Gujarat High Court
Jivanbhai Shankarbhai Patel vs State Of Gujarat on 1 April, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/376/2024 JUDGMENT DATED: 01/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 376 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
✔
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JIVANBHAI SHANKARBHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No.
1,2,3,4,4.1,4.2,4.3,4.4,4.4.1,4.4.2,4.4.3,4.5,5,6
MR JAYNEEL PARIKH, ASST. GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 01/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr.Nishit Gandhi on behalf of the petitioners and learned Assistant Government Pleader Mr.Jayneel Parikh on behalf of the respondent - State.
2. By way of this petition, the petitioners challenge order dated 28.04.2021 passed by the SSRD in Revision Application No.MVV/JMN/GDN/3/2020, whereby an order dated Page 1 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined 16.09.2019 passed by the Collector, Gandhinagar in breach of condition case has been confirmed.
3. Facts leading to filing of this petition briefly being that the petitioners being owners of the land in question i.e. land bearing survey/block no.47/1, 47/2 paiki, 47/3 and 47/4 total admeasuring 19842 sq.mtrs, final plot no.68/2 admeasuring 15874 sq.mtrs situated at Village: Bhaat, Taluka District:
Gandhinagar, had made an application before the District Development Officer who was the competent authority at the relevant point of time, seeking NA permission qua the land in question and whereas, vide four separate orders dated 19.02.2004, the NA permission had been granted as requested for more particularly for putting the land to residential use. 3.1. It would appear that the orders in question inter alia contained a condition whereby the NA applicant had been directed to commence the construction within a period of six months from the date of the order and to complete the construction within a period of three years. It would also appear that while there are certain submissions with regard to the completion of construction etc. and whereas having regard to the discussion at the later portion of this decision, Page 2 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined the same are not being referred herein.
3.2. It would appear that somewhere in the year 2017, the petitioners intended to put the remaining portion of the land upon which there was no construction, to commercial use and whereas, an application had been made on 07.07.2017 seeking change of purpose of non-agriculture use and whereas, it is the case of the petitioners that instead of considering the application of the petitioners, the District Collector had issued show cause notice dated 01.06.2018 on the ground that there was a breach of condition of the original order of NA dated 19.02.2004. The petitioners having contested the said show cause notice by filing a detailed reply, the District Collector, Gandhinagar vide order dated 16.09.2019 had observed that there had been a violation of condition and hence, penalty had been issued upon the petitioners and whereas further direction to remove the construction was also passed. The said order had been challenged by the petitioners before the SSRD vide the revision referred to hereinabove and vide the order impugned dated 28.04.2021, the SSRD had rejected the revision application confirming the order passed by the Collector, Page 3 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined prompting the petitioners to approach this Court.
4. Learned advocate Mr.Gandhi on behalf of the petitioners would submit that the issue of directing construction to be carried out within a particular period of time as appearing in the order of NA, has been addressed by this Court in a decision in case of Shri Khijada Mandir through Maharaj Shri Krushnamaniji Guru Dhramadasji vs. State of Gujarat, reported in 2017 (0) AIJEL-HC 240663 and whereas, a learned Coordinate Bench of this Court (Hon'ble Mr. Justice J.B.Pardiwala, as his Lordship then was) has inter alia taken a view that the condition to construct within a specific time period is arbitrary and unreasonable. Learned advocate would submit that the State had preferred an appeal against the decision of the learned Coordinate Bench and whereas, vide an order dated 05.09.2022, the State was permitted to withdraw the said appeal.
4.1. Learned advocate would submit that the law on the issue having been settled by this Court, yet, the same has not been appreciated in its proper perspective by the SSRD more particularly the SSRD coming to a conclusion that the condition which had been imposed upon the petitioners was in Page 4 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined an order of the year 2004 and whereas, the order passed by this Court in the decision referred to hereinabove was of the year 2017 and therefore, the same would not be applicable. 4.2. Learned advocate Mr.Gandhi submitting that since adverse action against the petitioners had been taken on account of the above condition not being complied with vide show cause notice which had been issued for the first time in the year 2018 i.e. after the date of the decision of this Court, therefore, the decision of this Court would squarely apply to the facts of the case.
4.3. Learned advocate Mr.Gandhi would further point out that though, as noticed hereinabove, State had preferred an LPA against the order in question, yet, the same had been withdrawn and whereas, the reason for such withdrawal as clearly discernible being that in the interregnum, the State had issued a circular dated 16.06.2022 whereby the State had directed that in orders granting NA permission, a condition for completing the construction within a specific period of time shall not be included and furthermore, all cases pending with regard to breach of condition shall not be proceeded any further, more particularly as regards the condition of Page 5 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined constructing within a particular period of time not being fulfilled.
