Radhe Enterprise vs State Of Gujarat
2021 Latest Caselaw 15009 Guj

    C/SCA/11228/2007                               CAV JUDGMENT DATED: 24/09/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11228 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SONIA GOKANI

==========================================================

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 ?

========================================================== RADHE ENTERPRISE & 1 other(s) Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

MR PRAKASH K JANI(355) for the Petitioner(s) No. 2 MR PRAVIN P PANCHAL(2059) for the Petitioner(s) No. 1 SHIVANG P JANI(8285) for the Petitioner(s) No. 1 GOVERNMENT PLEADER(1) for the Respondent(s) No. 1 RULE SERVED BY DS(65) for the Respondent(s) No. 2 ==========================================================

CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI

Date : 24/09/2021

CAV JUDGMENT

1 Petitioners under Article 226 of the Constitution of India have

preferred this petition in connection with land bearing Survey

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

No.1062 admeasuring 140.49 sq.meters situated in Mehsana.

The owners of this property Suthar Jitendrakumar Amrutlal and

Trikamlal Damodardas were granted the land under

Schedule-H of section 133 of the Bombay Land Revenue Code,

1879 ("the Code" for short), which has been converted into non-

agricultural land. The owners had put up construction and they

continued to pay necessary taxes to the Municipality.

2 The property purchased by the petitioners was by a registered

sale deed executed on 29.11.1991. The petitioners were also

registered as occupants by the City Survey Superintendent on

11.12.1991.

3 On 07.02.1992, the petitioners submitted an application to

Mehsana Urban Development Authority with a request to

permit construction, which was allowed by resolution No.3(7) of

the Town Planing Committee dated 22.04.1992. Necessary

charges were also paid on 27.04.1992 . The petitioners had

desired construction of shops on the Plot No.12 of Revenue

Survey No.1119 paiki and the total area of plot is 140 sq.meters

and the built up was proposed as 38.65 sq.meters and the

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

permissible built up area was 56.19 sq.meters. Rest of the area

was to be kept open as per the rules.

4 The petitioners constructed these shops and they were sold to

different persons in the year 1993 by way of different registered

sale deed. The names of these purchasers also have been

recorded in the property card.

5 On 04.12.2000, the District Collector issued the notice to about

four persons, which included the present petitioners on the

ground that the petitioners have put up construction in the

margin land, which was impermissible. This was replied on

16.01.2001 where the details were provided as to how their

permission for construction was sought. On 31.01.2001, the

District Collector, after hearing the parties, passed an order on

the ground that the petitioners have constructed property

contrary to the lay out plan sanctioned and ordered to remove

such construction.

6 A revision application was filed being Application No.9 of 2001

under section 29H of the Code before the Special Secretary on

20.02.2001. The order of status quo was passed. However on

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

08.03.2001 Joint Secretary, Revenue Department dismissed the

revision application by confirming the order of District Collector

dated 31.01.2001. Therefore, the present petition with the

following prayers:

"(18) The petitioner, therefore, most humbly and respectfully prays that:

(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order 23.03.2007 passed by the Joint Secretary, Revenue Department, in Revision Application No.9 of 2001( at Annexure-P hereto) as well as order 31.01.2001 passed by the District Collector in N.A./Sharatbhang/Case No.56 of 2000( at Annexure-L hereto);

(B) Pending admission, hearing and final disposal of this writ petition YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of order 23.03.2007 passed by the Joint Secretary, Revenue Department, in Revision Application No.9 of 2001(at Annexure-P hereto) as well as order 31.01.2001 passed by the District Collector in N.A./Sharatbhang/Case No.56 of 2000 (at Annexure-L hereto);

(C) Such other and further relief, as are deemed fit, in the facts and circumstances of this case may kindly be granted."

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

7 This Court, while issuing rule, granted interim relief in terms of

paragraph No.18B and the same has continued to protect the

petitioner as there has been a stay on the further operation

and prevention of the order dated 23.03.2007 passed by the

Joint Secretary in Revision Application No.9 of 2001, which

confirmed the order of the District Collector dated 31.01.2001.

