Gujarat High Court
Jivanbhai Shankarbhai Patel vs State Of Gujarat on 1 April, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 376 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
✔
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JIVANBHAI SHANKARBHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No.
1,2,3,4,4.1,4.2,4.3,4.4,4.4.1,4.4.2,4.4.3,4.5,5,6
MR JAYNEEL PARIKH, ASST. GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 01/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr.Nishit Gandhi on behalf of
the petitioners and learned Assistant Government Pleader
Mr.Jayneel Parikh on behalf of the respondent - State.
2. By way of this petition, the petitioners challenge order
dated 28.04.2021 passed by the SSRD in Revision Application
No.MVV/JMN/GDN/3/2020, whereby an order dated
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16.09.2019 passed by the Collector, Gandhinagar in breach of
condition case has been confirmed.
3. Facts leading to filing of this petition briefly being that
the petitioners being owners of the land in question i.e. land
bearing survey/block no.47/1, 47/2 paiki, 47/3 and 47/4 total
admeasuring 19842 sq.mtrs, final plot no.68/2 admeasuring
15874 sq.mtrs situated at Village: Bhaat, Taluka District:
Gandhinagar, had made an application before the District
Development Officer who was the competent authority at the
relevant point of time, seeking NA permission qua the land in
question and whereas, vide four separate orders dated
19.02.2004, the NA permission had been granted as requested
for more particularly for putting the land to residential use.
3.1. It would appear that the orders in question inter alia
contained a condition whereby the NA applicant had been
directed to commence the construction within a period of six
months from the date of the order and to complete the
construction within a period of three years. It would also
appear that while there are certain submissions with regard
to the completion of construction etc. and whereas having
regard to the discussion at the later portion of this decision,
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the same are not being referred herein.
3.2. It would appear that somewhere in the year 2017, the
petitioners intended to put the remaining portion of the land
upon which there was no construction, to commercial use and
whereas, an application had been made on 07.07.2017
seeking change of purpose of non-agriculture use and
whereas, it is the case of the petitioners that instead of
considering the application of the petitioners, the District
Collector had issued show cause notice dated 01.06.2018 on
the ground that there was a breach of condition of the original
order of NA dated 19.02.2004. The petitioners having
contested the said show cause notice by filing a detailed reply,
the District Collector, Gandhinagar vide order dated
16.09.2019 had observed that there had been a violation of
condition and hence, penalty had been issued upon the
petitioners and whereas further direction to remove the
construction was also passed. The said order had been
challenged by the petitioners before the SSRD vide the
revision referred to hereinabove and vide the order impugned
dated 28.04.2021, the SSRD had rejected the revision
application confirming the order passed by the Collector,
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prompting the petitioners to approach this Court.
4. Learned advocate Mr.Gandhi on behalf of the petitioners
would submit that the issue of directing construction to be
carried out within a particular period of time as appearing in
the order of NA, has been addressed by this Court in a
decision in case of Shri Khijada Mandir through Maharaj Shri
Krushnamaniji Guru Dhramadasji vs. State of Gujarat,
reported in 2017 (0) AIJEL-HC 240663 and whereas, a learned
Coordinate Bench of this Court (Hon'ble Mr. Justice
J.B.Pardiwala, as his Lordship then was) has inter alia taken a
view that the condition to construct within a specific time
period is arbitrary and unreasonable. Learned advocate would
submit that the State had preferred an appeal against the
decision of the learned Coordinate Bench and whereas, vide
an order dated 05.09.2022, the State was permitted to
withdraw the said appeal.
4.1. Learned advocate would submit that the law on the issue
having been settled by this Court, yet, the same has not been
appreciated in its proper perspective by the SSRD more
particularly the SSRD coming to a conclusion that the
condition which had been imposed upon the petitioners was in
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an order of the year 2004 and whereas, the order passed by
this Court in the decision referred to hereinabove was of the
year 2017 and therefore, the same would not be applicable.
4.2. Learned advocate Mr.Gandhi submitting that since
adverse action against the petitioners had been taken on
account of the above condition not being complied with vide
show cause notice which had been issued for the first time in
the year 2018 i.e. after the date of the decision of this Court,
therefore, the decision of this Court would squarely apply to
the facts of the case.
4.3. Learned advocate Mr.Gandhi would further point out
that though, as noticed hereinabove, State had preferred an
LPA against the order in question, yet, the same had been
withdrawn and whereas, the reason for such withdrawal as
clearly discernible being that in the interregnum, the State
had issued a circular dated 16.06.2022 whereby the State had
directed that in orders granting NA permission, a condition
for completing the construction within a specific period of
time shall not be included and furthermore, all cases pending
with regard to breach of condition shall not be proceeded any
further, more particularly as regards the condition of
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constructing within a particular period of time not being
fulfilled.
4.4. Learned advocate would submit that the State having
taken such a stand, it was not open for the SSRD to have
rejected the revision application more particularly learned
advocate submitting that in any case, the order passed by this
Court being prior to the order passed by the Collector in the
year 2019, the observations made by this Court squarely apply
to the facts of the present case. Learned advocate would thus
submit that this Court may set aside the orders passed by the
Collector as well as the SSRD referred to hereinabove.
