IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1309 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= B S SALT PVT LTD - Petitioner(s) Versus SPECIAL SECRETARY & 3 - Respondent(s) =========================================================
Appearance :
MR MIHIR THAKORE SR.ADV. WITH MR MITUL K SHELAT for Petitioner MR PK JANI GOVERNMENT PLEADER with MR PRANAV DAVE for Respondent Nos.1 & 4, NOTICE SERVED BY DS for Respondent(s) : 1 - 3. MR VC VAGHELA for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH CAV JUDGMENT Date : 14/06/2012 1.00. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction to quash and set aside the impugned order dtd.29/1/2011 passed by the Special Secretary, Revenue Department and the order dtd.26/3/2008 passed by the Collector, Bharuch allotting land in question to the respondent No.3 herein and rejecting the application of the petitioner for allotment of the land for manufacture of the salt. By way of amendment which has been granted the petitioner has also prayed for appropriate writ and/or order to quash and set aside the Government Resolution dtd. 10/10/2000.
2.00. Facts leading to the present Special Civil Application, in nutshell, are as under :-
2.01. That the dispute is for allotment of Khar land bearing Block No.679/Paiki admeasuring 350 Acres situated at, At and Post Paniadara, Taluka : Vagara, District : Bharuch on lease for manufacturing Salt, which is required to be allotted as per Government Resolution dtd. 10/10/2000.
2.02. It appears that initially the respondent No.3 herein submitted an application in his individual capacity for the allotment of the aforesaid land on 14/12/2002. It appears that the Collector, Bharuch rejected the said application submitted by the respondent No.3 herein vide order dtd.19/2/2003 on the ground that he is above age of 60 and is having 30 Acres of agricultural land. It appears that thereafter respondent No.3 submitted application before the Collector for review of the order dtd.19/2/2003 on 16/6/2003. That during the pendency of the said application, respondent No.3 herein submitted an application before the Collector, Bharuch on 5/8/2003 for review of the order dtd.19/2/2003 and for allotment of the land in favour of his son named Umeshchandra Chandrakant Joshi.
That pending any decision on the aforesaid application, the petitioner submitted an application to the Collector, Bharuch for allotment of the land in question to it for salt production on 27/11/2006. It appears that thereafter the respondent No.3 addressed a letter dtd.13/27-8-2007 to the Collector, Bharuch stating that his earlier application dtd.14/12/2002 which was already rejected by order dtd.19/2/2003 which was submitted by him in his individual capacity may be permitted to be changed as an application by Partnership Firm. It also appears that thereafter by letter dtd.24/1/2008 the respondent No.3 requested the Collector, Bharuch not to consider his application dtd.13/8/2007 to consider his earlier application in the capacity of Partnership Firm, but to consider it in its individual name only. It appears that thereafter, the Collector, Bharuch passed order dtd.26/3/2008 rejecting the application of the petitioner on the ground that the application of the respondent No.3 was prior in time to the application of the petitioner and by separate order dtd.26/3/2008 the Collector, Bharuch allowed the application of the respondent No.3 and allotted the land in question to the respondent No.3 for manufacture of salt. That Being aggrieved by and dissatisfied with the order passed by the Collector, Bharuch in rejecting the application and in allotting the land to the respondent No.3, petitioner preferred Revision Application No. 4 of 2008 before the revisional authority and the revisional authority by order dtd.10/10/2008 partly allowed the said revision application and remanded the matter back to the Collector for reconsideration. It appears that being aggrieved by and dissatisfied with the order passed by the revisional authority dtd.10/10/2008 passed in Revision Application No. 4 of 2008, respondent No.3 preferred Special Civil Application No. 13081 of 2008 before this Court and the learned Single Judge by judgement and order dtd.23/6/2009 allowed the said Special Civil Application and quashed and set aside the order passed by the revisional authority dtd.10/10/2008 on the ground that the petitioner had not challenged order dtd.26/3/2008 by which the land was leased in favour of the respondent No.3. Being aggrieved by and dissatisfied with the order passed by the learned Single Judge in Special Civil Application No. 13081 of 2008 dtd.23/6/2009, petitioner preferred Letters Patent Appeal No.1369 of 2009 and the the Division Bench by order dtd.27/1/2010 allowed the said Letters Patent Appeal and quashed and set aside the order passed by the learned Single Judge in Special Civil Application No.13081 of 2008 dtd.23/6/2008 and remanded the matter back to the revisional authority to decide the Revision Application afresh. That thereafter on remand, the revisional authority by order dtd. 29/1/2011 rejected the application of the petitioner and confirmed the order passed by the Collector allotting the land in question on lease in favour of the respondent No.3 for manufacture of salt. That Being aggrieved by and dissatisfied with the order passed by the revisonal authority dtd.29/1/2011 in rejecting the said application and confirming the order passed by the Collector, Bharuch allotting the land in question to the respondent No.3 on lease for manufacture of salt, petitioner herein has preferred present Special Civil Application under Article 226/227 of the Constitution of India.
