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Judgment
MD. Shah, J.—By this petition under Article 226 of the Constitution of India, the Petitioner has challenged order dated 30-3-2009 passed by the Collector, Ahmedabad, the Respondent No. 2 herein, forfeiting the land bearing Survey No. 58/1 admeasuring 3630 sq. mtrs.
Short facts arising from the present petition are that Petitioner society, a Registered Co-operative Society formed in 1977 by the members, was allotted land admeasuring 3630 sq. mtrs. of Survey No. 58 of Vejalpur, Ahmedabad, for construction of residences of its members on certain terms and conditions. Thereafter, non-agricultural permission and Raja Chhiti were granted by the concerned authorities. As the land was uneven and a Talavdi, levelling and filling were done on the land and construction was completed up to plinth level. As there were encroachments by hutment dwellers on one side of the said land, several representations were made to the authorities. On introduction of Draft Town Planning Scheme No. 3 of Vejalpur after enactment of Gujarat Town Planning & Urban Development Act in June, 1976, there was a major change in the boundaries of the land allotted to the Petitioner society and as a result of which, the construction of the houses made by the members of the society on the land became invalid. When construction was going on prior to allotment of Final Plot, the Petitioner society was directed by the Respondent No. 4 by notice dated 18-12-1981 to stop construction on the land in question. Thereafter on 23-11-1984 when revised lay out plan was sanctioned, land admeasuring 900 sq. yrds. of the society was deducted by the authority and, therefore, compensation was sought by the Petitioner society to be awarded towards said deduction. The Respondent No. 4 thereafter allotted Final Plot No. 89 to the Petitioner society vide communication dated 26-3-1985. As there were encroachments even after allotment of Final Plot No. 89, complaint was made to the police for its removal apart from making representation to Respondent No. 2. Due to aforesaid restraints, construction of their residential houses could not be completed. Thereafter in 1989, a development permission as per the revised plan was granted by the Local Area Development Authority and it was extended for a period of two years. Pursuant thereto, some members constructed pukka houses and some kachha houses and they are residing therein by regularly making payments towards taxes, electricity bills, revenues, etc. However, on 12th/18th May, 1999, the Petitioner society requested the Respondent No. 2 for construction of flats on the said land for its members. On 25-6-2000, a panchnama was drawn by Talati-cum-Mantri that there were three pukka houses and 20 kachha houses. Thereafter, certain details were sought by the Respondent No. 3. Due to earthquake in 26-1-2001, they did not construct flats instead decided to construct tenements as per the sanctioned plan and sought permission to induct new members in the society for availing financial assistance. However, the Respondent No. 2 initiated suo motu proceedings by issuing a show cause notice on 12-7-2001 for breach of condition No. 4 of allotment order of 1971. A reply to the said notice was given but no action was thereafter taken by the Respondent authorities. Vide notification dated 20-7-2006 issued by the State Government, land of the Petitioner society was included in the existing limits of the City of Ahmedabad. Thereafter in 2006 when Petitioner society submitted a revised plan to the Respondent No. 4 for construction of flats and commercial premises on the said laid in 2006 for its members, existing pukka and kachha constructions were directed to be removed. All of its members undertook to remove their pukka and kachha houses as directed by the Respondent No. 4. An application submitted to District Registrar for change of name was allowed and the members paid Rs. 19.00 lakhs to the local authority towards development and scrutiny fees. The Respondent No. 4 thereafter suspended the development permission granted to the Petitioner and directed them to obtain necessary permission from the Respondent No. 2. When they approached the Respondent No. 2, a show cause was issued to the Petitioner society. Meanwhile, when the society requested the Respondent No. 4 by representation dated 24-6-2008, NA permission was directed to be produced. According to the Petitioner, initial allotment of land was for NA purpose and is still standing as NA in revenue records. The Petitioner on 27-2-2008 submitted an application to Respondent No. 2 for construction of flats. However, once again suo motu show cause notice was issued by the Respondent No. 2 on 28-4-2008 for the alleged breach of condition of allotment after a period of more than 38 years. In pursuance of reply submitted by the Petitioner on 6-5-2008, members of the society were directed to remain present by the Respondent No. 2 with all details of new and existing members and on 27-5-2008, they remained present and submitted all required details. Thereafter, on 17-6-2008, the members were required to submit their willingness to deposit the premium as may be fixed by Respondent No. 2 as per the jantri for considering the proposal of Petitioner Society. All these details were also furnished by the Petitioner society. As nothing was done by the Respondent No. 2, the Petitioner society filed Special Civil Application No. 2590 of 2009. However, during the pendency of said petition, the Respondent No. 2 passed impugned order dated 30-3-2009 whereby the land in question was vested with the State Government for breach of condition. Hence, the present petition.
