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2019 DIGILAW 958 (GUJ)

Manilal Bhagwanbhai Patel v. State of Guajrat

2019-10-17

A.J.SHASTRI, VIKRAM NATH

body2019
ORDER : Vikram Nath, J. 1. Both these present Letters Patent Appeals under Clause 15 of Letters Patent are directed against an order passed by the learned Single Judge dated 21.12.2018 and since facts and contentions are almost similar, a request was made before us to deal with and dispose of present Letters Patent Appeals by common judgment and order. 2. Considering the request and in view of similarity of grievance, we are inclined to deal with and dispose of both these Letters Patent Appeals by present common judgment and order by treating Letters Patent Appeal No. 1538 of 2019, as a lead matter. 3. Letters Patent Appeal No. 1538 of 2019 is arising out of an order dated 21.12.2018 passed by the learned Single Judge in Special Civil Application No. 29726 of 2007 and the appellants - original petitioners have challenged decision of the respondent authorities dated 30.05.2003 as well as dated 19.02.2005 with a further request that respondent No. 3 - Collector be directed to confirm the auction in favour of appellants - original petitioners by allotting them residential Plot No. 374/1. 4. Similarly, the Letters Patent Appeal No. 1556 of 2019 is arising out of a decision delivered by the learned Single Judge from the said date i.e. on 21.12.2018 in Special Civil Application No. 7952 of 2015 which petition was essentially filed for the purpose of seeking quashment of the impugned orders dated 30.05.2003 as well as dated 22.11.2004, and consequently prays for direction upon respondent No. 3 to confirm the auction proceedings in favour of appellants - original petitioner by allotting him a residential Plot No. 375/A/1. 5. The background of facts which has given rise to present Letters Patent Appeals is that the appellants - original petitioners of respective petitions have participated in the auction proceedings which were organized for the purpose of allotment of earmarked plots for residential purpose. As a part of capital project, the area of Gandhinagar is divided into many sectors like as of Chandigarh and the plots in the said sectors are earmarked for residential purpose, and for that, for allotment of same, public auction was held by prescribing the up-set price. The appellants - original petitioners participated in the auction proceedings with a sole idea to have small area of plot, consisting of 200 sq. mtrs. The appellants - original petitioners participated in the auction proceedings with a sole idea to have small area of plot, consisting of 200 sq. mtrs. of land, for the family needs and in that context, while participating in auction proceedings, the conditions stipulated have been fulfilled, and according to the original petitioners, 25% price soon on the highest bid being accepted subject to the approval of Collector. 5.1. It is the case of the appellants - original petitioners that prior to this there were several instances in which no approval was declared, but even after the lapse of approximately 8 months, though the original petitioners were highest bidders, process was not concluded by actually allotting the plots. Surprisingly, according to the appellants - original petitioners, the Collector on the basis of some suspension, had cancelled the bid without any prior opportunity to the appellants - original petitioners and feeling aggrieved by the same, the original petitioners have approached the Special Secretary by way of submitting Revision Application. The Special Secretary namely the Revisional Authority has also rejected the Revision Application vide order dated 28.04.1988. As a result of this, the original petitioners had to approach this Court by way of a writ petition, which was numbered as Special Civil Application No. 6843 of 1988. After hearing, the said writ petition was allowed by this Court and the orders of the Collector as well as the Special Secretary, referred to above, came to be quashed and set aside and the matter was remanded back to the Collector for taking a fresh decision after affording reasonable opportunity to the appellants - original petitioners preferably within a period of three months. 5.2. It is the case of the appellants - original petitioners that even after a lapse of one year from the judgment delivered by this Court, no prompt step was taken, but then by issuing letter on 17.01.2000, the date of hearing was fixed on 25.01.2000. On 25.01.2000, the written brief was given in addition to the oral representation and it was clearly spelt out by the original petitioners before the Collector that auction which has been held was a genuine process, total 27 persons had deposited money, 19 persons were present during the auction and 7 persons actively participated and after 61 bids, the highest bid of the original petitioners of Rs. 561 per sq. mtr. 561 per sq. mtr. was accepted, but then to the misfortune of the original petitioners, after the said hearing had taken place for a pretty long period of one and half years almost nothing was done, and thereafter, a further personal hearing was fixed on 07.08.2001. Again, the original petitioners made a representation on 07.08.2001 and raised same ground, which was taken earlier, but then respondent No. 3 passed an order rejecting the representation of original petitioners only on the substantial ground that if the request is accepted, the same would result into financial loss to the Government on account of price rise of the lands. 5.3. The original petitioners found that there was no substantial ground raised for rejecting the request and sizable amount is kept for a pretty long period of almost 20 years and thereto from retired employees like original petitioners. Upon having approached by the original petitioners, the respondent No. 3 conveyed that if aggrieved by this decision, the original petitioners can approach the Secretary of the Roads and Building Department within 30 days. Resultantly, the original petitioners approached the Secretary i.e. respondent No. 2 and submitted a written brief on 27.06.2003 pointing out several contentions and then has also drawn the attention of the Secretary about few instances in which, in several auction proceedings, the average price of auction was Rs. 431 per sq.mtr. whereas original petitioners have offered much more. But then, it appears that the Secretary has passed an order rejecting the request of original petitioners by passing an order on 19.02.2005. 5.4. It appears that, feeling aggrieved and dissatisfied with the said decisions, which have been taken by the respondent Nos. 2 and 3, the original petitioners approached this Court by way of aforementioned writ petitions for seeking quashment of the impugned orders, and as a part of consequential relief, sought direction for allotment of residential plots, as mentioned above. 5.5. These petitions have been heard by the learned Single Judge and after hearing at length, on 21.12.2018 both these petitions are dismissed by the judgment and order and it is this order of learned Single Judge is made the subject matter of present Letters Patent Appeals except plot numbers the issues are common. As a result of this, learned advocates appearing for the respective parties have also argued the matter in common. 6. As a result of this, learned advocates appearing for the respective parties have also argued the matter in common. 6. Learned advocate Shri Dipak R. Dave appearing on behalf of the original petitioners has vehemently submitted that the auction proceedings have been held in complete consonance with the set procedure and as stated above, the bid of the original petitioners being highest one, it was accepted, and therefore, the formality of allotment ought to have been undertaken. Surprisingly, no reasons cogent enough were assigned by the authorities while not considering the request and on the contrary, there is a hostile discrimination meted out to the original petitioners in respect of allotment to just neighbouring plots and though these instances have been specifically pointed out, the authorities below have not considered the same in the right spirit and that having not been examined by the learned Single Judge, the order deserves to be corrected. It has further been submitted that almost 25% of up-set price is received from the original petitioners and even after acknowledging the same and retaining qua a period of 20 years now to come out with a different stand is hardly justified. On the contrary, the moment the auction proceedings have been held in lawful manner, retaining the amount from the original petitioners has created a legitimate expectation in favour of original petitioners and as such just to cancel the auction proceedings on account of price rise is nothing but a clear example of arbitrary exercise of powers. On the contrary, the delay which has occasioned is on account of the State's inaction which cannot be attributed to the original petitioners. As a result of this, over the period of time if price rise has increased, the same cannot be a ground to deny the allotment. 6.1. Learned advocate Shri Dipak R. Dave has further submitted that if the perusal of orders impugned in the writ petitions to be seen, the same are not backed by valid reasons. On the contrary, it is a clear example of non-speaking orders by the authorities, which ought to have been considered by the learned Single Judge and having not done so, the order impugned deserves to be corrected. On the contrary, it is a clear example of non-speaking orders by the authorities, which ought to have been considered by the learned Single Judge and having not done so, the order impugned deserves to be corrected. It has been pointed out by the learned advocate Shri Dave that even while deciding the writ petitions, the learned Single Judge has not considered well established proposition of law, laid down by the Apex Court in the decision which is in the case of Ramana Dayaram Shetty v. International Airport Authority of India reported in 1979 Law Suit (SC) 284 and by referring to paragraphs 21, 22 and 23, learned advocate Mr. Dave has submitted that the order is required to be interfered with. This hostile discrimination and arbitrary act on the part of authorities cannot be allowed to be precipitated further. Resultantly, by setting aside the impugned decision, delivered by the learned Single Judge, a request is made to pass an order to actually grant the residential plots for which the public auction has already been undertaken. 7. As against this, learned Assistant Government Pleader Ms. Aishwarya Gupta appearing on behalf of the respondents - authorities has vehemently contended that while taking decision, the authorities below have also granted an adequate opportunity of hearing and only thereafter, the discretion is exercised and as such in the absence of any perversity or material irregularity by the authorities, the learned Single Judge found that no case is made by the appellants - original petitioners and such a well-reasoned order passed by the learned Single Judge does not call for any interference. It has further been submitted by learned Assistant Government Pleader Ms. Aishwarya Gupta that this participation in auction proceedings and finding in a place in the highest bid, would not confer any absolute vested right of actual allotments, and therefore, in the absence of any vested right, the learned Single Judge has rightly not issued writ. Resultantly, the Letters Patent Appeals lacks merit. It has further been contended by learned Assistant Government Pleader that even in past also consistently when the orders have been passed by the authorities even after remand, the State authorities were willing to refund the money, but it is these appellants who did not consider the said request of refunding the amount. Resultantly, the Letters Patent Appeals lacks merit. It has further been contended by learned Assistant Government Pleader that even in past also consistently when the orders have been passed by the authorities even after remand, the State authorities were willing to refund the money, but it is these appellants who did not consider the said request of refunding the amount. Even till date also, the State authorities are ready and willing to return back the amount which has been deposited to the extent of 25% and as such when the authorities below have concurrently found no case in favour of the original petitioners extraordinary jurisdiction has rightly not been undertaken by the learned Single Judge. 7.1. Even, according to the learned Assistant Government Pleader Ms. Aishwarya Gupta presently also no other distinct submissions have been made except participation and acceptance of 25% amount by the State authorities. Hence, in the absence of any other circumstances, there is hardly any case made out by the original petitioners to call for any interference. According to the learned Assistant Government Pleader Ms. Aishwarya Gupta, even if in past some plots have been allotted, the same will not confer a legitimate right in favour of original petitioners to secure the plot and even any irregularity has taken place, assuming for the time being, then also no negative equity can be claimed by the original petitioners and that being the position, in the absence of any absolute legal right, it is not possible for the State authorities to consider the request of the original petitioners and that having rightly been considered and appreciated by the learned Single Judge, no interference be made in the interest of justice. It has further been pointed out that there was a clear collusion was alleged, the Collector has considered and after finding such kind of some attribution, the auction proceedings have been not precipitated any further. When that be so, no case can be said to have made out by the original petitioners. Resultantly, the order deserves to be confirmed. 7.2. Learned Assistant Government Pleader Ms. When that be so, no case can be said to have made out by the original petitioners. Resultantly, the order deserves to be confirmed. 7.2. Learned Assistant Government Pleader Ms. Aishwarya Gupta has further submitted that on earlier writ petition, the matter was remanded back only for the purpose of considering some grant of opportunity to the original petitioners and even after remand of the proceedings, fresh opportunities were given and the request is reconsidered and finding no place to grant, the orders came to be passed. Resultantly, the detailed order which has been passed by the learned Single Judge may not be interfered with. The judgment which has been relied upon is altogether in different set of circumstance and as such the same cannot be made a yardstick for just allowing the allotment after these many years. That being so, according to the learned Assistant Government Pleader, the State authorities may be directed at the best to refund the amount of terms which may be fixed by the Hon'ble Court. According to the learned Assistant Government Pleader, even no interest is payable of an amount which was during the passage of time, on several occasions, the State authorities were ready to refund the amount, but it is the original petitioners who did not accept and as such original petitioners are not entitled to seek any relief from the present proceedings. 8. Having heard learned advocates appearing for the respective parties and having gone through the material on record, while examining the correctness of the order passed by the learned Single Judge, we prima facie found that the order which has been passed is a well-reasoned order in exercise of extraordinary jurisdiction and appears to have considered every contentions which have been raised by the learned counsel and as such we see no infirmity or any perversity in the order from bare look at it, but still as a part of process of examination of correctness of the order, few circumstances are not possible to be unnoticed by us. 9. 9. It appears that the order passed by the authorities were after due application of mind and having found by the original authorities that certain persons as mentioned in page 17 of the petition compilation in an order dated 24.02.1986, Dahyabhai Manilal Patel i.e. appellant - original petitioner of another Letters Patent Appeal and other persons named in the order has never participated in auction proceedings and in the absence of any healthy competition, it has been found that plots have not generated adequate value and having found that the Collector in February 1986 itself has cancelled the auction and has ordered to carry out fresh auction proceedings. In that very order, it has been mentioned that the amount of 25% which has been accepted be refunded. While passing the said order, a subjective suggestion is arrived at by examining the process of auction and in that the Collector found action of unhealthy participation. Having realized the collusion, the auction has not been approved. Certain observations from the translated version of an order dated 24.02.1986 deserves to be quoted hereinafter: "Upset Amount qua only this plot bearing number 374/1 has been made available out of 04 plots. Total 27 persons have deposited amount to participate in auction of the plot. Only 07 persons amongst them have participated in auction and bid. Shri R.P. Chavda has bid amount Rs. 560/- for the auction of plot No. 374/2 and not came forward for bid amount of Rs. 519.50 during auction of this plot. Shri Tribhovandas Patel had a bid amount of Rs. 625/- for the plot Number - 374/A/1 and he had not enhanced than amount Rs. 521.50 for the auction of this plot. Shri Kishanchand Bora had a bid of Rs. 643/- for the plot No. 374/2 and he had not stepped ahead than amount of Rs. 560/- for the auction of this plot. Shri Jagjivan Raval had raised his bid for the amount of Rs. 585/- for the auction of plot No. 374/2 and he had not participated for auction of plot No. 374/2 and he had not participated for auction of this plot. 1. Shri Amrutlal Patel had a bid amount of Rs. 615/- for plot No. 374/2 and Rs. 664/- for the plot No. 374/A/1, 3. Shri Somabhai Patel, 4. Shri Dahyabhai M. Patel and 5. 1. Shri Amrutlal Patel had a bid amount of Rs. 615/- for plot No. 374/2 and Rs. 664/- for the plot No. 374/A/1, 3. Shri Somabhai Patel, 4. Shri Dahyabhai M. Patel and 5. Maganbhai Ramjibhai Patel participated in auction of plot Numbers - 374/A/1, 374/A/2 and 374/2 had not at all participated in auction of this plot. There is a collusion and harmony pursuant to auction of this plot considering above facts and therefore, due to lack of healthy competition price of the plot has been made available meager that the other plots. So, such auction cannot be approved considering interest of the government. Therefore, So, I hereby disapprove demand of the bidder Shri M.V. Patel and D.M. Patel as per rate of Rs. 561/- per sq.mtr. Qua this plot. I hereby order to return amount of earnest money to the tune of Rs. 32,300/- (Thirty Two Thousand Three Hundred only) i.e. 25% amount pursuant to possession value of this plot without interest and to initiate again auction of the plot for selling." 10. This has been challenged by way of petition and then again the matter was re-examined by the authorities and after granting appropriate opportunity, it is further examining of that process has taken place and it has been observed that request does not deserves to be entertained, and additionally, it has also been found that by efflux of time of 18 years or more there is a steep price rise in the plots. Resultantly, in the best interest to achieve the appropriate value of the plots reconsideration is found to be improper. On the contrary, it has been found categorically by the Collector even upon re-examination that there is a likelihood of huge financial loss to the government and land cannot be given at a throw away price. In this order also, it has been categorically mentioned that the amount so collected be refunded without any interest. This translation version is also reflecting on page 39A which indicates that the re-examination process has been undertaken after granting full opportunity to the original petitioners. Again, the said order has been examined at an appropriate higher forum but then it was found that the grievance with respect to allotment is not possible to be accepted. This translation version is also reflecting on page 39A which indicates that the re-examination process has been undertaken after granting full opportunity to the original petitioners. Again, the said order has been examined at an appropriate higher forum but then it was found that the grievance with respect to allotment is not possible to be accepted. As a result of this, right up to the revision stage, the authorities have considered the case and found no favour in the appellants' grievance. 11. From the aforesaid observations made by the authorities below concurrently even the learned Single Judge has also examined the correctness of the order passed by the Courts below and after detailed order having been passed, the learned Single Judge has also thought it fit not to consider the grievance of the appellants - original petitioners. 12. Learned Single Judge has examined the issue at length and by detailed order observed that there is no possibility of exercising extraordinary jurisdiction. The relevant observations contained in paragraphs 10, 11, 12 and 13 are sufficient enough to indicate that the conclusion arrived at by the learned Single Judge is justified and we are in complete agreement with the order passed by the learned Single Judge, we see no merit in the stand of the appellant. 13. In view of aforesaid factual details, the decision which has been tried to be pressed into service if considered, a close perusal of it would clearly indicate that background of fact is altogether distinct from the case on hand, and therefore, equity is not possible to be stretched to this peculiar background of fact and as such we are of the opinion that the said judgment is of no avail to the appellants - original petitioners. 14. However, we find from the record that despite the fact that on earlier occasion, the authority has indicated to refund the amount, no steps have been taken and the amount has been found to be retained till date, as a result of which we find that on one hand, the authority is opposing the request of the appellants about the allotment of plot and on the other hand, has chosen to retain the amount over the period of time. Resultantly, we are of the opinion that the authority is bound to refund the amount but, on account of this circumstance with appropriate rate of interest. Resultantly, we are of the opinion that the authority is bound to refund the amount but, on account of this circumstance with appropriate rate of interest. We would have on account of such act imposed exemplary cost but, having found that in the orders passed by the authority, it was instructed to refund the amount, we refrain from imposing any heavy cost. But we deem it proper to direct the authority to refund the amount within a period of 6 weeks from the date of presentation of certified copy of this order, with interest at the rate of 9% from the date of presentation of writ petition i.e. in the year 2007 till realization. 15. With these observations, both these Letters Patent Appeals are partly allowed, with no further order as to costs. 16. In view of the order passed in main matters, Civil Applications do not survive and stand disposed of accordingly.