Shankarlal Mohanlal Prajapati vs Collector, Bnanaskantha
2021 Latest Caselaw 2462 Guj

         C/SCA/12700/2006                                        JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12700 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
===========================================================
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 ?

================================================================
                   SHANKARLAL MOHANLAL PRAJAPATI
                                Versus
                  COLLECTOR, BNANASKANTHA & 2 other(s)
================================================================
Appearance:
MR MEHUL H RATHOD(701) for the Petitioner(s) No. 1
MR DHARMESH DEVNANI AGP for the Respondent(s) No. 1
MR DHAVAL M BAROT(2723) for the Respondent(s) No. 3
RULE SERVED(64) for the Respondent(s) No. 2
================================================================

    CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                               Date : 17/02/2021

                               ORAL JUDGMENT

The present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following reliefs:­

"[A] be pleased to admit and allow this petition;

[B] be pleased to quash and set aside the order dt. 24.03.1992 at annexure 'A' to this petition passed by the respondent no.2, the order dt. 16.08.1999 at

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annexure 'B' to this petition passed by the respondent no.1 and the order dt. 29.03.2006 at annexure 'C' to this petition passed by Ld. Joint Secretary (Appeals), Revenue Department, Gujarat State by issuing suitable writ, direction and/or order under Art.226 of the Constitution of India;

[C] Be pleased to grant stay against execution, operation and implementation of order dt. 24.03.1992 at annexure 'A' passed by the respondent no.2, the order dt. 16.08.1999 at annexure 'B' passed by the respondent no.1 and the order dt. 29.03.2006 at annexure 'C' passed by Ld. Joint Secretary (Appeals), Revenue Department, Gujarat State at Ahmedabad till this petition is heard and decided.

[D] be pleased to grant any other relief as may be deemed fit in the facts of the case."

2. The case of the petitioner is that the petitioner made an application for allotment of plot as free allotment under the scheme of the respondent authority for residential purpose. Pursuant to the said application of the petitioner, independent verification has been made by the authority and having found that the petitioner is eligible to be allotted a plot for residence, the allotment has taken place vide order dated 14.04.1982 and 100 sq. yrds. plot on free of cost basis has been allotted to the petitioner. Many such plots have been allotted to such similarly situated persons approximately 400­500 persons in number. The case of the petitioner is that after allotment, the house has been constructed and for that, financial assistance of Rs. 1250/­ was taken at the relevant point of time and a certificate about completion of construction of house has also been given by the Additional Assistant Engineer on 26.09.1983. The petitioner started residing in the said house and paying the house taxes as well as other cess to the panchayat. The case of the petitioner is that after almost more than 10 years from the date of allotment and construction of house, respondent No.2 authority unilaterally without granting any opportunity to the petitioner

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has passed an order canceling the allotment on the premise that the father of the petitioner had already got 50 sq. yrds. plot at the relevant point of time and the same has not been disclosed by the petitioner and by virtue of order dated 24.03.1992, an order came to be passed against the petitioner.

2.1 Feeling aggrieved by the same, the said order came to be challenged by way of an appeal which was registered as Appeal No. 31 of 1997. However, in a cryptic manner, learned Collector dismissed the appeal vide order dated 16.08.1999. As a result of this, the petitioner also filed Revision Application No. 102 of 1999 before the learned Joint Secretary (Appeals), Revenue Authority, State of Gujarat, Ahmedabad, but according to the petitioner, without examining any aspect, the revision application has also been dismissed in a mechanical manner which has given rise to filing of this petition before this Court in the present form.

2.2 This petition appears to have been admitted on 22.08.2006. By way of issuing notice on 03.07.2006, the possession and construction on the property was directed to be maintained and respondent No.2 - Assistant Collector was directed to see that the original record is made available to the Court for perusal on the aspects as to whether the requirement of the existing land on the date of allotment was of the person concerned or was also for the father or any other members of the family. In response to the said order, it appears that an affidavit has been filed by respondent No.1 - Deputy Collector one Rameshchandra Surtanbhai Kishori.

2.3 With the above background of facts, the present petition is taken up for final consideration before this Court.

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3. Heard learned advocate Ms. Nilam Chauhan appearing on behalf of learned advocate Mr. Mehul Rathod for the petitioner, learned Assistant Government Pleader Mr. Dharmesh Devnani for respondent No.1 and learned advocate Mr. Dhaval Barot for respondent No.2.

4. Learned advocate Ms. Nilam Chauhan appearing on behalf of learned advocate Mr. Mehul Rathod for the petitioner has vehemently contended that the order in origin which has been passed is after unreasonable period of more than 10 years and that too, the same was passed without granting any opportunity of hearing to the petitioner. The reason which has been assigned tantamounts to attributing something upon the petitioner and as such, an opportunity of hearing ought to have been extended to the petitioner. Apart from that, learned advocate Ms. Chauhan has contended that the allegation which has been leveled against the petitioner about non­disclosure is not germane to the record as in the application form which has been produced on page 49 of petition's compilation vide Annexure R­V, every aspect about members in the family is disclosed by the petitioner and specific information have been assigned at the relevant point of time and there is nothing which is not disclosed. Learned advocate has further contended that the allotment has taken place after physical verification of the aspects by appropriate authority which are very much reflecting in the orders dated 18.07.1981 and 14.04.1982 on page 23 of the petition's compilation and has pointed out from the said order that even the Circle Inspector, Talati­cum­Mantri as well as Sarpanch have physically verified the eligibility of the petitioner and therefore, had the opportunity been given, this aspect could have been brought to the notice of the authority right from the very day of allotment. Learned advocate has submitted that the petitioner has put up the construction and is actually residing in the house with family members and paying taxes to the authority and enjoying the property. Learned advocate has contended that since the authority has not taken into consideration all those aspects and the order

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in origin is in violation of principles of natural justice, the reliefs prayed for in the petition deserves to be granted. Apart from that, learned advocate Ms. Chauhan has submitted that the order is sought to be passed after unreasonable period of more than 10 years and upon such submission, has reiterated a request to set aside the impugned orders and grant the reliefs prayed for in the petition.

5. As against this, learned Assistant Government Pleader Mr. Dharmesh Devnani appearing on behalf of the authorities has submitted that while passing the impugned orders, the authorities have applied their mind and having found that the petitioner was not eligible in view of the scheme, the order has been passed in proper and just manner. But, learned AGP Mr. Devnani could not oppose the submission that the powers are exercised after almost more than 10 years and he has not been able to be confront with a situation reflecting on page 49 in the application at Annexure R - V that the particulars appears to have been disclosed by the petitioner and in view of the fact that right from day one, the petitioner is uninterruptedly residing with the family over the constructed land in question, has left to the discretion of the Court.

6. Learned advocate Mr. Dhaval Barot appearing on behalf of respondent No.3 has submitted that at the time of allotment, proper verification was made and since it was found that the petitioner was eligible in view of the scheme, free allotment of the plot for residence has been made. Learned advocate has not disputed the fact that the petitioner is residing with his family over the constructed house/land in question and has also submitted that since pretty long period has taken place and the petitioner all throughout has been protected, there is no point to remand the matter back to the authority.

7. In view of above submissions of learned advocates for the parties, instead of remanding the matter after these many years, it is

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desirable in the interest of justice to deal with the matter on merits after examining the rival contentions.

8. Having heard learned advocates for the respective parties and having gone through the material on record, it appears that the allotment of the plot to the petitioner has taken place after physical verification which is very much reflecting from the order of allotment itself on page 23 and only after satisfying with the particulars which are placed on record by the petitioner in the application, upon due verification, allotment has been granted in favour of the petitioner. It further appears that there is no violation of any of the conditions of allotment and it is only on mere non­disclosure of material particular, the powers are exercised after a period of more than 10 years. In considered opinion of this Court, it is therefore cannot be said to be a reasonable period for exercise of such discretion.

9. Further, it appears from the record and on perusal of the application which has been filled in by the petitioner that the petitioner undisputedly did mention the particular in column No.9 as well as Column No.11 and has pointed out that they were residing in joint family and therefore, prima facie, it does not appear to this Court that there is non­disclosure on the part of the petitioner. Be that as it may, the exercise of discretion undertaken by the authorities below is not in consonance with the settled principles of law and as such, the Court is of the considered opinion that the case is made out by the petitioner to call for interference. The contentions which have been raised by learned advocate for the petitioner are well supported by the material on record and the allegation which is leveled against the petitioner has remained unexamined in its proper perspective. The same being in gross violation of principles of natural justice at the initial stage itself, so this Court is of the opinion that the orders passed by the authorities below are required to be quashed and set aside.

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10. In view of above, the petition is accordingly allowed. Order dt. 24.03.1992 passed by respondent no.2, order dt. 16.08.1999 passed by respondent no.1 and the order dt. 29.03.2006 passed by Ld. Joint Secretary (Appeals), Revenue Department, Gujarat State, Ahmedabad are hereby quashed and set aside. Rule is made absolute.

(ASHUTOSH J. SHASTRI, J)

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