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2023 DIGILAW 261 (GUJ)

Patel Nehel Deveshbhai v. State Of Gujarat

2023-02-07

A.S.SUPEHIA

body2023
JUDGMENT : 1. Rule. Learned AGP waives service of notice of Rule on behalf of the respondent-State authorities. 2. Learned advocate Mr.Prajapati has tendered and referred to the written submissions, the same are also considered. 3. This is yet another case, which brings to the fore the sorry state of affairs of illegal and unauthorized construction. BRIEF FACTS: 4. So far as the captioned writ petition Special Civil Application No.1005 of 2023 is concerned, the same is filed by Sabarkantha District Revenue Employees (Class-III) Association, HImmatnagar through its Building Committee Chairman, Shri Deveshbhai Ramanbhai Patel, who is, in fact, the petitioner No.8 in the captioned Special Civil Application No.858 of 2023. Though, it is mentioned that the aforesaid petition is filed by Sabarkantha District Revenue Employees (Class-III) Association, on the contrary, as recorded in the order dated 30.01.2023 of this Court, the said association has written to the Collector that they have not filed any petition being Special Civil Application No.1005 of 2023. The said communication was already ordered to be taken on record by the order dated 30.01.2023. Thus, there is apparent dispute with regard to filing of Special Civil Application No.1005 of 2023 by Sabarkantha District Revenue Employees (Class-III) Association (for short “the Association”). 5. The dispute, in both the writ petitions, hinges on the unauthorized construction made by Sabarkantha District Revenue Employees Association, which is/was headed by Shri Deveshbhai R Patel. The land in question, on which such illegal construction is made, was in fact granted by the State Government for constructing a Revenue House at Himmatnagar. The petitioners of Special Civil Application No.858 of 2023 are the occupants of various shops and halls of the commercial complex by various rent agreements with the Association, which have been constructed on the land, allotted by the State Government for constructing the Revenue Office/Revenue House. 6. By the application dated 11.12.1995 the erstwhile or (the then Association), requested the State-Respondent no.1- Revenue Department for granting land for the purpose of constructing a Revenue Bhavan, Vide order dated 06.07.2000, an approval was granted and the land bearing Survey No.437 paiki, ad-measuring 1,000 sq. meters situated at Moje Himmatnagar, was allotted/granted to the Association for the purpose of constructing Revenue Bhavan at the market rate of Rs.2,145/- per sq. meters situated at Moje Himmatnagar, was allotted/granted to the Association for the purpose of constructing Revenue Bhavan at the market rate of Rs.2,145/- per sq. meters i.e. total amounting to Rs.21,45,000/- or the price fixed by the District Valuation Committee, whichever is higher as well as other amount. 7. The aforesaid land was allotted to the respondent No.5 – Association of Special Civil Application No.858 of 2023 as a new tenure land on certain terms and conditions and accordingly, the respondent no.5 in the year 2000, has paid an amount of Rs.30,50,000/- and hence, sanad dated 23.11.2000 was also issued to the respondent No.2 under the Gujarat Land Revenue Code, 1879 (for short “the Code”). 8. It is pertinent to note that one Shri Ramesh Harishchandra Choksi had filed a PIL before this Court, challenging the grant of land to the Association. The writ petition being Special Civil Application No.1528 of 2001 was dismissed as infructuous vide order dated 18.03.2002. It appears that since the order dated 14.02.2002 allotting the land, was withdrawn in view of the PIL filed by the said person, the Association filed Special Civil Application No.3768 of 2002, challenging the order dated 14.02.2002 passed by the State Government, the said writ petition was disposed of by the Division Bench vide order dated 18.11.2003 as withdrawn by reserving liberty in favour of the Association to make an application to the State Government within two weeks. It appears that thereafter by the order dated 07.05.2004, the State Government re-granted the land to the Association on further terms and conditions. At this stage, it would be pertinent to note that the Association had given an undertaking to the effect that they will not use the land for any other purpose, except for the construction of the Revenue House. Very conveniently the petitioners have not produced the undertaking before this Court in the writ petition. 9. By the order dated 19th May, 2004, as mentioned hereinabove, when the land was re-granted, the Collector has specifically stated that the same land shall be used only for the purpose of constructing the Revenue Bhavan. 9.1. Thereafter, the Association filed applications dated 12.09.2005 and 27.09.2005 for converting the land for commercial use, which was rejected by the State Government by the order dated 21.03.2007. 