Special Civil Application No. 74 of 2005. Case: Prakashchandra Kunvarji Shah Vs Collector. Gujarat High Court

Case Number:Special Civil Application No. 74 of 2005
Party Name:Prakashchandra Kunvarji Shah Vs Collector
Counsel:For Appellant: Panam C. Soni, Advocate and For Respondents: Manan Mehta, AGP
Judges:K.M. Thaker, J.
Issue:Constitution of India - Articles 226, 227; Gujarat Town Planning and Urban Development Act, 1976 - Sections 29, 65; Maharashtra Land Revenue Code, 1966 - Section 211
Judgement Date:March 27, 2017
Court:Gujarat High Court
 
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Judgment:

K.M. Thaker, J.

  1. Heard Mr. Soni, learned advocate for the petitioner, and Mr. Mehta, learned AGP for the respondent - State.

  2. In present petition, the petitioner has prayed, inter alia, that:-

    13(B) be pleased to quash and set aside the order dated 31.10.2003 passed by the respondent - Collector in Sharat Bhang Case No. 65/02, annexed at Annexure-B to this petition; as also the order passed by the Additional Secretary (Appeals), Revenue Department, Gujarat State, dated 31.07.2004, which was issued to the petitioner on 30.09.2004, Annexure-C to this petition, by issuing a suitable direction under Articles 226/227 of the Constitution of India;

  3. So far as factual background giving rise to this petition is concerned, the petitioner has averred and stated that:-

    2. The petitioner submits that the Deputy Collector, Vadhwan Sub-Division had submitted report to the respondent, stating that the petitioner has committed breach of conditions No. 7, 11, 12 and 14 of the order dated 08.02.1999. The petitioner was, therefore, issued a show cause notice and the hearing was fixed, asking the petitioner to present his evidence. It was alleged against the petitioner that the petitioner has committed breach of condition No. 7 by not keeping open the roads as per the lay-out plan, that the petitioner committed breach of condition No. 11 by not starting construction within six months and by not completing the construction within three years; that the petitioner committed breach of condition No. 12 by not informing within one month about commencement of the construction and about completion of the construction within one month thereafter; that the petitioner committed breach of condition No. 14 to the effect that the land was to be used for the residential purpose, still it is not used for residential purpose. The petitioner pointed out that he has already kept all the roads open as per the layout plan and only compound wall was made in order to prevent antisocial elements from encroaching upon the land and thereby he has not committed any breach of condition No. 7. The petitioner also pointed out that because of financial difficulties and unforeseen circumstances, like earth-quake and also for other circumstances beyond his control, he could not start construction within time limit as prescribed in the order and, therefore, it cannot be said that he had committed any breach of condition No. 11. As regards condition Nos. 12 and 14, the petitioner pointed out that there was no question of complying said condition because as stated above, the construction could not be started. The respondent - Collector, however, came to the conclusion that the petitioner has committed breach of the conditions of the order by not starting construction after obtaining N.A. permission and, therefore, the petitioner is liable to pay penalty for two years, i.e. for the years 2001-02 and 2002-03. Accordingly, at the rate of 40 Patt per year, the penalty was assessed at Rs. 2,48,880/-. The petitioner has been accordingly ordered to pay the said amount as penalty and the period for construction is extended by one year.

    3. The petitioner submits that the above said order was challenged by the petitioner before the Additional Secretary [Appeals], Revenue Department, State of Gujarat, by filing a Revision Application under Section 211 of the Bombay Land Revenue Code. The Additional Secretary [Appeals] has not properly dealt with the issues which had arisen in the revision filed by the petitioner and has rejected the revision application by order dated 31.07.2004. The said order was sent to the petitioner on 30.09.2004.... Under the circumstances, the petitioner is approaching this Hon'ble Court by way of this petition under Articles 226/227 of the Constitution of India, challenging the order passed by the respondent dated 30.10.2003, Annexure-A to this petition, as also the order dated 30.07.2004, Annexure-C to this petition, passed by the Additional Secretary [Appeals], Revenue Department, State of Gujarat.

    4. The petitioner submits that the petitioner is not liable to be penalised for alleged breach of any of the conditions, as stated in the order passed by the respondent. The order passed by the respondent is beyond his competence and dehors his own order dated 08.02.1999, granting N.A. permission to the petitioner. The said order does not provide for imposing of penalty for breach of any of the conditions. Therefore, the respondent was not authorized to impose penalty on the petitioner for alleged breach of the conditions by the petitioner.

    5. The petitioner submits that so far as the condition No. 7 is concerned, the petitioner cannot be said to have committed breach of said condition, because the petitioner has just constructed compound wall to prevent unauthorised elements to enter on the land, but it cannot be said that the petitioner has not kept open the roads as per the lay-out plan.

    So far as...

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