IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 9757 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law as No 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 ? No ================================================================ ANAND D LODARIYA SALT & STORAGE PVT LTD & 1 Petitioner(s) Versus STATE OF GUJARAT THROUGH SPECIAL SECRETARY & 3 Respondent(s) ================================================================ Appearance:
MR.D K.PUJ, ADVOCATE for the Petitioner(s) No. 1 - 2 Ms.Asmita Patel,learned ASST.GOVERNMENT PLEADER for the Respondents Nos.1 to 3.
Mr.G.D.Acharya for MR PR NANAVATI, ADVOCATE for the Respondent(s) No. 4 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 28/12/2012 ORAL JUDGMENT
1. Rule. Ms.Asmita Patel, learned Assistant Government Pleader waives service of notice of Rule for respondents Nos.1 to 3 and Mr.G.D.Acharya, learned advocate waives service of notice of Rule for respondent No.4.
2. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and finally decided.
3. By preferring this petition under Article 226 of the Constitution of India, the petitioners have assailed the order dated 9-7-2012 passed by the Secretary (Appeals), Revenue Department (respondent No.1), whereby the Revision Application filed by the petitioners has been rejected.
4. Briefly stated, the facts of the case, relevant for the decision of the petition are that, land bearing Traverse Survey No.155/1, situated in village Kidana, Taluka Gandhidham was allotted to the petitioners for the purposes of salt-crushing and storage purposes, vide order of the Collector (respondent No.2) dated 15-10-2007. While granting the land to petitioner No.2, the Collector had called for the opinions of various authorities and, after considering the same, sanction from the Revenue Department of the State Government was obtained. One of the conditions of allotment contained in the order dated 15-10-2007 was condition No.6, which enjoins upon petitioner No.2 to put up construction within the stipulated period of two years, as mentioned in the allotment order. The Collector issued a Show Cause Notice dated 29-6-2010 to petitioner No.2 calling for an explanation why proceedings for breach of condition No.6 should not be initiated. According to the Collector, petitioner No.2 had failed to put up construction within a period of two years from the date of the grant of the land. Petitioner No.2 gave a reply to the Show Cause Notice on 12-7-2010, along- with certain documents. However,the Collector, vide order dated 11-3-2011, directed that the land in question be vested in the State Government, for breach of conditions Nos.1,3,4,5,6 and 8 of the allotment order. Feeling aggrieved by the aforesaid order, petitioner No.2 preferred a Revision Application before the Secretary (Appeals), Revenue Department (respondent No.1) that has been rejected by the impugned order dated 9-7-2012, confirming order passed by the Collector. In the above circumstances, the petitioners have approached this Court by way of the present petition.
5. Mr. D.K.Puj, learned advocate for the petitioners has submitted that the Show Cause Notice dated 29-6- 2010 issued to petitioner No.2 is only regarding the breach of condition No.6 of the allotment order which stipulates that construction is to be put up within a period of two years. However, the Collector,while passing the order dated 11-3-2011 has travelled beyond the scope of the Show Cause Notice and has directed that the land be vested in the State Government on the ground that there is a breach of conditions Nos.1,3,4,5,6 and 8 of the allotment order. It is further submitted that as the Show Cause Notice was issued only with regard to condition No.6, the Collector could not have passed an order for breach of any other condition, as no Show Cause Notice was issued to the petitioners for the other conditions. Respondent No.1 has erroneously confirmed the order of the Collector in this regard. It is further contended that in another case where the facts were identical and the Collector had passed an order beyond the scope of the Show Cause Notice, the very same Secretary had quashed and set aside the said order of the Collector, on the ground of violation of the principles of natural justice; whereas, in the case of the petitioner a diametrically opposite stand is being taken and the order of the Collector which is beyond the scope of the Show Cause Notice has been confirmed. Nine revision applications against the orders of the Collector, on the very same ground, have been dismissed, whereas in one case the revision application has been allowed. It is contended that such inconsistency in the stand taken by respondent No.1 has caused prejudice to the petitioners, apart from it being legally untenable, as an order passed beyond the scope of the Show Cause Notice cannot be sustained, as per the settled principles of law.