9.2. It appears that out of 1000 sq. mtrs. 9.1. Thereafter, the Association filed applications dated 12.09.2005 and 27.09.2005 for converting the land for commercial use, which was rejected by the State Government by the order dated 21.03.2007. 9.2. It appears that out of 1000 sq. mtrs. of land, the Association sought permission for change of use for 518.52 sq. mtrs. of land on the premise since it is there case that in the case of similarly situated land, permission was granted for change of use. It appears that the District Collector sent a proposal vide letter dated 28.01.2009 to the State Government for considering the case of the Association for change of use, as sought by them. 9.3. In the meantime, the State Government introduced the Gujarat Regularization of Unauthorized Development Act, 2011 and the Association submitted an application to the competent authority in the year 2012. 10. By the communication dated 25.10.2012, the Himmatnagar Nagarpalika sought a permission of No Objection Certificate (NoC) from the District Collector under Section 9 of the Gujarat Regularization of Unauthorized Development Act, 2011 (for short “GRUDA Act”). By the communication dated 28.03.2013, the District Collector categorically informed the Nagarpalika that since the issue is pending before the State Government and till the proposal is granted, the change of use permission cannot be granted under Section 9 of the GRUDA Act by collecting the impact fees. Curiously the Himmatnagar Nagarpalika, despite the aforesaid communication dated 28.03.2013, written by the Collector, Sabarkantha informing not to grant any permission or collect any impact fees, the Nagarpalika issued a notice upon the Association on 14.05.2013, directing it to pay Rs.3,93,300/- as impact fees under the head of “Infrastructure Development Fund” within a period of 30 days, which has been paid by the Association on 14.05.2013. The Area Development Authority, Himmatnagar Nagarpalika by the order dated 17.05.2013 regularized the unauthorized construction made upon part of the land in question by the Association and also approved the building constriction plan on 17.05.2013. The Area Development Authority, Himmatnagar Nagarpalika vide a notice dated 29.09.2014 directed the Association to pay Rs.5,86,200/- towards change of use of part of the land in question. Thus, the aforesaid permission was granted de hors the Collector’s directions. 11. Accordingly, the Association made construction of the shops, offices, halls etc. upon the land in question after the same was approved by the Chief Executive Authority, Nagarpalika, Himmatnagar. Thus, the aforesaid permission was granted de hors the Collector’s directions. 11. Accordingly, the Association made construction of the shops, offices, halls etc. upon the land in question after the same was approved by the Chief Executive Authority, Nagarpalika, Himmatnagar. After coming to know about this, the respondent No.2 issued a show-cause notice dated 27.06.2022 to the Association for breach of conditions. The Association filed a reply on 30.08.2022. It is interesting to note that the reply dated 30.08.2022 filed by the Association, is also suppressed in the writ-petition and is not produced before this Court. The contents of the aforesaid communication reveals that there were 11 members, who were appointed by the Association for overseeing the construction. However, it is stated by the Association on its letterhead that even after the construction was over, the aforesaid Committee of 11 members, which was supposed to provide all the details with regard to the accounts, are not made known to the Association. It is further stated by the Association that the erstwhile committee of the said Association has not produced any record to show the rent agreements and hence, the Association cannot provide such details to the Office of the respondent-Collector. This was the reply, which was filed by the Sabarkantha District Revenue Association, Himmatnagar in response to the show-cause notice. Thus, it appears that the committee appointed by the Association was itself playing fraud with the Association by suppressing all the details of the rent collected by it. 12. It is further interesting to note that vide a communication dated 16.09.2022, Shri D.R. Patel i.e. petitioner No.8 of Special Civil Application No.858 of 2023, while addressing the said letter in the capacity of ex-chairman of the Association, has replied that the construction has been regularized by the Nagarpalika by paying the impact fees and it is asserted that they have not violated any terms and conditions. However, the shops are given on rent for the benefits of the members of the Association. After the aforesaid notice was issued, the Revenue Secretary of the respondent No.1-State, vide a communication dated 20.12.2022, directed the Collector, Sabarkantha to take immediate steps against the Chairman – Deveshkumar Patel, the member, Patil Ganpatlal, as well as other officers/employees, who are involved in the construction of the commercial complex. 