned in both the petitions, the Secretary (Appeals) has remanded the proceedings for fresh consideration and fresh decision by the Collector. 8. So far as factual backdrop involved in this two cases is concerned, the petitioner has narrated the facts in Para-2 to 7 of the petition, which read thus: "2. The brief facts of the case is that the petitioner purchased land bearing revenue survey No. 620 situated at village Tarapur by registered sale deed in the year 1990. A copy of the said sale deed is annexed herewith and marked as Annexure A to this petition. It is submitted that the petitioner sold portion of the land which is situated at northern side of highway to Shri Rambhai Chelabhai Bharwad by registered sale deed on 28.10.1996. It is submitted that in the sale deed itself, it is made clear that petitioner who sold the land is not responsible in less or higher measurement of the land in question and land situated on northern side of High Way has been sold while land on south side of high way has been kept by petitioner. A copy of the said sale deed is annexed herewith and marked as Annexure B to this petition. 3. It is submitted that because of the widening of the road which is now highway the measurement was required to be made of the land which of the ownership and in possession of the petitioner situated on southern side of the highway and, therefore, the application was made for measurement which was granted ad measurement was made of the land which is belongs to the petitioner. Not only measurement was made but map was also prepared which is annexed herewith and marked as Annexure C to this petition. 4. It is submitted that because of the laying of road the survey No. 620 has been divided into two parts namely one part falls on northern side of highway which has been sold by the petitioner in the year 1996 and another part on southern side of the highway which is in possession and of the ownership of the petitioner. A copy of the map showing survey No. 620 in two parts because of highway is annexed herewith and marked as Annexure D to this petition. A copy of the map showing survey No. 620 in two parts because of highway is annexed herewith and marked as Annexure D to this petition. It is submitted that petitioner applied for NA permission which was granted to the petitioner for survey No. 620 in the year 1998 by the Competent Authority which was for the purpose of residential house which was granted and a copy of the said NA permission is annexed herewith and marked as Annexure E to this petition. As petitioner was desirous of starting petrol pump of Reliance Industry Limited, petitioner made an application and in response to that reliance industry forwarded certain terms and conditions on 16.2.2005 which is annexed herewith and marked as Annexure F to this petition. 5. It is submitted that on 1.6.2005 the District Magistrate, Anand granted No Objection Certificate for the purpose of petrol pump to the reliance industry limited for starting petrol pump on survey No. 620 (petitioner's land) of Tarapur. A copy of the NOC issued by the District Magistrate dated 1.6.2005 is annexed herewith and marked as Annexure G to this petition. Not only that but the Collector, Anand certified that land for the bona fide industrial purpose under Section 65B is valid and assessment was made on 10.6.2005. A copy of the said order and certificate granting NA permission under Section 65B of the Bombay Land Revenue Code along with conditions are annexed collectively herewith and marked as Annexure H to this petition. It is submitted that the petitioner prepared map and submitted before Town Planning Authority as well as before the Collector for approval of construction of petrol pump on the land in question. A copy of the plan approved by competent authority for petrol pump on Survey No. 620 is annexed herewith and marked as Annexure I to this petition. 6. It is submitted that petitioner applied for approach road to link the petrol pump with highway and accordingly PWD department granted permission by collecting necessary charges from the petitioner. A copy of the permission granted by the PWD for approach road and petitioner paid Rs. 10,000/- for permission of approach road in the treasury of the State Government are annexed collectively herewith and marked as Annexure J to this petition. A copy of the permission granted by the PWD for approach road and petitioner paid Rs. 10,000/- for permission of approach road in the treasury of the State Government are annexed collectively herewith and marked as Annexure J to this petition. It is submitted that petitioner entered into an agreement with the Reliance Industry Limited for the purpose of construction road and building for petrol pump on survey No. 620 is annexed herewith and marked as Annexure K to this petition. 7. It is pertinent to note that the person to whom one portion of the land bearing Survey No. 620 was sold in 1996 present respondent No. 5 filed Civil Suit challenging the measurement which was made by the Petitioner through competent authority in the year 2004 by way of filing Civil Suit No. 137 of 2005 in which Court Commissioner came to be appointed and in the Court Commissioner report, it is mentioned that there is one way passing through survey No. 620 being Indranaj Road. A copy of the said map along with Court Commissioner Report are annexed herewith and marked as Annexure L collectively to this petition." 8.1 In backdrop of the said facts, when the impugned order passed by the Secretary (Appeals) is taken into account, it comes out that after considering the material on record, the Secretary (Appeals) found that several aspects were not considered by the Collector and relevant material/evidence which would be necessary to decide factual aspect was not available on record and that, therefore, it was not possible for him i.e. Secretary (Appeals) to decide the matters on merit and it was necessary that both sides should place relevant evidence on record before the Collector, who should pass fresh order after considering relevant material. 