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Gujarat High Court · body

2024 DIGILAW 907 (GUJ)

Yaswant Makanbhai Patel v. State Of Gujarat

2024-04-18

NIRZAR S.DESAI

body2024
JUDGMENT : 1. Heard learned Senior advocate Mr. Jal Unwala with learned advocate Ms. Tejal Vashi for the petitioners, learned Additional Advocate General Mr. Mitesh Amin with learned AGP Mr. Kanva Antani for the respondents – State in main matter and learned advocate Mr. Nisha M. Parikh for the applicant in Civil Application (for joining party) No. 2 of 2024. 2. As today, two Civil Applications - Civil Application (for vacating interim relief) No. 1 of 2024 and Civil Application (for joining party) No. 2 of 2024 are listed before this Court, with the consent of learned counsels for the parties, the main matter was taken up for final hearing. Hence, Registry is directed to list the main matter being Special Civil Application No. 12807 of 2023 for hearing today itself. 3. As the parties have agreed for final hearing of the main matter, issue RULE. Learned AGP Mr. Kanva Antani waives service of notice of rule for and on behalf of the respondents – State. 4. By way of this petition, the petitioners have prayed for the following reliefs:- (a) admit and allow this petition. (b) issue appropriate, writ, order or direction to the respondents to reallot same land to the petitioners or suitable lands to the petitioners. (c) issue appropriate, writ, order or direction to the respondents to allot suitable alternative lands to the petitioners before taking the possession of the said land by following the procedure in accordance to law. (d) issue appropriate, writ, order or direction of restraining the respondents from forcefully taking possession, dispossess/evict or taking possession of the land bearing Block No. 54, old Survey No. 26 and 29 (1 + 2) situated at village Rundh, Taluka Majura, District Surat. (e) PENDING ADMISSION, FINAL HEARING & DISPOSAL of this petition, direct the respondents for maintaining status quo on the land bearing Block No. 42/b and 54, old Survey No. 26 and 29 (1 + 2) situated at village Rundh, Taluka Majura, District Surat, (f) grant such other and further relief as thought fit in the interest of justice. (g) This Hon’ble court may be pleased to issue any appropriate writ, order or direction quashing and setting aside order dated 06.09.2023, passed by Collector, Surat to extend to the land in question not been allocated to other petitioners which is annexed at annexure R2. (g) This Hon’ble court may be pleased to issue any appropriate writ, order or direction quashing and setting aside order dated 06.09.2023, passed by Collector, Surat to extend to the land in question not been allocated to other petitioners which is annexed at annexure R2. (h) This Hon’ble court may be pleased to issue any appropriate writ, order or direction quashing and setting aside communication no. CCRI/0034/03/2024 dated 04.03.2024 and thereby be pleased to regrant and allot the land to the present petitioners and thereby be pleased to confirm the original allotment notification dated 21.04.1973 in favour of the petitioners. 5. At the outset, it was submitted by learned Senior Advocate Mr. Jal Unwala appearing for the petitioners that a draft amendment dated 04.04.2024 is placed on record and the same may be granted. 6. Learned Additional Advocate General Mr. Mitesh Amin appearing for the respondents – State has raised strong objection against the grant of the aforesaid draft amendment. However, considering the fact that the main matter is being taken up for hearing and as learned Senior Advocate Mr. Unwala does not have any objection, if the draft amendment is opposed on merits, the same is granted and to be carried out forthwith. 7. Brief facts giving rise to the present petition are stated as under:- 7.1. It is the case of the petitioners as canvassed by learned Senior Advocate Mr. Unwala is that in the year 1964, the entire village Rundh was ruined and badly affected by the heavy flood and thereafter, the State Government floated scheme to extend shelter and help to the affected persons for rehabilitation and for the said purpose, some land was acquired by the Government Notification dated 21.04.1973. The present petitioners 54 in number are the flood affected persons and as per the scheme the Collector, Surat vide order dated 01.02.1974 allotted plots to 54 persons of Village Rundh by making plotting on the land and the land was acquired from one Bamanji Rustomji. Thereafter, the plotting was done and plots were allotted to the affected persons through Taluka Development Officer, Choryasi for constructions of houses and according to the petitioners, the possession was handed over to them on 22.11.1974. 7.2. Thereafter, the plotting was done and plots were allotted to the affected persons through Taluka Development Officer, Choryasi for constructions of houses and according to the petitioners, the possession was handed over to them on 22.11.1974. 