SCA/479920/2002 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4799 of 2002 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 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 ? ========================================= = DANABHAI HEDUJI NAI & 39 - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================= = Appearance : MR MEHUL H RATHOD for Petitioner(s) : 1 - 15. MR APURVA DAVE, AGP for Respondent(s) : 1 - 3. RULE SERVED BY DS for Respondent(s) : 4, ========================================= = CORAM : HONOURABLE MS. JUSTICE H.N.DEVANI Date : 27/11/2008 ORAL JUDGMENT SCA/479920/2002 2/13 JUDGMENT 1. The facts giving rise to the present petition under Article 226 of the Constitution of India are as under: 2. The petitioners are the residents of village Panthavada. The Panthavada Gram Panchayat, vide Resolution No.6(4) dated 15th September, 1992, decided to construct shops on its own land bearing Survey No.28 (hereinafter referred to as the 'subject land'). The land being a 'gamtal' land, the Panchayat, prior to changing the use of the land, submitted a proposal to the Collector, Banaskantha in November, 1992 seeking permission for change of use of the said land from 'gamtal' to commercial. It appears that the Panchayat had also, vide Resolutions No.7(6), 7(8) and 7(9), submitted proposals for obtaining technical sanction from the competent authority for making construction on the subject land. Thereafter, vide Resolution No.7(13) dated 23rd January, 1993, the Gram Panchayat decided to request the Taluka Development Officer, Dhanera to make arrangement to supervise the construction work. It appears that without waiting for the decision of the Collector in connection with the proposal made in November, 1992 for change of use, the Panchayat commenced the work of constructing shopping centre and on 22nd March, 1993, the Panchayat decided to hold auction for 16 shops. Accordingly, a public advertisement was published on 26th March, 1993 fixing the public auction on 3rd May, 1993. It appears that the Panchayat in its meetings dated 23rd June, 1993, 31st July, 1993 and 29th August, 1993, decided to dispose of other shops by way of public auction and accordingly public advertisements came to be published and public auctions were held on 13th October, 1993 for 16 shops SCA/479920/2002 3/13 JUDGMENT and on 30th October, 1993 for 10 shops. Subsequently, the Panchayat executed lease agreements in favour of the petitioners and possession was also handed over. 3. Vide order dated 23rd May, 1994, the Panchayat's application for change of use of the subject land came to be rejected by the Collector, Banaskantha on the ground that the Panchayat had commenced construction on the subject land without obtaining prior permission. It was also stated in the order that the Panchayat should first remove the construction/encroachment and thereafter submit a fresh proposal. Being aggrieved by the aforesaid order passed by the Collector, the Panchayat preferred a revision application before the State Government under Section 211 of the Bombay Land Revenue Code. By order dated 13th April, 1999, the Deputy Secretary (Appeals), Revenue Department rejected the revision application and confirmed the order dated 23rd May, 1994 passed by the Collector. It may be pertinent to note that despite the fact that the shops constructed on the subject land had been given to the petitioners on lease after the public auction held in 1993, no notice had been issued to the petitioners nor were the petitioners accorded any opportunity of hearing in the said proceedings. 4. The Collector, Banaskantha thereafter issued a show-cause notice dated 12th October, 1999 to the Gram Panchayat, Panthavada calling upon the Panchayat to show cause as to why the subject land alongwith the construction thereon should not be vested in the State Government as the Panchayat had commenced construction without prior permission of the State Government. It appears that pursuant SCA/479920/2002 4/13 JUDGMENT to the said show-cause notice, the Panchayat filed a reply alongwith a Resolution dated 18th November, 1999 stating that the Panchayat was willing to pay the necessary costs in respect of the land. However, nobody remained present at any of the dates on which the matter was fixed for hearing. By an order dated 07th April, 2000, the Collector, Banaskantha held that the Gram Panchayat had made construction on the subject land without prior permission and accordingly, forfeited the land in question alongwith the construction thereon and vested the same in the State Government. 5. It is the case of the petitioners that pursuant to the order dated 07th April, 2000 passed by the Collector, Banaskantha, the Mamlatdar, Dantivada, without issuing prior notices to the petitioners, all of a sudden, took forceful possession of the shops from the petitioners on 08th June, 2000. According to the petitioners, they were not aware about any proceedings in respect of the subject land and for the first time came to know about the said proceedings on 08th June, 2000 through the Mamlatdar. The petitioners, therefore, immediately contacted the then Collector and apprised him about all the facts including the fact that all the proceedings had been conducted without their knowledge and that at no point of time, had any of the authorities thought it fit to join the petitioners as parties to the proceedings, though they were in lawful possession of the shops in question. According to the petitioners, the then Collector advised the petitioners to make applications for regularisation of the possession qua the land as well as construction and assured them that if such applications were made, the same would be considered sympathetically. It is the case of the petitioners that having no SCA/479920/2002 5/13 JUDGMENT other option, the petitioners agreed to the said suggestion and agreed to give undertaking to restore the possession of the land. That upon furnishing the undertaking and submitting applications for regularisation, possession of the shops of the petitioners was restored by the Mamlatdar, Dantivada on 09th June, 2000. According to the petitioners, as the then Collector had assured them that their case for regularisation would be considered sympathetically, the petitioners, with a view to avoid any conflict either with the Panchayat or with the Government authorities, agreed to the suggestion and instead of challenging the impugned orders passed by the authorities at that point of time, made applications for regularisation as suggested by the revenue authorities. It is the case of the petitioners that on the applications made by the petitioners, the Panchayat and other authorities submitted proposals with positive remarks for regularisation of the land and the shops in question. Vide order dated 23rd January, 2002, the Collector rejected the applications for regularisation made by the petitioners on the grounds that (i) the shops are causing hindrance to the traffic, (ii) encroachments for commercial use are made intentionally and (iii) applications seeking regularisation are not in accordance with the rules and regulations. According to the petitioners, they had approached the Collector once again and requested him to reconsider his decision and regularise the possession of the petitioners. However, it appears that the said representation has not been decided. SCA/479920/2002 6/13 JUDGMENT 6. In the background of the aforesaid facts and circumstances, the petitioners have approached this court by way of the present petition challenging the following orders:- (a) Order dated 23rd May, 1994 passed by the Collector, Banaskantha rejecting the proposal of the Panchayat for change of use of the land (Annexure 'D'), (b) Order dated 13th April, 1999 passed by the respondent no.1 – State of Gujarat and all consequential and subsequent orders/effects/actions of the authorities, (c) Order dated 07th April, 2000 passed by the Collector forfeiting the subject land and vesting the same in the State Government and (d) Order dated 23rd January, 2002 of the Collector rejecting the petitioners' applications for regularisation of their occupation. The petitioners seek a further direction against the respondents to sanction the proposal of the Panchayat permitting the change of use of the subject land from 'gamtal' to commercial purpose as well as a direction for declaring that the petitioners are in lawful possession of the shops as per the details shown in Annexure 'B' to the petition. 7. Heard Mr. Mehul Rathod, learned advocate for the petitioners and Mr. Apurva Dave, learned Assistant Government Pleader on behalf of respondents no.1, 2 and 3. Despite service of notice of Rule, there is no appearance on behalf of respondent no.4 – Panthavada Gram Panchayat. SCA/479920/2002 7/13 JUDGMENT 8. Mr. Rathod, learned advocate for the petitioners has assailed the impugned orders dated 23rd May, 1994 and 07th April, 2000 passed by the Collector, Banaskantha as well as the order dated 13th April, 1999 passed by the respondent no.1 – State of Gujarat mainly on the ground that the same have been passed in breach of the principles of natural justice. It is pointed out that the Panchayat, in anticipation of approval of its proposal for change of use of land, had made construction of the shops in question on the subject land and had sold the same to the petitioners at a public auction held on different dates as stated hereinabove. That the Collector, vide the impugned order dated 23rd May, 1994, had not only rejected the Panchayat's application of change of use of land but had also directed that the construction thereon be removed. It is submitted that the petitioners had been given the possession of the shops by the Gram Panchayat in a public auction and they had no reason to believe that the same were, in any manner, unauthorised. It is accordingly submitted that prior to directing removal of the construction, it was incumbent upon the Collector to have granted an opportunity of hearing to the petitioners. It is further submitted that the order passed by the revisional authority suffers from the same infirmity inasmuch as despite the said order being prejudicial to the rights of the petitioners, the same has been passed without giving any opportunity of hearing to the petitioners. It is further submitted that the revisional authority has gone beyond the order of the Collector and has taken into consideration other proceedings while rejecting the revision application which did not find any mention in the order passed by the Collector. It is submitted that despite the fact that the petitioners were in SCA/479920/2002 8/13 JUDGMENT occupation of the shops in question, the Collector had issued the show-cause notice dated 12th October, 1999 only to the Gram Panchayat and, therefore, the impugned order dated 07th April, 2000 passed by the Collector forfeiting the lands to the Government for breach of condition by the Panchayat, is also bad on the ground of breach of principles of natural justice. 9. It is further submitted that upon the assurance of the then Collector, the petitioners had not challenged the orders passed by the Collector and the revisional authority, under the bonafide belief that the applications will be considered sympathetically. However, the Collector had, vide the impugned order dated 23rd January, 2002, rejected the applications of the petitioners on grounds which were not germane and which did not arise out of the said proceedings. It is submitted that the first ground on which the applications had been rejected is that the shops are constructed on the public road and, therefore, are in the nature of an obstruction to the traffic. It is submitted that Panthavada is a small village and the shops in question are, in no manner, obstructing the traffic on the public road. It is submitted that the second ground namely, that the encroachment of commercial nature which is made deliberately is de hors the record inasmuch as, it was the Gram Panchayat which had constructed shops on the subject land and given the same to the petitioners by way of a public auction. It is submitted that in the circumstances, the question of encroachment did not arise at all as the subject land was Panchayat land and the construction had been made thereon by the Panchayat and thereafter given to the petitioners in the public auction. Insofar as the third ground namely, that the application for regularisation is not in SCA/479920/2002 9/13 JUDGMENT accordance with the rules is concerned, it is submitted that no reasons have been assigned to show as to in what circumstances, the application is not in accordance with the rules. 10. Drawing attention to the averments made in paragraphs 4.16 to 4.18 of the petition, it is pointed out that within a period of 39 days since the passing of the impugned order, the Collector, Panthavada, vide order dated 04th March, 2002, has regularised unauthorised construction (shopping centre) of commercial nature adjoining the petitioners' shops from the same piece of land i.e. from Survey No.28. It is accordingly submitted that the grounds advanced by the Collector for rejecting the applications for regularisation made by the petitioners are false and based on extraneous considerations. 11. In conclusion, it is submitted that the petitioners have bona fide participated in the public auction and have paid consideration for the shops in question and as such, the competent authority should not penalise the petitioners for the default on the part of the Gram Panchayat. 12. On the other hand, Mr. Apurva Dave, learned Assistant Government Pleader has opposed the petition. It is submitted that the Panchayat had constructed the shopping centre on the 'gamtal' land without prior permission of the Collector and as such, the respondent authorities were justified in rejecting the proposal for change of use. It is submitted that the construction of the shops as well as auctioning thereof was unlawful and as such, the petitioners' applications for SCA/479920/2002 10/13 JUDGMENT regularisation of their occupation of the shops on the subject land has rightly been rejected by the Collector. It is accordingly submitted that the petition is devoid of any merit and substance and that the impugned orders passed by the authorities are just, legal and proper and do not call for any interference on the part of this court. 13. In the light of the facts noted hereinabove, it is apparent that - (i) the Panthavada Gram Panchayat had submitted a proposal for change of use of land from 'gamtal' to commercial; (ii)during the pendency of the said proposal, the Panchayat had gone ahead and constructed the shops in question and held public auction for disposing the said shops; (iii)that the petitioners had been allotted the shops in question upon participating in the said public auction; (iv)despite the fact that the petitioners were in occupation of the shops in question, the Collector, while passing the impugned order dated 23rd May, 1994 whereby it had been directed that the construction/encroachment on the subject land be removed and fresh proposal be submitted, had not given any opportunity of hearing to the petitioners; (v)the revisional authority, while passing the impugned order dated 13th April, 1999, had also not accorded any opportunity of hearing to the petitioners; (vi)despite the fact that the petitioners were in occupation of SCA/479920/2002 11/13 JUDGMENT the shops in question, show-cause notice dated 12th October, 1999 calling upon the Gram Panchayat to show cause as to why the subject land alongwith the construction thereon should not be forfeited to the Sate Government has been issued only to the Panchayat and the petitioners were not issued any show-cause notice; and (vii)while passing the impugned order dated 07th April, 2000 forfeiting the lands to the State Government, the Collector, Banaskantha had not given any opportunity of hearing to the petitioners. 14. In the light of the aforesaid undisputed facts, it is apparent that despite the fact that the petitioners were in actual occupation of the shops in question, none of the respondent authorities had granted any opportunity of hearing to the petitioners while passing the impugned orders, though it was the petitioners who were principally affected by the impugned orders. In the circumstances, the impugned orders dated 23rd May, 1994, 13th April, 1999 and 07th April, 2000 suffer from the vice of breach of principles of natural justice and as such, cannot be sustained and deserve to be quashed and set aside. 15. Insofar as the impugned order dated 23rd January, 2002 whereby the Collector, Banaskantha has rejected the applications of the petitioners for regularisation is concerned, the learned advocate for the petitioners is justified in contending that the same suffers from non-application of mind, inasmuch as the same records that the petitioners have deliberately made encroachment which is commercial in nature SCA/479920/2002 12/13 JUDGMENT on the subject land. It is an undisputed position that the shops in question had been constructed on the subject land by the Panchayat and had been allotted to the petitioners by way of a public auction. Hence, the question of the petitioners deliberately encroaching upon the land for commercial purpose does not arise at all. While stating that the request for regularisation of encroachment is not in accordance with law, the Collector has not assigned any reasons in respect of the same. Insofar as the first ground for rejecting the applications namely, that the shops are situated on a public road and would, therefore, cause obstruction to the traffic is concerned, it is the case of the petitioners that on the adjoining plot, the Collector has, within a period of 39 days, regularised commercial construction in favour of one Tarachand Khandelwal. If that be so, it is not open for the State authorities to discriminate between citizens. Despite specific averments having been made in the petition, the affidavit-in- reply is silent in respect of the said averments. 19. In the aforesaid circumstances, it is apparent that the impugned order dated 23rd January, 2002 passed by the Collector suffers from non-application of mind and is based on irrelevant considerations and as such, cannot be sustained. 20. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned orders dated 23rd May, 1994 passed by the Collector, Banaskantha (Annexure “D”), 13th April, 1999 passed by the respondent No.1 (Annexure “E”), 7th April, 2002 passed by the Collector, Banaskantha (Annexure “G”) and 23rd January, 2002 passed by the Collector, Banaskantha (Annexure “K”), are hereby quashed and set SCA/479920/2002 13/13 JUDGMENT aside. The Collector, Banaskantha shall consider the application dated November, 1992 made by the Gram Panchayat, Panthavada as well as the applications for regularisation made by the petitioners afresh, in the light of the observations made hereinabove, after giving the petitioners an opportunity of hearing. In case the order passed by the Collector is adverse to the petitioners, the same shall not be implemented for a period of 30 days from the date of communication of the order to the petitioners. Rule is made absolute accordingly with no order as to costs. ( Harsha Devani, J. ) hki