Heard learned Senior Counsel, Mr. Percy Kavina, for Mr. Asit B. Joshi for the Petitioner, Ms. Jirga Jhaveri, learned AGP for the Respondent Nos. 1 to 3 and learned advocate, Mr. Bharat Jani, for the Respondent No. 4.
Learned Senior Counsel, Mr. Kavina, submitted that no reasons were assigned by the Respondent No. 2 in vesting the land in question with the State Government. According to him, the impugned order is a non-speaking order and is against the principles of natural justice and hence, the same is required to be quashed and set aside. Relying on a decision of this Court reported in 1997(2) GLH page 633, it is submitted that condition specifying time limit for completion of construction work is directory and not mandatory. According to him, such breach is only a technical breach which does not warrant any serious or severe action of cancellation of permission and it can be regularized by imposing fine or penalty. It is further submitted that in pursuance of representations dated 6-5-2008 and 27-5-2008, the Respondent No. 2-Collector vide communication dated 17-6-2008 sought certain details from the members of the society as to whether all the existing and new members of the Petitioner Society are willing to pay the price fixed as per the Jantri or not. In pursuance thereof, the Petitioner Society vide reply dated 23-6-2008 furnished all the details which, according to him, clearly establish that case of the Petitioner Society was considered by the Collector for regularisation by imposing fine for the alleged breach, however, at a subsequent stage, without application of mind and in a mechanical manner, passed the impugned order upon the instructions of Respondent No. 1 which is not an independent decision and is contrary to the policy of Government and, therefore, prima facie, the Petitioner is entitled to relief as prayed for. It is further submitted that the Respondent No. 2 has no authority to pass the impugned order as per Section 3A(b) of the BPMC Act, 1949 as the land in question has been included within the city limits of Ahmedabad Municipal Corporation after issuance of notification dated 20-7-2006 and while demarcating, size of the land has been deducted. It is further submitted that although the Petitioner society submitted consent of existing as well as new members for payment of premium as may be fixed as per the jantry vide their communication dated 23-6-2008 for regularisation in pursuance of communication dated 17-6-2008 of Respondent No. 2, the impugned order forfeiting the land ought not to have been passed by the Respondent No. 2 but the land ought to have been regularised.
In this connection, learned Senior Counsel relied on a decision of this Court rendered in Bharat Industries Ltd. v. State of Gujarat reported in 2006(1)GCD 847(Guj) wherein it has been held in para 6 as under:
"6. As regards the use of the land in question for manufacturing of Badami Coal is concerned, as per the Petitioner the application was made and intimation was given which was not attended. But, it appears that, the land is used for the other industrial purpose. When the land is used for the industrial purpose, though it can be said as breach, such breach, in my view, cannot be said to be so serious which may attract the order of forfeiture, and the reason being that the land is not only used for the other industry, but by establishment of the industry, the employment will be generated to the public at large. Had it been a case where the land is used for a industry which is prohibited under the law it may stand on different footing. Had it been a case where the land is not actually used by the establishment of the industry it may also stand on different footing. When the intimation was given and the application was made, it was expected for the authority to consider the same and in any case when the land is actually used for industry and even as on today is used for the industry, and there is no material to show that by change of use for a different industry either the public at large has suffered or the interest of the Government would be to jeopardize, it would not be a case where the harsh action of forfeiture of the land is called for. Even otherwise also in a matter where there is a breach of condition, the discretion would rest with the authority as to whether the penalty should be imposed or the land should be ordered to be forfeited. In the present case, it appears that, the State Government while exercising revisional jurisdiction has not at all considered the aspect as to whether penalty would meet with the ends of the justice or a strong case is made out for ordering forfeiture. In normal circumstances if the breach of condition has resulted into a serious loss of revenue to the Government or is against the public interest or against any statutory provisions, it may call for harsh action of forfeiture, but if the penalty can be a suitable mode, then in that case, it cannot be said that in every case the order of forfeiture must follow in the event the breach is demonstrated. What shall be the quantum of penalty or the mode of imposition and its recovery are essentially for the authority to decide but it appears that when the Quashi Judicial powers are exercised by the State Government, it was required to be considered by the State Government as to whether the penalty would meet with the requirements considering the breach or not."
