Hari Om Sanyas Ashram Trust vs State Of Gujarat
2022 Latest Caselaw 4438 Guj

     C/SCA/6385/2014                              ORDER DATED: 27/04/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6385 of 2014

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                       HARI OM SANYAS ASHRAM TRUST
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR TULSHI R SAVANI(3070) for the Petitioner(s) No. 1
MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                              Date : 27/04/2022

                                ORAL ORDER

1. By filing this petition, the petitioner has prayed to issue a writ of mandamus or writ of certiorari or any other appropriate writ, order or direction by quashing and setting aside the order/decision dated 24/01/2014 passed by respondent no. 2 District Collector, Bhavnagar by rejecting claim of handing over the possession of land admeasuring 16,425 sq.mtrs from revenue survey no. 217 of Village: Sidsar in view of order dated 03/01/1995 passed by respondent no.2 and also prayed to quash and set aside the Government Resolution (having no. MMj-9492/3259/Ga) dated 13/01/2014 passed by respondent no. 1 relying upon which, respondent no. 2 passed above stated decision dated 24/01/2014 by passing appropriate writ, order or direction.

2. The short facts giving rise to the present petition are as follows.

       C/SCA/6385/2014                        ORDER DATED: 27/04/2022




2.1    The petitioner is a Trust registered under the Public Trust

Act vide registration no. E/548 date: 21/03/1983. The petitioner trust is doing activities like imparting education to the children of Village: Sidsar and nearby area and other social welfare activities in the vicinity of Bhavnagar.

2.2 The petitioner states that petitioner trust preferred an application for getting 5 Acre government land from the revenue survey no. 217 paikee of Village: Sidsar, Tal: & Dist: Bhavnagar for educational and other social activities on 02/03/1991. In view of this application, the government granted 3,000 sq. mtrs land free of cost vide order dated 05/10/1994. Thereafter, In view of above order passed by respondent no.1, the State Government, the District Collector, Bhavnagar i.e respondent no. 2 herein passed order dated 07/10/1994 by granting land admeasuring 3,000 sq.mtrs from revenue survey no. 217 of Village: Sidsar. In view of these orders, possession of 3,000 sq.mtrs land was handed over to petitioner trust in the year of 1997. The petitioner states that the school is running since 1997 on the land and many children of Village: Sidsar and nearby area are taking their education from the School run and governed by petitioner trust.

2.3 The petitioner states that thereafter petitioner trust made a representation again in the year of 1995 with a view to get more land admeasuring 16,425 sq. mtrs from the very survey number on sale. The government granted land of 16,425 sq.mtrs vide order dated 03/01/1995 in 50% price from the

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higher amount of Rs. 25 per sq.mtrs or the marker price decided by Deputy Town Planner on the date of order.

2.4 The petitioner states that thus present petitioner granted total land of 19,425 sq.mtrs from revenue survey no. 217 of Village: Sidsar vide above stated two orders dated 05/10/1994 and 03/01/1995. Out of total land, present petitioner handed over possession of 3,000 sq.mtrs only on 28/01/1997. Therefore, present petitioner made numbers of representation to respondent authorities with a view to fix the price and with a view to hand over the possession of rest of the land admeasuring 16,425 sq.mtrs since 1995.

2.5 The petitioner states that one person namely Bharwad Popat Bhagvan had preferred Civil Suit being Regular Civil Suit No. 639 of 1994 with a prayer not to take over the possession as he had encroached some land. However, suit has been dismissed by the concern Civil Court in the year 2006. In view of this fact references are also made in above stated representations that he has made encroachment and due to illegal order passed by the Deputy Collector, Bhavnagar, he was shown in possession of the land. However, District Collector, Bhavnagar dismissed order passed by the Deputy Collector, Bhavnagar in RTS Revision proceedings. It is stated that Bharwad Popat Bhagwan challenged the order passed by District Collector before the Revenue Secretary (Appeals), State Government, by way of filing Revision Application No. JMN/BVN/6/95. The said revision application came to be rejected vide order dated 19/08/1998 by the revenue secretary. It is stated that all these facts can be seen from the

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reply filed by respondent no. 2 in Regular Civil Suit No. 639 of 1994.

