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2020 DIGILAW 81 (GUJ)

Devdas Bhanabahi Roy v. Collector, Surat

2020-01-17

VIKRAM NATH

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JUDGMENT : 1. Heard Shri R.R.Marshall, learned Senior Advocate assisted by Shri Raju Desai, learned counsel for the petitioner, Shri J.K.Shah, learned Assistant Government Pleader for the state respondents and perused the pleadings and material on record. 2. This petition under Article 226 of the Constitution of India has been filed praying for the following reliefs: “[A] Quashing and setting aside the order dated 17/5/2005 passed by the Collector, Surat and be further pleased to quash and set aside the order dated 1.5.2006 passed by the Secretary (Appeals); [B] During the pendency of admission, hearing and final disposal of this petition, be pleased to stay the execution and implementation of the order dated 17/5/2005 passed by the Collector, Surat and the order dated 1.5.2006 passed by the Secretary (Appeals); [C] To grant any other appropriate and just relief/s.” 3. In effect, the challenge is to the order dated 17.05.2005 passed by the Collector as also the order dated 01.05.2006 passed by the Secretary (Appeals), whereby the land allotted to the petitioner in 1984 for using it for construction of hotel / guest house has been cancelled apparently on the ground that the petitioner committed breach of the conditions and the said breach is said to be construction of certain shops. 4. The facts relevant for deciding the case are that vide order 25.09.1984, 3500 square meters of land in Olpad, District Surat was given to the petitioner against the premium of Rs.28,000/- on certain terms and conditions. The said lands were `khar garaba' and covered by growth of wild baval trees and there was also a huge depression as earth had been excavated, and as such the price of Rs.28,000/- fixed as premium by the State was reasonable. The petitioner deposited the entire amount and thereafter spent substantial amount to make it usable. The land was allotted with an object to set up hotel / guest house as the Government wanted that area to be developed. The petitioner accordingly commenced the work and constructed hotel / guest house and duly completed it. The petitioner in order to attract the customers, constructed 9 shops, which could be used by the neighbouring residents as also guests coming to the hotel. The Collector, Surat passed order dated 23.10.1992 (Annexure-B) whereby the construction of those 9 shops was also regularized along with 2 hotels constructed by the petitioner. 5. The petitioner in order to attract the customers, constructed 9 shops, which could be used by the neighbouring residents as also guests coming to the hotel. The Collector, Surat passed order dated 23.10.1992 (Annexure-B) whereby the construction of those 9 shops was also regularized along with 2 hotels constructed by the petitioner. 5. The case of the petitioner is that he was peacefully running the hotel as also utilizing the shops by renting them out and there was no problem at all. But, as the petitioner had been a dedicated Congress worker, one Shri Dhansukh Patel, who was the Member of Legislative Assembly from that constituency and belong to Bharatiya Janata Party, was unhappy about the said hotel and the construction of shops made by the petitioner and wanted to somehow or the other harass the petitioner and deprive him of the said land. After about 20 years of the allotment and after more than 10 years of the construction being regularized by the Collector in 1992, first notice was issued to the petitioner on 07.11.2003. The petitioner showed cause on 19.11.2003. It appears that the said proceedings were dropped. Again after 1½ years, another notice was issued on 02.03.2005 on the same grounds of the earlier notice of 2003. The petitioner has replied to that notice also on 18.03.2005. 6. According to Shri Marshall, learned Senior Advocate, the order dated 17.05.2005 passed by the Collector cancelling allotment of the said land and reverting it to the Government and to remove the construction raised thereon by the petitioner, is without affording opportunity of being heard to the petitioner. Upon receipt of the order dated 17.05.2005, the petitioner filed revision before the Secretary (Appeals) and also applied for interim protection as the petitioner apprehended that under the influence of the Member of Legislative Assembly from the Bharatiya Janata Party, the construction could be demolished. Although the Secretary (Appeals) heard the matter on the question of stay, but he never passed any order and as anticipated and expected by the petitioner, all the shops were sealed by the City Survey Superintendent, Olpad on 24.05.2005. Aggrieved by the said action, the petitioner preferred Special Civil Application No.10559 of 2005. The said petition came to be disposed of by order dated 16.06.2005 and this Court directed for removal of the seals and to restore status quo ante. Aggrieved by the said action, the petitioner preferred Special Civil Application No.10559 of 2005. The said petition came to be disposed of by order dated 16.06.2005 and this Court directed for removal of the seals and to restore status quo ante. Further direction was given to the Secretary (Appeals) to decide the revision. Thereafter, by the second impugned order 01.05.2006, the Secretary (Appeals) also dismissed the revision for the same reasons as recorded in the order of the Collector dated 17.05.2005. Thus aggrieved by the two orders the present petition is preferred. 