8 Affidavit-in-reply is filed by Resident Additional Collector,

Mehsana, who denied all averments, has urged that the

petition itself is not maintainable inasmuch as the petitioners

have sold off the property and they have no interest in the land

in question or in its construction, which has been carried out. It

is further contended that the Collector, Mehsana had accorded

permission for construction of shops on 128 sub-plots of Survey

No.1119 paiki land admeasuring 1214.01 sq.meters, where the

built up area was permitted in 974.29 sq.meters and was

directed to be kept open.

8.1 According to him, the lay out plan in sub-plot No.8 shows

that the petitioner constructed six shops in the margin land

and construction admeasuring 81.15 sq.meters is

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

unauthorised and illegal. Moreover, as per the plan 4.15

sq.meters of margin land was directed to be kept open on

one road, which is passing from Gayatri temple. Shops

No.4,5 and 6 on a land adjacent to Mehsana, Visnagar, were

constructed contrary to the sanctioned plan and

construction is held unauthroised. Therefore, the Collector

and Special Secretary, Revenue Department (SSRD) have

directed removal of unauthorised construction.

8.2 According to this authority, permission has to be

accorded by the Municipality as per the NA and anything

done contrary to the same would become nullity. Shops No.1

to 6 have been transferred to the third parties. However, no

details including the revenue record have been submitted.

Hence, the subsequent purchasers have not been issued

the notice.

9 Mr.Prakash Jani, learned Senior Advocate appearing for the

petitioner has urged that the non-agricultural permission of

conversion into land is given on 01.11.1973. Till date, it is not

placed on the record by the Collector. He has further urged

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

that to the show cause notice of 04.12.2000, reply is given on

16.01.2001 and the order came on 31.01.2001. Before the Joint

Secretary, Revenue Department, written submissions were

made and the revisional authority confirmed the order of the

Collector on 07.04.2007. He has further urged that at no stage,

N.A. order has been supplied by the learned Assistant

Government Pleader. Admittedly, the land has been converted

into N.A. land.

9.1 He has urged that the purchase was of a part of the land

bearing Plot No.12 of 140 sq.meters. City Survey also has

recorded this aspect and the name of present petitioners

have been mutated. According to him, plotting has been

done of Survey No.1119. Therefore, it would be vital to see the

N.A. permission. He has urged fervently that again the

Collector initiated proceedings after the delay of 07 years

on 04.12.2000. The permission was granted on 07.05.1992 by

the Municipality and he has already sold the shops to the

third party on 08.04.1999, 07 years after the Collector has

initiated the proceedings. He has relied on the decision of

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

State of Gujarat vs. Patel Raghav Natha , 1969 (2) SCC 187

and urged that within reasonable time, the authority could

have initiated actions. He has also lamented that the

revisional authority has not dealt with the authorities

pressed into service by the petitioner. It is at the best to be

treated as irregularity. It has cursorily dealt with matter

where no reason has been given nor any detail is furnished.

10 Per contra, learned Additional Public Prosecutor Ms. Jhaveri for

the respondent-State has urged that this petition concerns

140 sq.meters of area out of entire Survey No.1119, which has

been converted into non-agricultural land. Original owners

have sold the Plot No.12 to the present petitioners, which is part

of NA area. The total area is 140 sq.meters transferred by way

of sale deed. In the reply, the present petitioners have not

stated that they have transferred the land. If the construction

is done in the year 1993, it has been sold in the year 2000, at the

best, it is the third party, which is entitled to any such petition, if

its right is affected. Neither there is any monetary right nor any

propriety right in the land with the present petitioners. The sale

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

deed, in favour of the third party, done by the present

petitioners in the year 1993, as the partner of Radhe Enterprise,

the subsequent sale on their part has not come on the record.

However, the Collector's notice of breach of condition is

addressed to the present petitioners and also to Lalitaben

Natvarlal Patel, Bhil Sardarji Motiji, Bhavsar Babulal Khushaldas,

Patel Kaileshben Hasmukhlal Mafatlal, insisting on

unauthorised construction of these shops in margin lands to

be removed. It is urged that the present petitioners have urged

for regularisation vide its application dated 16.01.2001. Learned

Additional Public Prosecutor thus has urged to dismiss the

petition.

