Legal Heirs Of Kathiriya Moijbhai ... vs Special Secretary Revenue ...
2021 Latest Caselaw 236 Guj

           C/SCA/121/2021                                    ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 121 of 2021

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          LEGAL HEIRS OF KATHIRIYA MOIJBHAI ABDEALI
                            Versus
      SPECIAL SECRETARY REVENUE DEPARTMENT (APPEALS),
                         AHMEDABAD
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,1.1
MR. MRUGESH A BAROT(6709) for the Petitioner(s) No. 1,1.1
for the Respondent(s) No. 2,3,4,4.1,5
MR KRUTIK PARIKH AGP (99) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE

                            Date : 08/01/2021

                              ORAL ORDER

1. In this petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 20.11.2020 passed by the respondent No.1 in Revision Application No.JMN/Dahod/7 of 2018 as also the order dated 21.3.2018 passed by the respondent No.2 in JMN/Sharatbhang/SR/06/2015.

2. The facts giving rise to the present petition move in a narrow compass.

3. It is the case of the petitioner that land bearing Survey No.115 admeasuring hectare 1-00-00 sq. metre of village Usarvan, Taluka Dahod, District Dahod was allotted to Moijbhai Abdeali Kathiriya by respondent No.2 vide order dated 3.3.1999 for industrial purpose. A factory in the name and under the style of "Panchmahal Processor" was set up for manufacturing of machineries, spare parts and casting. The industrial activity was carried out till 2005, however, due to recession and financial

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crunch, it became difficult to run the business. Therefore, an application dated 24.9.2005 was made to the respondent No.2 for granting permission to transfer/sell the subject land. The respondent No.2 rejected the application on 29.1.2007 on the ground that the subject land was not utilised for the purpose for which it was granted. The respondent No.2 thereafter issued notice dated 1.2.2007 for breach of the conditions of allotment of the subject land. The show-cause notice was resisted by filing written reply to it. During the pendency of the proceedings of the show-cause notice, the respondent No.2 passed an order dated 31.9.2011 rejecting the application for permission to transfer/sell the subject land on the ground that it is new tenure land and fifteen years were not over.

4. The original allottee thereafter executed one notarized agreement to sell on 18.8.2005 in favour of Majahir Jabir Nagadi coupled with power of attorney dated 24.8.2005. A rent agreement in favour of respondent No.5 came to be executed on the basis of power of attorney and accordingly, respondent No.5 claims to be in possession of the subject land.

5. It is relevant to note at this stage that the original allottee of the subject land Moijbhai Abdeali Kathiriya and Majahir Jabir Nagadi in whose favour an agreement to sell was executed have expired in the intervening period and the petitioner and the respondent No.4 happens to be their respective legal heirs.

6. Respondent No.5 in whose favour the rent agreement was executed by deceased Majahir Jabir Nagadi preferred a petition in this court being Special Civil Application No.11452 of 2014 for direction to respondent No.2 to decide his representation for allotment of subject land. This court, by order dated 25.8.2014, directed the respondent No.2 to decide the representation of respondent No.5 in accordance with the applicable rules

C/SCA/121/2021 ORDER

and policy.

7. The respondent No.2, for the effective disposal of the representation of the respondent No.5, issued notice dated 8.9.2015 to the petitioners who are the legal heirs of the original allottee. They resisted the representation of respondent No.5 by filing written submissions. The respondent No.2, upon consideration of relevant material placed before him by the parties, found that the subject land was transferred by original allottee in breach of the conditions of the allotment letter and, therefore, by order dated 21.3.2018 confiscated the land to the Government. The order of the respondent No.2 was challenged by the petitioner by preferring revision application before the respondent No.1 which also came to be dismissed on 20.11.2020. Hence, this petition.

8. I have heard Mr. Vimal Purohit, learned advocate for the petitioners and Mr. Krutik Parikh, learned AGP for the respondent No.1.

9. Mr. Vimal Purohit, learned advocate vehemently submits that the impugned orders suffer from the breach of the principles of natural justice. It is his submission that the respondent No.2 has passed the order in compliance of the directions of this court to decide the representation of the respondent No.5. It is his further submission that the impugned order of the respondent No.2 is beyond the scope of notice dated 8.9.2015. He submits that the notice was given to the petitioner for the purpose of deciding the representation of the respondent No.5 in compliance of the directions issued by this court. It is his further submission that the competent civil court where the respondent No.4 had instituted suit for specific performance has also not granted specific performance. It is his further submission that the petitioners are still in possession of the subject land which is never transferred in favour of either the respondent No.4 or the respondent No.5.

C/SCA/121/2021 ORDER

10. Relying upon the decision of this court in the case of Anand D. Lodariya Salt and Storage Pvt. Ltd. And another v. State of Gujarat reported in 2013 (1) GLR 558, he submits that the impugned order is passed by the respondent No.2 on the basis of extraneous material and beyond the scope of show-cause notice. Hence, he submits that the petition deserves consideration.

11. On the other hand Mr. Krutik Parikh, learned AGP has supported the impugned orders and he has invited the attention of this court to the order passed by this court on 25.8.2014 in the writ petition preferred by the respondent No.5, to submit that this court had directed the respondent No.2 to consider the representation of the respondent No.5 in accordance with the applicable rules and policy. It is his submission that the petitioners were afforded sufficient opportunity to put up their case, however, it is abundantly clear from the submissions of the petitioners that the original allottee had transferred the land by way of a banakhat and power of attorney in favour of respondent No.4 and thereby committed breach of condition of allotment of the subject land. He, therefore, submits that the breach of condition is writ large on the record and hence, the present petition does not deserve consideration.

12. Having heard the learned advocates on either side, the undisputed fact that emerges from the record is that the subject land was allotted in the year 1999 to Moijbhai Abdeali Kathiriya for industrial purpose. It is also an undisputed fact that a factory for manufacturing machineries, spare parts was set up by him, however, due to recession and financial crunch, the factory ran into rough weather. He, therefore, approached the respondent No.2 for permission to sell the subject land which was rejected as subject land was new tenure land and 15 years had not passed.

C/SCA/121/2021 ORDER

13. It also emerges from the record that the 1original allottee had parted possession of the subject land in favour of the respondent No.4 by way of agreement to sell and power of attorney though the said fact is denied by the petitioners who are the legal heirs, however the stand of the petitioners falls flat on the ground in the face of the judgment of the civil court which has found that the agreement to sell was indeed executed in favour of the respondent No.5, however, specific performance of the agreement was not possible in view of restriction on transfer. Hence, in place of the order of specific performance, the petitioners who were very well there before the civil court upon the death of the original allottee, are directed to pay a sum of Rs.18 lakhs with 10% interest to the respondent No.4.

14. I am, therefore, of the view that now in the face of the judgment of the civil court, it does not lie in the mouth of the petitioners to contend that the original allottee had not transferred the land in favour of the respondent No.4.

15. It is also worthwhile to note that the notice dated 29.1.2007 issued by the respondent No.2 to the original allottee was still alive and, therefore, after considering the matter in holistic manner, the respondent No.2 has by a reasoned order recorded a finding that the subject land was alienated by the original allottee in breach of condition of allotment and, therefore, I am of the view that the present petition lacks merit and deserves to be dismissed at the threshold and the same is accordingly, dismissed.

(A.G.URAIZEE, J) Z.G. SHAIKH