Gujarat High Court

Sharadaben W/O Govindbhai ... vs State Of Gujarat Through The ... on 8 December, 2022

Bench: Ashutosh J. Shastri

      C/LPA/432/2018                          JUDGMENT DATED: 08/12/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 432 of 2018
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 2353 of 2018

=============================================
     SHARADABEN W/O GOVINDBHAI KODIPATEL D/O MATHURBHAI
                            GAFURBHAI
                              Versus
            STATE OF GUJARAT THROUGH THE SECRETARY
=============================================
Appearance:
 for the Appellant(s) No. 1
MR PERCY KAVINA SR. ADVOCATE with MR. DARSHIT H SHAH(9894) for
the Appellant(s) No. 1
MR KM ANTANI ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR. MANOJ T DANAK(6264) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
=============================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
                            and
           HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 08/12/2022

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

1. By way of this Letters Patent Appeal under Clause 15 of

Letters Patent, appellant - original petitioner has assailed the

order passed by the learned Single Judge dated 09.02.2018 by

virtue of which petition was summarily dismissed.

2. The facts in brief are that original petitioner is the owner

of land bearing Survey No. 147 (old survey no. 434)

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admeasuring 0-23-78 situated at Village Shiyavada, Taluka :

Sanand, District : Ahmedabad and is carrying on agricultural

activities for her livelihood. This land in question was purchased

from its previous owner named as Arjanbhai Revabhai vide sale

deed dated 15.04.2013 and by virtue of said registered sale

deed, the name of the petitioner has also been mutated and

effect was given in the revenue records. It is the case of the

appellant - petitioner that respondent no. 2 is the resident of

village Shiyavada, has nothing to do with petitioner remotely

with the land in question and is involved in activity of creating

hurdles, by submitting an application on 07.12.2015 to the

Hon'ble Chief Minister of Gujarat he had made a request to

inquire about the construction carried out over the land and

also to inquire about the revenue records. Since application was

submitted to the Hon'ble Chief Minister through proper

channel, same was forwarded to the Section Officer and then to

the Collector, Ahmedabad and Collector in turn was pleased to

dispose of the same. However, again respondent no. 2 made yet

another application on 09.03.2016 reiterating the fact and then

submitted that petitioner made construction of 49 shops without

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prior permission of competent authority and as such, requested

the authorities to initiate action against petitioner under the

provisions of the Gujarat Land Revenue Code.

2.1. In response to this, Deputy Collector, Sanand investigated

and passed an order on 15.02.2017 whereby, it was concluded

that land has been used for non agricultural and commercial

purposes though same was a new tenure and undivided type of

land, without prior permission of the competent authority and as

such ordered for such land being vested with the Government

without encumbrances. This order was carried in appeal before

the Collector, who vide order dated 23.08.2017 was pleased to

confirm the order of Deputy Collector and dismissed the appeal

against which a further appeal came to be filed by the petitioner

before the Revenue Secretary, who disposed of revision/appeal

vide order dated 06.01.2018 and dismissed the same. It was

submitted by the petitioner that construction of 49 shops were

never concealed at any point of time from revenue authorities,

but it is only on account of personal vendetta, respondent no. 2

is out to destroy and ruin the petitioner and her livelihood a

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complaint has been lodged. It was the case of petitioner that

similarly placed persons have also filed Special Civil Application

29374 of 2007 which was disposed of with a liberty to

petitioner therein to approach the Collector seeking

regularization of construction on payment of any prevalent price

or premium as the case may be. The said petition was disposed

of by order dated 08.07.2008 vide Annexure-E.

2.2. Since the petitioner has never suppressed anything from

the revenue authorities and on the contrary petitioner being

inclined to seek regularization on payment of fine or premium as

the case may be, has approached this Court by way of petition

being Special Civil Application 2353 of 2018 with a prayer to

direct the respondent Collector to accept the application of

petitioner and to consider the same by regularizing the

construction which has been put up over the land in question on

payment of premium/fine at the prevalent price and within

stipulated period in consonance with the direction earlier issued

by this Court in Special Civil Application 29374 of 2007.