2.6 It is stated that above stated suit is dismissed vide judgment and decree dated 22/03/2006. It is stated that, thereafter, no any litigation are pending regarding land in question. The petitioner states that as no any litigation is pending and no any hurdles were there in handing over the possession of 16,425 sq.mtrs land to petitioner trust, respondent no. 2 made a communication dated 14/06/2006 with a view to obtaining opinion from respondent no. 1 that on what price land should be granted.

2.7 The petitioner states that respondent no. 1 also made many communications to respondent no. 2 with regard to handing over possession of 16425 sq.mtrs land. The respondent no. 1 has made many communications including dated 27/10/1995, 04/01/1996, 10/07/1996, 21/12/1996 and 23/06/1997. However, respondent no. 2 the Collector did not follow the instructions and directions given by respondent no. 1 higher authority.

2.8 The petitioner states that in view of order dated 03/01/1995, the Town Planning and Evaluation Department, Bhavnagar had evaluated the land as Rs.71/- per sq.mtr. It was communicated vide communication dated 05/04/1995 to the Mamlatdar, Bhavnagar. The petitioner states that thereafter, the land in question again evaluated by the Panchas as Rs. 70/- to Rs.90/- per sq.mtr. The average rate evaluated by sale transactions of last 5 years of nearby area shows rate as

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Rs.293/- per sq.mtr. As per the opinion of the Mamlatdar, rate was shown as Rs.300/- per sq.mtr for non agriculture use. As per the opinion of Prant Officer, rate was shown as Rs. 300/- per sq.mtr. These facts are reveled from the communication dated 06/03/2008 made by the Deputy Collector, Bhavnagar. Though these facts are on record, the District Evaluation Committee evaluated the land as Rs.2,200/- per sq.mtr within a year without any base of evaluation.

2.9 The petitioner states that the possession of 3,000 sq.mtrs was being handed over to present petitioner in the year of 1997. Whereas 16,425 sq.mtrs land was granted vide order dated 03/01/1995 in 50% price from the higher amount of Rs. 25 per sq.mtrs or the marker price decided by Deputy Town Planner on the date of order. However, no any amount has been fixed since 1995 for the land admeasuring 16425 sq.mtrs though numbers of representations have been made by the petitioner Trust to respondent authorities. Therefore, being aggrieved and dissatisfied with inaction on the part of respondents, present petitioner had preferred Special Civil Application No. 916 of 2014 before this Hon'ble Court. The petitioner states that said petition was disposed of by this Hon'ble Court vide order dated 23/01/2014 by following directions:

"3.0 Considering the above facts, following order is passed:

Respondent No. 2 the District Collector, Bhavnagar is hereby directed to comply with the order dated 31/01/1995 as expeditiously as possible preferably within a period of two months from the date of receipt of the

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order if this Court."

2.10 Thus, this Hon'ble Court also directed to respondent no. 2 to comply with the order dated 03/01/1995. The petitioner states that respondent no. 2 passed impugned order on 24/01/2014 relying upon the Government Resolution dated 13/01/2014 before order passed by this Hon'ble Court served upon them.

2.11. The petitioner states that however, petitioner made representation dated 08/02/2014 in detail to the respondents along with all the documentary evidences. The said representation has rejected vide communication dated 10/03/2014 by respondent no. 1.

3. Heard Mr.Tulsi Savani, learned advocate for the petitioner and learned AGP, Ms.Dhwani Tripathi for the respondent-State.

