Patel Narshibhai Tobhandas vs State Of Gujarat
2023 Latest Caselaw 718 Guj

     C/SCA/12313/2011                             JUDGMENT DATED: 30/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12313 of 2011

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                                  Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                            NO

2     To be referred to the Reporter or not ?                         YES

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 ?

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                        PATEL NARSHIBHAI TOBHANDAS
                                   Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
MR.D K.PUJ(3836) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1,3
RULE SERVED BY DS for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 30/01/2023
                              ORAL JUDGMENT

1. The present petition has been filed seeking direction against the order dated 12.05.2011 passed by the respondent no.2 in Revision Application No.1 of 2011 and also the order dated 05.01.1985 passed by the respondent no.3 in Case No.619-639 of 1984.

2. While issuing Rule in the matter, by a comprehensive order dated 19.12.2012 after recording the submissions of the respective advocates appearing for the parties, had ordered status quo to be maintained.

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3. The Coordinate Bench, while examining the facts, has recorded prima facie observations that it does not appear that the respondent-State has brought on record any material to show that the petitioner was aware of the passing of the order of cancellation of the Non Agricultural use permission before purchasing the land in question and the petitioner has built his residential tenament for the land in question since 1985.

4. Today, when the matter is taken up for hearing, the position remains unaltered. Nothing is shown to this Court that the petitioner was aware of the impugned order, by which his NA permission was cancelled in the year 1985.

5. The brief facts of the case are as under:-

5.1. The land in question being land bearing Survey No.199/134 situated at Mehsana belonged to one Shri Dineshkumar Vasudev Thakkar and the Collector, Mehsana vide its order dated 12.09.1979 granted NA permission for residential purpose in favour of Shri Dineshkumar Thakkar on certain conditions and one of the conditions of NA suggest that the construction was to commence within a period of six months and also was required to be completed within a period of 3 years. Thereafter, vide registered sale deed dated 02.01.1982, one Patel Narshibhai Chaturdas purchased plot no.12 from the land in question. Since there was a breach of conditions of NA, a show cause notice was issued by the Collector to Somabhai Hirabhai Prajapati, from which the margin of land has been purchased vide registered sale deed dated 02.01.1982. On 05.01.1985, the Collector, Mehsana passed an order cancelling the NA permission with respect to breach of conditions of NA order of not

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completion the construction within stipulated period of 3 years. Thereafter, the petitioner purchased the land in question from Shri Patel Narshibhai Chaturdas vide registered sale deed dated 17.08.1985 and he constructed the residential tenament and has been in continuous and uninterrupted possession since then.

5.2. Since the petitioner wanted to sell the property in question, he approached one advocate Mr.Bharat G. Patel for title clearance and on inquiry, it was found that the Collector had already cancelled the NA permission in the year 1985. Accordingly, the petitioner filed an application requesting the copies of the order of granting NA permission as well as the cancellation of the NA permission, however, by the communication dated 18.11.2010, the office of the Collector informed the learned advocate Mr.Patel that the orders were not available in his office, but may be available with the NA record department. Ultimately, the petitioner procured the copies of the said orders in the year 2011 and he filed a Revision Application No.1/2011 before the respondent no.2 challenging the order of the Collector dated 05.01.1985. The respondent no.2 by the impugned order dated 12.05.2011 rejected the revision application of the petitioner on the ground of delay. Hence, the present writ petition was filed.

6. Learned advocate Mr.Puj has submitted that in fact the petitioner was never issued any notice and the entire proceedings of cancellation the order was passed when Shri Patel Narshibhai Chaturdas was holding the land in question. It is submitted that at the most the respondent authorities can impose any penalty for regularizing the construction, however, instead of doing so, the respondent authorities have rejected the

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application filed by the petitioner.

7. Learned advocate Mr.Puj has submitted that when the petitioner came to know about such order which was passed in the year 1985 at the time of selling his property, and on coming to know about the same, he immediately procured the aforesaid order and initiated legal proceedings for challenging the order passed in the year 1985. In support of his submissions, he has placed reliance on the judgment of this Court in the case of Jayantibhai Babaldasbhai Darji vs. State of Gujarat, (2005) 9 GHJ 70. Finally, it is submitted by him that in fact initial condition imposed while granting NA permission in the order dated 12.091979 for completing construction within a period of 3 years itself is illegal. In support of his submission, he has placed reliance on the judgment of the Division Bench of this Court in the case of Bankimchandra Bhikhubhai Desai Vs. State of Gujarat and Ors., dated 18.11.2019 passed in Letters Patent Appeal No.234 of 2016. Thus, it is submitted that the writ petition may be allowed and the impugned orders may be set aside and the respondent authorities may be directed to collect the penalty and regularize the construction of the petitioner.

