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2021 DIGILAW 859 (GUJ)

Radhe Enterprise v. State of Gujarat

2021-09-24

SONIA GOKANI

body2021
JUDGMENT : 1. Petitioners under Article 226 of the Constitution of India have preferred this petition in connection with land bearing Survey No.1062 admeasuring 140.49 sq.meters situated in Mehsana. The owners of this property Suthar Jitendrakumar Amrutlal and Trikamlal Damodardas were granted the land under Schedule-H of section 133 of the Bombay Land Revenue Code, 1879 ("the Code" for short), which has been converted into nonagricultural land. The owners had put up construction and they continued to pay necessary taxes to the Municipality. 2. The property purchased by the petitioners was by a registered sale deed executed on 29.11.1991. The petitioners were also registered as occupants by the City Survey Superintendent on 11.12.1991. 3. On 07.02.1992, the petitioners submitted an application to Mehsana Urban Development Authority with a request to permit construction, which was allowed by resolution No.3(7) of the Town Planning Committee dated 22.04.1992. Necessary charges were also paid on 27.04.1992. The petitioners had desired construction of shops on the Plot No.12 of Revenue Survey No.1119 paiki and the total area of plot is 140 sq.meters and the built up was proposed as 38.65 sq.meters and the permissible built up area was 56.19 sq.meters. Rest of the area was to be kept open as per the rules. 4. The petitioners constructed these shops and they were sold to different persons in the year 1993 by way of different registered sale deed. The names of these purchasers also have been recorded in the property card. 5. On 04.12.2000, the District Collector issued the notice to about four persons, which included the present petitioners on the ground that the petitioners have put up construction in the margin land, which was impermissible. This was replied on 16.01.2001 where the details were provided as to how their permission for construction was sought. On 31.01.2001, the District Collector, after hearing the parties, passed an order on the ground that the petitioners have constructed property contrary to the lay out plan sanctioned and ordered to remove such construction. 6. A revision application was filed being Application No.9 of 2001 under section 29H of the Code before the Special Secretary on 20.02.2001. The order of status quo was passed. However on 08.03.2001 Joint Secretary, Revenue Department dismissed the revision application by confirming the order of District Collector dated 31.01.2001. 6. A revision application was filed being Application No.9 of 2001 under section 29H of the Code before the Special Secretary on 20.02.2001. The order of status quo was passed. However on 08.03.2001 Joint Secretary, Revenue Department dismissed the revision application by confirming the order of District Collector dated 31.01.2001. Therefore, the present petition with the following prayers: “(18) The petitioner, therefore, most humbly and respectfully prays that: (A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order 23.03.2007 passed by the Joint Secretary, Revenue Department, in Revision Application No.9 of 2001 (at Annexure-P hereto) as well as order 31.01.2001 passed by the District Collector in N.A./Sharatbhang/Case No.56 of 2000 (at Annexure-L hereto); (B) Pending admission, hearing and final disposal of this writ petition YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of order 23.03.2007 passed by the Joint Secretary, Revenue Department, in Revision Application No.9 of 2001(at Annexure-P hereto) as well as order 31.01.2001 passed by the District Collector in N.A./Sharatbhang/Case No.56 of 2000 (at Annexure-L hereto); (C) Such other and further relief, as are deemed fit, in the facts and circumstances of this case may kindly be granted.” 7. This Court, while issuing rule, granted interim relief in terms of paragraph No.18B and the same has continued to protect the petitioner as there has been a stay on the further operation and prevention of the order dated 23.03.2007 passed by the Joint Secretary in Revision Application No.9 of 2001, which confirmed the order of the District Collector dated 31.01.2001. 8. Affidavit-in-reply is filed by Resident Additional Collector, Mehsana, who denied all averments, has urged that the petition itself is not maintainable inasmuch as the petitioners have sold off the property and they have no interest in the land in question or in its construction, which has been carried out. It is further contended that the Collector, Mehsana had accorded permission for construction of shops on 128 sub-plots of Survey No.1119 paiki land admeasuring 1214.01 sq.meters, where the built up area was permitted in 974.29 sq.meters and was directed to be kept open. It is further contended that the Collector, Mehsana had accorded permission for construction of shops on 128 sub-plots of Survey No.1119 paiki land admeasuring 1214.01 sq.meters, where the built up area was permitted in 974.29 sq.meters and was directed to be kept open. 8.1 According to him, the lay out plan in sub-plot No.8 shows that the petitioner constructed six shops in the margin land and construction admeasuring 81.15 sq.meters is unauthorised and illegal. Moreover, as per the plan 4.15 sq.meters of margin land was directed to be kept open on one road, which is passing from Gayatri temple. Shops No.4, 5 and 6 on a land adjacent to Mehsana, Visnagar, were constructed contrary to the sanctioned plan and construction is held unauthroised. Therefore, the Collector and Special Secretary, Revenue Department (SSRD) have directed removal of unauthorised construction. 8.2 According to this authority, permission has to be accorded by the Municipality as per the NA and anything done contrary to the same would become nullity. Shops No.1 to 6 have been transferred to the third parties. However, no details including the revenue record have been submitted. Hence, the subsequent purchasers have not been issued the notice. 9. Mr. Prakash Jani, learned Senior Advocate appearing for the petitioner has urged that the non-agricultural permission of conversion into land is given on 01.11.1973. Till date, it is not placed on the record by the Collector. He has further urged that to the show cause notice of 04.12.2000, reply is given on 16.01.2001 and the order came on 31.01.2001. Before the Joint Secretary, Revenue Department, written submissions were made and the revisional authority confirmed the order of the Collector on 07.04.2007. He has further urged that at no stage, N.A. order has been supplied by the learned Assistant Government Pleader. Admittedly, the land has been converted into N.A. land. 9.1 He has urged that the purchase was of a part of the land bearing Plot No.12 of 140 sq.meters. City Survey also has recorded this aspect and the name of present petitioners have been mutated. According to him, plotting has been done of Survey No.1119. Therefore, it would be vital to see the N.A. permission. He has urged fervently that again the Collector initiated proceedings after the delay of 07 years on 04.12.2000. City Survey also has recorded this aspect and the name of present petitioners have been mutated. According to him, plotting has been done of Survey No.1119. Therefore, it would be vital to see the N.A. permission. He has urged fervently that again the Collector initiated proceedings after the delay of 07 years on 04.12.2000. The permission was granted on 07.05.1992 by the Municipality and he has already sold the shops to the third party on 08.04.1999, 07 years after the Collector has initiated the proceedings. He has relied on the decision of State of Gujarat vs. Patel Raghav Natha, 1969 (2) SCC 187 and urged that within reasonable time, the authority could have initiated actions. He has also lamented that the revisional authority has not dealt with the authorities pressed into service by the petitioner. It is at the best to be treated as irregularity. It has cursorily dealt with matter where no reason has been given nor any detail is furnished. 10. Per contra, learned Additional Public Prosecutor Ms. Jhaveri for the respondent-State has urged that this petition concerns 140 sq.meters of area out of entire Survey No.1119, which has been converted into non-agricultural land. Original owners have sold the Plot No.12 to the present petitioners, which is part of NA area. The total area is 140 sq.meters transferred by way of sale deed. In the reply, the present petitioners have not stated that they have transferred the land. If the construction is done in the year 1993, it has been sold in the year 2000, at the best, it is the third party, which is entitled to any such petition, if its right is affected. Neither there is any monetary right nor any propriety right in the land with the present petitioners. The sale deed, in favour of the third party, done by the present petitioners in the year 1993, as the partner of Radhe Enterprise, the subsequent sale on their part has not come on the record. However, the Collector’s notice of breach of condition is addressed to the present petitioners and also to Lalitaben Natvarlal Patel, Bhil Sardarji Motiji, Bhavsar Babulal Khushaldas, Patel Kaileshben Hasmukhlal Mafatlal, insisting on unauthorised construction of these shops in margin lands to be removed. It is urged that the present petitioners have urged for regularisation vide its application dated 16.01.2001. Learned Additional Public Prosecutor thus has urged to dismiss the petition. It is urged that the present petitioners have urged for regularisation vide its application dated 16.01.2001. Learned Additional Public Prosecutor thus has urged to dismiss the petition. 11. Learned advocates on both the sides thus have been extensively heard and for the reasons to follow hereinafter, the petition deserves dismissal, with certain direction. 12. Land bearing City Survey No.1062 situated at Mehsana, Plot No.12 admeasuring 140.49 sq.meters, was originally owned by Mr. Suthar Jitendrakumar Amrutlal and Trikamlal Damaodardas by way of a registered sale deed on 29.11.1991 for the consideration of Rs.61,111/-. In the property card, subsequently the names of Radhe Enterprise and its partners have been mutated. The land since was granted under section 133 of the Bombay Land Revenue Code, in favour of the original owners, it was needed to be converted into non-agricultural land. 13. The petitioners on 07.02.1992, applied to Mehsana Urban Development Authority and the application was processed by Town Planning Committee under the provision of the Gujarat Town Planning and Urban Development Act. Resolution No.3(7) of the Town Planning Committee on 22.04.1992 on payment of the fees permitted to put up construction on the said land. The total area of plot is 140 sq.meters. This was made possible because there was a permission converting the land into nonagricultural land in lay out plan of 01.11.1972. As per the lay out plan, certain area was directed to be kept open. In the margin land, no construction could have been made. It is the say of the authority that even if the permission is granted on 07.05.1992 by Municipality, it does not mention the details of sanctioned plot number nor does it take into consideration the lay out plan of the Collector, which categorically insisted on keeping the margin land open for the public purpose. 14. What has been insisted by the petitioner is that nonagricultural permission is not brought on the record. Mr. Prakash Jani, learned Senior Advocate has submitted that the petitioners do not have the permission of NA order in their file. Learned Assistant Government Pleader also attempted to trace the same and eventually, learned Assistant Government Pleader shared the same with the Court. 15. The NA permission on 01.11.1973 makes it extremely clear that the permission to construct the shops was only in the area of 239.72 sq.meters. 974.29 sq.meters was to be kept open out of 1214 sq.meters. Learned Assistant Government Pleader also attempted to trace the same and eventually, learned Assistant Government Pleader shared the same with the Court. 15. The NA permission on 01.11.1973 makes it extremely clear that the permission to construct the shops was only in the area of 239.72 sq.meters. 974.29 sq.meters was to be kept open out of 1214 sq.meters. There are certain conditions laid down and it is also further insisted that any breach of any of these conditions would attract penalty and penal actions. 16. It was surely incumbent upon the petitioner to produce before this Court the permission of conversion into non-agricultural land, as petitioner has approached this Court with the plea of faulty actions of authorities, all conditions attached while converting the land into NA land were to be adhered to by the petitioners. It is not in dispute that at the time of plotting on Survey No.1119, NA permission granted, was a must to be looked into by the authority concerned. 16.1 On getting permission from the Municipality on 07.05.1992, the petitioner had constructed these shops and by different sale deeds, the said shops have been already sold to different persons in the year 1993. Annexure-G is a registered sale deed executed on 08.04.1993 by the present petitioner in favour of Dharamdas Lakhwani for the consideration of Rs.37,000/-. It has a reference of NA permission of the Collector of 1973 and the lay out plan sanctioned by it. It also refers to the permission granted by the Municipality and the area of construction of the land. Shop No.3 is transferred to this person Mr. Lakhwani by way of registered sale deed. 16.1.1 Communication of the Collectors has been received in the year 2000, which is addressed to the present petitioners, who were the original owners as also to the subsequent owners, who have been sold out the land. After the permission was granted on 07.05.1992, the construction has been completed on 08.04.1993. The shops have been sold to third parties. It is also to be noted that the notice, which has been issued by the Collector is not restricted to the present petitioners, but also to some of the subsequent transferees, namely Lalitaben Natvarlal Patel, Bhil Sardarji Motiji and Dharamdas Lakhwani. The shops have been sold to third parties. It is also to be noted that the notice, which has been issued by the Collector is not restricted to the present petitioners, but also to some of the subsequent transferees, namely Lalitaben Natvarlal Patel, Bhil Sardarji Motiji and Dharamdas Lakhwani. It is not in dispute that in the lay out plan of an agricultural land, the margin land adjacent to sub-plot No.8 were to be kept open, which was numbered as City Survey No.1062 and both the present petitioners have carried out the construction of these plots and of stair case in this margin land. This is a clear breach of permission granted of converting the land into non-agricultural land. 17. It is not on record as to whether at the time of submitting the plan or construction of those shops, NA permission of the Collector was forming part of the record. The same was a must for the authority to consider while granting the permission. The authority could not have permitted such six shops in the margin land without perusal of permission of NA. Anything done contrary and particularly hiding from the base document would amount to serious suppression and, therefore, even the submission of delay in actions on the part of Collector could not impress this Court. The order dated 31.01.2001 has taken note of the submission that the construction had been carried out seven years before the road margin and parking. The lay out plans of NA permission were to be kept open on the right held by the Collector. The permission given by the Municipality in a margin land whether is after verification of the entire record including permission of NA shall need verification. If done, on suppression on the part of builders, it would require action against Municipal officials. The petitioners have no interest left monetary or propriety in the property in question. They themselves have stated that they have sold off the shop in the year 1993 and the registered sale deed also has been brought on the record. Therefore, there having approached the Collector and the Revisional authority was also impermissible under the settled legal principle. 18. As could be noticed from the order of the revisional authority, it initially protected the petitioners. Therefore, there having approached the Collector and the Revisional authority was also impermissible under the settled legal principle. 18. As could be noticed from the order of the revisional authority, it initially protected the petitioners. The revisional authority also noted clearly that the Collector, Mehsana vide his order dated 01.11.1973 had converted the agricultural land into nonagricultural lay out plan in Revenue Survey No.1119 and contrary to such lay out plan, on western side of Plot No.8 in the margin land of 81.75 sq.meters of land, possessor of Plot No.5 had plot admeasuring 8.4 sq.meters of land and holder of plot No.4 had 9.60 sq.meters of land, Plot No.5 had 8.64 sq.meters of land, holder of Plot No.3 had 10 sq.meters of land and the petitioners of 81.75 sq.meters of land. On the ground that they are not in tune with the construction rules and there is no policy of the Government for regularising such unauthorised construction, which is contrary to the lay out plan of the Collector, the revisional authority also has not acceded to the request of the petitioners. 19. Except issuance of notice on 04.12.2000 after seven years of the sale of the constructed shop, there is hardly any point for the Court to consider. The decision of Patel Raghav Natha (supra) has insisted on the revisional authority to have acted within the reasonable time period. More particularly, when there is no period prescribed. Here is a case where the party which approaches this Court itself is not authorised to approach by way of this petition with no interest of theirs having been left in the property. Moreover, the order of the Collector is based on the lay out plan made at the time of non-agricultural land. Any permission granted by the Municipality on the margin land, which was otherwise to be kept open is a nullity itself and, therefore, the decision of Patel Raghav Natha (supra) will not come to the rescue of the petitioners. 20. Moreover, the order of the Collector is based on the lay out plan made at the time of non-agricultural land. Any permission granted by the Municipality on the margin land, which was otherwise to be kept open is a nullity itself and, therefore, the decision of Patel Raghav Natha (supra) will not come to the rescue of the petitioners. 20. While, rejecting this petition, it is being directed that if the transferees of the properties have not been issued notices by the Collector, initially, no actions could be taken against them without availing the opportunity of hearing, as the present petitioners had chosen not to reveal in the written notes submitted to the Collector and the fact that the petitioners have transferred the property to the third party, has not been disclosed either to the Collector or to the Revenue Authority as can be noticed from the written submissions pressed into service before these authorities. In absence of any such revelation, the authorities, if have not joined the proper parties in whose favour the transfer has been effected, no fault can be found of such authorities. It is also not clearly emerging from record as to whether all of them have been also served notices of breach of NA permission in the lay out plan sanctioned at the time of grant of NA permission. If such notices are already issued and they have chosen to litigate through the original owners, that might be with a design to have a second round of litigation. However, if those who have been transferred the properties have not been served with any notice so far, following required procedure, this issue of illegal construction shall be dealt with by the authority keeping in mind the lapse of about 21 years. 21. The petition stands disposed of accordingly. FURTHER ORDER Request to continue the interim relief and the protection is not being acceded to in wake of the further order that has been passed by this Court protecting the interest of the occupiers.