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2024 DIGILAW 1066 (GUJ)

G. H. Vijapura v. State Of Gujarat

2024-04-30

NIRZAR S.DESAI

body2024
JUDGMENT : 1. Rule. Ms. Nirali Sarda, learned Assistant Government Pleader waives service of rule on behalf of respondent Nos.1 to 3. Despite service of notice, respondent Nos.4.1 and 4.2 have chosen not to appear before this Court. 2. By way of this petition, the petitioner has challenged the order dated 24.8.2016 passed by the learned Secretary, Revenue Department (Appeals) in Revision Application No.MVV/JMN/NVS/9/2013 as well as order dated 5.11.2009 (amended vide order dated 31.5.2010) passed by the Collector, Navsari in Revision Application No.JSHUSHA/73AA/Sharatbhang/Case No.3 of 2008. 3. The case of the petitioner as canvassed by learned Senior Counsel Mr. Anshin Desai is stated as under :- 3.1 That the land in question being N.A. land of Block No.469-B (Old Block No.327) admeasuring 3-66-24 Hectare -R.A. - Sq. Mts. situated at Village Rathvania, Tal. Chikhli, Dist. Valsad. Originally, the said new and impartible tenure land was subject to restrictions under Section 73AA of the Bombay Land Revenue Code and was in occupation of one Kaliyabhai Fuljibhai and Chhayila Fuljibhai. Vide order dated 10.6.1981, they were permitted to transfer and sell the subject land for non-agricultural purpose. Thereafter, those two persons applied for conversion of land into N.A. and Taluka Development Officer, Chikhli by his order dated 10.6.1981 granted permission to convert and use the land admeasuring 16959.50 Sq. Mts. for the N.A. purpose i.e. for quarry on condition to keep an open land admeasuring 18121.50 Sq. Mts. out of total admeasuring 35107 Sq. Mts. and to revise/renew the lease after a period of 30 years. 3.2 After obtaining permission, under a Registered Sale Deed for a total sale consideration of Rs.9,000/-, the aforesaid two occupants conveyed and sold the land in question in favour of one Kantibhai Gulabbhai Patel. Out of the aforesaid land purchased by Kantibhai G. Patel, a piece of land admeasuring 2698.80 Sq. Mtrs., i.e. 5 Bighas of land was leased out for the period of 99 years for the purpose of extracting stone under lease deed dated 8.1.1990 in favour of the petitioner. 3.3 Pursuant to the Lease Deed, vide an application dated 25.1.1990, the petitioner applied for permission before the Assistant Geologist, Valsad seeking to extract blackstrap stone from the said piece of land. However, ultimately, lease was terminated by the petitioner vide Cancellation Deed dated 27.4.1990. 3.3 Pursuant to the Lease Deed, vide an application dated 25.1.1990, the petitioner applied for permission before the Assistant Geologist, Valsad seeking to extract blackstrap stone from the said piece of land. However, ultimately, lease was terminated by the petitioner vide Cancellation Deed dated 27.4.1990. 3.4 Considering the fact that vide Lease Deed dated 8.1.1990, the land in question was leased in favour of the petitioner, the District Collector, Navsari alleged breach of Section 73AA of the Code and registered 73AA/Sharatbhang Case No.3 of 2008. According to the petitioner, no notice was served about the said proceedings and without hearing the petitioner who was the lease holder at the relevant point of time and without even verifying about the service of notice, an order dated 5.11.2009 was passed by the Collector, Navsari imposing fine of Rs.30,36,375/-. Thereafter, vide amended order dated 31.5.2010, the said penalty was increased from Rs.30,36,375/- to Rs.1,33,76,250/-. 3.5 As the petitioner did not pay the aforesaid amount of penalty, the Circle Officer, Chikhli on 11.2.2010 in the presence of Talati-cum-Mantri, Rathvaniya has taken over ex-parte physical possession of land admeasuring 2698.80 Sq. Mts. of Block No.469/B. 3.6 The petitioner came to know about passing of the aforesaid ex-parte order by the Collector in the year 2013 and, therefore, he preferred Revision Application No.MVV/JMN/NVS/9/2013 under Section 211 of the Code before the learned Secretary, Revenue Department (Appeals) who by impugned order dated 24.8.2016 has been pleased to reject the said revision application. 3.7 Hence, being aggrieved by the said two orders, the present petition is preferred. 4. Mr. Anshin Desai, learned Senior Counsel appearing with Ms. Toral M. Rathod, learned advocate appearing for the petitioner submitted that in the proceedings for breach of condition under Section 73AA of the code, no notice was ever served upon the petitioner and without even hearing the petitioner or without even verifying the fact from the record as to whether the notice was served upon the petitioner or not, passed ex-parte order on 5.11.2009 and subsequently, on his own, without any authority, passed amended order on 31.5.2010 after a lapse of almost six months by which penalty amount was increased from Rs.30,36,375/- to Rs.1,33,76,250/-. He, therefore, submitted that the said proceedings were conducted without hearing the petitioner and when the fine was imposed upon the petitioner, it was the duty of the Collector, Navsari to verify as to whether the notice of the said proceedings was served or not and, therefore, the said proceedings were conducted in gross violation of the principles of natural justice. Therefore, the petitioner was unaware about the impugned order dated 5.11.2009 and the amended order 31.5.2010 passed by the Collector, Navsari and, therefore, there was delay of three years on the part of the petitioner and upon becoming aware about the same, the petitioner challenged the said orders before the learned Secretary, Revenue Department (Appeals) by way of Revision Application. However, the learned Secretary, Revenue Department (Appeals) also failed to appreciate the said aspect and rejected the said revision application of the petitioner. He, therefore, submitted that the impugned orders are passed without appreciating or verifying the fact that the proceedings initiated alleging breach of condition of Section 73AA of the Code were conducted without observing principles of natural justice. 4.1 Learned Senior Counsel Mr. Desai further submitted that the petitioner has a good case on merits as well. If the first contention of the petitioner is accepted, in that case, keeping all the rights and contentions of the parties open, the matter may be remanded back to the Collector, Navsari for adjudicating the said proceedings afresh as immediately after the Lease Deed was executed, Cancellation Deed was also executed between the parties and original position was restored and, therefore, there is no breach of condition as per Section 73AA as alleged. However, at this stage, learned Senior Counsel Mr. Desai submitted that this Court may at this stage consider only about non-observance of the principles of natural justice and after verification, it is found that the petitioner was duly served with notice and despite that he did not remain present, then he may be permitted to make submissions on merits. 5. In view of the aforesaid submission, on 22.4.2024, this Court passed the following order :- "It was suggested by learned Senior Counsel Mr. Anshin Desai that the matter is required to be remanded back as the petitioner is not the one who has committed default as alleged. The petitioner was excavating the land in question on account of legal and valid permission given by the competent Authority. Anshin Desai that the matter is required to be remanded back as the petitioner is not the one who has committed default as alleged. The petitioner was excavating the land in question on account of legal and valid permission given by the competent Authority. Just within a short span of time which is less than six months, for some default on the part of the predecessor's predecessor, now the penalty is imposed upon the upon the petitioner as the authority has found the petitioner to be the weakest link in chain and it is impossible to recover the amount from the erstwhile owner of the land in question and, therefore, as far as the penalty part is concerned, which was according to Mr. Desai was most unreasonable and without affording sufficient to the petitioner. In view of that submission, learned AGP Ms. Nirali Sarda requests for time to take instructions. Stand over to 29.4.2024. To be listed immediately after fresh matters." 6. Pursuant to the aforesaid order, Ms. Nirali Sarda, learned Assistant Government Pleader has received written instructions dated 29.4.2024 from the Resident Additional Collector, Navsari which is taken on record. The said written instructions indicates that the in the proceedings of breach of Section 73AA of the Code i.e. 73AA/Sharatbhang Case No.3 of 2008, notice was duly issued to all the parties by the office of the Collector, Navsari through Regd. Post AD/Talati-cum-Mantri. However, except legal heir of deceased Kantilal G. Patel i.e. Rajeshbhai Kantibhai Patel, no other party to the proceedings have remained present before the Collector, Navsari in the said proceedings. As far as the present petitioner is concerned, it is stated in the last paragraph of the said written instructions that impugned order dated 5.11.2009 is 16 years old and, therefore, upon verification of the record available, it does not indicate that at any point of time, the petitioner was heard with the notice of the said breach of condition proceedings. In the said written instructions, it is also stated that as far as the submission of the petitioner about non-observance of principles of natural justice is concerned, the learned SSRD has elaborately dealt with the aforesaid aspect in the impugned order. In view of the above written instructions, learned APP submitted that since learned SSRD has considered the said aspect, this Court may dismiss the present petition. 7. Mr. In view of the above written instructions, learned APP submitted that since learned SSRD has considered the said aspect, this Court may dismiss the present petition. 7. Mr. Anshin Desai, learned Senior Counsel appearing for the petitioner, in rejoinder, submitted that it is factually incorrect to state that the learned SSRD has taken into consideration the contention of the petitioner regarding violation of the principles of natural justice. He read out from the order passed by the learned SSRD and submitted that all that was observed by the learned SSRD was that the Collector, Navsari has through RPAD as well as through Talati-cum-Mantri served the notices upon them and despite that they have not remained present before the Collector, Navsari and they have been given ample opportunities to put forward their case. However, according to learned Senior Counsel Mr. Desai, the aforesaid finding given by the learned SSRD is contrary to the record as can be seen from the written instructions received by the learned AGP. He further submitted that when the learned Resident Assistant Collector has specifically stated in the written instructions dated 29.4.2024 that no record is available which indicates that the notice of the breach of condition Section 73AA proceeding was served to the petitioner. He, therefore, submitted that in view of this clear admission, there is no evidence to indicate that the petitioner was served with the notice of the proceedings of breach of condition Section 73AA and hence, the impugned orders may be quashed and set aside and the matter may be remanded back to the Collector, Navsari for adjudicating the said proceedings afresh. 8. I have heard learned advocates appearing for the respective parties and perused the record. The impugned orders dated 5.11.2009 and 31.5.2010 passed by the Collector, Navsari are silent as there is no mention about the fact that all the parties are served. Though there is a specific mention that the parties are served through RPAD/Talati-cum-Mantri, they have remained absent. However, the order indicates that except for Rajesh Kantibhai i.e. legal heir of Kantibhai Gulabbhai Patel, all the other respondents have chosen to remain absent. In the same way, even the amended order dated 31.5.2010 also indicates that before amending the aforesaid order, no opportunity was ever given to the petitioner while enhancing the amount of penalty from Rs.30,36,375/- to Rs.1,33,76,250/-. In the same way, even the amended order dated 31.5.2010 also indicates that before amending the aforesaid order, no opportunity was ever given to the petitioner while enhancing the amount of penalty from Rs.30,36,375/- to Rs.1,33,76,250/-. The said order does not even mention that before enhancing the amount of penalty, at any point of time, even the notice was issued to any of the parties. Further, on perusal of the order passed by the learned SSRD, it seems that a specific contention was taken by the petitioner that they have not received any notice from the Collector or from any other authority and, therefore, they could not submit their objections/written submissions and while dealing with the said contention, the learned SSRD has taken a stand that the notice was duly served upon the petitioner through RPAD/Talati-cum-Mantri but despite that the petitioner has remained absent before the Collector. 9. The aforesaid observations made by the SSRD seems prima facie contrary to the record available. Today, as per the written instructions, it is specifically stated that there is no evidence to indicate that the petitioner was duly served with the notice of the proceedings of breach of condition Section 73AA. In view of the above admission coming forward from the authority which had issued the notice and before which first order dated 5.11.2009 in Revision Application No.JSHUSHA/73AA/Sharatbhang/Case No.3 of 2008 was passed by the Collector, Navsari as well as considering the fact that even the amended order dated 31.5.2010 was also passed by the Collector, Navsari while enhancing the amount of penalty from Rs.30,36,375/- to Rs.1,33,76,250/-, without issuing any notice to the petitioner or any other interested parties, as the said order is silent about issuance of notice as well as considering the fact that the aforesaid vital aspect has not taken into consideration by the learned SSRD by verifying the factual aspect from the office of the Collector as it seems from the bare reading of the order passed by the learned SSRD, this Court is of the view that petitioner's valuable right of putting forward their version and to defend the case is taken away. Further, even the order of enhancing the penalty amount dated 31.5.2010 was also passed without hearing the petitioner and, therefore, there is clear violation of the principles of natural justice and can be inferred and considered on the part of the petitioner as there is nothing on record either in the form of affidavit-in-reply or in the form of written instructions which would indicate that the petitioner was served with notice at any point of time in the proceedings for breach of condition in Revision Application No.JSHUSHA/73AA/Sharatbhang/Case No.3 of 2008. 10. In view of the above, the present petition succeeds and is allowed. The impugned orders i.e. order dated 24.8.2016 passed by the learned Secretary, Revenue Department (Appeals) in Revision Application No.MVV/JMN/NVS/9/2013 as well as order dated 5.11.2009 (amended vide order dated 31.5.2010) passed by the Collector, Navsari in Revision Application No.JSHUSHA/73AA/Sharatbhang/Case No.3 of 2008 are quashed and set aside only on the ground of violation of the principles of natural justice. Revision Application No.JSHUSHA/73AA/Sharatbhang/Case No.3 of 2008 is remanded back to the Collector, Navsari for considering the same afresh. The petitioner is directed to provide his latest current address to the Collector, Navsari within a period of 15 days from today and upon receipt thereof, it is open for the Collector, Navsari to issue notice to the petitioner and initiate fresh proceedings for breach of condition under Section 73AA of the Gujarat Land Revenue Code. Upon initiation of such proceedings after receipt of the notice to the petitioner and other interested parties, the Collector Navsari is directed to pass a reasoned order taking note of the contention of the petitioner. It is clarified that all the rights and contentions of all the parties are kept open and the impugned orders are quashed by this Court only on the ground of violation of the principles of natural justice and this Court has not examined the merits of the case. Rule is made absolute to the aforesaid extent. Direct service is permitted.