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Gujarat High Court · body

2020 DIGILAW 840 (GUJ)

Vishal Narendrabhai Patel v. State of Gujarat

2020-10-07

A.C.RAO

body2020
JUDGMENT : By way of present petition under Article 226 of the Constitution of India, petitioners have challenged the order dated 30.05.2006 passed by the Secretary (Disputes), Revenue Department, Ahmedabad. 2. Brief facts of the petitioners' case is that, the application was made by the father of the petitioners and thereafter by the petitioners to the Deputy Collector (NA) to regularize the construction made on the land admeasuring 3509 sq. mtrs. of survey Nos.114/1 and 114/2 which was forming part of the old survey No.114 in accordance with the order No.MVV/BKHP/AMD/3/2006 dated 30.05.2006 passed by the Secretary (Disputes) Revenue Department, Ahmedabad. It is to be noted that the Secretary has passed the above referred order for another parcel of land for other party. Thereafter, the Deputy Collector (NA), Ahmedabad has passed an order No.NA/U-2/Isanpur/s.66-67/Case No.51/2019 levying penalty of Rs.17,34,850/- from the year 1975-76 to 2018-19 with further order that in case of any unauthorized construction, the plan of the same is not to be approved from AMC within 3 months or the land having unauthorized construction is to be removed. As per the order dated 21.2.2019 of the respondent – Deputy collector (NA), the petitioners have deposited the amount of Rs.17,34,850/-. It the case of the petitioners that the Deputy collector (NA) has handed over to the petitioners an undated letter intimating that the application for regularization of construction on the land bearing the above mentioned survey number is put to end for the reason that the plan approved by the AMC was not furnished. Then the petitioners made an application to review the decision of the Deputy Collector (NA) to close the case inter alia informing that the construction plan permission and plan approved by Isanpur Gram Panchayat are submitted on the records of the file and therefore, a fresh permission or approval from AMC is required. Thereafter, the respondent No.3 has asked the opinion of the Commissioner of AMC seeking opinion in the matter of tenancy and construction and on this pretext, the Deputy Collector has not decided the case of the petitioners. 3. It is vehemently submitted by Mr. Sanjanwala, learned Senior Advocate appearing for the petitioners that when the Gram Panchayat has already given the permission to the petitioners, the opinion of the AMC is not required. 3. It is vehemently submitted by Mr. Sanjanwala, learned Senior Advocate appearing for the petitioners that when the Gram Panchayat has already given the permission to the petitioners, the opinion of the AMC is not required. He has also relied on the order of the SSRD, wherein the SSRD has relied upon the permission given by the Gram Panchayat and in that particular case, the Deputy Collector has regularized the construction. It is further submitted that while granting permission for non-agricultural land, the permission of the construction is not required to be considered by the Deputy Collector and he has to decide only question as to whether this land can be used for non-agricultural purpose or not. 4. Per contra, Mr. Parikh, learned AGP has contended that the case is not decided due to delay on the part of the AMC as it has not responded to the request of Deputy Collector. According to learned AGP, now-a-days, Isanpur area is a part of the AMC and therefore, the opinion of the AMC is required. It is submitted that there is no order of SSRD to consider permission of Gram Panchayat. 5. Heard learned advocates for the respective parties through video conference. 6. After considering rival submissions and considering the fact that in one case the Deputy Collector has already relied on the permission given by the Gram Panchayat, now, it would be improper for the Deputy Collector to ask the petitioners to obtain permission from the different authorities. 7. I am in total agreement with the submissions made by Mr. Sanjanwala, learned Senior Advocate for the petitioners and I have also considered the overall facts and circumstances of the case. 7.1 The legal position regarding the binding nature of judgments delivered by High Courts was clearly explained as far back as 1962 by the Supreme Court. In East India Commercial Co. Ltd. V. Collector of Customs, Calcuttam A.I.R. 1962 S.C. 1893, Subba Rao. J. (as he then was) speaking for himself and Mudholkar J., has explained though A.K. Sarkar J. who was the legal position, the legal position in paragraph 29 of the report as follows: “This raises the question whether an administrative tribunal can ignore the law declared by the highest court in the State and initiate proceedings in direct violation of the law so declared. Under Art. 215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art: 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working: otherwise, there would be confusion in the administration of law and respect for law would irretrievably suffer, We, therefore, hold that the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority, signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction.” 7.2 The position was reiterated in Makhan Lal Vs. State of Jammu and Kashmir, A.I.R. 1971 S.C. 2206. It was the context of the law declared by the Supreme Court that the decision laid down to that effect so far as Article 141 of the Constitution was concerned, but what has been observed in paragraph 5 at page 2209 by Grover J. speaking for the Supreme Court has equal application so far as pronouncements by the High Courts are concerned. Grover J. observed at page 2209 : “The Judgment which was delivered did not merely declare the promotions granted to the respondents in the writ petition filed at the previous stage as unconstitutional but also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee of Article 16. The law so declared by this court was binding on the respondent State and its officers and they were bound to follow it whether a majority of the present respondents were parties or not to the previous petition. It cannot, therefore, be contended by anyone, that since Acharya, the petitioner in Special Civil Application No. 2215 of 1979, was not a party to Special Civil Application No. 806 of 1975, that the law laid down by D.A. Desai, J. in his judgment in that case on August 7, 1975 was not applicable to the case of Acharya. Whether the law is declared by the Supreme Court or whether the law is declared by the High Court, the legal position as regards authorities and tribunals subordinate to the Supreme Court and High Courts respectively is the same as pointed out by Subba Rao J. in East India Commercial Co.s case (supra).” 7.3 In Shri Baradakanta Mishtra V. Shri Bhimsen Dixit, A.I.R. 1972 S.C. 2466, the legal position regarding binding nature of the High Court's decision was once again reiterated by the Supreme Court and after quoting the above passage which we have extracted from the judgment of Subba Rao J. in East India Commercial Co. s case (supra) in paragraphs 15 and 16 of the judgment, Dwiveid J. speaking for the Supreme Court observed at page 2169 : “The conduct of the appellant in following the previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. His conduct is therefore comprehended by the principles underlying the law of contempt. The analogy of the inferior court's disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of law and engender harassing uncertainty and confusion in the administration of law.” 7.4 In Hashmukhlal C. Shah V. State of Gujarat, 19 G.L.R. 378, a Division Bench of this High Court consisting of J.B. Mehta and P.D. Desai JJ. after examining several decisions on the point, observed : “... in a Government which is ruled by laws, there must be complete awareness to carry out faithfully and honestly lawful orders passed by a Court of law after impartial adjudication. Then only will private individuals, organizations and institutions learn to respect the decisions of Court. In absence of such attitude on the part of all concerned, chaotic conditions might arise and the function assigned to the Courts of law under the Constitution might be” 7.5 It is needless to say that the law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceeding of deciding on the rights involved in such a proceeding. In a same way the respondent Deputy Collector should not have deviated and insisted for the permission from the Municipal corporation. Any such insubordination is not excepted from him. 8. I am of the view that the action of the Deputy Collector seeking opinion from the AMC for granting NA permission is not in accordance with the provisions of the Act. Any such insubordination is not excepted from him. 8. I am of the view that the action of the Deputy Collector seeking opinion from the AMC for granting NA permission is not in accordance with the provisions of the Act. Under the circumstances, the respondent Deputy Collector is hereby directed to decide the NA permission without seeking any opinion or asking for the permission from the petitioners as early as possible, but not later than two months from the date of receipt of this order. With the above directions, the present petition stands disposed of.