11 Learned advocates on both the sides thus have been

extensively heard and for the reasons to follow hereinafter, the

petition deserves dismissal, with certain direction.

12 Land bearing City Survey No.1062 situated at Mehsana, Plot

No.12 admeasuring 140.49 sq.meters, was originally owned by

Mr. Suthar Jitendrakumar Amrutlal and Trikamlal

Damaodardas by way of a registered sale deed on 29.11.1991

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

for the consideration of Rs.61,111/-. In the property card,

subsequently the names of Radhe Enterprise and its partners

have been mutated. The land since was granted under section

133 of the Bombay Land Revenue Code, in favour of the original

owners, it was needed to be converted into non-agricultural

land.

13 The petitioners on 07.02.1992, applied to Mehsana Urban

Development Authority and the application was processed by

Town Planning Committee under the provision of the Gujarat

Town Planning and Urban Development Act. Resolution No.3(7)

of the Town Planning Committee on 22.04.1992 on payment of

the fees permitted to put up construction on the said land. The

total area of plot is 140 sq.meters. This was made possible

because there was a permission converting the land into non-

agricultural land in lay out plan of 01.11.1972. As per the lay out

plan, certain area was directed to be kept open. In the margin

land, no construction could have been made. It is the say of

the authority that even if the permission is granted on

07.05.1992 by Municipality, it does not mention the details of

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

sanctioned plot number nor does it take into consideration the

lay out plan of the Collector, which categorically insisted on

keeping the margin land open for the public purpose.

14 What has been insisted by the petitioner is that non-

agricultural permission is not brought on the record. Mr.

Prakash Jani, learned Senior Advocate has submitted that the

petitioners do not have the permission of NA order in their file.

Learned Assistant Government Pleader also attempted to

trace the same and eventually, learned Assistant Government

Pleader shared the same with the Court.

15 The NA permission on 01.11.1973 makes it extremely clear that

the permission to construct the shops was only in the area of

239.72 sq.meters. 974.29 sq.meters was to be kept open out of

1214 sq.meters. There are certain conditions laid down and it is

also further insisted that any breach of any of these conditions

would attract penalty and penal actions.

16 It was surely incumbent upon the petitioner to produce before

this Court the permission of conversion into non-agricultural

land, as petitioner has approached this Court with the plea of

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

faulty actions of authorities, all conditions attached while

converting the land into NA land were to be adhered to by the

petitioners. It is not in dispute that at the time of plotting on

Survey No.1119, NA permission granted, was a must to be looked

into by the authority concerned.

16.1 On getting permission from the Municipality on 07.05.1992,

the petitioner had constructed these shops and by different

sale deeds, the said shops have been already sold to different

persons in the year 1993. Annexure-G is a registered sale deed

executed on 08.04.1993 by the present petitioner in favour of

Dharamdas Lakhwani for the consideration of Rs.37,000/-. It

has a reference of NA permission of the Collector of 1973 and

the lay out plan sanctioned by it. It also refers to the permission

granted by the Municipality and the area of construction of the

land. Shop No.3 is transferred to this person Mr. Lakhwani by

way of registered sale deed.

16.1.1 Communication of the Collectors has been received in

the year 2000, which is addressed to the present petitioners,

who were the original owners as also to the subsequent

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

owners, who have been sold out the land. After the permission

was granted on 07.05.1992, the construction has been

completed on 08.04.1993. The shops have been sold to third

parties. It is also to be noted that the notice, which has been

issued by the Collector is not restricted to the present

petitioners, but also to some of the subsequent transferees,

namely Lalitaben Natvarlal Patel, Bhil Sardarji Motiji and

Dharamdas Lakhwani. It is not in dispute that in the lay out plan

of an agricultural land, the margin land adjacent to sub-plot

No.8 were to be kept open, which was numbered as City Survey

No.1062 and both the present petitioners have carried out the

construction of these plots and of stair case in this margin

land. This is a clear breach of permission granted of converting

the land into non-agricultural land.