3.00. Mr.Mihir Thakore, learned Senior Advocate appearing with Mr.Mitul Shelat, learned advocate appearing on behalf of the petitioner has vehemently submitted that the Collector, Bharuch has materially erred in rejecting the application of the petitioner for allotment of the land in question for manufacture of the salt and allotting land in question on lease to the respondent No.3 solely on the ground that the application of the respondent No.3 was prior in time to the application of the petitioner. It is submitted that at the relevant time when the petitioner submitted the application on 27/11/2006, the application submitted by the respondent No.3 was not in existence, as the application of the respondent No.3 was already rejected by the Collector, Bharuch by order dtd.19/2/2003 and the said order of the Collector, Bharuch rejecting the application of the respondent No.3 was never challenged by the respondent No.3. It is further submitted that the revisional authority has not properly appreciated and considered the fact that the application submitted by the respondent No.3 dtd.14/12/2002 to allot 350 Acres of the land from land bearing Survey No.679 in his individual capacity was rejected by the Collector on 19/2/2003 and as such the said order has attained finality, inasmuch as the same has not been challenged by the respondent No.3. It is submitted that even thereafter respondent No.3 submitted application before the Collector for review of the order dtd.19/2/2003 on 16/3/2003, though no such power of review was with the Collector. It is further submitted that even thereafter respondent No.3 again submitted application before the Collector, on 5/8/2003 for review of the order dtd.19/2/2003 and to allot land in favour of his son Umesh Chandrakant Joshi. It is submitted that earlier application submitted by the respondent No.3 was in his individual capacity which was rejected and thereafter while submitting another review application which was not maintainable, respondent No.3 submitted application to consider his application to allow land in favour of his son. It is further submitted by Mr.Thakore, learned Senior Advocate appearing on behalf of the petitioner that the matter does not end here. It is submitted that even thereafter after the petitioner submitted application to the Collector, Bharuch for allotment of the land in question, respondent No.3 again submitted application to the Collector, Bharuch on 13/27-8- 2007 requesting the Collector, Bharuch not to consider his earlier application dtd.14/2/2002 in his individual capacity and to consider the same as an application by Partnership Firm. It is further submitted that not only that but even subsequently by application dtd.24/1/2008, respondent No.3 again submitted another application to the Collector, Bharuch requesting not to consider application dt.13/8/2007 in the capacity of Partnership Firm but to consider it in his individual name only. Therefore, it is submitted that when subsequently Collector, Bharuch considered even the review application and allotted the land to the respondent No.3 on lease, application of the petitioner was already pending which was made on 27/11/2006 and therefore, even considering the Government Resolution dtd.10/10/2000, both the applications were required to be sent to the State Government. It is submitted that the aforesaid submission is made without prejudice to the contentions of the petitioner that as such the Collector, Bharuch had no jurisdiction and/or authority to review its earlier order dtd.19/2/2003. It is further submitted by Mr.Thakore, learned Senior Advocate appearing on behalf of the petitioner that as such granting application of the respondent No.3 by order dtd.26/3/2008, the Collector, Bharuch has effectively set aside the order of his predecessor and virtually exercised the power of appeal, which is not permissible. It is submitted that as such the application of the respondent No.3 was already rejected earlier by order dtd.19/2/2003 and there are no powers of review with the Collector to review earlier odder dtd.19/2/2003. As such it can be said that the application of the petitioner dtd.27/11/2006 is prior to the application made by the respondent No.3 dtd.13/8/2007.
3.01. Mr.Thakore, learned Senior Advocate appearing on behalf of the petitioner has further submitted that as such the Collector, Bharuch as well as the revisional authority has misinterpreted and/or misconstrued the Government Resolution dtd. 10/10/2000. It is submitted that considering the aforesaid facts and circumstances and even considering Government Resolution dtd. 10/10/2000 as it is, even if it is considered that both the applications given by the petitioner as well as respondent No.3 pending, the Collector was required to send both the applications to the State Government for its consideration and to consider both the applications, considering the Government Resolution dtd.10/10/2000.
