Parbatbhai Nagdanbhai Dangar vs State Of Gujarat Through The ...
2021 Latest Caselaw 15728 Guj

     C/LPA/777/2018                              JUDGMENT DATED: 06/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 777 of 2018

             In R/SPECIAL CIVIL APPLICATION NO. 6422 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J.B.PARDIWALA

and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                PARBATBHAI NAGDANBHAI DANGAR
                            Versus
      STATE OF GUJARAT THROUGH THE SECRETARY & 1 other(s)
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Appearance:
MR DIGANT B KAKKAD(6523) for the Appellant(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 06/10/2021

                      ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)

1. This appeal under Clause 15 of the Letters Patent is at the instance of the original writ-applicant and is directed

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against the order passed by a learned Single Judge of this Court dated 23.4.2018 in the Special Civil Application No.6422 of 2018 by which the learned Single Judge dismissed the writ- application on the ground that the writ-applicant has alternative remedy of filing Revision Application against the order of the Collector.

2. The facts giving rise to this appeal may be summarised as under :-

2.1 One Mohanlal Laljibhai Patel, Power of Attorney Holder of erstwhile owner, applied for non-agricultural permission with respect of land bearing Survey No. 28, plot No. 190, Green City, Bypass road, Chobari, District Junagadh. It appears that non-agricultural permission was granted by the Gram Panchayat. Thereafter, the land was purchased by way of a registered sale deed dated 28.3.2008 by one Indumati S. Dave and Manishaben M. Dave. Subsequently, the writ-applicant purchased the said land from the said erstwhile owner on 14.8.2015 by a registered sale deed. It appears that with respect to the non-agricultural permission granted on 9.12.1988 by the Gram Panchayat, a show cause came to be issued by respondent No.2, Collector, for breach of conditions mentioned in the order. The Collector proceeded to pass the order dated 7.3.2018 in the Case No.Land/1/C/5664/B.K.S.B./Case Reg.No.30/17-18, whereunder he imposed penalty of Rs.99,650/- upon the writ-applicant and extended the time period for completion of construction work for a period of one year in accordance with the conditions as stipulated in the main order dated 9.12.1998. The operative para of the order dated 7.3.2018 is produced thus :-

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"(1) As per prevailing rate of non-agriculture assessment at Rs.0.25 Ps. per Sq. Mts., penalty of Rs.99650/- in words Rupees Ninety Nine Thousand Six Hundred Fifty only is imposed towards twenty years fine calculating Rs.4982.50 Ps. per year being 40 times premium of the non-agriculture assessment of Plot No.190, admeasuring 498.25 Sq. Mts. of Rs.124.56 Ps.

(2) The time-limit of the original non-agriculture order, is hereby extended for one year from the date of this order, to make construction in the plot in question as per the conditions of the original order of non-agricultural permission and conditions contained in the annexure. Remaining conditions shall remain unaltered."

3. Being aggrieved and dissatisfied with the order passed by the Collector the writ-applicant approached this Court by filing the Special Civil Application No.6422 of 2018. The learned Single Judge while dismissing the writ-application made the following observations in paragraphs 5 to 7 which reads thus :-

"5. There is no gainsaying that the petitioner has got the remedy of filling Revision Application against the order of the Collector impugned in this petition. When the alternative statutory remedy is available and the petitioner has not exhausted the same and has approached this court by invoking the writ jurisdiction directly, the court is not inclined to entertain the writ petition permitting the petitioner to bypass the alternative remedy.

5.1 All the contentions including those raised in the petition

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as well as raised during the course of hearing, can be raised by the petitioner in the alternative pursuit. Leaving all such contentions open, the petitioner is required to be relegated to the alternative remedy.

6. On the aforesaid ground alone, this petition is not entertained. The petitioner is at liberty to approach the higher forum, which is the alternative remedy under the law.

7. The petition stands dismissed accordingly."

Submissions on behalf of the appellant (writ-applicant) :-

4. Mr. Digant B. Kakkad, the learned counsel appearing for the appellant submitted that the land bearing Survey No. 28, plot No. 190, Green City, Bypass road, Chobari, District Junagadh was purchased by the appellant after 7 years of the order of grant of Non-Agricultural Purpose i.e. No. Order No. G.P/N.A/31/98-99 dated 09.12.1998.

4.1 He submitted that as per the provisions of Section 67 of the Land Revenue Code, the Collector has been vested with the power to grant permission for use of agricultural land for Non- agricultural use. The permission granted could not be a bounden duty casted upon the appellant that the appellant ought to start with the Non-agricultural use. It was submitted that Non-Agricultural usage permission merely enables the appellant to start Non-agricultural usage that too after paying appropriate premium and conversion charges determined by the appropriate authority.

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4.2 He submitted that while granting the NA Permission, the Collector had already recorded that the premium was paid by the original applicant of the NA Application. Thus, imposing further penalty of Rs. Rs. 99,650/-(Rupees Ninety Nine Thousand Six Hundred and Fifty ) for not commencing construction is illegal and suffers from non-application of mind.

4.3 He submitted that the word "permission" itself means that the holder of the land is permitted to use the land for non-agricultural purpose. After obtaining permission, it cannot be considered as a mandatory duty of the holder and that the conditions are directory in nature.

4.4 He submitted that, a mere application for NA and grant of permission for Non-agricultural use cannot be a compelling circumstance for using the land for non-agricultural purpose and such permission can at the most be read as enabling to the holder of the land to use it for non-agricultural purpose.

4.5 He submitted that an identical issue is decided by this Court in the Special Civil Application No.16620 of 2016 decided on 22.9.2017. The relevant observation in para-36 reads thus :-

"I have reached to the conclusion that the condition imposed in the order granting N.A. prescribing the time limit within which the development is to commence and also the time period within which the development should be completed, is arbitrarily, unreasonable and without any nexus with the object sought to be achieved of such a condition. "

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4.6 He submitted that in 2008 (1) GLR 202, this Court has held that the state cannot compel citizens to start or not to start non-agricultural usage of the property. He further submitted that the condition amounts to technical breach and that such conditions can be directory in nature, as laid down by this Court in Dahyabhai Laldas Vs State of Gujarat, [1997(2) GLH 633].

4.7 He submitted that the learned Single Judge has merely dismissed the Special Civil Application on the grounds of availability of an alternative remedy, but the learned Single Judge has failed to appreciate the arbitrary and unreasonable nature of the order by the Respondent No.2 as the state cannot compel its citizens to work in a mechanical manner.

4.8 He placed reliance on the decision in the case of Whirlpool Corporation v. Registrar of Trade Marks and Ors., AIR (1999) SC 22 decided by the Apex Court, wherein, the Apex court while considering the scope of writ under article 226 has observed that if any action taken by the state authorities is against the principles of natural justice, without jurisdiction and violates the fundamental rights of citizen, then, the option of alternative remedy may not stand as an absolute bar for the protection of the rights of the aggrieved person.

4.9 Lastly he submitted that in the present case, the respondent authorities have imposed condition to complete the construction within certain time frame while granting NA permission and such conditions are arbitrary, unreasonable and without any nexus with the object sought to be achieved of

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such a condition. Thus, the Appellant's right to enjoy his property has been unconditionally violated by the arbitrary action of the respondent authorities and erred into grave failure of natural justice.

Submissions on behalf of the respondent - State :-

5. Mr. Kanva Antani, the learned AGP appearing for the respondent No.1 - State submitted that the order passed by the learned Single Judge was just and proper. He submitted that the learned Single Judge has relegated the appellant to avail statutory alternative remedy and has not adjudicated the writ-application on the merits. He submitted that the appellant ought to have exhausted the statutory remedy available to the writ-applicant and that the appeal be dismissed in limine.

6. We have heard Mr. Digant B. Kakkad, the learned counsel appearing for the appellant and Mr. Kanva Antani, the learned AGP appearing for the respondent No.1 - State.

Analysis :-

7. The issue raised in this appeal is with regard to the order passed by the Collector dated 7.3.2018 in the Case No.Land/1/ C/5664/B.K.S.B./Case Reg.No.30/17-18, wherein the Collector imposed penalty of Rs. 99,650/- to the writ-applicant while extending the time period for completion of construction work for a period of one year in accordance with the conditions as stipulated in the main order dated 9.12.1988 by the Gram Panchayat. The said issue has been dealt with by this Court in catena of decisions as relied upon by the learned counsel appearing for the appellant.

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7.1 In the Special Civil Application No.4037 of 1989 decided on 30.4.1996 wherein para-8 reads thus :-

"(8) Besides, fixation of the time-limit for the purpose of completion of the construction work pursuant to the order at Annexure A to this petition was a directory condition and not a mandatory condition. The N. A. permission could not have been cancelled if the deceased could not have completed the construction work within the stipulated time-limit on account of certain circumstances beyond his control like non- availability of construction material in whatever form for a reasonably long period. In that case, the authority might have been required to extend the time-limit on being satisfied about the genuineness of the ground for its extension. In that view of the matter, omission on the part of the deceased in making an application for extension of the time-limit for completion of the construction work can be said to be a mere technical breach not warranting any serious or severe action of cancellation of the N.A. permission. Respondent No. 2 appears to have remained oblivious to this aspect of the matter. The impugned order at Annexure F to this petition as affirmed in revision by the order at Annexure G to this petition cannot therefore be sustained in law on the ground of non-application of mind on the part of its author."