5. The present petition is vehemently contested by learned
AGP Mr.Parikh on behalf of the State. Learned AGP would
submit that the order of this Court declaring such a condition
appearing in the NA orders being arbitrary etc. was passed on
22.09.2017 and whereas, the effect of such order could only
have been on prospective basis and not on retrospective basis.
Learned AGP would submit that the order in question, breach
of which was being considered by the Collector, was of the
year 2004 and whereas, under such circumstances, the
Collector had rightly imposed penalty and passed further
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orders and the SSRD has rightly not interfered with the order
of the Collector. Learned AGP would thus submit that this
Court may not interfere with the orders passed by the
authorities concerned.
6. Heard learned advocates for the respective parties and
perused the documents on record. The short question which
arises for consideration of this Court is would the decision of
this Court dated 22.09.2017 in case of Shri Khijada Mandir
(supra) be applicable to the issue in question more
particularly considering that the order granting NA
permission in favour of the present petitioners was of the year
2004.
6.1. In this regard, it would be relevant to mention that at the
first instance, NA permission had been granted to the lands in
question vide orders dated 19.02.2004 and whereas, the
petitioners had sought for change of purpose vide their
application dated 07.07.2017. What is being emphasized by
reference to the above dates is the fact that from the year
2004 till the year 2017 when the petitioners had applied for
change of purpose, no proceedings for breach of condition
had been initiated.
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6.2. Before traversing on the facts any further, it would be
profitable to refer to the decision of this Court in case of Shri
Khijada Mandir (supra) which has been relied upon by the
learned advocate for the petitioners. The learned Coordinate
Bench was concerned with a case whereby the authorities
concerned had refused to delete a condition in the NA
permission granted by the respondent no.2 therein on
23.08.2013. The learned Coordinate Bench, having considered
various earlier decisions as well as the provision in question,
had come to a conclusion that "the condition imposed in the
order granting NA 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."
6.3. It would appear that the learned Coordinate Bench
having taken such a stand, while the State had originally
sought to challenge the said decision by preferring Letters
Patent Appeal No.1029/2019 and whereas, in view of a
communication dated 25.08.2022 received from the legal
department of the State of Gujarat, the Hon'ble Division
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Bench of this Court vide order dated 05.09.2022 had
permitted withdrawal of the said appeal. The reason for such
withdrawal by the State is clearly on account of circular dated
16.06.2022, reference to which has been drawn by the
learned advocate for the petitioners, whereby the State had
inter alia directed removal of condition for completing the
construction on a land where NA permission is granted within
a specific period of time more particularly such a condition
originally being part of Rule 87 of the Gujarat Land Revenue
Rules, 1972. It would appear that the State had thereafter
directed that in orders whereby permission under Section 65
(NA permission) was granted, the same shall not contain any
condition with regard to completing the construction within a
specific period of time. Most importantly, it would also appear
that the State has inter alia directed that in cases regarding
breach of condition, more particularly where the breach is
with regard to non-completion of the construction within the
time limit as stipulated in the NA order, the same was directed
not to be treated as a breach of condition.
6.4. From the above, it would clearly appear that while the
learned Coordinate Bench had declared such a condition of
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commencing and completing construction within specific
period of time as being arbitrary, unreasonable and without
any nexus with the object sought to be achieved, the said
decision had been accepted in principle by the State
Government and whereas, substantive directions had been
issued by the State more particularly the State had deleted a
condition as appearing in a form which is part of the Land
Revenue Rules more particularly as per Rule 87 of the Land
Revenue Rules. The State has further directed that NA orders
thereafter would not contain the clause in question.
6.5. Furthermore, it would appear that the State has directed
that there shall not be any breach of condition case for non-
fulfillment of the condition with regard to commencing and
completing the construction as found in NA orders. Thus, it
would appear that the State had taken the issue in two
directions i.e. by deleting the condition from the Form 'M' as
per the stipulation in Rule 87 of the Gujarat Land Revenue
Rules and by directing Collectors not to incorporate such
condition, the State had taken action prospectively to ensure
that NA orders after the said date should not contain any
clause with regard to commencing and completing the
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construction within a period of three years from the date of
order. Furthermore, the issue had also been taken care of
retrospectively by the State more particularly whereby the
State had inter alia directed that there shall not be any breach
of condition cases initiated insofar as the condition of
commencing and completing construction in NA orders not
being fulfilled. Thus, the resultant effect would be that even if
an order granting NA had been issued prior to the date of
decision of this Court in case of Shri Khijada Mandir (supra)
i.e. on 22.09.2017 or even before the date of the circular
referred to hereinabove i.e. 16.06.2022, and if such an order
contained a clause with regard to commencing and
completing construction within a specific period of time then,
non-fulfillment of such condition would not entail any negative
consequence. Thus, the State had retrospectively diluted the
condition in orders granting NA which were already in
existence.
