Narayandas Nathumal Hemrajani vs State Of Gujarat
2023 Latest Caselaw 5770 Guj

                                                                                 NEUTRAL CITATION




    C/SCA/22004/2016                             JUDGMENT DATED: 08/08/2023

                                                                                  undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 22004 of 2016

                                  With
              R/SPECIAL CIVIL APPLICATION NO. 22005 of 2016
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 22006 of 2016

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?                                            No

2    To be referred to the Reporter or not ?                          No

3    Whether their Lordships wish to see the fair copy
     of the judgment ?                                                No

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution              No
     of India or any order made thereunder ?

==========================================================
              NARAYANDAS NATHUMAL HEMRAJANI & 1 other(s)
                              Versus
                    STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR YM THAKKAR(902) for the Petitioner(s) No. 1,2
MR ROHAN SHAH, AGP for the Respondents
NOTICE SERVED for the Respondent(s) No. 1,2,3,4
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                             Date : 08/08/2023

                            ORAL JUDGMENT

Since the issue involved in this group of petitions is similar,

NEUTRAL CITATION

C/SCA/22004/2016 JUDGMENT DATED: 08/08/2023

undefined

the same are taken up for final disposal with consent of learned advocates appearing for the respective parties, by treating the Special Civil Application No.17708 of 2015 as lead matter.

2. Rule returnable forthwith. Learned Assistant Government Pleader waives service of notice of Rule on behalf of respondents.

3. By way this petition under Article 226 of the Constitution of India, the petitioners have called in question the legality and validity of the order dated 3.5.2016 passed by the respondent No.2 - Deputy Collector, Dahod, by which the Entry No.179 dated 4.10.1996 posted in favour of petitioners by the City Survey Superintendent, Dahod, came to be cancelled.

4. The basic facts of the petition can be stated as under :

4.1 The petitioners purchased part of the land admeasuring 3883.73 sq.mtrs. of the Final Plot No.109 having total area of 5415 sq.mtrs. by way of registered sale deed from the original owners, namely, Shantaben Manharlal and Manguben Chhaganbhai. Accordingly, the names of the petitioners were entered into the property card by way of mutation Entry Nos.93 and 94 dated 14.8.1996 by the City Survey Office.

4.2 The land bearing Survey No.109 was then bifurcated into two parts, namely, 109/A and 109/B (the part of the land purchased by the petitioners). The said bifurcation was done

NEUTRAL CITATION

C/SCA/22004/2016 JUDGMENT DATED: 08/08/2023

undefined

by the authority concerned after following the necessary procedure, including preparing of plan and taking actual measurement on record.

4.3 The land / plot owned by the petitioners was given Final Plot No.109/B, whereas the remaining portion of the land was marked as Final Plot No.109/A.

4.4 The petitioners have thereafter put up construction in the Final Plot No.109/B, after obtaining permission from the Town Planning Committee of Dahod Nagarpalika.

4.5 The land purchased by the petitioners along with other adjacent lands were forming part of reservation for the Town Planning Scheme. The entire Final Plot No.109 was kept reserved for Nagarpalika to be utilized as green space. However, the said reservation was removed by the State Government somewhere in the year 2000. The said land was thereafter claimed by the Nagarpalika and, therefore, the dispute was referred to the Town Planning Officer. The competent officer and Deputy Collector, Dahod vide its order dated 17.12.2009 held and declared that the land in question to be of the ownership of the Nagarpalika.

4.6 The petitioners, thus, approached the office of the competent authority and requested to decide the representation and accordingly, the Deputy Collector, Dahod, after having extended the opportunity of hearing, passed the order dated 19.7.2012, holding the petitioners to be the owners of the land bearing Final Plot No.109/B. That

NEUTRAL CITATION

C/SCA/22004/2016 JUDGMENT DATED: 08/08/2023

undefined

thereafter, after a lapse of more than 16 years, the Deputy Collector, Dahod issued the show cause notice dated 20.2.2014. It is pertinent to note at this stage that from time to time, in various show cause notices, the subject land of the petitioners was shown as Final Plot No.109/B. However, in the last show cause notice, the land of the petitioner was shown as Final Plot No.109/A.

4.7 Pursuant to the aforesaid show cause notices, the petitioners submitted their objections in detail on 6.6.2014. However, the Deputy Collector, Dahod vide its order dated 3.5.2016, cancelled the Entry No.179 dated 4.10.1996 which was certified by the City Survey Superintendent, Dahod.

4.8 Thus, being aggrieved by the aforesaid, the petitioners have approached this Court by way of present petition under Article 226 of the Constitution of India.

5. I have heard learned advocate Mr.Y.M. Thakkar for the petitioners and learned Assistant Government Pleader Mr.Rohan Shah for respondents.