7.2 In Special Civil Application No.6579 of 2007 decided on 1.5.2007, wherein para-5 read thus :-

"5. Having heard the learned counsels for both the sides and looking to the facts and circumstances of the case, the order

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dated 4th July/August, 2005 passed by the respondent no. 3 District Development Officer, Vadodara (at Annexure "G" to the memo of the petition is hereby quashed and set aside mainly for the following facts and reasons:

(i) The present petitioner applied for Non-agricultural usage permission for the land bearing survey no.136/3 situated at village Tulsigam, Ta: Savli, Dist: Vadodara, admeasuring 55652 sq.mtrs. for excavation of stones. Non-agricultural usage permission was granted by the concerned respondent authorities on 26th March, 1997 and 4th October, 1997. The petitioner continued with agricultural upon the land in question. Non-agricultural usage was never started. Looking to the facts of the present case and the provisions of the Bombay Land Revenue Code, NA permission granted is not the duty cast upon the petitioner that the petitioner ought to start with non-agricultural usage. On the contrary, it is the power vested in the petitioner to whom NA permission is given to start or not to start non-agricultural usage of the property.

(ii) Looking to the facts of the present case, for the land bearing survey no. 132, 131 and 135 after getting NA permission, the petitioner continued agricultural usage and has not excavated stones from the land in question. It is not the case of the respondents that non-agricultural usage has already been started and therefore, there is no question of non-agricultural assessment for the land in question whatsoever arises. There is no breach of section 67 of the Code of 1879. Non-agricultural usage

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permission merely enables the petitioner to start non- agricultural usage. The State cannot compel citizens to start with non-agricultural operations no sooner did NA permission is given.

(iii) Looking to the facts and circumstances of the case, despite alternative remedy is available, I see no reason to relegate the present petitioner to alternative remedy. In fact, alternative remedy is no bar for entertaining the petition. In the facts of the present case, the present petitioner continues with agricultural operation for the land bearing survey no. 132, 131 and 135. With this admitted fact, I see no reason to relegate the present petitioner to for alternative remedy."

7.3 In the Special Civil Application No.16620 of 2016 the Court made the following observations in paragraphs 34 to 40, which reads thus :-

       "34. I          do     not      dispute      that    the    power        to      grant
       N.A.      permission            is administrative in nature and it would be

within the discretion of the authority to grant such permission, but I am not prepared to accept the rhetoric appeal of the learned A.G.P. that such discretion is unfettered, unbridled, and untrammelled. In a State governed by rule of law the discretion can never be absolute. Its exercise has always to be in conformity with rules or guidelines prescribed in the contradiction to being whimsical and should not smack of an attitude of "so let it be written, so let it be done".

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35. Even while interpreting a statute or a rule, one needs to bear in mind that the legislature does not intend what is inconvenient and unreasonable. If a rule leads to an absurdity or manifest injustice from any adherence to it, the Court can step in. A statute or a rule usually should be most agreeable to convenience, reason and should do justice to all. The approach of Bentham regarding law is to deliver the maximum benefit/utility to the people with minimum amount of friction/inconvenience to others. Even while exercising administrative power, a condition should not be imposed without a purpose or object and when it is found so, it is to be struck down, further when it is found that the object is illusory.

36. I have reached to the conclusion that the condition imposed in the order granting N.A. 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.

37. The Government Resolution referred to above, more particularly, clause 8, which, at the cost of repetition, is reproduced hereinbelow:

"Every competent authority issuing nonagriculture permission shall attach Schedule-4 with the order giving nonagriculture permission without fail and it shall be clearly informed to the applicant that this approval is given subject to conditions of Schedule-4, and a mention

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to the effect that the applicant will be required to follow conditions mentioned therein, shall be made in the order, and it will also be required to be mentioned that if applicant violates any of the conditions therein, action for violation of condition will be taken against him."

38. The above makes it clear that if any conditions are to be imposed, the same shall be in accordance with the Schedule - 4 attached to the resolution.

39. In the result, this writ application succeeds and is hereby allowed. The impugned communication dated 1st July 2016 at Annexure : "A" (page: 16 to this petition) is hereby quashed. For the reasons recorded in this judgment and order, the condition No.7 imposed in the order dated 23rd August 2013 by the Collector, Jamnagar should be ignored and will have no legal bearing. Rule is made absolute to the aforesaid extent.

       40. A           copy        of      this     judgment      be       sent       to      the
       Principal           Secretary, Revenue Department, State of Gujarat so

that appropriate instructions can be issued to all the District Collectors functioning in the State of Gujarat."

7.4 In view of above, the position of law is clear that though the Collector is vested with the power to grant permission for use of agricultural land for non-agricultural use, it could not have been a time bound permission. As on date the construction is over and there is a existing structure as stated by the learned counsel appearing for the appellant. Since the

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facts are undisputed and admitted, we see no reason to relegate the appellant to avail statutory alternative remedy. In view of the above, the order passed by the Collector dated 7.3.2018 in the Case No.Land/1/C/5664/B.K.S.B./Case Reg.No.30/17-18 is hereby quashed and set aside.

7.5 In the result, the appeal is allowed and the order dated 23.4.2018 passed in the Special Civil Application No.6422 of 2018 by the learned Single Judge is hereby quashed and set aside.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED