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2019 DIGILAW 957 (GUJ)

Maheshbhai Thakorbhai Patel v. State of Gujarat

2019-10-17

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : Vikram Nath, J. 1. The present Letters Patent Appeal is filed by the appellant under Clause 15 of Letters Patent against judgment and order passed by the learned Single Judge dated 10.04.2018 in Special Civil Application No. 5666 of 2018, whereby the petition came to be dismissed. 2. The background of fact which has given rise to the present proceedings is that there is one land bearing Revenue Survey Nos. 1048 and 1049, Block No. 887, totaling around admeasuring H.1-32-55 sq.mtrs., of Village Bhayli, Taluka and District : Vadodara, which was originally owned and possessed by one Gordhabhai Amthabhai right from the year 1964. On death of said Gordhanbhai Amthabhai, his son Somabhai inherited the said land and upon death of Somabhai, his son Mafatbhai inherited this portion of land. According to the appellant, said Mafatbhai Somabhai wanted to sell the said land. As a result of this, permission is sought from the Collector, Vadodara and after recovering an amount of Rs. 4,97,063/- towards premium, the Collector, Vadodara vide order dated 26.09.1997 was pleased to grant permission, subject to certain conditions, stipulated therein. The case of the appellant is that by observing such conditions, Mafatbhai Somabhai Patanvadia had sold the land to the present appellant by registered sale deed dated 08.10.1997 and the said sale transaction is mutated in revenue record being Entry No. 9537 in Village Form No. 6, which came to be certified as well. 2.1. It is further the case of the appellant - original petitioner that pursuant to that they are cultivating the land in question at the time when it was purchased by him, but meanwhile, the charity trust know as "Patel Hiralaxmi Thakorbhai Charity Trust" which is a registered trust under the Bombay Public Trust Act, 1950 approached the appellant with a request to gift certain portion of land to establish I.T.I. College. Accordingly, with this bona fide purpose keeping in mind, the appellant has donated 3,000 sq.mtrs., out of the said land to the aforementioned Trust. The Trust applied to the Director of Employment and Training, Gandhinagar for permission to run an I.T.I. College. Such permission was granted on 12.07.2001 and according to the appellant, College is set up. 2.2. The case of the appellant further proceeded with an assertion that the Trust has constructed building of College over the land in question. The Trust applied to the Director of Employment and Training, Gandhinagar for permission to run an I.T.I. College. Such permission was granted on 12.07.2001 and according to the appellant, College is set up. 2.2. The case of the appellant further proceeded with an assertion that the Trust has constructed building of College over the land in question. However, the same was without obtaining any requisite permission, the appellant made an application on 07.06.2005, to regularize the construction. Having not received any response for a period of six months, the appellant made an application on 22.12.2005 before the District Collector, for regularizing the said construction put up on the land in question. However, the District Collector, has not so far passed any order. By that time, the land in question came to be included in the residential zone (R-2) as per the Draft Second Varied Town Planning Scheme of Vadodara Urban Development Authority and to that effect, a certificate has also been issued on 16.06.2007. Since its inception, according to the appellant, the Trust has been paying necessary property tax related to College building to the Bhayli Gram Panchayat. According to the appellant, the Revenue Department of the State authority has passed a Resolution on 27.08.1980, whereby certain guidelines have been issued in respect of regularizing such unauthorized construction by virtue of Sections 65, 66, 67 of the Gujarat Land Revenue Code. The case of the appellant is that by recovering 40 times of annual N.A., assessment, regularization is permissible. A further Resolution has also been taken in assistance by the appellant dated 18.12.2004, whereby again the State has framed guidelines for dealing with the cases of new and impartible tenure of lands in the State of Gujarat and by referring to paragraph 10(2) of the said Resolution, a contention is raised that the holder of the land can seek permission to gift away the new tenure land for public purpose to an institution. By submitting that there are as many as 1000 students prosecuting their studies over a period of 9 years right from 2001, and despite aforesaid situation, the Deputy Collector, came out with a proceedings under Section 79(A) of the Gujarat Land Revenue Code, which proceedings are registered as Breach of Condition Case No. 81 of 2006. The appellant appeared before the Collector, and submitted written representation on 19.02.2007. The appellant appeared before the Collector, and submitted written representation on 19.02.2007. However, while passing an order on 16.01.2008, the Deputy Collector, passed an order requiring the land admeasuring 3000 sq.mtrs., donated by the appellant to vest in the Government free from all encumbrances. 