6.1 Shri Marshall, learned Senior Advocate, at the out set, submitted that the petitioner is a victim of local politics as his constructions were duly made and got approval by the Collector in 1992. It is not in issue that the hotel is not constructed and is not used for the said purpose. The construction of 9 shops was also approved by the Collector. It is also submitted that in case opportunity had been adequately afforded, the petitioner could have placed all the material on record, however, the Collector in a great haste and under influence proceeded to pass impugned order dated 17.05.2005 without considering the material placed by the petitioner before him. It is also submitted that even the Secretary (Appeals) did not correctly appreciated the objection of the petitioner and the material provided by him and simply reiterated the order of the Collector. On the above submissions, Shri Marshall, learned Senior Advocate appearing for the petitioner, submitted that the petition may be allowed and the impugned orders may be quashed and set aside. 7. Shri J.K.Shah, learned Assistant Government Pleader for the State respondent, vehemently opposed the petition and the arguments advanced by Shri Marshall. According to him, adequate opportunity was afforded to the petitioner. The petitioner having committed breach of the conditions of the allotment was not entitled to any benefit. It is also submitted that the petitioner had made encroachment upon some area not allotted to him and as such his conduct disentitles himself for any equitable consideration by this Court. It is also submitted that the petitioner has made further additional construction of shops. For the said purpose he has referred to the counter affidavit filed by the Collector, Surat. It is also a submission that the constructions raised by the petitioner were without any sanctioned plans from the competent local authority. It is also submitted that the petitioner has made further additional construction of shops. For the said purpose he has referred to the counter affidavit filed by the Collector, Surat. It is also a submission that the constructions raised by the petitioner were without any sanctioned plans from the competent local authority. It is thus submitted by Shri Shah, learned Assistant Government Pleader, that the petition may be dismissed with costs. 8. In response, Shri Marshall, learned Senior Advocate submitted that even counter affidavit filed by the Collector, Surat admits of 2 hotels and 9 shops. 9. Having considered the submissions, what is to be noticed is that the construction of 2 hotels and their existence even at the time of filing of counter affidavit is admitted. It appears from the reading of paras 10 and 11 of the counter affidavit that in addition to construction of 9 shops and 2 hotels, which were regularised by order dated 23.10.1992, the petitioner has made some further construction of shops and 9 guest rooms and as such there was breach of conditions contained in the orders dated 25.09.1984 and 23.10.1992. If that is so, then fresh proceedings can be initiated by giving notice pointing specific violations because the purpose of issuing notice is to apprise the notice as to why action is proposed. In absence of specific communication of the grounds on which the action is proposed, the notice may not be in a position to give adequate reply and that would be violation of the principles of natural justice and fair play. 9.1 The affidavit filed by the Collector, nowhere mentions about affording opportunity of hearing to the petitioner. The reference given is only of the earlier notice, but not of any personal hearing. 9.2 Having considered the submissions advanced and having perused the material on record, the impugned orders apparently cannot be sustained being in violation of principles of natural justice and also being tainted with malafide as alleged by the petitioner. Even, the facts of the case also indicate that there is substance in the said submission of malafide. 10. Accordingly the petition succeeds and is allowed. The impugned orders are hereby quashed and set aside. Even, the facts of the case also indicate that there is substance in the said submission of malafide. 10. Accordingly the petition succeeds and is allowed. The impugned orders are hereby quashed and set aside. However, it will be open to the respondent authorities to take appropriate proceedings in accordance with law, in case of any further violation of any of the conditions of the allotment and the regularisation as may be noticed by them. Rule is made absolute to the aforesaid extent. However, there shall be no order as to costs.