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2022 DIGILAW 1814 (GUJ)

HARISH GULZARILAL SHARMA v. STATE OF GUAJRAT

2022-12-20

ARAVIND KUMAR, ASHUTOSH J.SHASTRI

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JUDGMENT : ARAVIND KUMAR, J. 1. This Appeal lays a challenge to the order of the learned Single Judge passed in Special Civil Application No. 23417 of 2005 dated 26.08.2014, whereunder order passed by the Collector dated 19.06.1992 and the order passed S.S.R.D. dated 11.06/07.2005 has been affirmed. 2. The facts in brief which has led to filing of the present Appeal, can be crystallized as under: 2.1 The petitioner was allotted a land bearing 38 admeasuring 800 sq. yards on 14.06.1982 by the State Government on a lease basis for a period of 99 years. The said allotment was on the terms and conditions specified thereunder. Said allotment was came to be cancelled in the year 1985. However, on the prayer of the writ applicant, that there was no basic amenities provided and as such construction could not be completed, Collector granted extension of time for construction for a further period of two years effective from 03.02.1986. By order dated 19.06.1992, the Collector, Dang, cancelled the lease on the ground that writ applicant had committed breach of condition Nos. 3 and 16 of the original allotment order and forfeited the amount of deposit made by the petitioner. 2.2 In almost similar circumstances, Collector by order dated 11.08.1995, cancelled the lease of the plot-holders whose plots were adjacent to petitioner’s land namely Plot Nos. 36A and 37A. Being aggrieved by such cancellation, those allottees, filed a Revision Application No. 1 of 1995 and 2 of 1995 against the order dated 11.08.1995 passed by Collector, Dang cancelling their lease who by order dated 26.10.1998, allowed the Revision Application and quashed the order dated 11.08.1995 passed by Collector, Dang and held that time limit stipulated for completing construction should be computed only after basic requirement of road, water, electricity and drainage are provided and directed the Collector to take decision in consultation with the appropriate Government. 2.3 In the meanwhile, State being aggrieved by the order of S.S.R.D. who had allowed the Revision Application No. 1 of 1995 and 2 of 1995 preferred by the plot holders of Plot Nos. 36A and 37A (37/2) filed Special Civil Application No. 470 of 2000 challenging the said order and this Court by order dated 22.03.2000 dismissed the said Special Civil Application and confirmed the order passed by Deputy Secretary (Appeals) in Revision Application No. 1 of 1995 and 2 of 1995 dated 26.10.1998. 36A and 37A (37/2) filed Special Civil Application No. 470 of 2000 challenging the said order and this Court by order dated 22.03.2000 dismissed the said Special Civil Application and confirmed the order passed by Deputy Secretary (Appeals) in Revision Application No. 1 of 1995 and 2 of 1995 dated 26.10.1998. 2.4 The present Writ Applicant had also preferred Revision Application No. 3 of 1999 before the Additional Chief Secretary (Appeals) challenging the order dated 19.06.1992 passed by Collector, Dang cancelling the lease namely allotment of plot and forfeiting the deposit made by the writ applicant. Said Revision Application came to be dismissed by order dated 11.06/07.2005 and being aggrieved by the said order, the Writ Applicant filed Special Civil Application No. 23417 of 2005, which came to be dismissed on 26.08.2014 affirming the order of Collector as well as Revisional Authority. Hence, present Letters Patent Appeal. 3. We have heard the arguments of Shriyuths Shalin Mehta, learned Senior Counsel appearing for petitioner-appellant and K.M. Antani, learned AGP appearing for State. Perused the records. 4. It is the contention of learned Senior Counsel Mr. Shalin Mehta, though Writ Applicant has consistently contended before various authorities including S.S.R.D. and learned Single Judge that there has been hostile discrimination insofar as treating the writ applicant’s claim for setting aside the order of cancellation namely after bringing it to the notice of authorities that adjacent plot owners namely plot owners of Plot Nos. 36A and 37A who had been allotted the plots which had been cancelled on similar grounds of cancellation order passed against the writ applicant has been set aside by the Revisional Authority or the Appellate Authority and as such, there was no justification for the petitioner-writ applicant being discriminated, yet said contention has not been considered in proper perspective and same is not even considered at all by S.S.R.D. and by the learned Single Judge. Hence, he contends that order of the learned Single Judge is liable to be set aside and prays for allowing the Special Civil Application. He would also seek for similar order being passed in favour of petitioner herein. Hence, he contends that order of the learned Single Judge is liable to be set aside and prays for allowing the Special Civil Application. He would also seek for similar order being passed in favour of petitioner herein. He would also contend that even on merits impugned order is liable to be quashed, since condition precedent for the petitioner putting up construction in the allotted plot would only arise only after infrastructure like road, drainage, electricity and water are provided and this having not been done by the respondent authorities, petitioner - writ applicant cannot be found fault, for not putting up construction in the plot alltoted to him. Hence, on this ground also, he seeks for setting aside the impugned order. He would submit that pursuant to the order passed by S.S.R.D. the State has passed special orders in favour of allottees of Plot Nos. 36A and 37A and similar treatment has not been extended to the petitioner though he is similarly situated or placed. Hence, he prays for Appeal being allowed. 