3.02. Mr.Thakore, learned Senior Advocate appearing on behalf of the petitioner has in the alternative submitted that even the Government Resolution dtd.10/10/2000 is also required to be read reasonably. It is submitted that if the Government Resolution dtd. 10/10/2000 is read to provide allotment solely on the basis of the date of the application, it would lead to arbitrariness and discrimination. It is submitted that the Government Resolution dtd. 10/10/2000 is required to be read to the effect that if on the date of the decision there are two or more applications, the same are required to be sent to the State Government. Therefore, it is submitted that what is required to be considered is not the date of the application but the date of decision. It is submitted that in any case, the Collector has materially erred in considering the review application submitted by the respondent No.3 as a fresh application and consequently allotting the land in question on lease to the respondent No.3 on the ground that the application of the respondent No.3 was prior in time. It is submitted that the review application could not have been construed as a fresh application.
3.03. Mr.Thakore, learned Senior Advocate appearing on behalf of the petitioner has relied upon the decision of the Delhi High Court reported in 1997 (69) DLT 786 in support of his above submission.
By making above submissions it is requested to allow the present Special Civil Application and to quash and set aside the impugned order passed by the Collector, Bharuch, confirmed by the revisional authority in allotting the land in question to the respondent No.3 on lease for manufacture of salt.
4.00. Present petition is opposed by Mr.P.K. Jani, learned Government Pleader appearing with Mr.Pranav Dave, learned Assistant Government Pleader appearing on behalf of the State as well as Mr.V.C. Vaghela, learned advocate appearing on behalf of the respondent No.3.
4.01. Mr.V.C. Vaghela, learned advocate appearing on behalf of the respondent No.3 has submitted that the impugned order passed by the revisional authority is as per the direction issued by the the Division Bench in Letters Patent Appeal No.136 of 2009 by which the Division Bench quashed and set aside both the orders, i.e. order passed by the learned Single dtd.23/6/2009 as well as order passed by the revisional authority dtd.10/10/2008, and therefore, the same is not required to be interfered with. It is submitted that the revisional authority has passed the impugned order after hearing both the parties and has decided to allot lease in favour of the respondent No.3 and therefore, as the order passed by the revisional authority is as per the direction issued by the Division Bench, no interference of this Court is required.
4.02. Mr.V.C. Vaghela, learned advocate appearing on behalf of the respondent No.3 has further submitted that even the order passed by the Collector, Bharuch dtd.26/3/2008 allotting land in question to the respondent No.3 is absolutely in consonance with the Circular / Government Resolution dtd. 10/10/2000. It is submitted that as earlier application of the respondent No.3 was rejected solely on the ground that the respondent No.3 is aged 60 years and not on merits and therefore, the respondent No.3 submitted application submitting that he has a son who is adult and educated and unemployed, who is also admitted as a Partner, therefore, the respondent No.3 requested to consider his application as application by Partnership Firm and consequently requested to review earlier application dtd.19/2/2003. It is, therefore, submitted that considering the facts and circumstances of the case when the Collector reviewed his earlier order dtd.19/2/2003 and considered the application of the respondent No.3 treating the application of the respondent No.3 prior in time to the application made by the petitioner herein, and consequently allotted the land to the respondent No.3 on lease, it cannot be said that the Collector has committed any error and/or illegality in dismissing the Revision Application submitted by the petitioner.
4.03. Mr.Vaghela, learned advocate appearing on behalf of the respondent No.3 has further submitted that as such the respondent No.3 is in need of disputed land in question than the petitioner. It is submitted that the petitioner is already having other land for manufacture of salt admeasuring about 4000 Acres and therefore, it is requested to dismiss the present Special Civil Application.
4.04. Mr.V.C. Vaghela, learned advocate appearing on behalf of the respondent No.3 has relied upon the decision of learned Single Judge in the case of Nirajanbhai Bhagwanbhai Patel Versus State of Gujarat Thro' Secretary, reported in 2004 (3) GLH 671 on the aspect of the powers of the review of the Collector. It is submitted that as held by the learned Single Judge in the aforesaid decision, there is no bar for review in a decision which is having administrative character. Therefore, it is submitted that no illegality has been committed by the Collector, Bharuch in reviewing its earlier decision dtd.19/2/2003 and consequently while allotting land in question to the respondent No.3.
Making above submissions and relying upon above decision it is requested to dismiss the present Special Civil Application.