4. Learned advocate Mr.Tulsi Savani for the petitioner submitted that almost more than 20 years are passed and, in that period, present petitioner made many representations to respondents authority and battling since 20 years with a view to fixing price of the land and with a view to handing over possession of the land admeasuring 16,425 sq.mtrs, however, respondent authorities without considering the same, passed impugned order and, therefore, impugned order and resolution are required to be quashed and set aside. It is submitted that present petitioner is not in fault any way as it has made various endeavors as stated herein above with a view to fixing price of the land, however, respondent authority did not consider the same. He further submitted that respondent

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authority was taking reference every time regarding pending of civil suit filed by one Bharwad Popat Bhagwan. However, said suit was preferred on false and fabricated facts and, therefore, it was dismissed in the year of 2006. Even since 2006 respondent authority did not take any action for fixing of price of land in question. It is also submitted that as respondent authority knew that present petitioner trying to approach before this Hon'ble Court by filing writ petition, therefore, with a view to hide their inaction impugned government resolution and impugned order are passed.

4.1 Mr.Savani further submitted that it is stated in the impugned orders that present petitioner is not ready and willing to pay the amount fixed newly by the District Valuation Committee, Bhavnagar, in its meeting dated 12/10/2009. However, no such decision either has been taken D.V.C. or taken by respondents have been sent to present petitioner. It is stated that if such decision was served at the relevant point of time, petitioner could have challenged the same before appropriate authority or before this Hon'ble Court. It is submitted that if such decision is served than petitioner did not have need to make further representations regarding fixing price of the land after 2009. He also submitted that respondent authorities did not give any chance of hearing to present petitioner. Without affording any chance of hearing, respondent no. 1 cancels original order dated 03/01/1995 by which land was granted and rate was fixed as 50% price from the higher amount of Rs. 25 per sq.mtrs or the market price decided by Deputy Town Planner on the date of order. The option is stated in the order dated 03/01/1995, however, it was not followed by respondent authorities. Instead of following

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order dated 03/01/1995, respondent no. 1 cancels order said order without providing opportunities of being heard, thus, respondent authority have violated principles of natural justice and, therefore, impugned order deserves to be quashed and set aside. He also submitted that respondent no. 1 cannot cancel order dated 03/01/1995 only showing reason that present petitioner does not want to pay present market value without serving any order regarding fixing of price. It is stated that present petitioner was being informed orally from the office of respondent no. 2 that you make payment as per the price fixed by the Committee and, therefore, petitioner made representations regarding fixing of price as per the order dated 03/01/1995 or as per prevailing Jantri.

However, respondents did not consider the same.

4.2 Mr.Savani also submitted that respondent authorities say that petitioner is not ready and wiling to pay the amount fixed by the District Valuation Committee fixed in its meeting held on 12/10/2009 by impugned order after passing of about 5 years. It is stated that after 2009, number of representations have been made by present petitioner to respondent authorities with a view to fixing price and handing over the possession of the land. However, during the period of such 5 years, respondents have not passed any order by saying that petitioner is not ready and wiling to pay amount fixed on 12/10/2009. It is stated that relying upon the communication dated 12/05/2010 made by respondent no. 2 to respondent no. 1, impugned Government Resolution dated 13/01/2014 is passed i.e. also after passing of 4 years. It is submitted that as respondent authorities knew that present petitioner has started knocking doors of this Hon'ble Court against the

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inaction of respondents and, therefore, with a view to hide their inaction, impugned resolution is passed immediately without following principles of natural justice and, therefore, impugned order deserves to be quashed and set aside.

4.3 He lastly submitted that petitioner sought the land for educational and social welfare objects. The petitioner Trust does not do any activities for profit or for its own welfare. The land sought for is going to be utilized for the public welfare only like school, hospitals, grounds etc. He also submitted that petitioner trust is not having such capacity to pay such huge amount of Rs.3.64 crores. He submitted that respondent authorities have committed error by applying subsequent government policy to the case of present petitioner. It is submitted that looking to the record of the case, it can be reveled that order is passed regarding granting of land admeasuring 16,425sq.mtrs on 03/01/1995. Therefore, price of the land ought to have decided as per the government policy prevailing in the year of 1995. it is submitted that respondent authorities taken time about 20 years to decide and fix the price of the land and due to grave inaction on the part of respondent authorities, present petitioner may not be victimized by making valuation as per the present government resolutions/policy.