13. After the aforesaid notice was issued, the Revenue Secretary of the respondent No.1-State, vide a communication dated 20.12.2022, directed the Collector, Sabarkantha to take immediate steps against the Chairman – Deveshkumar Patel, the member, Patil Ganpatlal, as well as other officers/employees, who are involved in the construction of the commercial complex. 13. On 09.01.2023, the petitioners, vide a communication, which is signed by almost all the shops or offices occupiers, have assured that they may be given 14 days time to vacate the premises since there are articles lying in such premises. After assuring the respondent-authority that they will vacate the premises, the petitioners have filed the present writ petitions. SUBMISSIONS: 14. Learned advocate Mr.Prajapati appearing for the petitioners has submitted that the action taken by the respondent-authorities against the present petitioners is illegal and the petitioners, who are doing their business in the rented premises cannot be asked to evict since the respondent - Nagarpalika has taken the impact fees from the Association and the construction of the commercial complex has been regularized. It is submitted that the petitioners have been paying the rent regularly to the Association for the users of the commercial complex, which is constructed after permission was given to them. Learned advocate Mr. Prajapati has further submitted that in a similar case, since the State Government has regularized the unauthorized construction and has also granted change of users, the similar treatment is required to be conferred to them. Learned advocate Mr. Prajapati has submitted that the petitioners are ready and willing to pay the premium of any other charges decided by the State for the change of use of premises in question. It is submitted that the application dated 27.01.2023 filed by the shop owners is pending before the District Collector. Learned advocate Mr. Prajapati has submitted that the respondent-District Collector has passed the order dated 06.01.2023 without hearing the petitioners, which is against the principles of natural justice. 14.1. In support of his submission, he has placed reliance on the judgment of the Supreme Court rendered in the case of M/s. Dharampal Satyapal Ltd. vs. Deputy Commissioner, Central Excise, Guwahati, (2015) 8 SCC 519 . 14.2. Learned advocate Mr. Prajapati has further submitted that the exercise undertaken by the respondent-authorities is also de hors the provisions of Section 211 of the Code. 14.2. Learned advocate Mr. Prajapati has further submitted that the exercise undertaken by the respondent-authorities is also de hors the provisions of Section 211 of the Code. In support of his submission, he has placed reliance on the judgment of this Court in the case of Govind Murji Patel (Kerai), 2007 (1) GLR 671 and in case of Narayan Kalidas Rajgaur vs. State of Gujarat, judgment dated 14.07.2021 in Letters Patent Appeal No.2941 of 2010. Further, reliance is placed on the order dated 14.07.2021, passed in Letters Patent Appeal No.2941 of 2010. 14.3. It is thus submitted by learned advocate for the petitioners that the respondent-authorities have no authority or power to issue the show-cause notice, calling upon the petitioners to vacate their premises. 15. Per Contra, learned AGP, while vehemently opposing the aforesaid writ petition, has submitted that the writ petition itself does not require any interference since a patent illegality has been committed by the Association as well as the Officers of the Nagarpalika and hence, the State Government is contemplating to take action against such Officers and accordingly, notices have been issued. He has submitted that in fact the procedure is already undertaken by the concerned department to initiate the proceedings departmentally against the respondent No.8 – Deveshbhai Ramanbhai Patel, who is also a Class-II Officer and serving in the Revenue Department for the alleged illegality committed by him. Learned AGP has further submitted that in fact the petitioners have not come out with the clean hands and suppressed the material facts in the writ petitions and then submission advanced by them that they have not been given any opportunity of hearing, deserves to be rejected. Learned AGP has further submitted that since initial permission of allotment of letters dated 21.11.2000 as well as 07.05.2004, have been issued by the State Government and it is only the Revenue Department of the State Government, which can grant the permission of change of user and the Nagarpalika has nothing to do in this regard. It is further submitted that in fact the Collector had informed the Nagarpalika not to proceed further for grant of any NOC by collecting any impacts fee, despite that clear direction of the Collector, the Nagarpalika has proceeded for issuing necessary orders regularizing such construction, which is impermissible and hence, appropriate steps are being taken against the Officers of Nagarpalika also. CONCLUSION: 16. CONCLUSION: 16. The facts which are established from the pleadings are that by the order dated 21.11.2000, issued by the respondent No.1- State Government (Revenue Department), the land bearing Survey No. 437, admeasuring 1,000 sq. meters, which was being sought by the respondent No.5-Association for constructing a Revenue Bhavan was allotted by incorporating 10 conditions. 