5.00. Present petition is opposed by Mr.P.K. Jani, learned Government Pleader appearing on behalf of the respondent Nos.2 and 4. It is submitted that no illegality has been committed by the Collector, Bharuch in reviewing its earlier decision and in treating the application of the respondent No.3 as prior in time than the application submitted by the petitioner. It is submitted that as it was found that the application of the respondent No.3 was prior in time, considering the Government Resolution dtd. 10/10/2000 application of the respondent No.3, which was prior in time, was only required to be considered and therefore, no illegality has been committed by the Collector, Bharuch in allotting the land in question to the respondent No.3 on lease. It is further submitted by Mr.P.K.Jani, learned Government Pleader appearing on behalf of the respondent No.4 and State of Gujarat that the land in question was required to be disposed of as per the priority mentioned in the Government Resolution dtd.10/10/2000. It is submitted that priority is to be determined as mentioned in the Government Resolution dtd.10/10/2000 only and more particularly clause 3(2)(b) of the said Government Resolution. It is submitted that if the question arise to whom the lease should be allotted amongst the applications mentioned in para 3(2) of the said Government Resolution, then priority should be given as per Serial Number mentioned in the said Government Resolution. Therefore, it is submitted that as it was not necessary to send proposal to the State Government for consideration.
5.01. Mr.P.K. Jani, learned Government Pleader has submitted that as the decision of the Collector was administrative in nature and character, the Collector had jurisdiction to review its own order. He has also relied upon the decision of the learned Single Judge of this Court in the case of Nirajanbhai Bhagwanbhai Patel Versus State of Gujarat Thro' Secretary, reported in 2004 (3) GLH 671, reported in 2004 (3) GLR 671 by submitting that as held by this Court, as the decision on the application for N.A. Permission is administrative in nature, the Collector can review earlier order and take a fresh decision, applying similar analogy, the Collector was justified in reviewing its earlier order. Therefore, it is submitted that the decision of the Collector is just, legal and proper and therefore, it is requested to dismiss the present Special Civil Application.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length.
6.01. At the outset it is required to be noted that by the communication / order dtd.26/3/2008, the Collector, Bharuch has rejected the application of the petitioner for allotment of the disputed land in question on lease for manufacture of salt and has granted / allowed application of the respondent No.3 solely on the ground that the application of the respondent No.3 was prior in time, on the ground that as per the Government Resolution dtd. 10/10/2000 as the application submitted by the respondent No.3 was prior in time, his application was only required to be considered.
6.02. Therefore, a short question which is posed for consideration is whether the Collector was justified in allotting the land in question in favour of the respondent No.3 on lease for manufacture of the salt, while treating his application as prior in time and not considering the application of the petitioner on the ground that the same is subsequent to the application submitted by the respondent No.3?
6.03. As stated above and it is not in dispute that initially the respondent No.3 submitted application to the Collector, Bharuch for allotment of the land in question on lease in his individual capacity on 14/12/2002. The said application came to be rejected by the Collector by order dtd.19/2/2003. At this stage it is required to be noted that as such the order passed by the Collector on dtd.19/2/2003 had not been challenged by the respondent No.3. However, subsequently respondent No.3 submitted application before the Collector for review of the order dtd.19/2/2003 No order was passed by the Collector on the said application. That thereafter the respondent No.3 submitted another application before the Collector on 5/8/2003 requesting to review earlier order dtd.19/2/2003 and to allot land in question in favour of his son Mr.Umesh Chandrakant Joshi. At this stage, it is required to be noted that earlier application submitted by the respondent No.3 was to allot land in his individual capacity and subsequently by application dtd.5/8/2003 the respondent No.3 requested to allot the land in favour of his son. That during the pendency of the said application and before any decision could be taken by the Collector on the said application, the petitioner submitted application on 27/11/2006 to the Collector, Bharuch for allotment of the land in question on lease for salt production. As stated above, respondent No.3 submitted one another application to the Collector on 13/27-8-2007 stating that his earlier application dtd.14/12/2002 made by him in his individual capacity be permitted to be changed as an application by Partnership Firm. Therefore, impliedly earlier application submitted by the respondent No.3 on 16/6/2003 as well as application dtd.5/8/2003 stand withdrawn and it can be said that the application dtd.13/27-8-2007 to consider the application by Partnership Firm can be said to be afresh application. It is to be noted that prior thereto, the petitioner had already made application on 27/11/2006. It also appears that the respondent No.3 again submitted application to the Collector on 24/1/2008 requesting the Collector not to consider the application dtd.13/8/2007 in the capacity of Partnership Firm but to consider the application as application in his individual capacity only. It appears from the record – Annexure- P/14, that initially the appropriate authority was of the opinion that the application of the respondent No.3 can not be entertained and the application of the petitioner ought to have been rejected and in the alternative both the applications ought to have been referred to the State Government for its decision. However, despite the above, treating the application of the respondent No.3 as prior in time, the Collector, Bharuch has passed the order allotting the land in question to the respondent No.3 and rejected the application of the petitioner which cannot be sustained.
6.04. Considering the above facts and circumstances of the case, the Collector, Bharuch has materially erred in treating the application of the respondent No.3 as prior in time and allotting land in question in favour of the respondent No.3 solely on the aforesaid ground. From the aforesaid it can be said that the respondent No.3 has changed his stand from time to time and requested to consider his application initially in his individual name; thereafter, after rejection of his application to allot the land in the name of his son; thereafter to consider the application in the name of Partnership Firm; thereafter withdrawing the said application to consider the application in the name of Partnership Firm and to consider and/or allot the land in his individual name and in the meantime, the application of the petitioner was already pending. Therefore, at the time when the Collector took the decision on 26/3/2008, assuming that the Collector had power to review, at the most it can be said that there were two applications pending with respect to the very land i.e. one by the petitioner and another by the respondent No.3 and therefore, considering the Government Resolution dtd.10/10/2000 more particularly para 3(6), both the applications were required to be sent to the State Government for decision and/or place before the State Government for tis decision.
6.05. Even this Court is of the opinion that the Collector had no jurisdiction and/or authority to review its earlier order dtd.19/2/2003, more particularly in view of the different stand taken by the respondent No.3 at different point of time, as stated hereinabove.
6.06. It is also required to be noted at this stage that from the order dtd.26/3/2008 allotting land in favour of the respondent No.3, nothing has been mentioned in the said order that the Collector has reviewed his earlier order dtd.19/2/2003 and thereafter he has considered the application of the respondent afresh. Therefore, as such it cannot be said that the Collector, Bharuch has reviewed his earlier order dtd.19/2/2003 rejecting the application of the respondent No.3 and thereafter has considered the application of the respondent No.3 as earlier application dtd.14/12/2000 afresh. Therefore, it cannot be said that even the Collector, Bharuch has as such reviewed his earlier order dtd.19/2/2003 and therefore, the question whether the Collector had authority and/or jurisdiction to review its earlier order is as such not required to be gone into in view of the aforesaid facts and circumstances of the case. Under the circumstances, the impugned order passed by the Collector, Bharuch dtd.26/3/2008 in rejecting the application of the petitioner and allotting land in question to the respondent No.3 on lease for manufacture of the salt confirmed by the revisional authority cannot be sustained and the same deserves to be remanded to the Collector, Bharuch to consider both the applications i.e. application made by the petitioner as well as application made by the respondent No.3 and to send the same to the State Government for its consideration in light of the gr 10/102000.
6.07. Now so far as challenge to the Government Resolution dtd.10/10/2000 is concerned, as the present petition deserves to be allowed on the aforesaid grounds though this Court is prima facie of the opinion that the relevant date for consideration of the applications should be the date on which the applications are decided, this Court does not propose to enter into the aforesaid larger question and consider the legality and validity of the Government Resolution dtd. 10/10/2000.
6.08. This Court is of the opinion that in the facts and circumstances of the case, the applications submitted by the petitioner as well as respondent No.3 are required to be sent to the State Government for its decision as per Government Resolution dtd.10/10/2000 treating the applications of the petitioner as well as respondent No.3 pending and/or there are two applications and therefore, the same are required to be considered in light of para 3(6) of the Government Resolution dtd. 10/10/2000.
7.00. In view of the above and for the reasons stated above, present Special Civil Application succeeds. The impugned order dtd.26/3/2008 passed by the Collector, Bharuch rejecting the application of the petitioner for allotment of the land in question for production of salt and allotting the land in question to the respondent No.3 on lease for manufacture of salt as well as order passed by the revisional authority dtd.29/1/2011 are hereby quashed and set aside and the matter is remanded to the Collector, Bharuch to consider the applications submitted by the petitioner as well as respondent No.3 for allotment of the land in question, and to send the said applications to the State Government for its consideration in light of para 3(6) of the Government Resolution dtd.10/10/2000 and to consider both the applications in accordance with law and on merits and on the basis of the decision that may be taken by the State Government after following due procedure as required. The aforesaid exercise shall be completed within a period of three months from the date of the receipt of the writ of the present judgement and order. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik