Lalitkumar Natubhai Patel vs Collector Surat
2021 Latest Caselaw 2345 Guj

         C/SCA/4188/2004                                         JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4188 of 2004


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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1     Whether Reporters of Local Papers may be allowed to                  NO
      see the judgment ?

2     To be referred to the Reporter or not ?                              NO

3     Whether their Lordships wish to see the fair copy of the             NO
      judgment ?

4     Whether this case involves a substantial question of law             NO
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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                           LALITKUMAR NATUBHAI PATEL
                                     Versus
                           COLLECTOR SURAT & 1 other(s)
==========================================================
Appearance:
MR RR MARSHALL, SENIOR COUNSEL FOR MARSHALL &
ASSOCIATES(5936) for the Petitioner(s) No. 1
MR. RAJU N DESAI(7029) for the Petitioner(s) No. 1
MR DM DEVNANI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                                 Date : 15/02/2021

                                 ORAL JUDGMENT

1. By way of this petition under Article 226 of the

Constitution of India, the petitioner has challenged the

legality and validity of the order dated 25.12.2003 passed

C/SCA/4188/2004 JUDGMENT

by the learned Collector, Surat, as also the order dated

1.03.2004 passed by the Revisional Authority i.e.

respondent No.2.

2. The grievance of the petitioner is that by way of an

order dated 22.01.1973 the land bearing Survey No. 166-A

ad-measuring 16 gunthas and 64 sq.yds situated in Village

Olpad, Taluka Olpad, District Surat, came to be alloted by

the learned Collector on payment of price being fixed at

Rs.3,000/- at the relevant point of time on certain terms

and conditions. According to the petitioner, the land was

being utilised by the petitioner throughout, however, on

account of the land being kharaba, the same was in a

depressed and uneven condition and approximately more

than Rs.1.00 lakh in those days were spent by the

petitioner for levelling the same so that the use can be

made. According to the petitioner, the Agro Service

Centre was started after putting up construction and was

carrying out the repairs of tractors, supply of oil engines,

sale of spare parts, manure and other agro products like

pvc pipes and pesticides etc. This activities remained

C/SCA/4188/2004 JUDGMENT

uninterrupted right upto the year 1990, and it is only on

account of one Chhaganbhai Punjabhai Patel, who made

an application before the Collector, though was not

concerned either with the petitioner or the land in

question, and at his instance, an absolute vague notice

came to be issued on 2/15-6/7-1999 after an unreasonable

period. The said show-cause-notice was resisted by the

petitioner but ultimately on 25.11.2003 an order came to

be passed in exercise of the powers under Section 68 of

the Bombay Land Revenue Code (for short "BLR Code")

directing the land along with the structures would be

taken back in the name of the State Authority without any

compensation.

3. The petitioner being aggrieved by the said order has

preferred a revision application before the respondent

No.2 authority, which was registered as Revision

Application No.1 of 2004. However, according to the

petitioner, without granting any opportunity of hearing,

the authority was pleased to dismiss the revision

application vide order dated 19.3.2004 by upholding the

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order passed by the Collector and it is against this order

passed by the Revisional Authority as well as the order

passed by the Collector, present petition is brought before

the Court. Initially, by way of an order dated 6.4.2004,

Rule was issued and vide ad-interim relief in terms of para

14(b), the protection was granted to the petitioner, which

continued throughout and with this background, the

present petition has come up for consideration before this

Court.

4. Mr. R.R. Marshall, learned Senior Counsel appearing

on behalf of Marshall & Associates for the petitioner has

vehemently contented that the order passed by the

authority is ex-facie in gross violation of principles of

natural justice and on this ground alone the impugned

order passed by the revisional authority requires to be

quashed and set aside. It has been further submitted that

the revisional authority has exercised the powers after

gross unreasonable delayed period since the original land

is of the year 1973 and the notice which has been issued

in the year 1999 and thereto the same is absolutely in a

vague form, and as such, on the basis of the said notice,

C/SCA/4188/2004 JUDGMENT

no proceedings could have been undertaken.

4.1 Mr. R.R.Marshall, learned Senior Counsel for the

petitioner has further submitted that the petitioner has not

been given an effective opportunity to represent the case

as no exact alleged breach of conditions have been spelt

out in the notice itself and thereafter the order proceeded

as if there is a gross violation of principles of natural

justice and this tentamount to be violation of fair

opportunity to the petitioner since the petitioner is

deprived of making an effective representation in absence

of any specific alleged breach having been pointed out.

Mr. Marshall, learned Senior Counsel for the petitioner has

further submitted that after taking the Court through the

findings of the revisional authority in which it has been

mentioned that some 9 shops have been constructed and

the land has been allowed to be used for different purpose

but then it is submitted on instructions that no such shops

have been constructed over the land in question. Apart

from that the learned Senior Counsel Mr. Marshall has

further submitted that the orders passed by the revisional

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authority have also been passed in an irregular form

inasmuch as, the original allotment is of the year 1993

which is sought to be disturbed in the year 1999 and the

notice which is referred to on page 15 is also not clearly

pointing out the breach being committed by the petitioner.

By referring to the sequence of events, it has been

submitted that normally the revisional authority is taking

too much time in disposing of the petition which fact is a

ground reality, but, in the present case, the revisional

authority has disposed of the revision petition within a

short span in a pre-decided manner and that too on the

basis of wrong premise.

4.2 Mr. R.R.Marshall, learned Senior Counsel has

submitted that apart from all these circumstances even

the authority on page 23 of the compilation informed the

petitioner to pay 100% premium vide communication

dated 4/8-9/2000 for alleged breach within a period of 7

days, and as such, the authority was inclined to condone

such breach in the year way back in 2000, and in response

to that intimation, there was specific letter written by the

C/SCA/4188/2004 JUDGMENT

petitioner on 21.09.2000 reflecting on page 25 that the

petitioner is ready and willing to pay the amount of

premium which may be determined by the authority. So,

according to learned Senior Counsel Mr. R.R. Marshall,

even the despite alleged breach against the petitioner,

the authorities were ready and willing to condone the

same by allowing the petitioner to pay the premium vide

their communication way back in 2000 and this

circumstance have not been in a right spirit taken by the

authority below who passed the order.

4.3 In addition to this, learned Senior Counsel Mr.

Marshall on specific instructions from the petitioner has

shown readiness and willingness to pay the premium even

as on date which may be determined by the authority and

for that purpose the petitioner is ready to undertake to

that effect, and as such, the request is made to grant the

relief as prayed for in the petition.

4.4 Additionally learned Senior Counsel Mr. Marshall has

submitted that even in an identical situation like this the

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Co-ordinate Bench of this Court has passed an order not

only in one case but almost similar to other cases. A

reference is made to the order passed in Special Civil

Application No. 4219 of 2004 and has submitted that the

case of the petitioner also deserves to be allowed in the

line which the Co-ordinate Bench has granted the relief.

In furtherance of this, a further decision was also brought

to the notice of this Court which is dated 17.01.2020

passed in Special Civil Application No. 11230 of 2006

wherein also the petition came to be allowed on account

of malafides as well as violation of principles of natural

justice, and then, has pointed out the para 10 of the said

decision for which the learned Senior Counsel has no

objection if present petition is also disposed of on the

same line as mentioned in para 10.

5. As against this, learned AGP Mr. D.M. Devnani

appearing on behalf of the State-authority has vehemently

contended that this is a gross case in which there is a

deliberate violation of condition of grant which aspect has

been properly considered by the authorities below. By

C/SCA/4188/2004 JUDGMENT

referring to the findings arrived by the revisional authority

reflecting at page 18 that the land in question is passed

on to one Sureshkumar Hiralal Jain for the purpose of

selling the cement and some part of the land has been

sold away to another person, and therefore, there is a

clear breach recorded by the Collector in his order which is

also impugned in this petition, and as such, when the facts

are evidently brought on record, there is hardly any

justification in challenge to the order passed by the

authority. Apart from that, learned AGP Mr. Devnani has

contended that the cases which have been relied upon by

Mr. R.R. Marshall, learned Senior Counsel decided by Co-

ordinate Bench of this Cort wherein the facts are

altogether different and therefore the same principles

cannot be applied here in the present case when there is a

clear breach committed with deliberate intent. Hence the

challenge made in the petition is meritless.

5.1 Mr. Devnani, learned AGP has further submitted that

there is violation of principles of natural justice if agitated

by the petitioner stoutly then at the best the matter can

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be remanded back for reconsideration by the revisional

authority and hence requested this Court not to entertain

the petition.

6. In rejoinder to this submission, leaned Senior Counsel

Mr. Marshall has submitted that this petition is of the year

2004 and the original grant is of the year 1973 and over

the period of time throughout the possession has

remained as it is and as such remanding the matter after

these longer years would not be in the interest of either

side in view of the fact that the petitioner is ready and

willing to pay the premium whatever being determined by

the authority as on date, and therefore, instead of

remanding the matter back to the authority below since

the petitioner was also originally informed to pay the

premium for even alleged breach without much going into

this aspect, appropriate orders be passed on the similar

line on which the Co-ordinate Bench has disposed of

almost similar case of breach of the recent time for which

the learned Senior Counsel has no objection.

7. The learned AGP Mr. Devnani has left it to the

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discretion of this Court since the petitioner is ready and

willing to pay the premium as on date to be determined by

the authority and as such requested to pass an oder in the

similar line on which the decision dated 17.01.2020 is

taken in SCA No. 11230 of 2006.

8. Having heard learned counsel appearing for the

parties and having gone through the record placed before

the Court, it prima facie appears that the original

allotment of the land is of the year 1973 and for the first

time in the year 1999 the show-cause-notice came to be

issued in which also when the breach is committed, what

kind of breach is committed and without mentioning any

specific details in the notice a vague notice appears to

have been given after unreasonable period. In addition to

this the authorities who passed an order have also not

properly taken note of their own communication in which

in September 2000 the Collector, Surat, intimated the

petitioner to pay 100% premium for alleged breach of

allotment of the land in question and asked the consent

within a period of 7 days, and according to the petitioner,

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the consent in written form have also been given by

petitioner but no action was taken for a pretty long period.

In addition to this it appears to this Court that the orders

which have been passed by revisional authority is in gross

violation of principles of natural justice, and therefore, on

that count alone the order passed by the revisional

authority is not sustainable. Be that as it may, now since

in view of the broad consensus without much going into

the details since the petitioner has undertaken through

the learned Senior Counsel to pay the premium as on date

which may be determined for such alleged breach without

examining further, the impugned orders in view of the

aforesaid discussions are quashed and set aside.

However, it will be open for the respondent-

authorities to take appropriate proceedings in accordance

with law in case of any further violation of any of the

condition of allotment which may be noticed by them. It

is further made clear that the respondent-authorities are

required to determine the premium as on date payable by

the petitioner with respect to the aforesaid alleged breach

and in view of the concession which has been given by

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the learned Senior Counsel on specific instructions by the

petitioner, the same shall be paid at the earliest in a time

schedule which may be determined by the authority itself.

9. With these observations and direction, petition is

allowed. Rule is made absolute to the aforesaid extent

with no order as to costs.

Sd/-

(ASHUTOSH J. SHASTRI, J) A.M.A. SAIYED