7.2. According to the petitioners, some of the persons had put up pakka construction and some of them have put up kaccha construction and the names of allottes were recorded in the revenue record i.e. village Form No. 7/12 wherein the entry has been affected as “Acquired for affected persons of Rail (Flood)”. 7.3. The present petitioners are either allottes or the legal heirs or representatives of the original allottees and according to the petitioners, they are in continuous occupation of respective plots which were allotted to them at the relevant point of time. 7.4. According to the petitioners, at the relevant point of time, most of the allottees did not have money for construction of their respective plots and by the time they can manage for funds for construction, Surat Urban Development Authority (SUDA) in the year 1978 was formed and according to them, without giving any opportunity of hearing, the aforesaid land was placed under reservation for housing purpose for SUDA. The persons who had already put up their construction were issued notice as to why the construction was carried out without obtaining the necessary permission from SUDA. 7.5. In the year 2002 vide order dated 23.09.2002, the Collector, Surat changed the purpose for which the land was reserved from housing purpose for setting up a Cottage Industry for construction of Urban Haat on the ground that the lands have not been utilized for the public purpose for which it were acquired. 7.6. The petitioners challenged the said order dated 23.09.2002 by filing petition being Special Civil Application No. 2722 of 2003 filed by “Rund Village Rail Rahat Samiti” with a prayer to quash and set aside the order dated 23.09.2002 passed by the Collector and also the communication dated 26.02.2002. 7.7. The aforesaid petition was dismissed vide order dated 28.02.2004 by giving certain directions and thereafter, the Collector, Surat preferred Misc. 7.7. The aforesaid petition was dismissed vide order dated 28.02.2004 by giving certain directions and thereafter, the Collector, Surat preferred Misc. Civil Application No. 2573 of 2005 for review against the order dated 28.10.2004 which was also rejected vide order dated 02.12.2005 and thereafter, the the Collector, Surat preferred Letters Patent Appeal No. 1255 of 2008 and the same also was rejected vide order dated 03.04.2014 and the said litigation rested there. 7.8. According to the petitioners, the petitioners are still occupying the plots in question and they are having pakka/kaccha houses over the aforesaid constructions. 7.9. According to the petitioners, though their petition being Special Civil Application No. 2722 of 2003 was dismissed, till date, Cottage Industry has also not taken over the possession of the land in question and therefore, the petitioners have prayed for re-allotment of the aforesaid land to the petitioners and therefore, this petition is preferred. 8. Learned Senior Advocate Mr. Jal Unwala appearing with learned advocate Ms. Tejal Vashi for the petitioners made following submissions:- 8.1. While dismissing the Special Civil Application No. 2722 of 2003 vide order dated 28.10.2004, this Court had issued direction to the effect that the District Collector shall consider the matter for allotment of alternative suitable land to the persons who have made pakka construction over the land in question and after allotment of land and after giving reasonable time of two months for shifting, steps shall be taken for removing such persons from the land in question and till then those persons who are in occupation shall not be vacated by virtue of impugned order. 8.2. According to learned Senior Advocate Mr.Unwalla, the aforesaid direction was issued not just in favour of two persons who were found to have constructed pakka construction but was in respect of all the 54 persons as can be seen from the language of direction issued in paragraph no. 12 of the order and as the case of the petitioners is that the petitioners are enjoying the possession of the land in question even as on today, the aforesaid direction is very clear that they are not required to be removed from the land in question unless their case is considered for allotment of alternative accommodation and therefore, seeking reallotment of the land in question. 8.3. According to learned Senior Advocate Mr. 8.3. According to learned Senior Advocate Mr. Unwalla, till today, the land has remained unutilised and as the same was allotted to the petitioners as back as in the year 1974, they being the original beneficiary of the land, they must be given benefit of the original allotment and therefore, the case for re-allotment of land in question is required to be considered. 8.4. From the draft amendment, learned Senior Advocate Mr. Jal Unwala pointed out from a letter dated 09.04.2003 written by District Development Officer, Surat to the Collector, Surat whereby he has stated that all those 54 persons were given possession. By relying upon the aforesaid communication, learned Senior Advocate Mr. Unwala submitted that even the documentary evidence also indicates that the present petitioners were put into the possession of their respective plots which were allotted to them and therefore, as the petitioners’ possession is established by documentary evidence also which was not available at the relevant point of time, the petitioners’ case is required to be considered for reallotment of the land in question. 