It is further submitted that suo motu proceedings for alleged breach of condition has been initiated after an inordinate delay of more than 38 years and hence also, the impugned order is without jurisdiction and contrary to the settled legal position by this Hon''ble Court. It is therefore prayed that the impugned order be quashed and set aside.
It is submitted by learned AGP, Ms. Jirga Jhaveri, that the Petitioner society did not complete the construction within a period of two years from the date of allotment of land and thereby committed breach of condition No. 4 and hence, in view of the continued breach of conditions of allotment order for these long years, the Collector passed the order vesting the land with the State Government. It is further submitted that when request was made by the Petitioner to construct flats by inducting new members in the society in the land in question, it was forwarded to the State Government by the Collector as the original allotment order was of the Revenue Department of State Government and it was opined by the Government that as there was a breach of condition of allotment of land and as the purpose was changed, request was not considered and in turn, Collector, Ahmedabad passed impugned order resuming the land in favour of State Government. According to her, all the representations made by the Petitioner society were considered before passing the impugned order. She, therefore, submitted that the present petition be dismissed.
Learned advocate, Mr. Bharat Jani, supported the submissions made by learned AGP.
This Court has gone through the entire correspondences of the Petitioner Society with the Respondent authorities. It is to be noted that in pursuance of representations made by the Petitioner society, the Collector asked to provide certain details. Asking for details can by no stretch of imagination be construed that Collector has taken decision in favour of the Petitioner Society. It is pertinent to note that only Government can decide regarding allotment of plot to the members of the Society and therefore, after fulfilling all the formalities, the Collector sent the case of the Petitioner Society to the Government. Considering the fact that there is a breach of condition of allotment and also various other aspects, Government has taken decision to reject the demand made by the Petitioner and asked the Collector to pass a reasoned order and convey the Petitioner Society. It is also pertinent to note that the Petitioner had changed the constitution as well as the purpose and at present, they intended to construct flats instead of residences and also sought permission to use some portion of the land for commercial purpose. However, later on, though the demand for use of the land for commercial purpose was withdrawn by the Petitioner society, the entire proposal was changed and sought for allotment of land to them.
It is also to be noted that at the end of arguments, learned Senior Counsel for the Petitioner sought to remand the matter. However, looking to the facts and circumstances, as this Court is of the opinion that remanding the matter would be a futile exercise, matter is not being remanded.
A submission has been made on behalf of the Petitioner that as the Petitioner Society had deposited the amount, their demand ought to have been met by AUDA. However, it is to be noted that AUDA is a different authority and has no authority to take any decision till final decision is taken by the Government for allotment of land as it is the State Government which has the authority to decide about allotment of land. In the present case, the State Government has decided decision and asked the Collector to pass a reasoned order forfeiting the land. In view of the facts and circumstances narrated hereinabove, though this Court is in agreement with the principle laid down in the decision cited by the learned Senior Counsel for the Petitioner, the Petitioner society would not be entitled to any benefit.
A submission has also been made that construction has been made by the Petitioner Society. However, it is to be noted that panchnama on record indicates that only partial construction by one or two members is made. Thus, total situation is now changed and, therefore, after more than 38 years, the Petitioner is not entitled to any relief and hence, the Government has rightly decided the matter and ordered the Respondent No. 2 to pass reasoned order and the Respondent No. 2-Collector passed the impugned order. No illegality or irregularity has been committed in passing the said impugned order. Hence, the present petition is required to be dismissed.
This petition is dismissed. Rule is discharged. Ad-interim relief stands vacated. Remedy is available to the Petitioner society to approach the concerned Respondent authority/is for refund of amount which has been deposited.