2.3. The appellant submits that feeling aggrieved and dissatisfied with the said order, an appeal came to be preferred before the District Collector, Vadodara being Land Appeal No. 51 of 2008, but to the surprise of the appellant, the District Collector, vide order dated 23.05.2008 has not only dismissed the appeal filed by the appellant, but has also directed that entire land of Block No. 887 which is occupied by the appellant shall stand vested in the State Government free from all encumbrances. It has been the case of the appellant that said dismissal of appeal was carried further before the revisional authority by submitting revision application before the Principal Secretary, Government of Gujarat, Revenue Department (Appeal) and also sought interim relief. On 01.09.2008, the learned Principal Secretary, according to the appellant has ordered to maintain status-quo with regard to the order passed by the District Collector and in the meantime, by raising several issues and written submissions, was placed before the revisional authority on 09.12.2016 by the appellant. However, according to the appellant, without appreciating such submissions, vide order dated 15.01.2018, the Joint Secretary, (Appeals) was pleased to pass an order dismissing the revision application and feeling aggrieved by the same, the appellant - original petitioner has submitted Special Civil Application by invoking extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. By raising multiple contentions, the petition was placed for hearing, but the learned Single Judge on 10.04.2018 was pleased to dismiss the petition. As a result of this, present Letters Patent Appeal is filed by the appellant before us. 3. Shri C.G. Sharma, learned counsel appearing on behalf of the appellant has vehemently contended that the order in question which has been passed is not only unjust, arbitrary, but tilted with mala fides, by the authority. It has been submitted that the Deputy Collector, passed an order to forfeit the land in question to the extent of 3,000 sq.mtrs., only over which, I.T.I. College is set up, but the Deputy Collector, has instead of resumption entire land is directed to be vested in the State Government. It has been submitted that the Deputy Collector, passed an order to forfeit the land in question to the extent of 3,000 sq.mtrs., only over which, I.T.I. College is set up, but the Deputy Collector, has instead of resumption entire land is directed to be vested in the State Government. Hence, such erroneous approach shown by the District Collector ought to have been considered by the learned Single Judge. It has been contended that right from the date of the gift to the Trust, I.T.I., College has been set up in which several students are prosecuting their studies and if this order is allowed to be operated, the entire college will have been stopped, which would not be in the interest of justice of the students at large and, therefore, also, when it is possible for the authority to regularize such portion by condoning breach, appropriate permission can be received by the authority. The appellant is always ready and willing to pay premium at the rate which was prevailing at the time when the cause has arisen. 3.1. Shri Sharma, learned counsel has further submitted that this kind of issue can always be permissible on payment of appropriate fine and premium and though it was pointed out before the learned Single Judge, the said aspect has not been touched and examined at length. That being so, the order impugned, deserves to be corrected. 3.2. Shri Sharma, learned counsel has further submitted that an I.T.I., College has been set up after permission having been granted by the competent authority and on the contrary, an amount of Rs. 4,97,000/- has been paid by way of premium and in addition thereto, major chunk of land is still under agricultural operation. Therefore, this technical default even if assumed to be there, the same can be pardoned and regularized on payment of premium. It has further been submitted that law is absolutely clear on the subject that N.A., application, if not decided within a period of 3 months, then the same has to be treated as deemed to have been granted. Shri Sharma, learned counsel has further contended that huge building has been set up over the portion of land in controversy, and despite the aforesaid fact which is prevailing on site by approximately 8 - 9 years, an action is initiated at much belated stage. Shri Sharma, learned counsel has further contended that huge building has been set up over the portion of land in controversy, and despite the aforesaid fact which is prevailing on site by approximately 8 - 9 years, an action is initiated at much belated stage. That being so, the action on the part of the respondent - authority deserves to be corrected. It has further been contended that Section 79(A) of the Gujarat Land Revenue Code does not invest power to forfeit and, therefore, the order, ex-facie, is beyond the scope of