6.6. In view of the above discussion, to this Court, it would
appear that the SSRD had completely erred in holding that
the petitioners were required to challenge the original order
of NA of the year 2004 and having not done so for a period of
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fifteen years, the petitioners were precluded from questioning
the action taken by the Collector for breach of the very order.
To this Court, it would appear that upon the State having
issued circular dated 16.06.2022, such a condition which was
part of an existing NA order, would not have any effect
whatsoever more particularly the only negative consequence
which would have entailed as regards the said order being
that if the construction had not commenced or had not
completed within the time limit stipulated in the order, then
the authorities were empowered to initiate breach of
condition cases and upon the State promulgating the circular
dated 16.06.2022, the authorities were directed not to treat
non-fulfillment of the condition concerned as a breach. Thus,
the clause appearing in NA orders, to this Court, upon
circular dated 16.06.2022 having been passed, would be
completely ineffective and should be treated as non-existent in
the NA orders itself.
7. In any case, to this Court, it would also appear that the
law on the aspect of applicability of the decisions of this Court
as well as of the Supreme Court is well settled. The law to this
Court being that unless the decision itself specifies that the
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judgment would be with prospective effect, the same would
apply with retrospective effect.
7.1. Reliance is placed in this regard upon observations of
the Hon'ble Supreme Court in case of Kanishk Sinha and
Another vs. State of West Bengal, reported in 2025 (3)
JT 207 whereby the Hon'ble Supreme Court has observed as
under:-
"Now the law of prospective and retrospective
operation is absolutely clear. Whereas a law made by
the legislature is always prospective in nature unless
it has been specifically stated in the statute itself
about its retrospective operation, the reverse is true
for the law which is laid down by a Constitutional
Court, or law as it is interpretated by the Court. The
judgment of the Court will always be retrospective in
nature unless the judgment itself specifically states
that the judgment will operate prospectively. The
prospective operation of a judgment is normally done
to avoid any unnecessary burden to persons or to
avoid undue hardships to those who had bona fidely
done something with the understanding of the law as
it existed at the relevant point of time. Further, it is
done not to unsettle something which has long been
settled, as that would cause injustice to many."
7.2. Furthermore, reliance is placed on decision of the
Hon'ble Supreme Court in case of P.V.George vs. State of
Kerala, reported in 2007 (3) SCC 557, paragraph no.29
thereof being relevant for the present purpose, is reproduced
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hereinbelow for benefit:-
"29. Moreover, the judgment of the Full Bench has
attained finality. The special leave petition has been
dismissed. The subsequent Division Bench, therefore,
could not have said as to whether the law declared by
the Full Bench would have a prospective operation or
not. The law declared by a court will have a
retrospective effect if not otherwise stated to be so
specifically. The Full Bench having not said so, the
subsequent Division Bench did not have the
jurisdiction in that behalf."
7.3. Reliance is also placed upon observations of the Hon'ble
Supreme Court in case of Manoj Parihar vs. The State of
Jammu & Kashmir, reported in 2022 (14) SCC 72,
paragraph no.26 being relevant for the present purpose, is
reproduced hereinbelow for benefit:-
"26. What was done in Bimlesh Tanwar (supra) was
actually a declaration of law. Therefore, the same will
have retrospective effect. In P.V. George v. State of
Kerala, (2007) 3 SCC 557, this Court held that "the
law declared by a court will have retrospective effect,
if not otherwise stated to be so specifically"."
7.4. Having regard to the observations made by Hon'ble
Supreme Court, since the decision of a Constitutional Court
would apply with retrospective effect unless the judgment
itself specifies that the same would be applicable with
prospective effect, the judgment of the learned Coordinate
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Bench in case of Shri Khijada Mandir (supra) not stating that
its effect would be prospective and furthermore, since learned
Coordinate Bench in the said decision having laid down a
substantive law, the SSRD could not have and ought not to
have rejected the revision application by holding that the
petitioners having not challenged existence of the clause in
the NA orders dated 19.02.2004 could not be permitted to
challenge the breach of condition case initiated insofar as the
said aspect was concerned.
8. Having regard to the above discussion, to this Court,
since it appears that the issue having been settled by this
Court and having been accepted in principle by the State
Government, the order of the Collector initiating and passing
adverse order for breach of condition of commencing and
completing construction in order granting NA to the
petitioners dated 19.02.2004 i.e. vide order dated 16.09.2019
and the order confirming the order of the Collector by the
SSRD dated 28.04.2021 being erroneous, are required to be
quashed and set aside. Appropriate consequences of the
setting aside to follow. With this observations and direction,
the petition stands disposed of as allowed.
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9. Needless to clarify that upon the orders passed by the
Collector and the SSRD being set aside, the petitioners would
be at liberty to prefer a fresh application, if so advised, for
revised NA permission which application had resulted in the
proceedings being initiated by the Collector in the first
instance. Needless to further clarify that the same shall be
decided in accordance with law. Direct service is permitted.
(NIKHIL S. KARIEL,J)
Bhoomi