8. In response to the aforesaid submissions, learned AGP Mr.Parikh, while placing reliance on the affidavit filed by the respondent authority, has submitted that the initial purchase of the land in question was itself is illegal since the petitioner, who purchased the land on 05.01.1985, had purchased the land after the order of cancelling NA permission was passed by the respondent authorities. It is submitted that the initial permission dated 12.09.1979 was granted with a specific condition that the land in question may be used for residential purpose provided that the

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construction is completed within a period of 3 years, however, since no such constructions were undertaken, the order of cancelling NA permission was passed on 05.01.1985.

9. Learned AGP Mr.Parikh has submitted that it appears from the pleadings that the original holder of plot no.12, one Shri Dineshbhai Vasudev Thacker and three others were granted NA permission vide order dated 12.09.1979 and instead of complying with the condition of starting construction within 6 months, they sold it to one Shri Somabhai Hirabhai Prajapati vide registered sale deed dated 28.08.1980. It is submitted that the said Somabhai Hirabhai Prajapati sold the said plot to Shri Narshibhai Chaturdas Patel vide registered sale deed dated 02.01.1982 and the said Narshibhai Chaturdas Patel sold it to the present petitioner Shri Narshibhai Thobandas vide registered sale deed dated 14.08.1985 . It is submitted that the earlier order dated 12.09.1979 granting NA permission was recorded in village form no.6 vide mutation entry no.12941 dated 24.01.1983 and the impugned order dated 05.01.1985 revoking the NA permission dated 12.09.1979 was recorded in the village form no.6 vide mutation entry no.14026 dated 29.01.1985.

10. The aforementioned facts suggest that the initially by the order dated 12.09.1979, the Collector, Mehsana granted NA permission to one Shri Dineshbhai Vasudev Thacker with the condition that he shall commence construction within six months and also complete the same within a period of 3 years. At this point, it would be apposite to incorporate the observation made by the Division Bench, in an analogous issue, in the case of Bankimchandra Bhikhubhai Desai (supra), has observed thus:-

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"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. 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."

11. The Division Bench has enunciated that the condition imposed in the order granting NA permission prescribing 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.

12. Indubitably, in the present case, the NA permission has been cancelled only for the reason that the predecessors of the land in question

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did not complete the construction within a period of 3 years. Such a condition itself is contrary to the statute as observed by the Division Bench and hence, the entire exercise undertaken by the Collector in passing the order dated 05.01.1985 runs contrary to the settled proposition of law. It is also pertinent to note that. Thus, the Court in the interim order dated 19.12.2012 has specifically observed and recorded that the respondent no.3 had failed to show anything that the respondent- State has brought on record any material to indicate that the petitioner was aware of the passing of the order of cancellation of the Non Agricultural use permission before purchasing the land in question. Today, also no material/documents are pointed out.

13. It is an established fact that after the order dated 05.01.1985 was passed by the Collector cancelling the NA permission, the authorities have not initiated any action and the petitioner is enjoying his residence since the year 1985 without there being any interruption. No notice has been issued to him by any of the authorities and only in the year 2010 when the petitioner decided to sell his property, and on inquiry made by him in the year 2010, he came to know about the year 1985 and accordingly, approached the authorities by filing proceedings as recommended under the statute, which has resulted in rejection of his application on the ground of delay.

14. In absence of any material shown to this Court with regard to the petitioner having knowledge of the order passed in the year 1985, the respondent authorities should not have rejected his application on the ground of delay. It is also not in dispute that the construction could have been regularized by the respondent-State by collecting appropriate

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penalty from the owners. The petitioner is also ready and willing to pay the same. Hence, looking to the period from 1985 till today, the petitioner, who has enjoyed property in question, and the interim order dated 19.12.2010 passed by this Court having not challenged before the higher forum, the impugned orders are hereby quashed and set aside. The respondent authorities if they deem it fit, may collect appropriate penalty from the petitioner in order to regularize the construction pursuant to the application made by the petitioner in this regard.

15. At this stage, learned advocate Mr.Puj, has submitted that in fact there is a resolution promulgated by the State Government dated 16.06.2022, wherein it is stated that such condition while granting NA permission of putting up the construction cannot be incorporated by the Collector and even if such condition is incorporated in the previous order, the same should be treated as deleted.

16. This Court is not opining anything on subsequent resolution passed by the State Government. It will be open for the petitioner to file appropriate application before the State Authorities in this regard and the same shall be considered in accordance with law.

17. The present petition is allowed. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK/109