8.5. However, learned Senior Advocate Mr. Unwalla requested this Court to consider the photographs of the land in question and on the basis of that, he submitted that even the photographs also indicate that the petitioners are in possession of the land in question. 8.6. Except the aforesaid submissions, no other submissions were made by learned Senior Advocate Mr. Unwala nor any other judgments were cited by learned Senior Advocate Mr. Unwala in support of their case. 9. Learned Additional Advocate General Mr. Mitesh Amin appearing for the respondents – State vehemently opposed this petition and submitted that the issue has attained finality as the petitioner’s petition was dismissed being Special Civil Application No. 2722 of 2003 vide order dated 28.10.2004 and thereafter, even the review application as well as Letters Patent Appeal preferred against the aforesaid order was also rejected and hence, that issue has attained finality then and than itself. 9.1. Learned Additional Advocate General Mr. Mitesh Amin relied upon the observations made in the paragraphs no. 9.1. Learned Additional Advocate General Mr. Mitesh Amin relied upon the observations made in the paragraphs no. 7 to 12 of the order dated 28.10.2004 and on the basis of the aforesaid observations made by this Court while dismissing the petition preferred by the petitioner submitted that this Court has considered all the aspects and thereafter, has arrived at a conclusion that actual allotment of land has not taken place and therefore, the contention of the petitioner cannot be accepted that the land was already allotted to the persons who were flood affected persons and for which the land was acquired by the State Government. Learned Additional Advocate General Mr. Amin further drew attention of the Court to the observation made by this Court while dismissing the earlier petition preferred by the petitioners wherein this Court has observed that it is an admitted position that the petitioners have at the relevant point of time not taken any steps for utilization of land in question for rehabilitation purpose and therefore, it cannot be said that the petitioners are adversely affected by the impugned order passed by the District Collector nor it cannot be said that petitioners are prejudiced by the aforesaid order. 9.2. Learned Additional Advocate General further submitted that in the aforesaid petition being Special Civil Application No. 2722 of 2003 in paragraph no. 10 and 11, it was made clear by the Court while dismissing the petition that only two persons were found in possession of the plot who have pakka construction, the name of those two persons were Chimkabhai Govinbhai and Balvantbhai Chhanabhai Patel have put up construction over the land in question and therefore, the directions were issued by the Court only in respect of those two persons and not in respect of all 54 persons and therefore, the reliance placed by the petitioners on the aforesaid order to indicate that the direction was in respect of 54 persons is not in consonance with the order passed by this Court dated 28.10.2004 as the petitioners have completely mislead the order passed by this Court. 9.3. Learned Additional Advocate General Mr. 9.3. Learned Additional Advocate General Mr. Amin lastly submitted that even otherwise this Court has categorically held that there is no actual allotment of land made to the petitioners and therefore, the question of putting the petitioners into possession of the land in question does not arise nor the petitioners are occupying the land in question. As far as the communication dated 09.04.2023 by District Development Officer, Surat to Collector, Surat is concerned, learned Additional Advocate General from the aforesaid letter pointed out that in the first part of the letter in “1” District Development Officer has made a cursory remark that those 54 persons are put into possession on 22.11.1974. However, in the later part of the aforesaid communication, he has specifically stated that in view of some audit para, some communication has taken place and the original file in respect of possession of the land in question was send to Section Officer, Revenue Department, Gandhinagar on 21.05.1982 and for getting that file back, necessary procedure is being undertaken by Taluka Development Officer, Choryasi and once the aforesaid file is made available, the documentary evidences can be produced. 