17 It is not on record as to whether at the time of submitting the

plan or construction of those shops, NA permission of the

Collector was forming part of the record. The same was a must

for the authority to consider while granting the permission. The

authority could not have permitted such six shops in the

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

margin land without perusal of permission of NA. Anything

done contrary and particularly hiding from the base document

would amount to serious suppression and, therefore, even the

submission of delay in actions on the part of Collector could

not impress this Court. The order dated 31.01.2001 has taken

note of the submission that the construction had been carried

out seven years before the road margin and parking. The lay

out plans of NA permission were to be kept open on the right

held by the Collector. The permission given by the Municipality

in a margin land whether is after verification of the entire

record including permission of NA shall need verification. If

done, on suppression on the part of builders, it would require

action against Municipal officials. The petitioners have no

interest left monetary or propriety in the property in question.

They themselves have stated that they have sold off the shop

in the year 1993 and the registered sale deed also has been

brought on the record. Therefore, there having approached the

Collector and the Revisional authority was also impermissible

under the settled legal principle.

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

18 As could be noticed from the order of the revisional authority, it

initially protected the petitioners. The revisional authority also

noted clearly that the Collector, Mehsana vide his order dated

01.11.1973 had converted the agricultural land into non-

agricultural lay out plan in Revenue Survey No.1119 and

contrary to such lay out plan, on western side of Plot No.8 in the

margin land of 81.75 sq.meters of land, possessor of Plot No.5

had plot admeasuring 8.4 sq.meters of land and holder of plot

No.4 had 9.60 sq.meters of land, Plot No.5 had 8.64 sq.meters of

land, holder of Plot No.3 had 10 sq.meters of land and the

petitioners of 81.75 sq.meters of land. On the ground that they

are not in tune with the construction rules and there is no

policy of the Government for regularising such unauthorised

construction, which is contrary to the lay out plan of the

Collector, the revisional authority also has not acceded to the

request of the petitioners.

19 Except issuance of notice on 04.12.2000 after seven years of the

sale of the constructed shop, there is hardly any point for the

Court to consider. The decision of Patel Raghav Natha (supra)

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

has insisted on the revisional authority to have acted within the

reasonable time period. More particularly, when there is no

period prescribed. Here is a case where the party which

approaches this Court itself is not authorised to approach by

way of this petition with no interest of theirs having been left in

the property. Moreover, the order of the Collector is based on

the lay out plan made at the time of non-agricultural land. Any

permission granted by the Municipality on the margin land,

which was otherwise to be kept open is a nullity itself and,

therefore, the decision of Patel Raghav Natha (supra) will not

come to the rescue of the petitioners.

20 While, rejecting this petition, it is being directed that if the

transferees of the properties have not been issued notices by

the Collector, initially, no actions could be taken against them

without availing the opportunity of hearing, as the present

petitioners had chosen not to reveal in the written notes

submitted to the Collector and the fact that the petitioners

have transferred the property to the third party, has not been

disclosed either to the Collector or to the Revenue Authority as

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

can be noticed from the written submissions pressed into

service before these authorities. In absence of any such

revelation, the authorities, if have not joined the proper parties

in whose favour the transfer has been effected, no fault can be

found of such authorities. It is also not clearly emerging from

record as to whether all of them have been also served notices

of breach of NA permission in the lay out plan sanctioned at

the time of grant of NA permission. If such notices are already

issued and they have chosen to litigate through the original

owners, that might be with a design to have a second round of

litigation. However, if those who have been transferred the

properties have not been served with any notice so far,

following required procedure, this issue of illegal construction

shall be dealt with by the authority keeping in mind the lapse

of about 21 years.

21 The petition stands disposed of accordingly.

(MS. SONIA GOKANI, J)

C/SCA/11228/2007 CAV JUDGMENT DATED: 24/09/2021

FURTHER ORDER

Request to continue the interim relief and the protection

is not being acceded to in wake of the further order that has

been passed by this Court protecting the interest of the

occupiers.

(MS. SONIA GOKANI, J)

SUDHIR