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2019 DIGILAW 854 (GUJ)

Urmilaben Dipakbhai Chothani v. State of Gujarat

2019-10-04

V.M.PANCHOLI

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JUDGMENT : V.M. Pancholi, J. 1. As the issue involved in both these petitions is similar, at the request of learned advocates for the parties, both these petitions are heard together and disposed off by this common judgment. 2. Rule. Learned Assistant Government Pleader Mr. Antani waives service of notice of rule for respondent no. 1 and learned advocate Mr. Munshaw waives service of notice of rule for respondent nos. 2 and 3. 3. By way of these petitions, the petitioners have challenged the impugned orders dated 30.12.2015 passed by the respondent no. 1 in Revision Application No. MVV/BKHP/Suo-motu/Kutch/33/2011 and No. MVV/BKHP/Suo-motu/Kutch/32/2011. 4. For the sake of convenience, the facts of Special Civil Application No. 4279 of 2016 are mentioned. The brief facts of the said case are as under: 4.1 It is stated that the land bearing survey no. 201 of village Barai Taluka Mundra, District Kutch originally belonged to Harakhchand Morarji Keniya. The said owner submitted an application to the respondent-Taluka Development Officer ('TDO' for short) for conversion of the said land under Section 65 of the Gujarat Land Revenue Code (hereinafter referred to as 'the Code' for short) for agricultural land admeasuring 3 acres 39 gunthas for the residential purpose. The said application was submitted on 24.5.1997. TDO passed order permitting the said owner to convert the agricultural land into non-agricultural land for residential purpose. The said land was divided into different plots and plot nos. 3 and 4 came to be purchased by Harshaben P Sheth and Shilaben V Shah. Thereafter, the petitioner purchased the aforesaid plots by registered sale deed dated 27.3.2007. 4.2. It is further submitted that in the nearby area, commercial development took place and therefore the petitioner submitted an application to the respondent-TDO with a request to grant permission for change of user of plot nos. 3 and 4 which were already converted in non-agricultural land for residential purpose. It is stated that after carrying out necessary inquiry, TDO passed an order permitting the petitioner to convert the use of the said land for commercial purpose. After the said permission was granted by TDO, the petitioner started construction and after completion of the construction work, the husband of the petitioner started business in the said premises. The petitioner has complied with all the terms and conditions of the order dated 3.2.2010 passed by TDO. 4.3. It is further stated that respondent no. After the said permission was granted by TDO, the petitioner started construction and after completion of the construction work, the husband of the petitioner started business in the said premises. The petitioner has complied with all the terms and conditions of the order dated 3.2.2010 passed by TDO. 4.3. It is further stated that respondent no. 1 issued notice dated 12.9.2011 to the petitioner while exercising powers under Section 211 of the Code on five grounds wherein it is alleged that the petitioner has not followed certain mandatory requirements and therefore the petitioner was asked to show cause why the order passed by TDO shall not be reviewed. The petitioner submitted the reply to the said show cause notice and ultimately by an impugned order dated 30.12.2015, the respondent no. 1 quashed and set aside the order dated 3.2.2010 passed by the TDO. The petitioner has, therefore, preferred the present petition. 5. Learned advocate Mr. Thacker appearing for the petitioner would submit that the respondent no. 1 has initiated suo motu proceedings after a delay of more than 1½ years and therefore only on the ground of delay in initiating the proceedings, the impugned order is required to be quashed and set aside. It is further submitted that TDO has already granted permission on 10.6.1997, by which the land in question is converted from agricultural land to non-agricultural use under Section 65 of the Code and the land is permitted to be used for residential purpose. The said order is not challenged nor taken into suo motu revision by the respondent no. 1. Now the order of TDO passed on 3.2.2010 by which the land is converted or is permitted to be used for commercial purpose has been taken into suo motu revision and that too after a period of more than 18 months and therefore the impugned order be quashed and set aside. 6. Learned advocate Mr. Thacker has further submitted that in similar matter, suo motu powers were exercised by respondent no. 1 while issuing show notice to one Rajesh Sorathiya on the same grounds which are mentioned in the show cause notice given to the present petitioner. However, the respondent no. 6. Learned advocate Mr. Thacker has further submitted that in similar matter, suo motu powers were exercised by respondent no. 1 while issuing show notice to one Rajesh Sorathiya on the same grounds which are mentioned in the show cause notice given to the present petitioner. However, the respondent no. 1 SSRD passed an order on 29.2.2012 by which the show cause notice issued to the said person was subsequently withdrawn on the ground stated in the said order, copy of the said order is placed on record at page 110 of the compilation. Learned advocate has therefore contended that in case of similarly situated person, the respondent no. 1 had withdrawn the notice whereas in the case of the present petitioner, the impugned order has been passed and therefore the same be quashed and set aside. 7. Learned advocate for the petitioner has placed reliance upon the following decisions in support of his submissions: (1) Zabir Mahmad Hafezi Ismail Patel V/s State of Gujarat and others, reported in 1996(2) GLH 675 (2) Vaghri Jivandas Manji and Others V/s State of Gujarat and others, reported in 2008(3) GLH 655 (3) Karsanbhai Mohanbhai V/s State of Gujarat and others, reported in 2013(5) GLR 4340 Relying upon the aforesaid decisions, it is contended that suo motu powers are required to be exercised within reasonable time and reasonable time is three months. However, in the present case, such powers were exercised after a period of 18 months and therefore the impugned order be set aside. 8. On the other hand, learned Assistant Government Pleader appearing for respondent no. 1 submitted that respondent no. 1 has not committed any error while exercising the suo motu powers. Show cause notice was issued to the petitioner wherein it was pointed out that for various reasons, the order of TDO is required to be taken into suo motu revision and after giving opportunity of hearing to the petitioner, when the respondent no. 1 has passed the impugned order, the said order may not be quashed and set aside merely on the ground of delay in initiating the proceedings. It is further submitted that decisions upon which reliance is placed by learned advocate for the petitioner would not be applicable to the facts of the present case. It is, therefore, urged that both these petitions be dismissed. 9. It is further submitted that decisions upon which reliance is placed by learned advocate for the petitioner would not be applicable to the facts of the present case. It is, therefore, urged that both these petitions be dismissed. 9. This Court has considered the submissions canvassed by learned advocates appearing for the parties. This Court has also gone through the material placed on record and decisions upon which the reliance is placed. It has emerged from the record that the application was submitted under Section 65 of the Code to the TDO for grant of non-agricultural permission for the land in question. Permission was granted by TDO on certain terms and conditions, whereby the concerned applicant was permitted to use the land for residential purpose. It is not in dispute that the order dated 24.5.1997 passed by TDO has not been challenged before the higher authority nor the same was taken into suo motu revision. It is further revealed that in the land in question, certain plotting was made and plot nos. 3 and 4 were purchased by the petitioner by registered sale deed on 27.3.2007. It is further revealed that commercial activities were started in the said area and therefore the petitioners submitted an application for grant of permission to use the land in question for commercial purpose and such permission was granted by TDO vide order dated 3.2.2010. The order of TDO was taken into suo motu revision by respondent no. 1, while exercising the powers under Section 211 of the Code after a period of eighteen months. 10. At this stage, this Court would like to refer to the decisions upon which reliance is placed by learned advocate appearing for the petitioner. 10.1 In the case of Zabir Mahmad Hafezi Ismail Patel (supra), this Court has considered the provisions contained in Section 211 of the Code and it is held that revisional powers are to be exercised within a reasonable period of three months. In the said case, show cause notice was issued after a period of 13 months from the date of order granting non-agricultural permission and therefore it was held that the said show cause notice is issued beyond reasonable period. In the said case, show cause notice was issued after a period of 13 months from the date of order granting non-agricultural permission and therefore it was held that the said show cause notice is issued beyond reasonable period. 10.2 In the case of Vaghri Jivandas Manji and others (supra), the revisional powers under Section 211 of the Code was exercised after a period of 13 months from the date of order of passing non-agricultural permission, this Court held that the action taken is beyond reasonable time and therefore the order passed while exercising revisional powers was quashed and set aside by this Court. 10.3 In the case of Karsanbhai Mohanbhai (supra), suo motu powers under Section 211 of the Code were exercised by the concerned authority after a period of four years. In the meantime, the concerned petitioner has put up the construction on the land and altered his position and therefore this Court has held that exercise of revisional powers beyond reasonable time is not permissible and therefore the order passed by the Collector in the said case was quashed. 11. Keeping in view the aforesaid decisions rendered by this Court, if the facts of the present case as discussed hereinabove are examined, it is revealed that TDO has passed an order on 3.2.2010 by which the permission is granted to use the land for non-agricultural commercial purpose. The said order was taken into suo-motu revision by the respondent no. 1 while exercising powers under Section 211 of the Code after a period of 18 months i.e. on 14.9.2011. Thus, when the powers are exercised after a period of 18 months, the impugned order is required to be quashed and set aside. 12. Accordingly, these petitions are allowed. The impugned orders dated 30.12.2015 passed by the respondent no. 1 in Revision Application No. MVV/BKHP/Suo-motu/Kutch/33/2011 and No. MVV/BKHP/Suo-motu/Kutch/32/2011 are quashed and set aside. The order dated 3.2.2010 passed by the TDO, Mundra (Kutch) is restored. Rule is made absolute.