6. Learned advocate Mr.Y.M.Thakkar for the petitioners, while assailing the order passed by the respondent No.2 - Deputy Collector, Dahod, has made following submissions:

(i) Learned advocate submitted that the impugned order passed by the Deputy Collector, Dahod is ex-facie illegal and bad in law and thereby, the same deserves to be quashed and set aside.

NEUTRAL CITATION

C/SCA/22004/2016 JUDGMENT DATED: 08/08/2023

undefined

(ii) Learned advocate next submitted that by virtue of the impugned order, the Deputy Collector, Dahod has cancelled the order of the City Survey Superintendent, Dahod, which is not permissible in eye of law inasmuch as the same is without jurisdiction.

(iii) According to learned advocate, the Deputy Collector, Dahod has got no jurisdiction to review and/or cancel the order passed by the City Survey Superintendent and thereby, ex-facie the impugned order has been passed by the Deputy Collector, Dahod without any power and jurisdiction, for which the present petition is required to be allowed.

(iv) Learned advocate, without prejudice to the aforesaid contentions, submitted that the exercise undertaken by the Deputy Collector, Dahod cannot be said to be within reasonable time as the proceedings initiated by the Deputy Collector, Dahod is after almost a period of 18 years and thereby, the said delay cannot be said to be reasonable from any angle.

(v) Learned advocate lastly submitted that bare perusal of the impugned order would indicate that the Deputy Collector, Dahod has not assigned any reason whatsoever in nature and, therefore, the impugned order cannot be said to be a speaking order and thus, on that ground also, the present petition is required to be allowed by quashing and setting aside the impugned order.

NEUTRAL CITATION

C/SCA/22004/2016 JUDGMENT DATED: 08/08/2023

undefined

6.1 By making above submissions, learned advocate urged this Court to allow the present petition.

7. Per contra, learned Assistant Government Pleader Mr.Rohan Shah has vehemently opposed the present petition contending, inter alia, that the order passed by the State authority is perfectly justified and that no interference is required to be made by this Court.

7.1 Learned Assistant Government Pleader next submitted that the present petition itself is not maintainable in view of availability of statutory alternative remedy. According to learned Assistant Government Pleader, against the impugned order passed by the Deputy Collector, Dahod, there is a remedy available before the Collector under the provisions of the Gujarat Land Revenue Code and thereby, the present petition deserves to be dismissed on the ground of availability of statutory alternative remedy.

7.2 By making above submissions, learned Assistant Government Pleader, Mr.Rohan Shah has requested this Court to dismiss the present petition.

8. I have heard learned advocates appearing for the respective parties and have gone through the material produced on record. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties.

NEUTRAL CITATION

C/SCA/22004/2016 JUDGMENT DATED: 08/08/2023

undefined

9. A short question that falls for the consideration by this Court is whether the impugned order passed by the Deputy Collector, Dahod can be said to be legal ?

10. So as to consider the aforesaid question in its true perspective, it would be profitable to take note of certain undisputed facts. The proceedings initiated by the Deputy Collector, Dahod is after a period of 18 years. That the Deputy Collector and Prant Officer, Dahod vide its order dated 19.7.2012 already held the petitioners as the owner of the Final Plot No.109/B and the said order has attained its finality.

11. Keeping in mind the aforesaid facts, if the impugned order dated 3.5.2016 is perused, the Deputy Collector and Prant Officer, Dahod appears to have not assigned any reason and/or finding based on any documentary evidence. It is a settled law that whenever the authority passed an order, the said order has to be a well reasoned order. Any order which is based on no reasons and/or finding, cannot be said to be legal. In the instant case, as has been stated herein-above, the impugned order does not contain any reason and/or does not have reference of any documentary evidence and thereby, in my considered opinion, the authority concerned appears to have not applied its judicious mind. Under the circumstances, when the order itself is cryptic being non-speaking order, the same deserves to be quashed and set aside.

I answer the question accordingly.

12. For the foregoing reasons, the present petitions require

NEUTRAL CITATION

C/SCA/22004/2016 JUDGMENT DATED: 08/08/2023

undefined

to be allowed only on the ground that the impugned order dated 3.5.2016 is a non-speaking order and while passing the same, the authority concerned appears to have not applied its mind. Accordingly, the impugned order dated 3.5.2016 passed by the Deputy Collector, Dahod is hereby quashed and set aside.

13. It is, however, clarified that it will be open for the authority concerned to initiate any proceedings that may be envisaged under the Act and the same may be done in accordance with law.

14. All the rights and contentions of the petitioners, in that event, are kept open and the same shall be dealt with by the authority concerned in accordance with law.

15. Rule is made absolute to the aforesaid extent in each matter.

(NIRAL R. MEHTA,J) V.J. SATWARA