2.3. This petition came up for consideration before the learned

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Single Judge on 09.02.2018 and learned Single Judge was

pleased to summarily dismiss the same mainly on the count that

there appears to be concurrent findings of fact and there is no

order forthcoming on record to indicate that land in question

was ever converted into old tenure which could be utilized for

non-agricultural purposes and as such, petition came to be

dismissed. Hence, present Letters Patent Appeal has been

preferred

3. Mr. Percy Kavina, learned Senior Advocate appearing on

behalf of the appellant - petitioner assisted by Mr. Darshit Shah

has contended that appellant has never suppressed any fact

about construction of 49 shops, but the issue has been confused

with regard to the conversion. The fact that land has already

been converted into old tenure has not been properly

considered by the learned Single Judge and as such, order

suffers from vice of non application of mind. It has been

submitted that this is not a case of grant of land on certain

condition which have been violated. In fact, petitioner had

purchased the land in question under a registered sale deed and

as such, there is no case of breach of conditions. Further, it has

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been contended that learned Single Judge proceeded on the

footing that appellant has lost before three authorities and was

swayed away by the fact that land was new tenure impartible

land, as recorded by the revisional authority and this

observation contained in paragraph 5 of the order of the learned

Single Judge is in conflict with the records. He would submit

that subject land has been converted into old tenure, the entry

to that effect has also been made which can be seen from page

44-F and as such, finding which has been recorded is quite

erroneous. Mr. Percy Kavina, learned Senior Advocate has also

submitted that even finding in that regard has also been

erroneously recorded by the authorities below and, therefore,

instead of summarily disposing of the petition, the authority

ought to have called upon to verify the same.

3.1. Mr. Kavina, learned Senior Advocate has further

submitted at the best a case of violation of provisions of the

Gujarat Land Revenue Code could be urged by State against

petitioner for which the Statute has prescribed a machinery to

deal with by imposing either fine or by prescribing premium. He

would submit when appellant has not suppressed the fact of

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construction, the authority ought not to have adopted such

approach. In fact, it has not been correctly recorded in the

order dated 09.02.2018 in paragraph 4 that the learned

Assistant Government Pleader has submitted that no order has

been forthcoming on record showing that the land in question

was ever converted into old tenure, which could be subject to

non-agricultural use. A close perusal of the orders passed by the

authorities below also are indicating that land has been

converted into old tenure and as such, at best, fine or premium

could have been imposed upon petitioner since she is seeking

regularization of such alleged offending construction.

3.2. Mr. Kavina, learned Senior Advocate has further

submitted that powers of resumption of land is not available to

the State under the Act and as such, the authority itself has

acted beyond the jurisdiction and on said count, the impugned

orders are liable to be quashed. Mr. Kavina, learned Senior

Advocate has further submitted that appellant is the owner and

occupier of the land in question and she is the purchaser, which

fact has not been properly considered by the authorities below

and as if there is breach of conditions of grant of land by the

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Government, the authority has proceeded to pass an order of

vesting land with the Government without any encumbrances.

This jurisdictional error apparent on the record ought to have

been considered by the learned Single Judge and hence, there is

hardly any reason to justify the impugned orders. Mr. Percy

Kavina, learned Senior Advocate has also submitted that so far

as previous petition i.e. Special Civil Application 29374 of 2007

is concerned, petitioner therein was permitted to make a formal

application to the Collector indicating willingness to pay

premium/fine at the presently prevalent price if the authority

could consider the request of the petitioner therein for

regularization of the construction put up on the land, the

appellant - petitioner who has filed this petition for the limited

prayer as contained in paragraph 8(b) in substance cannot be

singled out. Hence, learned Single Judge ought to have

considered the same in proper perspective. By referring to the

provisions contained under the Gujarat Land Revenue Code, he

has submitted that petitioner is ready and willing to pay fine or

premium prevalent and as such, order under challenge deserves

to be quashed with a consequential direction to the authority to

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consider the request of the appellant.

4. As against this, Mr. K.M. Antani, learned Assistant

Government Pleader appearing on behalf of the authority has

objected to the stand of the appellant - petitioner by contending

that use of the land in question is unauthorizedly made by

petitioner by putting up shops/gallas around 49 in numbers and

therefore, there is a clear breach of conditions which

necessarily invited the passing of impugned orders and

authority has rightly passed the order and there is no illegality

in the order under challenge as well. It has been further

submitted that by virtue of provisions of Tenancy Act also, there

appears to be clear violation and same having been noticed,

authorities have passed the impugned order which cannot be

said to be illegal or unjust. On the contrary, none of the orders

which are against the appellant have been challenged and in the

absence of any challenge to the said orders, no writ of

mandamus be issued and it has rightly not been issued by the

learned Single Judge. It has been contended that presently

there is no policy of regularization prevalent and as such,

consideration of request of the appellant is out of place. He

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would contend there is hardly any reason to interfere with the

