(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1. Heard Mr.P. K. Jani, learned Government Pleader assisted by learned AGP Ms.Jirga Jhaveri for the appellants and learned advocate Mr.Dipen Desai for the respondent.
2. By filing the present appeal, the appellants – State of Gujarat has challenged the decision rendered by learned Single Judge by oral judgment dated 12.12.2008 in Special Civil Application No.6265 of 2002 and oral order dated 1.7.2011 passed in Misc. Civil Application for Modification of Order No.1382 of 2011 by which the learned Single Judge has quashed and set aside the order dated 31.07.2001 passed by the Joint Secretary (Appeals), Revenue Department, State of Gujarat i.e. appellant No.2 by which order dated 06.03.1995 passed by Collector, Dang granting Plot No.22 at Saputara Hill Station to the petitioner was quashed and set aside.
3. The brief facts arising from the case are as under:
3.1 By an order dated 6.3.1995, the Collector, Dang granted to respondent an open Plot No.22 at Saputara Hills of District Dang which is comparatively backward district in the State of Gujarat, on certain terms and conditions. By the said order dated 6.3.1995, the Collector provided a piece of land admeasuring 8 x 5 mtrs in size for carrying on their small business. It appears that the petitioner was allotted the abovereferred plot to put up his pan shop so that he can earn his livelihood from this small business of selling pan etc. When the plot holder applied for extension of the lease, the Collector of Dang decided to shift them to another location where there was low pressure of traffic and which would not disturb the public at large. The allottees were to pay yearly rent of Rs.48/ and also to pay certain deposits to the Government.
3.2 The Joint Secretary found that the Collector had no authority to grant such plots, therefor after hearing the parties, quashed the order dated 6.3.1995 of Collector by which the plots were allotted. The said order was passed by the revisional authority on 31.7.2001 which was challenged by the present respondent by way of above referred Special Civil Application.
3.3 After hearing the parties, the learned Judge has partly allowed the petition and following direction was issued to the Collector. The direction issued by the learned Single Judge is reproduced hereinbelow.
“After putting the petitioner to notice, the Collector, Dang shall earmark a suitable place where the petitioner can put up his pan shop. Such small plot shall be allotted on lease at the presently prevailing rate of rent. This exercise shall be completed within four months from the date of receipt of the copy of this order. Before so allotting the plot, it will be open for the Collector to verity that the petitioner is not occupying either of the two previously alloted sites.”
3.4 It appears from the record that though the directions were issued by the said judgment dated 12.12.2008, the appellant did not allot the plot to the petitioner, the petitioner approached the learned Single Judge by way of filing abovereferred Misc. Civil Application and requested to modify the order as far as the size of the plot is concerned. The learned Single Judge by his order dated 1.7.2011 accepted the application and it was modified that the size of the plot shall be treated as 3 x 5 meters instead of 3 ft x 5 ft which was mentioned in the judgment dated 12.12.2008.
3.5 Being aggrieved by the said order dated 1.7.2011, the appellant – State of Gujarat challenged the order passed in Misc.
Civil Application and subsequently by amendment dated 16.1.2012 challenged the judgment dated 12.12.2008 passed in Special Civil Application No.6265 of 2002.
4. Mr.P. K. Jani, learned Government Pleader assisted by learned AGP Ms.Jirga Jhaveri for the appellants submitted that the learned Judge has erred in appreciating the order passed by the revisional authority since the order dated 6.3.1995 was illegal and contrary to the resolution dated 18.4.1992. It was argued that, as far as resolution dated 18.4.1992 is concerned, the Collector had no authority to allot any government land without following the guidelines enumerated in the said resolution dated 18.4.1992. He has submitted that the resolution dated 18.4.1992 provides that only after public auction the Government land can be provided to the public at large.
5. Unfortunately the said resolution dated 18.4.1992 is not produced either before the learned Single Judge or before this Bench. It appears from the order dated 6.3.1995 that, while allotting the land to the respondent, the Collector has considered several notifications issued by the Government including notification dated 18.4.1992. Neither the learned Single Judge nor this Bench had opportunity to deal with the submission made by the learned Government Pleader. It also appears from the order dated 6.3.1995 passed by the Collector that, after considering the situation prevailing at Saputara Hills in 1995, he thought it fit to shift the plot from one place to another place. Even the learned Single Judge has also observed while issuing direction that a suitable place can be given to the allottee after verifying certain things.
6. We are unable to accept the arguments advanced by the learned Government Pleader in absence of sufficient material which would strengthen the case of the appellant – State.
7. Whatever has been opined and arrived at by the learned Single Judge is on the basis of the documentary evidence produced before him, and, in our opinion, has rightly come to conclusion that the respondent shall be allotted a piece of land admeasuring 3 x 5 meters to the respondent.
8. It is needless to say that this case may not be treated as a precedent since the Collector has passed the order way back in 1995 considering several notifications including notifications of 1992, 1993, 1994, 1995, 1997 and 1998.
9. For the aforesaid reasons, we do not find any error in the judgment and order passed in Special Civil Application as well as Misc. Civil Application. The appeal fails and is accordingly dismissed with no order as to costs.
10. In view of dismissal of appeal, Civil Application No.13347 of 2011 also stands dismissed.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/