16.1. The Condition Nos.1, 2 and 10 of the aforesaid order dated 21.11.2000 are translated and incorporated as under : “(1) The sanctioned land shall be used only for the purpose for which the same has been granted. (2) The construction of the house in the sanctioned land shall be completed within two years starting within six months from the date of this order. (10) Without prior sanction of the Collector, the said land cannot be sold, leased, gifted or transferred in any manner.” 17. Thereafter, it appears that in view of some litigations, the aforesaid order was cancelled, however again by the Resolution dated 07.05.2004, the State Government has re-granted the aforesaid land by reiterating the aforesaid conditions. Relevant portion of the Resolution dated 07.05.2004 reads as under :- “Resolution: Land bearing City Survey No.437/194 paiki 1000 Sq.Mtr. located at Himatnagar was granted to Sabarkantha District Revenue Employees (Class-3) Association for the purpose of constructing Revenue Bhavan. As per opinion of the Collector, Sabarkantha, without prior sanction of Government, as the land allotted to the Association is being used for other than the purpose for which the same was granted, resolution dated 14/03/2002 of the Government to enter the land allotted to the Association escheat i.e. reverted to the Government, without compensation alongwith structue thereof, stands cancelled subject to the following additional condition: Undertaking is to be taken from the Association in writing that the land and the house shall only be used for the purpose of 'Revenue Bhavan'. Case papers are returned herewith. By the order and in the name of the Governor of Gujarat. Sd/- Deputy Secretary Revenue Department, Government of Gujarat” 18. Accordingly, the Association, who was headed by petitioner No.8 – Deveshbhai Ramanbhai Patel, on its letterhead had given an undertaking, which is translated as under : Undertaking “I, the President, Sabarkantha District Revenue (Class-3) Association, Himatnagar hereby give undertaking in writing that pursuant to Letter No.Jamin-vashi-3470-2004 dated 15/05/2004 of the Collector, land has been granted for Revenue Bhavan. Accordingly, the Association, who was headed by petitioner No.8 – Deveshbhai Ramanbhai Patel, on its letterhead had given an undertaking, which is translated as under : Undertaking “I, the President, Sabarkantha District Revenue (Class-3) Association, Himatnagar hereby give undertaking in writing that pursuant to Letter No.Jamin-vashi-3470-2004 dated 15/05/2004 of the Collector, land has been granted for Revenue Bhavan. Revenue Bhavan shall be constructed on the land bearing City Survey No.437 paiki 1000 Sq.Mtr. located at Himatnagar. Thus, any other construction work except Revenue Bhavan shall not be carried out and conditions pertaining to order dated 21/11/2000 are to be complied with. Place: Himatnagar Date : 15/05/2004 Yours faithfully, sd/-illegible (Devesh R.Patel) Sabarkantha District Revenue (Class-3) Association 19. It appears that thereafter, the Collector, Sabarkantha passed the order dated 19.05.2004 and in view of the aforesaid undertaking given by the Association, the concerned land was approved or granted by observing thus: “As per the Undertaking mentioned in Pramble-7, the President, Sabarkantha District Revenue (Class-3) Association, Himatnagar has given undertaking to use the land in question only for the purpose of Revenue Bhavan. As regards the resolution mentioned in Preamble-6 of the Government, as it is held to cancel the resolution of Preamble-3 of the Government, Order No.Jamin/vashi- 13424/2002 dated 16/05/2002 of this Office pertaining to Preamble-6 of the Government is hereby cancelled. Further, it is hereby ordered to use the land in question only for the purpose of Revenue Bhavan subject to original conditions held in Pramble-1 and 2. Entry of this order be made in City Survey Record alongwith conditions thereof.” 20. Despite the aforementioned undertaking and assurance given by the Assocation, the illegal construction has been done by constructing a commercial complex on the part of the land, which was granted for the construction of a Revenue Bhavan. It appears that the petitioners/Association approached the Nagarpalika for the purpose of change of user and accordingly, the Himmatnagar Nagarpalika, by collecting the impact fees from the Association, regularized the unauthorized construction made upon part of the land in question by the respondent No.5 by approving the building construction plan on 17.05.2013. 21. It appears that the petitioners/Association approached the Nagarpalika for the purpose of change of user and accordingly, the Himmatnagar Nagarpalika, by collecting the impact fees from the Association, regularized the unauthorized construction made upon part of the land in question by the respondent No.5 by approving the building construction plan on 17.05.2013. 21. It is pertinent to note that when the respondent No.5- Association has sought the permission for regularization from the respondent – Nagarpalika, however the Collector, vide letter dated 28.03.2013, specifically refused the same and warned the respondent – Nagarpalika that no such NOC shall be granted since the matter is pending before the State Government and no impact fees can be collected under Section 9 of the GRUDA Act. 22. Despite the aforesaid conditions and warning issued by the concerned Collector, the unauthorized construction was regularized by the Nagarpalika by collecting impact fees and all the constructions of shops, offices and halls have been given on rent by the Association to the petitioners and the members of the Association are also occupying such shops, offices and halls in the commercial building and also enjoying the rent from the premises. 23. Thus, it is very shocking and glaring to note that a land, which was being allotted for the purpose of constructing a Revenue Building, the same is converted into a commercial complex by the Association and is being occupied by themselves as well as given on rent to the petitioners. When such glaring irregularity and illegality was noted, the Collector issued show- cause notice on 27.06.2022 with regard to 120 shops and commercial establishment and specifically calling upon their explanation as to why such land should not be vested in the State Government. They were asked to communicate or respond within a period of 7 days. 24. By the communication dated 30.08.2022, the Association responded to such show-cause notice, by stating that the said commercial complex or the building or the construction has been regularized by the Nagarpalika by collecting the impact fees. 25. It is also pertinent to note that the Association has informed the concerned Collector that there was a Committee of 11 members, which was formed for under-seeing the construction of which the petitioner No.8-Deveshbhai Ramanbhai Patel was also the member, has not yet given any details with regard to the accounts or any report, and with regard to the completion of the construction. The Association has also alleged that the said Committee comprising of 11 members have not given any details or accounts or the rent agreements to the said Association and hence, the Association cannot provide the same. 26. It is further asserted in such communication that the Association is not taking any rent from the shops and offices. Thus, it appears to be a scam committed by the erstwhile members of the Association or the petitioner No.8- Deveshbhai Ramanbhai Patel and 11 members of the said Committee, in response to the aforesaid notice on its letterhead, has categorically mentioned that the Association is not collecting any rent from the offices or the shops, which are given on rent, and it is surprising that, the writ petitioners, on the contrary in the writ petitions, have asserted that they have entered into rent agreements with the Association and they are paying the rent regularly. This fact shows the rift and disagreement within the association. 27. The respondent No.1 – Revenue Department has asked the Collector, vide a communication dated 20.12.2022, to take steps against Devesh Kumar Patel as well as member, Patil Ganpatlal, and the employees/ officers for taking disciplinary action against them. Thereafter, the Collector, Himmatnagar by the communication dated 06.01.2023, after considering all the aforesaid aspects as well as the response from the Association, has ordered the land in question to be vested in the State Government. Thereafter, vide communication and undertaking dated 09.01.2023, signed by the present petitioners, it is informed to the City Survey Superintendent, Himmatnagar that they may be given 14 days time in order to vacate the said premises. However, instead of vacating the premises, the present petition has been filed. 28. The facts, as mentioned hereinabove, indubitably establish that the generosity shown by the State Government in allotting the land to the Association, at the relevant point of time, has been blatantly misused for illegal gains. 29. The preceding facts indicate that the entire procedure adopted by the Association is replete with impropriety. The contention raised by the petitioners that they were not heard before taking such action, deserves to be rejected out-rightly. The respondent-authority has issued the notices to the petitioner-Association. 