order passed by the learned Single Judge. Mr. Antani, learned

Assistant Government Pleader has further contended that use of

the land has been clearly in conflict with the mandate of the

statute and as such, not only fine is leviable, but even

conversion tax or the premium is also liable to be paid by the

appellant. By referring to Sections 65 and 67 of the Gujarat

Land Revenue Code, it has been submitted that very purpose is

defeated by putting up the construction, to this extent, there is

hardly any reason for extending any equitable relief to the

appellant. In fact, the learned Assistant Government Pleader

has submitted that prior permission deserves to be taken, which

has not been taken in the present case. Hence, appeal deserves

to be dismissed.

4.1. Learned Assistant Government Pleader has however, fairly

conceded that Section 79A does not permit the authorities to

forfeit the land as has been ordered by the Deputy Collector

which came to be later on confirmed and as such, learned

Assistant Government Pleader is not fairly confronting the issue.

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The learned Assistant Government Pleader has submitted that

though powers are not available with the authority, in view of

peculiar background of facts to forfeit the land with the

Government without any encumbrances has been rightly

passed. Hence, to that extent, learned Assistant Government

Pleader has fairly conceded and has thereafter requested the

Court to pass suitable orders in the interest of justice.

5. Having heard the learned advocates appearing for the

parties and having gone through the material on record, it

appears that learned Single Judge has summarily disposed of

the petition mainly on the ground that land in question was

utilized for commercial purpose without taking prior permission

from the competent authority and also on the ground that

subject land having been impartible tenure, appellant was not

entitled to put the land for commercial use. It has been

concurrently held by the authorities that even by payment of

penalty or premium, no regularization can be done and thereto

to the extent of 49 shops constructed over subject land. In light

of aforesaid observations made by the learned Single Judge, we

have noticed that no doubt, the authorities below has passed an

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order against the appellant, but the prayer in the present

petition is only to the effect that appropriate direction be issued

permitting the Collector to accept the application submitted by

petitioner and after receiving the same, to consider the request

of the appellant to regularize the construction on payment of

premium/fine at the prevalent premium and within a stipulated

time by relying upon the order passed in Special Civil

Application 29374 of 2007.

5.1. It is further being observed from the order passed by the

Deputy Collector in Land/Case No. 1 of 2017 dated 15.02.2017

in which it has been concluded that land in question is new

tenure land and has been put to commercial and non-

agricultural use without obtaining prior permission. This order

would indicate that originally the land was occupied by one Shri

Tribhovanbhai Juthabhai as new and undivided tenure and

mutation Entry 1456 was made on 15.03.1997 and land in

question has been converted into old tenure for agricultural

purpose and in the second column of 7/12 extract an entry is

made to the effect that "entitled to premium only for non

agricultural purpose" and this land has been thereafter sold

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under a registered sale deed to one Shri Arjanbhai Revabhai

and mutation of records has taken place and he in turn has sold

the same to appellant on 15.04.2013 and revenue record was

mutated in the name of petitioner. No doubt, it appears from

the record that there is no material to the effect of prior

permission having been sought while putting up construction,

but this fact appears to have not been suppressed by the

appellant at any point of time as can be seen from the order.

The record also reveals that under similar circumstances

Coordinate Bench has passed an order in Special Civil

Application 29374 of 2007 in which also, the petitioner therein

was permitted to submit an application before the Collector

indicating his willingness to pay premium/fine at the prevalent

price and respondent authorities were permitted to consider the

request of petitioner for regularization of construction put up on

the land in question of said Special Civil Application. This order

appears to have not been followed by the authority and no

decision appears to have been taken, which has led the

appellant herein to approach this Court by way of present

petition for the relief prayed for in paragraph 8(B), which reads

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as under :-

"8(B) Your Lordships may be pleased to issue writ of mandamus or any other writ, order or direction, directing or permitting the Collector to accept the application made by the petitioner on receiving such application consider the request of the petitioner to regularize the construction put up by the petitioner in said land on the payment of premium/fine at the presently prevalent price within stipulated time, in accordance with the direction given by this Hon'ble Court in SCA 29374 of 2007."

5.2. Further it also appears from the records that original

authority i.e. the Deputy Collector, Sanand passed the order on

15.02.2017 and same has been confirmed by higher authorities

which indicate that not only it has been held therein that subject

land has been put to non-agricultural and commercial use

without prior approval, but has also ordered for vesting of the

land with the State without any encumbrances, in exercise of

power under Section 79A (a) and (b). Section 79 no doubt invest

the authority the power to summarily evict a person who is

unauthorizedly occupying land, which is not the case here, since

the land has been purchased by the appellant under a registered

sale deed and undisputedly appellant is the owner of the land in

question. The only act which appellant has committed is putting

the land to non-agricultural use without prior permission of the

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authorities, seeking for either commercial use or for non-

agricultural purposes and as such, Section 79(a) & (b) would not

be applicable and as such, Deputy Collector has erroneously

exercised the power under Section 79A of the Act. That apart

from reading of this provision it would indicate that this

provision is attracted it would not empower even if the authority

to resume or forfeit the land with the Government, as no power

of forfeiture is provided under this provision and as such,

learned Assistant Government Pleader has also rightly and fairly

conceded to this fact and has submitted that resumption of the

land is impermissible. Hence, the order under challenge

deserves to be interfered with.

5.3. In addition to this, a perusal of Section 65A of Gujarat

Land Revenue Code would indicate that it deals with the

procedure to be adopted if occupant wishes to apply his land

from one non-agricultural purpose to another non-agricultural

purpose and if it is found the same to be without permission,

consequences which would flow is stipulated under Section 66

which prescribes imposition of penalty for using the land

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without permission and the permission for such change of use

can be granted on payment of conversion tax by the occupant

which is reflecting from Section 67A of the Gujarat Land

Revenue Code and as such, a conjoint reading of the aforesaid

provisions would clearly indicate that authorities below have

committed error in not exercising the jurisdiction vested with

them. As a result of which, a case is made out by the appellant

to interfere with.

5.4. Having regard to the fact that appellant - petitioner has

not suppressed the fact of putting-up construction of 49 shops

over the subject land and has come forward to pay fine/premium

as the case may be, including conversion tax, the respondent

authority would be at liberty to consider the same in light of the

aforesaid provisions. Since appellant - petitioner is ready to pay

the same, the respondent authority may consider the same in

accordance with law.

5.5. Ordinarily, the Court would not have interfered with the

finding of the learned Single Judge, but on perusal of overall

circumstance prevailing on record and in light of the orders

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which have been passed by the authorities below, it seems that

there is a clear error on the part of the authority in assuming

jurisdiction and they have to proceed to forfeit the land which

power is otherwise not available and since this aspect having

not been gone into by the learned Single Judge, we are of the

considered opinion that order of the learned Single Judge

deserves to be interfered with.

5.6. Looking to the fact that appellant has not suppressed

anything about the offending construction and has disclosed the

fact and shown readiness and willingness to seek regularization,

if permissible in policy by paying fine/premium as the case may

be, we deem it proper to direct the authority to re-consider the

issue in light of the prayer which has been made by the

appellant in the original proceedings. This view also get

fortified from the order passed under similar circumstances by

learned Single Judge in Special Civil Application No. 29374 of

2007 on 08.07.2008, where-under, liberty was given to the writ

applicant therein to make appropriate application seeking

regularization of the transaction and the construction put up on

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the land and the said request having not been attended so far,

the authority may consider the same in light of the relevant

provisions of the Act applicable and the policy thereupon and

while considering the said request, the prevalent rate may also

be considered in respect of payment of fine/premium including

conversion tax as well. Hence, we deem it proper to dispose of

the present appeal as under :

(i) Letters Patent Appeal stands allowed.

(ii) The impugned order dated 09.02.2018 passed by the learned Single Judge in Special Civil Application No. 2353 of 2018 is hereby quashed and set aside and as a consequence thereof, respondent no. 3 - Collector is directed to examine the application/ request submitted by the appellant for regularization and after examining the same in light of the provisions of the relevant act and the policy, an independent decision be taken on merit in accordance with law, after due compliance of principles of natural justice.

(iii) We make it clear that it would be open for the respondent authority to examine the issue and the grievance of the appellant and we have not

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expressed any opinion on merits and it is left to the discretion of the respondent authority to pass order supported by reasons.

(iv) We also make it clear that till such decision is taken, no coercive steps shall be taken against petitioner.

(v) In terms stated above, Special Civil Application 2353 of 2018 is allowed.

(vi) In view of the fact that grievance of the appellant is pending since 2007-08, the respondent authority shall consider the same as early as possible preferably within a period of eight (8) weeks from the date of receipt of of this order.