9. Having reached to such conclusion, Secretary (Appeals) found it necessary and appropriate to remand the proceedings. 10. In this view of the matter, said order does not warrant interference and it does not deserve to be disturbed. 11. So far s maintainability of the petitions is concerned, there is another/one more perspective which deserve to be considered. 11.1 In this context, it is pertinent to note that while examining these petitions, the Court passed below quoted common order dated 23.1.2007 in respect of both the petitions. "Notice returnable on 12th February, 2007. 11. So far s maintainability of the petitions is concerned, there is another/one more perspective which deserve to be considered. 11.1 In this context, it is pertinent to note that while examining these petitions, the Court passed below quoted common order dated 23.1.2007 in respect of both the petitions. "Notice returnable on 12th February, 2007. By ad interim order, it is directed that the remand proceedings may go on but the use of the land for running petrol pump will not be discontinued. The order after remand after giving opportunity to both the sides shall be produced before this Court and will not be implemented till further orders. D.S. permitted." 11.2 From the said order dated 23.01.2007, it comes out clearly that the Court did not stay the direction passed by the Secretary viz. remanding the case to the Collector. 11.3 Instead, the Court considered it appropriate to allow the remand order to operate and take its own course and the Court also considered it appropriate to clarify that the remand proceedings should go on but the use of land for running the petrol pump may not be disturbed in the meanwhile. The Court also directed that the Order which may be passed in remand proceedings may be placed on record of this Court. 12. It is obvious that in view of the said Order dated 23.01.2007 passed by the Court, the remand proceedings must have proceeded and progressed and the competent authority must have passed order in the said remand proceedings. 12.1 The said fact translates into the fact that the Court allowed the order (of Secretary-Appeals) to operate and that, therefore, any scope or cause to disturb said order would not survive. 13. What is more important is the fact that by virtue of order dated 23.01.2007 passed by this Court, the Order challenged by the petitioner in present petition was actually enforced. Thus, the challenge against direction remanding the proceedings, actually did not survive when the proceedings before concerned authority progressed/proceeded in light of this Court's order dated 27.1.2007. 14. At this stage, it will not be out of place to mention that after the order dated 27.04.2007, the Court admitted the petition vide order dated 9.7.2007. 14.1 Even at that stage any interim relief was not granted. Consequently, ad-interim relief which was granted vide order dated 23.01.2007 stood vacated after order dated 27.04.2007 15. 14. At this stage, it will not be out of place to mention that after the order dated 27.04.2007, the Court admitted the petition vide order dated 9.7.2007. 14.1 Even at that stage any interim relief was not granted. Consequently, ad-interim relief which was granted vide order dated 23.01.2007 stood vacated after order dated 27.04.2007 15. At this stage, it would not be out of place to state that the petitions came to be restored vide order date 12.06.2007. However, the said order dated 12.06.2007 does not give out that the Court restored the interim relief as well. 16. Even if it is assumed that interim relief was restored by virtue of order dated 12.06.2007, then also the fact remains that the order dated 23.01.2007 which directed that the remand proceedings must go on and the order which may be passed in the remand proceedings shall be placed on record, remained in operation and took its own course and in view of that order, the remand proceeding also continued. 17. Consequently, as mentioned above, the order challenged in the present petitions i.e. order dated 21-27/11/2006 was put in motion and was allowed to operate. 18. In view of the said order, by now the remand proceedings must have been concluded and the concerned authority must have passed appropriate order in the remand proceedings. 19. Therefore, now, after 10 years, there is no justification to interfere with the said order. 20. Besides this, even otherwise, this Court would, ordinarily, not interfere with the direction remanding the proceedings, more particularly when the Appellant/Revisional authority found that the material available on record is not sufficient to decide the dispute and therefore the said authority considered it necessary to remand the proceedings. 20.1 Under the circumstances, even otherwise, there is no justification to interfere with the order which is challenged in present petitions. 21. For the above mentioned reasons, the petitions are not entertained and are disposed of with clarification that disposal of present petitions will not stand in way of either parties to take appropriate steps in accordance with law against the order which might have been passed or which may be by the Collector in remand proceedings. 22. 21. For the above mentioned reasons, the petitions are not entertained and are disposed of with clarification that disposal of present petitions will not stand in way of either parties to take appropriate steps in accordance with law against the order which might have been passed or which may be by the Collector in remand proceedings. 22. Since the respondent State has not placed on record copy of the order which might have been passed by the Collector in remand proceedings, it is clarified that if the proceedings are not concluded then the authority may conclude the said proceedings as expeditiously as possible and preferably within 3 months. Direct service permitted.