6. In support of the above submissions, learned counsel for the petitioners has placed reliance upon the following judgments:
(a) Janardan Jaishankar Jokharkar v. State of Gujarat, 2008(2) GLH 717
(b) Hill Memorial High School v. District Education Officer, 2008(2) GLH 520
(c) Kesarbhai Bhagwanbhai v. State of Gujarat, 1997 (3) GLR 2142
(d) Vallabhbhai Mohanbhai Sakhrelia v.State of Gujarat, 1988(2) GLH (UJ) 23
(e) Taruva Juth Telibiya Utpadak Sahakari Mandli V. State of Gujarat, 2009 (0) GLHEL-HC 222728
7. On the strength of the above submissions, it is submitted on behalf of the petitioners that the impugned orders passed by respondents Nos.2 and 1 be quashed and set aside.
8. Opposing the petition, Ms. Asmita Patel, learned Assistant Government Pleader has submitted that conditions Nos.1,3,4,5,6 and 8 mentioned in the order of allotment are inter-related and all these conditions have to be read together. These conditions are regarding the user of the land. The Show Cause Notice has been issued to the petitioners only for breach of condition No.6, but that does not mean that the authority cannot mention, or refer to, all the other inter-related conditions while passing an order, as all these conditions pertain to the use of land. It is further submitted that the reply to the Show Cause Notice furnished by petitioner No.2 on 12-7-2010, is also a reply with regard to condition No.3, therefore, it cannot be said that the Show Cause Notice was issued only for the breach of condition No.6 of the allotment order.
8.1 It is next submitted that no cause of action has arisen to the petitioners due to the fact that the other inter-related conditions have not been mentioned in the Show Cause Notice. In any case, it was incumbent upon petitioner No.2 to satisfy the revenue authorities regarding condition No.6, which he has not been successful in doing, therefore, the impugned orders have been rightly passed and deserve no interference.
8.2 It is further submitted that the land has been allotted to petitioner No.2 for the specific purpose of industrial use. Petitioner No.2 has constructed 5 godowns without prior permission of the competent authorities which is proved by a Panchanama carried out by the Circle Officer. In a document produced by petitioner No.2 along with the Show Cause Notice, it has been admitted that the land has been used for a godown. It was incumbent upon petitioner No.2 to take prior permission from the competent authority, but petitioner No.2 has taken permission from the Gram Panchayat, which is not the competent authority. It is submitted that there are no legal or other infirmities in the impugned orders,therefore, the petition may be rejected.
9. Mr.G.D.Acharya, learned advocate for Mr.P.V.Nanavati, learned counsel, has appeared for respondent No.4 (Gandhidham Development Authority) and has submitted that petitioner No.2 has not taken prior permission from the competent authority before putting up construction. Respondent No.4 has issued a notice for demolition to petitioner No.2 on 15-7-2010. A demolition order has also been issued on 31-7-2010.
However, petitioner No.2 has filed Reference before the District Judge,Kutch which is still pending. Learned counsel for respondent No.4 has prayed for the rejection of the petition.
10. No submissions have been made by the learned Assistant Government Pleader and learned counsel for respondent No.4 regarding the applicability of the judgments cited by learned counsel for the petitioners.
11. The short question that is posed for consideration before this court in the present case is, whether the order passed by the Collector, Kutch, as confirmed by the order passed by the Secretary (Appeals), is sustainable in law, having been passed beyond the scope of the Show Cause Notice issued to the petitioners?
12. A perusal of the Show Cause Notice dated 29-6- 2010 makes it abundantly clear that this notice is only with regard to the breach of condition No.6 of the allotment order dated 15-10-2007, by which construction has to be put up on the land within a period of two years. Condition No.6 relates to the period of time in which the construction has to be made. On the other hand, conditions Nos.1,3,4,5 and 8, though pertain to the use of the land, do not have any relevance to the time-frame for putting up construction. As condition No.6 is the only condition, for breach of which petitioner No.2 was asked to show cause, it is evident that no opportunity of hearing has been granted for breach of the other conditions, namely conditions Nos.1,3,4,5, and 8. Despite this, the Collector has directed that the land be vested in the State Government for breach of conditions Nos.1,3,4,5 and 8, in addition to condition No.6. This order has been confirmed by respondent No.1.
13. It is clear from a perusal of the Show Cause Notice, and the impugned orders passed by respondents No.2 and 1 that the said orders have been passed on material that is extraneous to,and beyond the scope of, the Show Cause Notice, without granting an opportunity of hearing to the petitioners regarding the alleged breach of the other conditions mentioned in the impugned order, apart from condition No.6.
Admittedly, no Show Cause Notice has been issued to the petitioners for breach of the other conditions.
14. It is now a well settled legal position, expounded by several judgments, that an authority cannot consider the grounds that have not been stated in the Show Cause Notice, and nor can an order be passed beyond the scope of the Show Cause Notice.
15. In Janardan Jaishankar Jokharkar v. State of Gujarat (Supra), the Court (Coram: K.M.Thaker,J) has held that:
“15. On perusal of the record, it is noticed that in the notice dated 12.12.1988, pursuant to which the impugned order has been passed, no allegation about the construction touching the State Highway and/or insufficient margin was mentioned. In absence of any such reference in the notice, the impugned order passed by the Secretary (Appeals) turns into an order beyond the scope of the notice. The authority passing an order of adjudication cannot take into account the grounds or circumstances which are not alleged in the notice and/or in respect of which the petitioner is not put to notice. Otherwise, the very purpose of issuing notice and inviting explanation is frustrated, and going beyond the purview of the Show Cause Notice or taking into account aspects not enumerated in the Show Cause Notice and making them basis for the order also amount to violation of principles of natural justice. When an authority passes an order which is based on grounds or facts not alleged and stated in the notice, then such order results into denial of opportunity of hearing and becomes violative of audi alteram partem rule. In present case, it is obvious that the grounds of insufficient margin and/or the building touching the State Highway are not mentioned in the Show Cause Notice. Not only this, but even the order of the original and competent authority also does not contain any such finding of fact at his stage in the order dated 11.2.1989. In this view of the matter, it was not permissible for the Secretary (Appeals) to take into consideration aspects which did not form part of the Show Cause Notice and/or which were not reflected in the original order impugned before that authority. The impugned order, on this ground, alone deserves to be set aside.”
16. In Hill Memorial High School v. District Education Officer (Supra), the Show Cause Notice had been issued with regard to 10% reduction in the grant whereas in the final order 25% of the grant was withheld. This Court held that the final order runs beyond the scope of the Show Cause Notice and hence, cannot be sustained.
17. In Kesarbhai Bhagwanbhai v. State of Gujarat (Supra) the Court has held as under:
“4. I find considerable force in the submissions urged before me by learned Advocate Shri Chhaya for the petitioners. The show-cause notice at Annexure-C to this petition speaks of resumption of land by and on behalf of the Government for breach of conditions. Nowhere it is mentioned that a fine could be imposed on the petitioners for breach of any of the conditions attached to grant of the land over and above resumption of the disputed land by the Government. Instead of resumption of the disputed land by and on behalf of the Government, respondent No.2 imposed fine and granted further time till 31st July 1983 for starting their khandsari manufacturing unit. It is thus clear that respondent No.2 has travelled beyond the scope of the show-cause notice without giving an opportunity of hearing to the petitioners in that regard. The impugned order at Annexure-A to this petition in respect of imposition of fine as affirmed in revision by the order at Annexure-B to this petition cannot, therefore, be sustained in law.”