5. Per contra, learned AGP Mr. K.M. Antani appearing for State would defend the impugned order and would contend that at several intervals of time, writ applicant was granted opportunity and there being no construction put up, same had been taken note of by the Collector and found that condition no. 3 and 16 of the allotment order had been violated and as such allotment of plot made to petitioner has been rightly cancelled and amount paid by the petitioner has been ordered to be forfeited, which order does not suffer from any infirmity either on facts or in law and by placing heavy reliance on the judgment of the Hon’ble Apex Court in the case of Chandigarh Administration and Another vs. Jagjit Singh and Another, (1995) 1 SCC 745 , he seeks for Appeal being dismissed. 6. Having heard the learned advocates appearing for parties and on perusal of records, we notice at the outset that contention or the stand taken by the State is highly misplaced. It is an undisputed fact that writ applicant as well as other allottees of the land namely the allottees of the Plot Nos. 36A and 37A are similarly placed. In other words, the order of allotment and the conditions stipulated in respect all these three allottees are identical, same and there is no significant change. It is an undisputed fact that writ applicant as well as other allottees of the land namely the allottees of the Plot Nos. 36A and 37A are similarly placed. In other words, the order of allotment and the conditions stipulated in respect all these three allottees are identical, same and there is no significant change. When this was the factual scenario, the authorities, rightly so initiated proceedings against the allottees for not adhering to the conditions stipulated in the order of allotment. This resulted in an order of cancellation being passed at the first instance in the year 1985, insofar as present writ applicant is concerned. A plea was put forward before the authorities by the petitioner that construction over the allotted plot could not be commenced on account of lack of amenities. This found favour with the authorities and it resulted in Collector granting extension of time for construction by a further period of three years effective from 03.02.1986. 7. It has been the grievance of petitioner consistently and throughout that there were no amenities like road, electricity, water and drainage, provided by authorities and as such the construction could not be commenced. When similarly placed allottees namely allottees of Plot Nos. 36A and 37A were also found to have violated similar conditions stipulated under the order of allotment namely having not put up construction in the plots allotted like that of the present writ applicant had resulted in similar proceedings being initiated against them also. In other words, the allotment made in favour of plot holders of Plot Nos. 36A and 37A came to be cancelled by the Collector, Dang by order dated 11.08.1995. This gave a cause of action for them to assail the said order by approaching the Additional Chief Secretary (Appeals), Revenue Department with Revision Application No. 1 of 1995 and 2 of 1995 challenging the order of Collector, Dang cancelling their lease by order dated 11.08.1995. The Appellate Authority-Revisional Authorities allowed the said applications by order dated 26.10.1998. In other words, quashed the order dated 11.08.1995 and remanded the matter back to the Collector to consider the time limit for construction only after basic requirement like roads, water and electricity are given to area where the applicants were allotted plots and then take a decision. 8. The Appellate Authority-Revisional Authorities allowed the said applications by order dated 26.10.1998. In other words, quashed the order dated 11.08.1995 and remanded the matter back to the Collector to consider the time limit for construction only after basic requirement like roads, water and electricity are given to area where the applicants were allotted plots and then take a decision. 8. The writ applicant herein who is also similarly placed also preferred a Revision Application before the Revisional Authorities in Revision Application No. 3 of 1999, urging same grounds as had been urged in Revision Application No. 1 of 1995 and 2 of 1995 namely there being no amenities like road, water, electricity and drainage to enable the writ applicant to put up construction. Though this ground was specifically urged and it was brought to the notice of the Revisional-Appellate Authorities and similar Revision Application having already been allowed by another Revisional Authority, yet said authority which was adjudicating Revision Application No. 3 of 1999 filed by the present writ applicant, did not accept said proposition or in other words, the Revision Application filed by the petitioner came to be dismissed and thereby the order passed by the Collector, Dang dated 19.06.1992 was confirmed. 9. This matter having been taken up before the learned Single Judge in Special Civil Application No. 23417 of 2005, also did not find favour. A perusal of the said order would clearly indicate that that it was incumbent upon the State to provide the infrastructure. On account of allottees having failed to put up construction over the plots allotted to them, had resulted in cancellation of allotment and as such learned Single Judge rejected the contention of writ applicant. Infact it was brought to the notice of learned Single Judge about the order of Revisional Authorities passed in respect of similarly placed allottees namely Plot Nos. 36A and 37A and said order having been affirmed by the learned Single Judge in Special Civil Application No. 470 of 2000 though noticed vide paragraph no. 8, has not received the attention of learned Single Judge and no finding is recorded as to how said order was distinguishable on facts or as to why petitioner requires to be singled out. 10. 8, has not received the attention of learned Single Judge and no finding is recorded as to how said order was distinguishable on facts or as to why petitioner requires to be singled out. 10. In the aforesaid background when the grounds urged before the learned Single Judge in Special Civil Application is perused, it would clearly indicate that petitioner-writ applicant has specifically contended in paragraph no. 6 as well as Ground No. (4) highlighting as to how petitioner-writ applicant was being discriminated selectively from that of holders of Plot Nos. 36A and 37A whose cancellation orders had been were set aside by S.S.R.D. In the reply affidavit filed by the State before the learned Single Judge, this aspect has not been dealt with at all or in other words, it has not been denied that allottees of Plot Nos. 36A and 37A, who had also been visited with an order of cancellation like that of the present writ applicant, had been extended the benefit of the order of S.S.R.D. dated 23.10.1998, who had accepted the similar plea and had set aside the order of cancellation by passing the following order: “Therefore, this Revision Applications are partly allowed. The impugned order of the Collector, Dang dated 11.08.1995 is cancelled and, this matter is remanded to the Collector that, if it is found necessary to consider the time limit for the construction only after the basic requirements like road, water and electricity are given at the site of the plot, then to take decision in consultation with the Government.” 11. Thus, the stand of the respondent is clearly discriminatory and we say so for the simple reason that petitioner-writ applicant is similarly placed as that of the allottees of Plot Nos. 36A and 37A. While S.S.R.D. has clearly held that time limit for construction would commence only after the basic requirement like road, water and electricity are provided at the site of the plot, the writ applicant who has been visited with the order of cancellation, cannot be discriminated. Infact, the order of the S.S.R.D. dated 26.10.1998 passed in respect of allottes of Plot Nos. 36A and 37A has received the approval of learned Single Judge in Special Civil Application No. 470 of 2000 by order dated 22.03.2000 which was challenged by the State. If it were to be so, State cannot discriminate between two allottees namely allottees of Plot Nos. 36A and 37A has received the approval of learned Single Judge in Special Civil Application No. 470 of 2000 by order dated 22.03.2000 which was challenged by the State. If it were to be so, State cannot discriminate between two allottees namely allottees of Plot Nos. 36A and 37A who were similarly placed and the allottee of Plot No. 38-namely the writ applicant. On this ground also, impugned order cannot be sustained. 12. Yet another fact which cannot go unnoticed is, order which came to be impugned before the learned Single Judge dated 19.06.1992 came to be passed by the Collector, Dang cancelling the allotment of the plot in favour of petitioner-writ applicant and the forfeiture of amount of deposit, is/was in violation of principles of natural justice. In other words, before passing the said order, there was no notice issued to petitioner, or in other words, notice of proposed action was not duly served on the writ applicant. Though Mr. Antani, learned AGP would draw attention of the Court to paragraph 17 to 22 of the reply-affidavit filed before learned Single Judge to buttress his arguments that there is no violation of principle of natural justice and the impugned order is preceded by notice dated 18.02.1991, we are unable to accept the said contention. The notice which was dispatched to the writ applicant was to the address as was found in the original allotment order. Whereas writ applicant by two communications namely; one-dated 18.12.1994 (Annexure-K) as well as by communication dated 30.05.1985 has intimated the Collector, Ahwa about change of his address and had indicated the new address also. Thus, minimum care and caution ought to have been adopted by the Office of Collector, Ahwa before proceeding to pass the impugned order of cancellation of allotment dated 19.06.1999. On this ground also, namely on the ground of violation of principle of natural justice, impugned order cannot be sustained. These aspects having not been taken note of by the learned Single Judge, we are of the considered view that order of the learned Single Judge cannot be sustained. 13. Infact subsequent to the order passed by the S.S.R.D. insofar as the the allottees of Plot Nos. These aspects having not been taken note of by the learned Single Judge, we are of the considered view that order of the learned Single Judge cannot be sustained. 13. Infact subsequent to the order passed by the S.S.R.D. insofar as the the allottees of Plot Nos. 36A and 37A, the State Government has made fresh allotment as is evident from Annexure-F dated 13.03.2005 and this is also voiced in its reply affidavit filed in the present Appeal dated 27.01.2015, vide paragraph no. 4 to the following effect: “I say and submit that other plot holder have been considered for alternative plots. However, in the present case there is no such case. In fact, as stated in the minutes of meeting of the special committee it has been clearly stated therein that the special decision has been taken in peculiar facts and circumstances and with respect to only for plot holders.” 14. Thus, a special decision has been taken contending that the peculiar facts and circumstances, allotment having been made in favour of similar allottees. As to what peculiar facts were forthcoming “having not been enumerated, the petitioner-writ applicant cannot be discriminated.” On this ground also, impugned order cannot be sustained. 15. Hence, we proceed to pass following: ORDER: (i) Letters Patent Appeal is ALLOWED. Order dated 26.08.2014 passed in Special Civil Application No. 23417 of 2005 is set aside. (ii) Special Civil Application No. 23417 of 2005 is allowed and the order dated 19.06.1992 passed by Collector, Ahwa, Dang (Annexure-B) and the Revisional Order dated 11.06/07.2005 (Annexure H) passed by the 2nd respondent in Revision Application No. 3 of 1999 are quashed. (iii) A direction is issued to respondent Nos. 1 to 3 to re-allot and grant either same plot if found to be available or any other plot to the petitioner on the ground level of Saputara Town, as has been allotted to other plot holders on 13.03.2005 (Annexure-F) and same shall be undertaken expeditiously. (iv) Costs made easy.