4.4 In view of above submissions, he prayed to allow present petition.

5. Per contra, learned AGP, Ms.Dhwani Tripathi for the respondent-State has submitted that by application dated 12.10.1992, the petitioner requested the Collector, Bhavnagar

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to allot 5 Acre of land for construction of the school. Pursuant to said application, 3000 sq.mtrs. of land was granted to the petitioner for said purpose with certain terms and conditions. Out of the total land, 1,000 sq. mtrs. Was allotted for the construction of the school building and 2,000 sq. mtrs was allotted on 30 years lease for the purpose of the open ground to the school on token lease amount of Rs.1/- annually. The order dated 07.10.1994 passed by the Collector partly allowing the claim of the petitioner was not challenged. The land admeasuring about 3,000 sq. mtrs. was allotted to the petitioner on 19.09.1996. She further submitted that the petitioner subsequently asked for further land for development of the School but the said land was in dispute as the said land was earlier granted to Bharvad Popatbhai Bhagwanbhai, who had filed the suit before the Civil Court, Bhavnagar being Regular Suit No. 639/1994. The Trial Court had granted stay in Ex.5 application in said suit. That order was challenged by the present petitioner by way of Civil Appeal No.195/95 before the District Court, Bhavnagar. The said appeal was rejected by joint District Court, Bhavnagar, vide order dated 03.04.1998.

5.1 Ms.Tripathi further submitted that said suit filed by Mr.Bharvad Popat was rejected vide order dated 22.03.2006. She submitted that since the matter was sub-judice, the State cannot take any decision when stay was in operation with regard to the land. She further submitted that after 2006, the petitioner had made an application to grant said land at the same price which was prevailing in the year 1995. However, the Government policy qua allotment of the Government land has subsequently changed in the year 2004 vide G.R. dated 12.11.2004. The case of the petitioner was considered by the

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District Land Price Committee and the value of the said land is decided at Rs.2,200 sq. mtrs. The petitioner was already granted the benefit of 50% concession in the year 1995 and the Committee had the benefit of the 50% concession even in the year 2009 at the price prevailing in the year 2009. The said order was not challenged by the petitioner before any Competent Authority. She submitted that the petitioner continued making presentation, representation, fresh application or remainder, however, it cannot extend period of limitation. Hence, valuations made in the year 2009 remain unchallenged till now.

5.2 She further submitted that the petitioner did not use even the 3,000 sq. mtrs. of land allotted to it and this is a fit case to initiate the proceedings for revoking the order passed in the favour of the petitioner by Collector on 07.10.1994. As the matter is sub-judice the department did not take any action for breach of order dated 07.10.1994. She further submitted that the petitioner ought to have started construction on the land allotted land within six months of allotment and it was required to be completed within 2 years. She submitted that even today the allotted land is open vacant land. Hence, the petitioner has flouted conditions of order dated 7.10.2004.

5.3 Learned AGP Ms.Tripathi also submitted that the land in question was offered to the petitioner for Rs.1,100/- per sq.mtr., which was to be paid within one month from the date of order. Said order is neither accepted by the petitioner nor challenged before the competent authority. Hence, order dated 12.10.2009 passed by the District Land Price Committee has

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attained finality. She also submitted that as per the Government Resolution dated 12.11.2004, if value fixed by the District Valuation Committee is not paid within one year then 12% increment on the yearly basis, and after 2 years of the order, District Valuation Committee will require to reevaluate land price. Therefore, order dated 12.10.2009 passed in present case has expired on 12.10.2011. In view of all these, she has prayed to dismiss present petition.