18. In Taruva Juth Telibiya Utpadak Sahakari Mandli V. State of Gujarat, the Court has held as below:
“4.0 Considering the main contention raised by the petitioner, it transpires from record that pursuant to the inspection of the fair price shop of the petitioner, the petitioner was issued a Show Cause Notice dated 24th April 2002 calling upon the petitioner to show cause as to why the stock of sugar and rice as mentioned in the notice should not be confiscated. Though there is no mention regarding imposition of any monetary punishment upon the petitioner in the said Show Cause Notice, the respondent No.3 vide order dated 28th May 2002 ordered to cancel the licence of the petitioner and to recover an amount of Rs.1,20,784/- from the petitioner. Thus, the order passed by the respondent No.3 is beyond the scope of the Show Cause Notice. Hence, I am in complete agreement with the aforesaid contention raised by the petitioner and incline to quash and set aside the impugned orders passed by the respondent-authorities qua the monetary punishment imposed upon the petitioner by the respondent No.3. However, so far as the orders passed by the respondent-authorities qua cancellation of licence of the petitioner are concerned, the same are hereby confirmed.”
19. The principles of law enunciated in the above-
quoted judgments would squarely apply to the facts of the present case. By passing the impugned order that is undoubtedly beyond the scope of the Show Cause Notice and directing the vesting of the land for breach of conditions, other than condition No.6, for which the Show Cause Notice was issued, there is a flagrant violation of the principles of natural justice. The rule of Audi Alteram Partem that enjoins an adequate opportunity of hearing, has been violated by the respondents as the petitioners have not been granted an opportunity of hearing for the alleged breach of the other conditions, not mentioned in the Show Cause Notice. The findings of respondents Nos.2 and 1 are, therefore, unsustainable in law.
20. The submissions advanced by the learned Assistant Government Pleader that all the conditions are inter- related, therefore, the Collector has not committed any illegality in passing the impugned order for the breach of the other conditions, over and above condition No.6, cannot be accepted. Nothing had prevented the Collector from mentioning the other conditions in the Show Cause Notice, if he was of the view that a breach of those conditions has occurred.
However, this has not been done by the Collector at the time of the issuance of the Show Cause Notice. In the above circumstances, the Collector could not have passed the impugned order relying upon the alleged breach of the other conditions that have not been mentioned in the Show Cause Notice. Under the circumstances, the Collector has travelled beyond the scope of the Show Cause Notice while passing the impugned order dated 11-3-2011,that has been mechanically confirmed by respondent No.1, vide his order dated 9-7-2012.
21. Both the above-mentioned orders cannot stand the scrutiny of law and deserve to be quashed and set aside.
22. Another submission made by the learned Assistant Government Pleader is that the reply filed by the petitioners also covers condition No.3. As the breach of condition No.3 was not mentioned in the Show Cause Notice, this submission does not carry any weight, whatsoever.
23. Averments have been made in the petition, in addition to oral submissions made by learned counsel for the petitioners, that in another case having a similar factual matrix, respondent No.1 has set aside the order of the Collector on the ground that it has been passed beyond the scope of the Show Cause Notice in that case, which has resulted in the violation of the principles of natural justice. This order has been appended to the petition as Annexure “N”. Though the order has been passed in another case, a perusal of the said order passed by respondent No.1 does indicate that the submissions made by learned counsel for the petitioners carry some force. Respondent No.1 is acting as a quasi-judicial authority while exercising jurisdiction under Section 211 of the Gujarat Land Revenue Code,1972. As such, it is expected that consistency in legal principles be maintained in exercise of such jurisdiction. The very same principles of law that have weighed with respondent No.1 while passing the order in the other case, have been completely ignored while passing the order dated 9-7-2012, impugned in the present petition. The reasons for such inconsistency is, however,not known.
24. In view of the above discussion and for the aforestated reasons, the impugned order dated 11-3- 2011, passed by the Collector,Kutch and the order dated 9-7-2012, passed by the Secretary (Appeals), are quashed and set aside, being unsustainable in law.
It is, however, clarified that the respondents are not precluded from issuing a fresh Show Cause Notice to the petitioner(s), in accordance with law.
25. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) ARG