9.4. Learned Additional Advocate General Mr. Amin on the basis of the aforesaid communication submitted that the aforesaid communication itself indicates that once the original file about the possession of the land in question is lying with the State Government since 1982 as stated by District Development Officer, when the District Development Officer did not had any excess to the aforesaid file, he could not have made such statement that all those 54 persons were put into possession of the land in question and therefore, the aforesaid statement is a statement made by him based upon his belief and not on the basis of any documentary evidence and therefore, such document whereby he has specifically stated that file is not available with the District Development Officer, Surat cannot be said to be a documentary evidence indicating that the petitioners were put into the possession of the land in question. He, therefore, prayed for dismissal of the petition. 10. I have heard learned advocates for the parties and perused the record. He, therefore, prayed for dismissal of the petition. 10. I have heard learned advocates for the parties and perused the record. On perusal of the record, I found that earlier when the land was originally allotted to the petitioners for flood rehabilitation purpose for constructing houses, it seems that the petitioners did not utilize the same and therefore, in the year 1978 the land was reserved for housing purpose by SUDA. Thereafter, vide order dated 23.09.2002, the purpose for which the land was reserved was changed and the land was thereafter, sought to be utilized for construction of Urban Haat and therefore, Special Civil Application No. 2722 of 2003 was preferred by all 54 persons. The aforesaid petition was dismissed by this Court vide order dated 28.10.2004 and while dismissing the petition, this Court made following observations in paragraphs no. 7 to 12:- “7. Having considered the above, it appears that there is no dispute on the point that the land was reserved for rehabilitation of flood affected persons. It also appears that the land came to be acquired as back as in the year 1974 and thereafter no authenticated record is produced before this court to show that the land was actually allotted by the authorities to the petitioners or any flood affected persons. The reliance placed upon the map by the petitioners can not be accepted because the said map is not signed by any officer and as against the same, in the affidavit in reply it has been stated by the Dy.Collector (Protocol) that actual allotment of land has not taken place and therefore the contention of the petitioner can not be accepted that the land was already allotted to the persons who were flood affected persons or for which the land was acquired by the Government. 8. It is true that the petitioner has produced the resolution of the Gram Panchayat granting permission for construction but it also appears that the gram panchayat has passed resolution for permission for construction in the year 1984 but it is also the case of the petitioner that the SUDA was already constituted and therefore the permission of SUDA appears to have been not obtained by any of the petitioners nor it has been granted. It is the case of the petitioners that the aforesaid two persons who had made pucca construction were issued notice by SUDA stating that the construction has been made without permission and the petitioner has produced one such notice issued to Chhimabhai Govindbhai dated 5.2.1990 at annexure "C" and therefore at the most it can be said that those two persons who have made pukka construction did make construction during the period prior to 1990 over the land in question and when the Dist.Collector passed the impugned order said construction was existing over the portion of the land in question. 9. It is well settled that in a case where power is to be exercised by quasi judicial authority or even in the administrative order, if the same is to result into adverse consequences, normally the opportunity of hearing is required to be given. It is also admitted position that the opportunity of hearing has not been given by the Dist.Collector to any of the petitioners or to the persons for whose benefit the land was acquired. However, the law on the principles of natural justice is further developed and that also now is well settled that it must be demonstrated before the court that such breach of principles of natural justice has prejudiced the rights of the persons who complained before the court. If the allotment of land is not established by the petitioners, it can not be said that the petitioners had any lawful right over the property in question or the land in question. Further, the land is acquired as back as in the year 1974, no steps appear to have been taken by the petitioners for asserting their right for the allotment of land for rehabilitation purpose. Even if the land was reserved for housing purpose by the SUDA from 1989 onwards, it was for the petitioners to take appropriate steps at the relevant point of time so as to enable them for the allotment and/or utilisation of the land in question for rehabilitation purpose. It is an admitted position that no such steps are taken by the petitioners at the relevant point of time till the land is allotted by the District Collector by the impugned order. It is an admitted position that no such steps are taken by the petitioners at the relevant point of time till the land is allotted by the District Collector by the impugned order. Therefore under the circumstances it can not be said that the petitioners are adversely affected by the impugned order passed by the District Collector nor can it be said that any prejudice is caused to the petitioner by the impugned order. Therefore, I find that it may not be necessary for this court to interfere with the order passed by the Dist. Collector which is also for public purpose on the ground that there is breach of principles of natural justice. 10. The aforesaid may not fully apply qua the persons who have already made construction and since 1990. It can be said that such persons though may be in unauthorised occupation of the land and may be by way of making construction without permission, but the such persons can be said to be affected to some extent. By the impugned order as such persons are not given opportunity of hearing and as even otherwise also the construction made therein is without permission of the proper authority and, therefore, I find that it would be just and proper for the district Collector to allot alternative suitable land/accommodation and thereafter to evict them from the land in question. I am inclined to take such view because it is the case of the petitioners that the land was acquired for rehabilitation of flood persons and persons who have made construction are flood affected persons and they made construction as back as in the year 1990 and it appears that it was within the knowledge of SUDA also and till the impugned order is passed such constructions have continued. Therefore, I find that while rejecting the petition suitable directions deserve to be issued qua the persons who have made construction and the interest of those persons deserves to be protected on humanitarian considerations also. 11. So far as the allotment of land for Urban Hut is concerned, from the perusal of the record it appears that the same is allotted for public purpose. 11. So far as the allotment of land for Urban Hut is concerned, from the perusal of the record it appears that the same is allotted for public purpose. It is well settled that if the land is acquired for the public purpose, it is within the power of the public body or Government, as the case may be, to use the same for other public purpose and therefore as the land is sought to be allotted for public purpose, the impugned order does not deserve to be interfered with on the said ground. 12. In view of the above, I am inclined to pass the following order: (i) The impugned order passed by the Dist. Collector at annexure "D" does not call for interference. However, it is further directed that the Dist. Collector shall consider the matter for allotment of alternative suitable land to the aforesaid persons who have made pucca construction over the land in question, and after the allotment of the land and after giving reasonable time of two months for shifting, the steps shall be taken for removing such persons from the land in question and till then those persons who are in occupation shall not be vacated by virtue of the impugned order.” 11. Thereafter, though the Court issued direction in respect of two persons who have put up the construction as can be seen from the observation made by this Court in paragraph no. 10 of the aforesaid order. Thereafter, the State preferred a review application and in the review application being Misc. Civil Application No. 2573 of 2005 which was dismissed vide order dated 02.12.2005, this Court had passed the following order:- “As such the review is hopelessly barred, the contention as sought to be canvassed that the time was consumed in obtaining certified copy, as such is not available when the order came to be passed after hearing both the sides, including the Government Pleader. Apart from the above, even on merits also, the power of review cannot be exercised as that of afresh hearing or afresh consideration. This Court, in view of the peculiar facts and circumstances that the land was acquired for rehabilitation of flood affected persons and the land was being used by two persons by making construction, directed for providing alternative suitable accommodation. This Court, in view of the peculiar facts and circumstances that the land was acquired for rehabilitation of flood affected persons and the land was being used by two persons by making construction, directed for providing alternative suitable accommodation. As such the impugned order in the main S.C.A. was also without giving hearing to them, and therefore, considering overall circumstances the order came to be passed in the main S.C.A. Hence, no case is made out for review, therefore, dismissed.” 12. The order passed upon the review application which was dismissed by this Court makes it abundantly clear that the direction issued by the Court was only in respect of two persons who had put up the pakka constructions and not in respect of all 54 persons. Thereafter, the State even preferred a Letters Patent Appeal No. 1255 of 2008 which was also rejected vide order dated 03.04.2014 by the Division Bench of this Court. 13. The record does not indicate nor learned counsels appearing for the petitioners could point out that any point of time, the petitioners had challenged the order dated 28.10.2004 passed in Special Civil Application No. 2722 of 2003. In absence of there being any challenge of the aforesaid order by the petitioners when the respondents also have failed in their challenge to the aforesaid order dated 28.10.2004, the order dated 28.10.2004 has become final as far as the controversy in question is concerned. 14. Therefore, when this Court itself while deciding the Special Civil Application No. 2722 of 2003 had categorically stated that except for the two persons, no other persons out of those 54 petitioners would be entitled for any other relief and the direction was issued only in respect of those two persons, the present petition is required to be considered keeping in mind the aforesaid observations made by this Court vide order dated 28.10.2004. 15. This Court has also considered the submissions of learned Senior Advocate Mr. Unwala based upon the communication dated 09.04.2003 by District Development Officer, Surat to Collector, Surat whereby he has stated that the possession of the land in question was given to the petitioners on 22.12.1974. 16. On perusal of the aforesaid communication, I found that in the first part of the communication while discussing the five points, in point no. Unwala based upon the communication dated 09.04.2003 by District Development Officer, Surat to Collector, Surat whereby he has stated that the possession of the land in question was given to the petitioners on 22.12.1974. 16. On perusal of the aforesaid communication, I found that in the first part of the communication while discussing the five points, in point no. 1, the District Development Officer has specifically stated about the fact that the possession was handed over on 22.12.1974. However, in absolute contradiction to the aforesaid fact in last paragraph, he has specifically stated that the original file in respect of possession was send to the State Government, Revenue Department on 21.05.1982 i.e. almost since 21 years, it was lying with the State Government, Revenue Department and necessary procedure is being undertaken to call for the original record, that also indicates that the aforesaid letter was written by the District Development Officer, Surat even without examining the original file and therefore, learned Additional Advocate General Mr. Amin was right in submitting that the letter dated 09.04.2003 cannot be said to be a documentary evidence of petitioners’ possession over the land in question and whether the petitioners were given possession or not is not proved by way of an documentary evidence but it seems to be the belief of the District Development Officer and therefore, the aforesaid letter cannot be believed and no inference can be drawn on the basis of letter dated 09.04.2003 that the possession was given to the petitioners in absence of there being any documentary evidence indicating that the petitioners were put into possession at any point of time by the Collector, Surat. The petitioners also could not produce any possession receipt or any panchrojkam indicating that the possession was handed-over in respect of respective plots allotted to the petitioners at the relevant point of time and therefore, in absence of there being material to indicate that the petitioners are actually enjoying the possession of the land in question, it cannot be believed merely on the basis of photographs that the petitioners are enjoying the possession over the land in question. 17. 17. Even otherwise when the issue has already been concluded as the petitioner’s petition Special Civil Application No. 2722 of 2003 was dismissed vide order dated 28.10.2004 and after having attained the finality, the present petition seems to be an attempt to initiate second round of litigation which the Court will not permit. Resultantly, the petition fails. The same is required to be dismissed and the same is dismissed accordingly. Rule is discharged. No order as to costs. 18. Ad- interim relief granted earlier vide order dated 26.10.2023 is vacated. 19. At this juncture, learned advocate Ms. Vashi appearing for the petitioners prayed for extension of ad-interim relief which is operating in favour of the petitioners since 26.07.2023. However, as the issue has already been decided as back as in the year 2004 itself, the request is rejected. Order in Civil Application (for vacating interim relief) No. 1 of 2024 and Civil Application (for joining party) No. 2 of 2024:- In view of dismissal of main matter, no further orders are required to be passed in both the Civil Applications. Hence, both the Civil Applications are disposed of accordingly.