authority, there is hardly any justification on the part of the authority to initiate such action. The order passed by the learned Single Judge is also out of place in view of the fact that the Deputy Collector has ordered confiscation and vesting of land to the extent of 3000 sq.mtrs., only, whereas, the Collector went ahead to forfeit the entire potion of land belonging to the appellant. It has been further contended by Shri Sharma, learned counsel that if for the purpose of benevolent object the land if is divested by way of gift, then the authority cannot initiate such kind of harsh action placing the appellant to a stand still. Resultantly, since all these issues have not been considered by the learned Single Judge, the order deserves to be corrected. To substantiate the submissions, Shri Sharma, learned counsel has pointed out that donation was made for a noble cause and the appellant is ready and willing to pay premium whatever may be fixed by the authority and in that view of the matter, the appeal may be considered. It has been contended lastly that there is a decision delivered by the learned Single Judge in the case of Alay Jitubhai Shah v. Secretary (Appeals), Revenue Department & Ors., reported in 2016 (1) GLR 814 , and the same is referred to strengthen his submission and ultimately, after reiterating the submission that appellant is ready and willing to pay premium, appropriate orders requested to be passed in the interest of justice. 3.3. In this proceedings, on 14.10.2019, Shri Sharma, learned counsel has shown readiness to pay premium amount at one point of time and, therefore, we have required the appellant to come prepared with draft of Rs. 3.3. In this proceedings, on 14.10.2019, Shri Sharma, learned counsel has shown readiness to pay premium amount at one point of time and, therefore, we have required the appellant to come prepared with draft of Rs. 2 lakhs to be drawn in favour of the Registrar, High Court of Gujarat and simultaneously directed learned Assistant Government Pleader to get instructions on the status of the I.T.I., institute. With this background of fact by pointing out following decisions, a request is made to grant the relief as prayed for. (1) In the case of Alay Jitubhai Shah v. Secretary (Appeals) Revenue Department & Ors., reported in 2016 (1) GLR 814 . (2) In the case Parrkland Avenue Co-operative Housing Society Limited v. State of Gujarat & Anr., reported in 2010 (1) GCD 369 (Guj) (DB). (3) In the case of Noorbibi Malangbhai Mansuri v. State of Gujarat reported in 2005 (1) GLH (U.J.) 5. (4) In the case of Chandulal Gordhandas Ranodriya & Ors., v. State of Gujarat & Ors., reported in 2013 (2) GLR 1788 . 4. As against this, Ms. Aishwairya Gupta, learned Assistant Government Pleader has vehemently opposed the appeal and has contended that the appellant has outrageously violated the conditions and then has come forward with a plea of payment of appropriate premium. Such attempt itself is not required to be encouraged. It has further been pointed out that as specifically averred in the petition on oath that since about several years I.T.I., College is running over the portion of 3000 sq.mtrs., of the land in question with a strength of 1000 students as mentioned in paragraph 13 of the appeal memo, but ensuring such assertion whether correct or not, during the pendency of the proceedings, survey was undertaken on 16.10.2019, in which, the concerned Circle Inspector has made a panchnama on the spot and has clearly opined that the college building is only of one floor, spread over 7909.38 sq.ft., consisting of 13 rooms and total 168 students only are studying in various courses and as such has submitted that just with a view to take undue sympathy from the Court, on oath, wrong information is passed on that more than 1000 students are prosecuting their studies in this college. 4.1. Apart from that Ms. 4.1. Apart from that Ms. Gupta, learned Assistant Government Pleader has further submitted that ultimately though permission was granted originally on 26.09.1997, but such was subject to certain conditions to be observed and the land is undisputedly impartible land. It has been further pointed out that there is a clear breach of conditions as contained in an order passed by the authority and so long as conversion is not permitted, the question of granting of N.A., would not arise. On the contrary, it has been submitted that decision has already been taken on 09.11.2006 by the authority. As a result of which, no case is made out and the authority cannot be stated to be unjust in passing the order. It has been vehemently contended that the condition is misplaced about Section 79A of the Gujarat Land Revenue Code which does not permit the authority to forfeit the land, on the contrary, by virtue of violation, which is undisputedly visible, occupation itself becomes unauthorized, which may follow consequential action of forfeiture. By inviting attention to certain condition engrafted in an order by the authority, a contention is raised that there appears to be clear violation of the terms and on impartible land, even without approval of the authority, such kind of activity cannot be allowed to run and if this incident, according to learned Government Pleader Ms. Gupta if ignored, then every litigant would come forward with a case that first violate the condition and then apply and make appropriate offer for payment of premium. As a result of this, the learned Single Judge has not committed any error in passing the order which is impugned in Letters Patent Appeal. It has further been contended that since an attempt is made to get undue sympathy from the Court under the guise that large number of students are prosecuting their studies and the ground reality having found something distinct, and as such granting of any sympathy would tantamount to extending undue sympathy which time and again the Courts' have not extended. In that view of the matter, the order passed by the learned Single Judge in extra ordinary jurisdiction in this peculiar set of circumstances cannot be said to be unjust and arbitrary. This tendency of litigant to commit breach and then to offer a suggestion of making payment, is rightly not been encouraged by the learned Single Judge. In that view of the matter, the order passed by the learned Single Judge in extra ordinary jurisdiction in this peculiar set of circumstances cannot be said to be unjust and arbitrary. This tendency of litigant to commit breach and then to offer a suggestion of making payment, is rightly not been encouraged by the learned Single Judge. Hence, Letters Patent Appeal lacks merit. 5. Having heard the learned counsel for the respective parties and having gone through the material on record, by examining the order of the learned Single Judge, we prima facie find that the learned Single Judge has clearly examined the core issue involved in the proceedings and found that there is a clear breach in the use of land, as a result of which, it was concluded that no case was made out in exercise of powers under Article 227 of the Constitution of India, having concluded that no case is made out, we are in complete agreement with the view taken by the learned Single Judge. 5.1. To arrive at such conclusion, we have noticed certain material from the record of the case. The original order dated 26.09.1997 is containing certain conditions, by virtue of which permission was granted to sell the land. Condition No. 1 which is reflecting on page 24/2 is clearly indicating that the sale permission has been granted only for the purpose of agricultural use and not to be used for any other purpose. Condition No. 2 is also specifically indicating that the land in question since is a new tenure and impartible land, the purchaser has also to maintain such condition to hold only for agricultural purpose. Condition No. 4 has specifically imposed an obligation on the occupier of the land that without prior permission of competent authority, no sale, mortgage, gift or alienation is to be effected since the land in question is a new tenure land impartible land. Now these specific conditions which are contained in an order dated 26.09.1997 issued by the Collector, Vadodara. 5.2. Now these specific conditions which are contained in an order dated 26.09.1997 issued by the Collector, Vadodara. 5.2. Additionally, we have also found that while initiating proceedings under Section 79(A) of the Gujarat Land Revenue Code, the authority has granted enough opportunity to the appellant to explain breach and such proceedings have been initiated once having found that the construction has been put up over the land in question without obtaining prior permission, there is a clear breach attributed to the appellant. Now while concluding such proceedings, there is a clear finding arrived at by the Deputy Collector about the breach having been committed and such conclusion is very much reflecting on page 71/3 in the last paragraph. 5.3. This order passed by the Deputy Collector was carried further before the Collector, by way of revision application and after examining the case, even the Collector found clear breach of the terms of the order dated 26.09.1997 and since the land is new tenure and impartible land, the conduct of the appellant found under clear conflict with the condition, the land is ordered to be resumed and such exercise of jurisdiction has also been undertaken by the Collector keeping in view the provisions contained under Section 203 of the Bombay Land Revenue Code and under appellate powers, conclusion arrived at is clearly reflecting of application of mind on the part of the authority and as such resumption of land is ordered. During the said appellate proceedings, even the stand which has been taken reflecting on page 75/14, in last paragraph, the only explanation which has been found by the authority is that the appellant has on account of lack of knowledge put up the construction. That explanation having been found to be not just and proper, apparent breach is visualized by the authority, order of confiscation of land is passed by assigning detailed reasons. The revisional authority has also independently examined the orders passed by the authorities and have also found no case in favour of the appellant. The Joint Secretary, Revenue Department (Appeals) has also taken a similar view and it is against this concurrent views by the authorities below, even the learned Single Judge in exercise of extra ordinary jurisdiction has also examined the plea of the appellant and found no error being committed by the authorities below, the petition came to be dismissed. 5.4. The Joint Secretary, Revenue Department (Appeals) has also taken a similar view and it is against this concurrent views by the authorities below, even the learned Single Judge in exercise of extra ordinary jurisdiction has also examined the plea of the appellant and found no error being committed by the authorities below, the petition came to be dismissed. 5.4. In the aforesaid background of fact, first of all finding of facts have been concurrently found to be against the present appellant and petition under Article 227 of the Constitution of India has been dismissed, we see no reason justifiably enough to entertain the challenge of the appellant. Simply because the students are prosecuting their studies undue sympathy is not possible to be extended by this Court. 5.5. Even on this cause, we find that there is a clear wrong projection made on oath as we find from para 13 of the appeal memo where a clear assertion is made that in I.T.I. College 1000 students are prosecuting their studies, whereas a recent report which has been made before us on 16.10.2019 is indicating that building is of one floor only and only 168 students are prosecuting their studies as against 1000 students which have been stated on oath and, therefore, also, we are not inclined to exercise equity in any form in favour of the present appellant. 5.6. In context of the aforesaid peculiar background of fact, the decisions which have been relied upon by the appellant are if to be looked into, one decision which has been relied upon is the decision delivered by the Division Bench of this Court in the case of Chandulal Gordhandas Randoriya (supra) in which, we find that the issue is altogether different. There, the question arose for consideration was that initiation of proceedings after 28 years and in that peculiar background the decision is delivered. On perusal at length, the said decision is also on the contrary, clearly opining that it is mandatory to get the land converted into old tenure to put it to N.A., use and here is a case in which there is no such long length of period on case on hand. On perusal at length, the said decision is also on the contrary, clearly opining that it is mandatory to get the land converted into old tenure to put it to N.A., use and here is a case in which there is no such long length of period on case on hand. Resultantly, we find that since the background of facts were altogether different the general observation, we are not inclined to apply here, especially when an attempt is made to misguide the Court by pointing out certain incorrect information herein above. The other decision which has been relied upon which is in the case of Noorbibi Malangbhai Mansuri (supra). The said decision delivered by the learned Single Judge is to the effect that while dealing with the application under Section 65 of the Bombay Land Revenue Code, no decision was taken within three months and, therefore, the same to be treated as deemed to have been granted. But here is a case in which a new tenure land impartible in nature is not converted into old tenure and then based upon the claim that N.A. application is not decided within a reasonable time, the facts appear to be quite different then the case on hand and as such we are not impressed by the learned advocate's submission of placing reliance upon such decisions. 5.7. Yet another decision which has been tried to be pressed into service is the decision delivered by this Court in the case of Parrkland Avenue Co-operative Housing Society Limited (supra), but upon perusal of the said decision, we have seen from paragraph Nos. 6 and 7 that on the contrary, the view taken by the learned Single Judge was accepted that even for assessing the premium first of all conversion of land from new tenure to old tenure is to be undertaken and only thereafter granting of NA use permission would arise and the said undertaking is a single integrated exercise. Now if these observations are to be looked into in the context of the facts of the case on hand, we are of the clear opinion that the decisions cited before us are of no assistance to the appellant and since the learned Single Judge has examined the orders passed by the authorities below, we see no error in exercising extra ordinary jurisdiction. 6. 6. We are also mindful of the law laid down by the Apex Court on the issue of exercise of extra ordinary jurisdiction. As a result of this, the view taken by the authorities below are not possible to be substituted and has rightly not been interfered with by the learned Single Judge. Having found no merit in the appeal, we deem it proper to dismiss the same. 7. Accordingly, appeal stands dismissed. Interim relief stands vacated. 8. Since the main appeal is dismissed, the Civil Application for stay also stands disposed of.