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2022 DIGILAW 1768 (GUJ)

GUJARAT PIPAVAV PORT LTD. v. STATE OF GUJARAT

2022-12-15

ARAVIND KUMAR, ASHUTOSH J.SHASTRI

body2022
ORDER : 1. This intra-court appeal lays a challenge to the order dated 26.09.2017 passed in Special Civil Application 7525 of 2012, where-under the order dated 07.10.2011 passed by the S.S.R.D. Ahmedabad rejecting the revision application and affirming the order of the Collector dated 31.12.2009 (Annexure-H) came to be affirmed. 2. Facts in brief which have led to the filing of this appeal can be crystallized as under: 2.1 Petitioner who is allotted certain lands on 11.03.1998 vide allotment letter of even date (Annexure-C). In this proceedings, this Court is concerned with land bearing Survey No. 42 of Rampara-2, admeasuring 156 acres - 08 gunthas and 254 acres in Survey No. 603 at Village Bherai (out of 624 acres). The said allotment was subject to the conditions stipulated under the letter of allotment. On 01.04.2009, petitioner submitted an application to the Collector, Amreli seeking permission to mortgage the aforesaid lands with an intention to generate finance from financial institutions for development of the allotted land. On queries being raised by the office of the Collector, same came to be replied and not being satisfied with the reply, the Collector by issuance of show cause notice dated 25.11.2009 called upon petitioner as to why the lands allotted to the petitioner should not be forfeited for breach of condition namely, failure to develop and put up construction over the land allotted to it. The said show cause notice was duly replied on 23.12.2009 (Annexure-G) and said show cause notice came to be adjudicated by the Collector, Amreli who by order dated 31.12.2009 in Case No. 124 of 2009 (Annexure-H) ordered for forfeiture of the land bearing Survey Nos. 603 and 42 which was originally allotted to the petitioner (writ applicant). 2.2 Being aggrieved by the said order, petitioner challenged the same by filing a revision application on 02.02.2010 before the Secretary, Revenue Department (Appeals), State of Gujarat at Ahmedabad (for short “SSRD”) who refused to grant the interim relief and being aggrieved by the order of refusal dated 02.06.2010, petitioner approached the learned Single Judge in Special Civil Application 1984 of 2011, which came to be disposed of by issuing certain directions, where-under the revisional authority was directed to consider the application of the petitioner for fixing an early date of hearing of the revision application. With this observation, petition was dismissed as not pressed, as recorded in the order dated 08.03.2011 passed in Special Civil Application 1984 of 2011. It is thereafter, the revision application came to be dismissed vide order dated 12.10.2011, upholding the order of the Collector who had forfeited the land for breach of conditions by the petitioner. This order of SSRD came to be challenged by the petitioner before the learned Single Judge in Special Civil Application 7525 of 2012, who by order dated 26.09.2017 disposed of the petition by observing thus: “14. The picture, as on date, is not clear. The Company itself is not sure whether in the near future, it is likely to utilize the two parcels of the land referred to above for the expansion of the Jetty and the port. For the reasons recorded in the impugned orders, if the land has been ordered to be forfeited, then in my view, no illegality could be said to have been committed, warranting any interference at the end of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. However, at the same time, I take notice of the fact that the project of development of the port is huge and massive. It is not that there has been no development worth the name. There has been a substantial development. However, at the same time, it is not advisable or even proper on the part of the Company to retain the huge parcels of the land without utilizing the same. In such circumstances, I am inclined to give one more opportunity to the Company to point out to the Government that it is in need of the two parcels of the land, which have been ordered to be forfeited and they would be utilizing the lands in the near future for the expansion of the port. If any such concrete proposal or material is placed before the State Government in this regard, then the authority concerned may look into the same and take an appropriate decision for the re-grant of the subject lands by imposing appropriate conditions. 15. With the above, this petition is disposed of.” 3. Hence this intra-court appeal. 4. It is the grievance of Mr. 15. With the above, this petition is disposed of.” 3. Hence this intra-court appeal. 4. It is the grievance of Mr. Dipen Shah, learned counsel appearing for the appellant that learned Single Judge committed an error in not noticing the fact that letter of allotment did not contain condition of forfeiture of land for its non-utilization. Thus, when the basis for initiation of the proceedings against the petitioner itself was not available, the impugned order cannot be withstood and it has to crumble by itself. Hence, he has sought for quashing of the same. He would also elaborate his submission by contending that reply affidavit filed by the State before the learned Single Judge itself would indicate that there was no such condition imposed in the letter of allotment and said admission, according to him, is traceable to the affidavit dated 30.01.2013. Hence, he contends that impugned order passed by the learned Single Judge upholding the order of the Collector is liable to be quashed. 5. Whereas, Mr. K.M. Antani, learned Assistant Government Pleader appearing for the State supporting the impugned orders would contend this Court in exercise of power vested under Article 226 of the Constitution of India would not sit in judgment over the respondent authorities recording a fact finding, namely there being violation of the condition of the allotment and undisputedly, land which was allotted to the petitioner having not been utilized for the purpose it was allotted and same having remained vacant all these years and said factual position being contrary to the policy of the State, Collector has rightly initiated the proceedings for concellation of allotment and as such, he has prayed for dismissal of the appeal. He would also draw the attention of the Court to the supplementary agreement dated 02.06.2006 (Annexure-P) to contend that petitioner had accepted to achieve the key milestones and complete the construction as per the approved DPR within prescribed time period under the said supplementary agreement and having failed to do so, the Collector has rightly initiated proceedings for forfeiture of the land and as such, there is no illegality committed by the respondents, which has been rightly upheld by the learned Single Judge and as such, he prays for dismissal of the appeal. 6. 6. Having heard the learned counsels appearing for the parties and on perusal of the case papers, we notice that order which was impugned before the learned Single Judge is dated 31.12.2009 (Annexure-H). A perusal of the said order would indicate that it was preceded by a show-cause notice dated 25.11.2009 (Annexure-F). Perusal of the said show-cause notice would indicate that on an application made by the applicant seeking permission to mortgage the Rampara-2 village and Bherai village land to IDFC Bank limited ignited the authorities to investigate as to whether applicant has complied with the conditions of allotment order and found that conditions of allotment had been violated by petitioner and as such it proposed to take back the land from the petitioner and in order to extend a personal hearing in due compliance of audi alteram partem, a show-cause notice came to be issued to petitioner which was duly replied by the petitioner on 23.12.2009 (Annexure-G) and thereafter show-cause notice came to be adjudicated resulting in the impugned order dated 31.12.2009 (Annexure-H) being passed. 7. The sum and substance of the show-cause notice, which culminated in the impugned order would indicate that it was on the grounds which allotment of the subject land was made to the petitioner had been violated. In this background and in the teeth of argument canvassed by the learned counsel appearing for the petitioner to the effect that there is no such condition imposed under the order of allotment, we deem it proper to extract the conditions stipulated under the order of allotment dated 11.03.1998 (Annexure-C). It reads thus: “CONDITIONS: 1. Provisions as contained in Government in Revenue Department Resolution No. 1970-45 dated 17-10-1947 and No. L.N.D. 3956-95117 dated..................will have to be followed. 2. The lands demanded have been situated on the sea shore and hence, the company will have to follow the provisions of C.R.Z. and as per the said provisions, before making any construction, prior permission of Environment Department of Central - State Government will have to be obtained. 3. The lands demanded are of sea shore and hence, no objection certificate of coastal guard in respect safety will have to be obtained. 4. Before using the demanded and for L.R.G. and tank farm, permission of concerned departments of Central - State Government will have to be obtained. 5. 3. The lands demanded are of sea shore and hence, no objection certificate of coastal guard in respect safety will have to be obtained. 4. Before using the demanded and for L.R.G. and tank farm, permission of concerned departments of Central - State Government will have to be obtained. 5. On the demanded land, L.P.G. Chemicals and Petrol Oil are to be used hence, it is necessary to obtain no objection certificate of the Gujarat Pollution Control Board. 6. In respect of electricity poles, river, roads, drainage, pond, etc. situated on the demanded land, the Company will have to maintain status-quo position or will have to make alternative arrangement. 7. Roads and passes from the land demanded and hence, construction will have to be made keeping the land open as per Development Rules and the Company will have to follow the Development Rules and before closing the local road, the company will have to make arrangement of alternative roads. 8. Land of village Kadiyali of Taluka: Rajula Acres 128-33 Gunthas is a pasture land and hence, the Company will have to give shortfall of pasture land to the Gram Panchayat by way of private lands and thereafter, after removing the said land from the head of pasture land, detailed orders will be passed in respect of giving the said land to the Company. 9. The Port and Fisheries Department will have to supervise this land and the ownership of this land will remain of the Government. 10. This land has been given on lease for 30 years under BOOT Policy of Ports & Fisheries Department. 11. On Expiry of lease, the structure on the said land will have to be given to the Government without demanding any compensation. Without prior permission, the Company is not entitled to create charge, mortgage, gift or rented the above land or cannot transfer the said land in any manner and cannot sale it. 12. As per Government Resolution No. JMN-INDUSTRIES-1397/1063/A/1 dated 20-12-1987, the value on the date of order will have to be get arrived at through the Chief Town Planner and the amount of the yearly rent as per rules will have to be deposited by the Company. If in the case of increase of yearly rent, the Company will have to deposit the amount of rent accordingly.” 8. If in the case of increase of yearly rent, the Company will have to deposit the amount of rent accordingly.” 8. A perusal of aforesaid conditions would leave no manner of doubt to this Court that there is no such power having vested with the respondent authority to cancel the allotment and/or forfeit the allotted land for non compliance of any of the conditions. However, Mr. K.M. Antani, learned Assistant Government Pleader appearing for the State sought to sustain the same by relying upon the supplementary agreement which has been entered into between petitioner and respondent on 02.06.2006, by drawing our attention to Clause (4) of the said agreement to buttress his arguments that there has been violation of the contractual obligation. Even assuming for a moment, that contention of Mr. K.M. Antani, learned Assistant Government Pleader is to be accepted, it would not detain us for too long to brush aside said contention and for setting aside the impugned order, inasmuch as neither the show-cause notice nor the reasons assigned under the impugned order for forfeiture of land would disclose that on the ground of breach of Condition No. (4) of the Supplementary Agreement dated 02.06.2006, the proceedings for forfeiture of land having been initiated and as a consequence thereof the order of forfeiture having been passed. Even this argument would not be available for the simple reason that respondent cannot supplement the reasons in its reply affidavit by raising this plea as the authorities cannot improve their case than what was the basis for which the proceeding was initiated and impugned order came to be passed. 9. At this juncture, we notice the judgment of the Hon’ble Apex Court in the case Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405 , wherein the Hon’ble Apex Court has held that administrative action which is amenable to judicial review is to be judged by the reasons stated while making the order and supplementary reasons in the shape of an affidavit, if relied upon, is to be ignored. It has been further held: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. It has been further held: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought, out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji: “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older.” 10. In order to satisfy ourselves as to any other condition which is traceable or to be read in conjunction with the order of allotment which would give scope for forfeiture of the land by respondent authority, a pointed question was posed to Mr. K.M. Antani, learned Assistant Government Pleader as to whether any conditions stipulated under the order of allotment dated 11.03.1998 enable the respondent authority to cancel the allotment, he fairly submitted that there is no such condition. In fact in the reply affidavit dated 30.01.2013 filed at paragraph nil, it has been admitted by the deponent of the said affidavit to the following effect: “I say and submit that each and every land allotment order passed by the respondent authority refers to a specific period for making construction over the land if the same is given for the specific purpose. I say and submit that here in the present case looking to the original allotment order, it transpires that by somehow the said condition to the effect that the construction over the land must be completed within the stipulated period of two years, was not enumerated, but it does not go to show that there was as such no condition for making construction over the land in question. I say and submit that in each and every land allotment order, there is an implied condition that if the construction over the allotted land is not made within a period of two years, the same would be forfeited. I say and submit xxx illegal or arbitrary.” (Emphasis supplied by us) 11. The above admission, when read in conjunction with the conditions stipulated under the order of allotment, it leaves no manner of doubt in this Court, that there is no power vested with the respondent authority for forfeiture of land for non construction. In that view of the matter, we are of the considered view that order of the learned Single Judge upholding the impugned order cannot be sustained. In fact we notice that a window opening has been given to the petitioner by extending an opportunity to the company to point out to the Government that it is in need of two parcels of the land which have been ordered to be forfeited and as to how they would be utilizing the said lands. Be that as it may. Since we have held that impugned order is not sustainable for the reasons indicated hereinabove, we are of the considered view that Special Civil Application deserves to be allowed by setting aside the order of the learned Single Judge by allowing the present appeal. 12. The fact remains that land has not been utilized for the purpose to be utilized as agreed to under the agreement. In that view of the matter, we would leave open the issue as to what steps are to be taken in respect of the said land by the State necessarily after affording an opportunity to the petitioner. At the same time, this Court cannot lose sight of the fact that subject land having been forfeited under the impugned order and this Court having granted an order of status quo, which was in operation for last number of years till date and as such same is ordered to be continued till appropriate steps are taken by the State which shall not be later than eight weeks from the date of receipt of copy of this order. 13. For the reasons indicated hereinabove, we proceed to pass the following: ORDER: (i) Letters Patent Appeal is allowed. 13. For the reasons indicated hereinabove, we proceed to pass the following: ORDER: (i) Letters Patent Appeal is allowed. (ii) Order dated 26.09.2017 passed in Special Civil Application No. 7525 of 2012 stands set aside and consequently Special Civil Application No. 7525 of 2012 stands allowed and the impugned order dated 31.12.2009 (Annexure-H) is quashed. Rule is made absolute. (iii) Matter stands remitted back to the respondent for taking appropriate steps as observed hereinabove and we make it clear that we have not expressed any opinion with regard to the merits of the case and the one expressed it is for the limited purpose of testing the impugned order only. Respondent authority would be at liberty to pass fresh order without being influenced by the observations made hereinabove. (iv) No order as to costs.