4.4. Learned advocate would submit that the State having taken such a stand, it was not open for the SSRD to have rejected the revision application more particularly learned advocate submitting that in any case, the order passed by this Court being prior to the order passed by the Collector in the year 2019, the observations made by this Court squarely apply to the facts of the present case. Learned advocate would thus submit that this Court may set aside the orders passed by the Collector as well as the SSRD referred to hereinabove.
5. The present petition is vehemently contested by learned AGP Mr.Parikh on behalf of the State. Learned AGP would submit that the order of this Court declaring such a condition appearing in the NA orders being arbitrary etc. was passed on 22.09.2017 and whereas, the effect of such order could only have been on prospective basis and not on retrospective basis. Learned AGP would submit that the order in question, breach of which was being considered by the Collector, was of the year 2004 and whereas, under such circumstances, the Collector had rightly imposed penalty and passed further Page 6 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined orders and the SSRD has rightly not interfered with the order of the Collector. Learned AGP would thus submit that this Court may not interfere with the orders passed by the authorities concerned.
6. Heard learned advocates for the respective parties and perused the documents on record. The short question which arises for consideration of this Court is would the decision of this Court dated 22.09.2017 in case of Shri Khijada Mandir (supra) be applicable to the issue in question more particularly considering that the order granting NA permission in favour of the present petitioners was of the year 2004.
6.1. In this regard, it would be relevant to mention that at the first instance, NA permission had been granted to the lands in question vide orders dated 19.02.2004 and whereas, the petitioners had sought for change of purpose vide their application dated 07.07.2017. What is being emphasized by reference to the above dates is the fact that from the year 2004 till the year 2017 when the petitioners had applied for change of purpose, no proceedings for breach of condition had been initiated.
Page 7 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025
NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined 6.2. Before traversing on the facts any further, it would be profitable to refer to the decision of this Court in case of Shri Khijada Mandir (supra) which has been relied upon by the learned advocate for the petitioners. The learned Coordinate Bench was concerned with a case whereby the authorities concerned had refused to delete a condition in the NA permission granted by the respondent no.2 therein on 23.08.2013. The learned Coordinate Bench, having considered various earlier decisions as well as the provision in question, had come to a conclusion that "the condition imposed in the order granting NA prescribing the time limit within which the development is to commence and also the time period within which the development should be completed, is arbitrary, unreasonable and without any nexus with the object sought to be achieved of such a condition."
6.3. It would appear that the learned Coordinate Bench having taken such a stand, while the State had originally sought to challenge the said decision by preferring Letters Patent Appeal No.1029/2019 and whereas, in view of a communication dated 25.08.2022 received from the legal department of the State of Gujarat, the Hon'ble Division Page 8 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined Bench of this Court vide order dated 05.09.2022 had permitted withdrawal of the said appeal. The reason for such withdrawal by the State is clearly on account of circular dated 16.06.2022, reference to which has been drawn by the learned advocate for the petitioners, whereby the State had inter alia directed removal of condition for completing the construction on a land where NA permission is granted within a specific period of time more particularly such a condition originally being part of Rule 87 of the Gujarat Land Revenue Rules, 1972. It would appear that the State had thereafter directed that in orders whereby permission under Section 65 (NA permission) was granted, the same shall not contain any condition with regard to completing the construction within a specific period of time. Most importantly, it would also appear that the State has inter alia directed that in cases regarding breach of condition, more particularly where the breach is with regard to non-completion of the construction within the time limit as stipulated in the NA order, the same was directed not to be treated as a breach of condition. 6.4. From the above, it would clearly appear that while the learned Coordinate Bench had declared such a condition of Page 9 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined commencing and completing construction within specific period of time as being arbitrary, unreasonable and without any nexus with the object sought to be achieved, the said decision had been accepted in principle by the State Government and whereas, substantive directions had been issued by the State more particularly the State had deleted a condition as appearing in a form which is part of the Land Revenue Rules more particularly as per Rule 87 of the Land Revenue Rules. The State has further directed that NA orders thereafter would not contain the clause in question. 6.5. Furthermore, it would appear that the State has directed that there shall not be any breach of condition case for non- fulfillment of the condition with regard to commencing and completing the construction as found in NA orders. Thus, it would appear that the State had taken the issue in two directions i.e. by deleting the condition from the Form 'M' as per the stipulation in Rule 87 of the Gujarat Land Revenue Rules and by directing Collectors not to incorporate such condition, the State had taken action prospectively to ensure that NA orders after the said date should not contain any clause with regard to commencing and completing the Page 10 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined construction within a period of three years from the date of order. Furthermore, the issue had also been taken care of retrospectively by the State more particularly whereby the State had inter alia directed that there shall not be any breach of condition cases initiated insofar as the condition of commencing and completing construction in NA orders not being fulfilled. Thus, the resultant effect would be that even if an order granting NA had been issued prior to the date of decision of this Court in case of Shri Khijada Mandir (supra) i.e. on 22.09.2017 or even before the date of the circular referred to hereinabove i.e. 16.06.2022, and if such an order contained a clause with regard to commencing and completing construction within a specific period of time then, non-fulfillment of such condition would not entail any negative consequence. Thus, the State had retrospectively diluted the condition in orders granting NA which were already in existence.
6.6. In view of the above discussion, to this Court, it would appear that the SSRD had completely erred in holding that the petitioners were required to challenge the original order of NA of the year 2004 and having not done so for a period of Page 11 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined fifteen years, the petitioners were precluded from questioning the action taken by the Collector for breach of the very order. To this Court, it would appear that upon the State having issued circular dated 16.06.2022, such a condition which was part of an existing NA order, would not have any effect whatsoever more particularly the only negative consequence which would have entailed as regards the said order being that if the construction had not commenced or had not completed within the time limit stipulated in the order, then the authorities were empowered to initiate breach of condition cases and upon the State promulgating the circular dated 16.06.2022, the authorities were directed not to treat non-fulfillment of the condition concerned as a breach. Thus, the clause appearing in NA orders, to this Court, upon circular dated 16.06.2022 having been passed, would be completely ineffective and should be treated as non-existent in the NA orders itself.
7. In any case, to this Court, it would also appear that the law on the aspect of applicability of the decisions of this Court as well as of the Supreme Court is well settled. The law to this Court being that unless the decision itself specifies that the Page 12 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined judgment would be with prospective effect, the same would apply with retrospective effect.
7.1. Reliance is placed in this regard upon observations of the Hon'ble Supreme Court in case of Kanishk Sinha and Another vs. State of West Bengal, reported in 2025 (3) JT 207 whereby the Hon'ble Supreme Court has observed as under:-
"Now the law of prospective and retrospective operation is absolutely clear. Whereas a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpretated by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. The prospective operation of a judgment is normally done to avoid any unnecessary burden to persons or to avoid undue hardships to those who had bona fidely done something with the understanding of the law as it existed at the relevant point of time. Further, it is done not to unsettle something which has long been settled, as that would cause injustice to many."
7.2. Furthermore, reliance is placed on decision of the Hon'ble Supreme Court in case of P.V.George vs. State of Kerala, reported in 2007 (3) SCC 557, paragraph no.29 thereof being relevant for the present purpose, is reproduced Page 13 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined hereinbelow for benefit:-
"29. Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operation or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf."
7.3. Reliance is also placed upon observations of the Hon'ble Supreme Court in case of Manoj Parihar vs. The State of Jammu & Kashmir, reported in 2022 (14) SCC 72, paragraph no.26 being relevant for the present purpose, is reproduced hereinbelow for benefit:-
"26. What was done in Bimlesh Tanwar (supra) was actually a declaration of law. Therefore, the same will have retrospective effect. In P.V. George v. State of Kerala, (2007) 3 SCC 557, this Court held that "the law declared by a court will have retrospective effect, if not otherwise stated to be so specifically"."
7.4. Having regard to the observations made by Hon'ble Supreme Court, since the decision of a Constitutional Court would apply with retrospective effect unless the judgment itself specifies that the same would be applicable with prospective effect, the judgment of the learned Coordinate Page 14 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025 NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined Bench in case of Shri Khijada Mandir (supra) not stating that its effect would be prospective and furthermore, since learned Coordinate Bench in the said decision having laid down a substantive law, the SSRD could not have and ought not to have rejected the revision application by holding that the petitioners having not challenged existence of the clause in the NA orders dated 19.02.2004 could not be permitted to challenge the breach of condition case initiated insofar as the said aspect was concerned.
8. Having regard to the above discussion, to this Court, since it appears that the issue having been settled by this Court and having been accepted in principle by the State Government, the order of the Collector initiating and passing adverse order for breach of condition of commencing and completing construction in order granting NA to the petitioners dated 19.02.2004 i.e. vide order dated 16.09.2019 and the order confirming the order of the Collector by the SSRD dated 28.04.2021 being erroneous, are required to be quashed and set aside. Appropriate consequences of the setting aside to follow. With this observations and direction, the petition stands disposed of as allowed. Page 15 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025
NEUTRAL CITATION C/SCA/376/2024 JUDGMENT DATED: 01/04/2025 undefined
9. Needless to clarify that upon the orders passed by the Collector and the SSRD being set aside, the petitioners would be at liberty to prefer a fresh application, if so advised, for revised NA permission which application had resulted in the proceedings being initiated by the Collector in the first instance. Needless to further clarify that the same shall be decided in accordance with law. Direct service is permitted.
(NIKHIL S. KARIEL,J) Bhoomi Page 16 of 16 Uploaded by BHOOMI YOGESHKUMAR MISTRY(HC01557) on Sat Apr 05 2025 Downloaded on : Mon Apr 07 21:29:39 IST 2025