SCA/7683/2001 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7683 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ANJUMAN - E - FALAH - E - DARAIN - Petitioner(s) Versus STATE OF GUJARAT & 6 - Respondent(s) ========================================================= Appearance : MR PRASHANT DESAI, SENIOR ADVOCATE WITH MR MRUGEN K PUROHIT for Petitioner(s) MS MAITHILI MEHTA, AGP for Respondent(s) : 1 - 4. MR DC DAVE for Respondent(s) : 5 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 20/11/2008 ORAL JUDGMENT 1. This petition has been preferred with the following prayers: SCA/7683/2001 2/20 JUDGMENT “(A) This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus and/or any other writ, order or direction by quashing and setting aside the impugned order dated 3.9.2001 (Annexure:A) passed by the respondent no.2 and also further be pleased to declare that the impugned order is unconstitutional, arbitrary and illegal; (AA) This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus and/or any other writ, order or direction by quashing and setting aside the impugned Resolution dated 30.8.2001 (Annexure: TT) passed by the State Government and also be further pleased to declare that the impugned resolution is illegal, unconstitutional and arbitrary; (B) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction directing the respondents to act pursuant to their earlier resolution dated 9.10.2000 whereby the petitioner have SCA/7683/2001 3/20 JUDGMENT been allotted the land in question by the respondents Authority by order dated 5.12.2000 of the Collector and be pleased to restore the order dated 5.12.2000;” 2. The petitioner is a Trust registered under the Bombay Public Trusts Act and the main object of the petitioner-Trust, as stated in the petition, is “to provide services in the field of finance, social education and help to any person of the Muslim community as well as to the scheduled caste and the scheduled tribe and the economically backward class people without discrimination as regards religion caste. It is also provided in the Trust Deed that they will provide education for pre-primary, primary, secondary and higher secondary technical school and other allied objects as enumerated in the Trust Deed”. It is the say of the petitioner that it is running a primary and secondary school in rented premises. That as the petitioner-Trust is facing shortage of SCA/7683/2001 4/20 JUDGMENT accommodation, the petitioner intends to construct a building of its own. For this purpose, the petitioner applied in 1992 to the Gram Panchayat, Bhalej, and the District Collector, Kheda, for allotment of Government land to the petitioner for the purpose of constructing a school building. The application specified the parcel of land bearing Survey No.394. According to the petitioner, the decision was taken by the Government only on 5.12.2000 as conveyed by the District Collector, Anand, as by then, the erstwhile District of Kheda had been bifurcated into two revenue Districts. It is the say of the petitioner that the petitioner was put in possession of the land in question on 30.12.2000. 3. Thereafter, according to the petitioner, some residents of village Bhalej raised an objection vide letter dated 3.1.2001 and hence, the petitioner was directed by the respondent-authority not to take any SCA/7683/2001 5/20 JUDGMENT action pursuant to order dated 5.12.2000. In fact, admittedly, two communications dated 2.1.2001 and 6.1.2001 were served on the petitioner in this regard. 4. The petitioner therefore approached this Court by way of Special Civil Application No.453 of 2001 which came to be disposed of vide order dated 18.7.2001. On behalf of the petitioner, a contention was raised to the effect that once the Government had made an order of grant, it was not open to the State Government to reconsider / review the decision. Rejecting the said contention, the Court observed as under: “...Be it noted that both the above referred judgments are in respect of the review of the orders made by the State Government in exercise of its quasi judicial power under the relevant statute. In the present case, the grant of land made in favour of the petitioner-Trust is being reconsidered, the same can not be equated with the review of an order made in exercise of quasi SCA/7683/2001 6/20 JUDGMENT judicial power. The order of grant of land is an administrative order. If the order of grant is required to be reconsidered for some valid reason, the State Government should not be prevented from doing so...” The reasons which weighed with the State Government for reconsidering the decision were two-fold, one of them being based on a communal approach made by the objectors. The High Court specifically stated that the said objection was not tenable and could not be a valid ground for reconsideration. 5. However, in relation to the second objection which related to the land in dispute being a natural water body (Talavdi) providing for drainage of rain water from the Gamtal of village, the High Court observed as under, directing the State Government to complete the inquiry as regards the water logging: “...However, the contesting respondents have also voiced the SCA/7683/2001 7/20 JUDGMENT apprehension of water logging of the village in the monsoon. If there is a genuine problem of water logging, suitable measures would be required to be undertaken. Mr.Desai has submitted that the objections raised by the contesting respondents are not genuine in as much as the land is not used for storm water drainage as is made out. However, if so required the petitioner-Trust shall provide for storm water trench for drainage of storm water during monsoon. In view of the above facts, the State Government is directed to complete its inquiry as regards the water logging of the village within a period of six weeks from today and to make suitable orders. If so required, the State Government may put the petitioner to condition to provide storm water trench through the land. In the event the State Government fails to make the order within six weeks from today as directed hereinabove, the impugned communication dated 2 nd July 2001 shall become inoperative...” 6. Thereafter, the State Government has reconsidered the whole issue and passed a SCA/7683/2001 8/20 JUDGMENT Resolution which has been notified on 30.8.2001. The same has been communicated to the petitioner vide communication dated 3.9.2001 whereby, the Collector has ordered to cancel the earlier order of grant dated 5.12.2000 and simultaneously leaving it open to the petitioner to apply for any other parcel of land. It is this order dated 3.9.2001 and Resolution dated 30.8.2001 which are under challenge in the present proceedings. 7. The learned Senior Advocate for the petitioner has strenuously urged that the entire exercise by the respondent- authorities is not only mala fide, but not in consonance with the directions issued by the High Court in its earlier order dated 18.7.2001 in the earlier round of proceedings. It was submitted that all the relevant authorities, namely the Village Panchayat, the Health Officer, the Road and Building Department, etc. had issued “no objection” to granting the land in SCA/7683/2001 9/20 JUDGMENT question to the petitioner and thereafter the State Government had permitted such grant to the petitioner free of cost and also free of revenue charges for educational purposes. That the entire basis for reconsideration is sought to be clothed with the problem of water logging whereas, in fact, the actual reason is something else, but in light of earlier order made by the Court, the said ground is not appearing on record. It was submitted that vide order dated 5.4.2002, the Court had suggested the respondent- authorities to find out another suitable alternative site and offer the same to the petitioner but the authorities had not dealt with the application for alternative land made by the petitioner with sincerity and the parcels of land shown to the petitioner were not suitable for construction of school building. It should therefore be held that the order of cancellation was bad in law, and in the SCA/7683/2001 10/20 JUDGMENT alternative, as directed by the Court on 18.7.2001 in earlier round of proceedings, the petitioner must be asked to make provision for providing drainage so as to avoid water logging. 8. On behalf of the respondent-authorities, learned Assistant Government Pleader has invited attention to the affidavit-in- reply dated 27.2.2002 filed by respondent No.2, the Collector, Anand, with special reference to Paragraph Nos.6, 7 and 8 of the affidavit to emphasize the fact that the respondent-authorities had considered all aspects of the matter and found that the land in question could not be allotted to the petitioner considering the larger public interest. It was further submitted that in the order made by the State Government, the petitioner had been permitted to suggest alternative land for use of educational purpose and the petitioner's right was not prejudiced in any manner. SCA/7683/2001 11/20 JUDGMENT 9. Having heard the learned advocates for the parties, it is apparent that the petitioner is not entitled to assail the order of cancellation because as already held by this Court in the earlier round of proceedings, there was an administrative order of grant made on 5.12.2000 which came to be reconsidered and, therefore, the petitioner cannot make a grievance that it is not open to reconsider the earlier order. However, whether the subsequent Resolution dated 30.8.2001 and the consequential order dated 3.9.2001 are tainted by mala fides or are based on reasons not germane to the issue may be considered in light of the specific ground raised by the petitioner. Pursuant to the earlier order dated 18.7.2001 made by this Court between the same parties, the Executive Engineer, Drainage Division, Nadiad, was called upon by the Collector, Anand, to furnish a technical report. Vide communication dated 10.8.2001, the SCA/7683/2001 12/20 JUDGMENT Executive Engineer has stated that on 7.8.2001, when it was raining, he had personally visited the site and had found that rain water was flowing from Gamtal of Bhalej Village into Survey No.394 and the said land was filled with water. That considering the geographical location and the surrounding of Gamtal of Bhalej village, it was apparent that Survey No.394 operated as a natural water body for providing a natural drainage for collection of rainy water which would otherwise inundate the village. It is further stated by the said expert in the technical report that in the nearby vicinity, there is no natural drain nor is there any open land which would provide for laying down a storm water drain or trench for clearing the rain water from Survey No.394. That any such provision would have to be for a long distance and would prove to be highly prohibitive. The Executive Engineer has further stated that SCA/7683/2001 13/20 JUDGMENT if the said parcel of land is filled up with soil, then rainy water cannot be drained from the Gamtal of Bhalej village and upon inundation of the Gamtal, large portion of populace of the village, residential areas, houses, roads, would be affected, resulting in problems of public health and public hygiene. The Executive Engineer has, therefore, concluded that on an overall consideration, it was apparent that Survey No.394 was a natural low lying area and considering the local topography, the same was a natural water body (Talavdi). 10. This report was forwarded to the Collector and in turn to the State Government. Thus, it cannot be said that the reasons which have weighed with the State Government are either mala fide or not germane. In this context, it is apparent that even the order of grant dated 5.12.2000 which has been heavily relied upon by the petitioner itself SCA/7683/2001 14/20 JUDGMENT records in this context with reference to the communication dated 24.1.1994 of the Principal District Health Officer and by way of condition No.6 therein that the land can be allotted and utilized for school building only after the said parcel of land is filled up with earth upto a height of three feet. Therefore, the say of the petitioner that the reason regarding water logging is a ground to camouflage the real reason does not merit acceptance. Filling up the land upto a height of three feet would definitely indicate that the land in question is topographically a low lying area when considered in context of the surrounding area. 11. However, there is one more factor and the said factor is fatal to the case of the petitioner. It is an accepted position that the petitioner had made an application in 1992. Though the petitioner has stated this fact in Paragraph No.3.8 SCA/7683/2001 15/20 JUDGMENT of the petition, the petitioner has conveniently avoided to specify as to what had happened to the said application. In fact, the entire petition proceeds as if it was the application of 1992 which came to be granted by the respondent- authorities. Whereas, in fact, on 2.9.1992, by specifying five grounds, the request was rejected to allot the very same parcel of land bearing Survey No.394 (Block No.541-A). Ground Nos.1 and 5 of the said communication specifically state that if the said land is allotted, it is likely to create problems of water logging and the villagers of Bhalej had specifically made a representation for not allotting the said land. 12. Therefore, the say of the petitioner that the respondent-authorities are creating a facade to deny the grant of land to the petitioner cannot be accepted. The bogie raised about communal opposition also does not stand. Admittedly, in 1992, no such SCA/7683/2001 16/20 JUDGMENT issue was raised by any one, either the objectors or the State Government. Similarly, the issue of water logging has not been raised as a ground to clothe the other reasons considering the fact that in 1992, for the very same reason, the request of the petitioner to allot the said parcel of land, namely, Survey No.394 had been rejected. 13. In these circumstances, the petition requires to be rejected only on the count of having suppressed a material fact and re-agitating the same issue even though the decision rendered in September 1992 had not been challenged by the petitioner at the relevant point of time. However, even on facts, as noticed herein-before, no case is made out for holding that the land in question can be utilized for any other purpose except the natural water body. The technical report rendered by the Executive Engineer does not in any manner indicate that the said expert has not SCA/7683/2001 17/20 JUDGMENT considered all the relevant factors. 14. In this context, it is necessary to take note of the fact that in Paragraph No.9 of the affidavit-in-reply dated 27.2.2002, the Collector has categorically stated that “it may be pertinent to note that the land in question is not to be intended to be given to any other person”. This establishes the fact that in compliance with the ratio of judgment of this High Court to maintain natural water bodies in their natural state to enhance the collection and storage of natural water, the State Government has taken a conscious decision after rectifying its earlier mistake and the same cannot be faulted with. Hence, neither the Resolution dated 30.8.2001 nor the consequential order dated 3.9.2001 suffer from any legal infirmity so as to warrant interference. In a petition under Article 226 of the Constitution, the Court is only required to consider the validity of the decision SCA/7683/2001 18/20 JUDGMENT making process and not the decision per- se. 15. Lastly, the contention that the respondent-authorities have not dealt with later part of the direction issued by this Court on 18.7.2001 in the earlier round of proceedings to provide for a drainage system is an incorrect proposition. The technical report of the Executive Engineer itself states in no uncertain terms that in the nearby vicinity, there is no natural drainage and it is not possible to provide any drainage if the land in question is filled up so as to prevent water logging. Therefore, there is no question of calling upon the petitioner to take steps to provide a storm water drainage, as suggested by the learned advocate for the petitioner. 16. The impugned Resolution dated 30.8.2001 as well as the order of Collector dated 3.9.2001 specifically state that the petitioner may be allotted an alternative SCA/7683/2001 19/20 JUDGMENT parcel of land for which the petitioner may make an appropriate application in accordance with law. Thus, in principle, the claim of the petitioner has been accepted by the State Government, namely, allotment of a parcel of land for educational purposes. However, it does not flow therefrom that the petitioner is vested with a right to insist only for a particular parcel of land and only at a particular site or location. It will be open to the petitioner to approach respondent No.2, the Collector, Anand, with a fresh application made in accordance with law and suggest alternative sites. The petitioner cannot insist that the respondent-authorities must themselves suggest the land and allot the same. It has to be a mutual process and there cannot be any insistence as the petitioner is seeking grant of land cost- free and without revenue implications. 17. In the circumstances, subject to the SCA/7683/2001 20/20 JUDGMENT aforesaid clarification, the petition is rejected. Rule discharged. There shall be no order as to costs. (D.A.Mehta, J.) (sunil)