29. The preceding facts indicate that the entire procedure adopted by the Association is replete with impropriety. The contention raised by the petitioners that they were not heard before taking such action, deserves to be rejected out-rightly. The respondent-authority has issued the notices to the petitioner-Association. In fact the Association had given an undertaking, as mentioned hereinabove, on 15.05.2004 to the effect that it would not be constructing anything else, except the Revenue Bhavan on the land in question, for which it was allotted. The Association has clearly disregarded and breached its own undertaking and the conditions of allotment and carried out an illegal construction, and by an unwarranted approach of the Nagarpalika such illegal construction has been regularized by collecting the impact fees in totally by-passing the State Government, which has granted the land for constructing the Revenue Bhavan. 30. The petitioners have also suppressed very vital documents, as mentioned hereinabove and have rushed to this Court, despite giving an undertaking that they would vacate the said premises within a period of 14 days. By making the unauthorized constructions on the Government land, which was conferred only for constructing the Revenue Bhavan and having illegally gained by taking rent from such premises, the petitioners cannot be protected. 31. There cannot be any cavil on the proposition of law as enunciated by the Apex Court in the case of M/s.Dharampal Satyapal (supra), which pertains to the doctrine of natural justice however, as noticed hereinabove, the petitioners/Association are already afforded opportunity of hearing. The petitioners are the beneficiaries of the illegal constructions made by the Association. The Association has been collecting rent from it. The members of the Committee of the Association and their relatives are occupying the premises, as if they are the owners and are also simultaneously collecting rent. The premises has been used for their personal illegal gains, without a single penny being conferred to the State Government. The details and accounts of such rent which is collected are also missing. Thus, it does not lie in the mouth of the petitioners/occupiers that they are not afforded any hearing before asking them to vacate the premises. The aforesaid communications suggest that the Association was in constant touch with the authorities, and the Association has also given an undertaking not to use the land, except for construction of the Revenue Bhavan. Thus, it does not lie in the mouth of the petitioners/occupiers that they are not afforded any hearing before asking them to vacate the premises. The aforesaid communications suggest that the Association was in constant touch with the authorities, and the Association has also given an undertaking not to use the land, except for construction of the Revenue Bhavan. Thus, some of the petitioners, who are also the members of the Committee of the Association, were having all the knowledge of the illegality hence, rest of the petitioners, who are the co-occupiers, cannot plead that they are not heard. Such members of the Committee and the Association and the occupiers of the shops/ halls etc. form part of one homogeneous group, who are jointly and severally responsible for the illegal gains. If the Association is issued notices and they have responded, the same will equally apply to the members and the occupiers. In the preceding paragraphs, I have observed that there is also inter se dispute in the Association with regard to the commercial activities. The judgment rendered by this Court in the case of Govind Murji Patel(supra) and the Division Bench judgment in the case of Narayan Kalidas Rajgaur(supra) do not remotely apply to the facts of the case hence, the law enunciated therein will not come to their rescue. 32. Under these circumstances, in light of the glaring illegality committed by the Association or the members of the Association, this Court cannot accede to the submissions advanced by the petitioners. The petitioners are the beneficiaries of an illegal act committed by them. The State Authority has already clarified before this Court that necessary actions are already initiated against the responsible persons, who are the parties to illegal act. 33. It is expressed that the State Government shall consider the entire issue very seriously, since it is noticed that such illegal construction has been, thereafter regularized without considering the repercussion of such regularization. The State Government should understand that the law shelters everyone in the same light and cannot be swirled in favour of few, who commit the illegality. 34. Accordingly, the writ petitions fail, as the same are bereft of any merits. Rule is discharged. 35. The State Government should understand that the law shelters everyone in the same light and cannot be swirled in favour of few, who commit the illegality. 34. Accordingly, the writ petitions fail, as the same are bereft of any merits. Rule is discharged. 35. However, it is clarified that in order to see that the petitioners have sufficient time to vacate the premises, in wake of the fact that they had sought 14 days permission, as mentioned in the communication dated 09.01.2023, one month time is granted to them to vacate the aforesaid premises peacefully and handover the possession to the State Government.