6. Having considered the submissions made on behalf of both the sides coupled with the material placed on record, it transpires that there is no dispute that earlier 3000 sq.mtrs. of land has been allotted to the petitioner. It is also not in dispute that the petitioner has sought for land admeasuring 16425 sq.mtrs. from the revenue authority and by communication dated 3.1.1995 of revenue authority, Ganghinagar, demand of the petitioner has been sanctioned for allotment of land at a price of Rs.25 per sq.mtr. amounting to Rs.4,10,625/- or 50% of the market price, which may be decided by the Deputy Town Planner, whichever is higher. Said communication is at page 33 of the paper book. It is clear from paragraph 2 thereof that whatever price is decided be immediately informed to the petitioner and petitioner be directed to deposit the same within 30 days thereafter. Thus, demand of the petitioner has already been sanctioned in the year 1995. Now, it is the contention of the respondent that there was civil litigation pending at that time and the authority could not proceed further to decide the market price of the land. On perusal of the affidavit-in-reply, it clearly transpires that the said litigation has come to an end in the year 2006. It also reveals that thereafter the petitioner Trust has made representation for deciding the price of the

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land.

7. Now, it is the stand of the respondent that on the basis of the government policy prevailing at the relevant time, District Valuation Committee has decided the price of Rs.2200/- per sq.mtr. At the rate of 50% thereof, the petitioner was directed to pay Rs.1100/- per sq.mtr. However, the petitioner did not agree and ultimately, the impugned order cancelling earlier sanction has been passed by the authority. The factum of informing the petitioner about the price fixed by the District Valuation Committee has been denied by the petitioner by way of filing rejoinder affidavit. With the rejoinder affidavit, the petitioner has produced on record, copy of minutes of meeting of District Valuation Committee, which is at page 152. On perusal of the same, it transpires that question of deciding valuation of the land proposed to be allotted to the petitioner is effected on page 162, serial no.12. It reveals from said notes that total land is of Rs.50 Lacs and, therefore, the Committee has decided to refer it to the State Valuation Committee. This observation suggests that this was not a final valuation of the land in question. It also appears that respondent has not produced any documentary evidence showing that decision of the Valuation Committee has been informed in writing to the petitioner. Thus, the basis on which the impugned order and communication has been made by the respondents is not communicated to the petitioner and there is no evidence produced on record to substantiate the averments made in the impugned communication and order. Thus, it appears that entire exercise cancelling earlier allotment of land in favour of the petitioner Trust is done without affording any opportunity of hearing to the to the petitioner. Thus, no communication

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was sent to the petitioner regarding fixation of price by the District Valuation Committee at the relevant time.

8. It is also pertinent to note that the authority was well within the knowledge that civil litigation has come to an end in the year 2006. After conclusion of the civil litigation pertaining to the land in question, there was no impediment for the authority to decide the price of the land after 2006. It appears from record that the petitioner has repeatedly made representations from the year 2007 till 2013. However, the authority has not even bothered to inform the petitioner in writing regarding the price fixed by the District Valuation Committee. In absence of any documentary evidence showing that the petitioner was informed about the price fixed by the District Valuation Committee, as averred by the petitioner in rejoinder, say of the petitioner regarding non-communication of decision of the District Valuation Committee is required to be believed.

9. It is an admitted fact that in the year 1995, land was allotted to the petitioner at the rate of Rs.25 per sq.mtr. or 50% of the valuation that may be decided by the Deputy Town Planner. However, no immediate exercise of fixing the price in 1995 was undertaken by the authority. Of course, version of the authority that there was a litigation pending at the relevant point of time and it could not fix the price can be believed but when the litigation had come to an end in 2006, it was incumbent upon the authority to decide the price of the land in the year 2006 or at least in 2007. However, the authority did not do so and also has not even informed the valuation fixed by the District Valuation Committee, which was subject to confirmation by the State Valuation Committee and yet behind

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the back of the petitioner, the authority passed the impugned order which cannot be sustained in the eyes of law.

10. In view of above, this petition is allowed. Impugned order/ decision dated 24/01/2014 passed by respondent no. 2 District Collector, Bhavnagar and Government Resolution (having no. MMj-9492/3259/Ga) dated 13/01/2014 passed by respondent no.1 are quashed and set aside. The authority is directed to consider the prayer of the petitioner for fixing the price of land as per the rate prevailing in the year 2006-07. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK