1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order passed by the Principal Secretary, Revenue Department dated 24/28.12.2004 in Revision Application No. MVV/BKHP/RJT/2/99, whereby the Principal Secretary confirmed the order passed by the District Development Officer, Rajkot dated 11.3.1999.
2. The facts which can be carved out from the record of the petition are that the petitioners are occupiers of the shops situated upon the land bearing survey No.206 part admeasuring 2 acres and 31 gunthas of Village Veraval, Taluka Kotdasangani, District Rajkot. It transpires from the record of the petition that upon an application made by Jiva Popat and Trikam Popat dated 30.10.1987, the competent authority i.e. Taluka Panchayat, Kotdasangani by an order dated 26.12.1987 granted permission for conversion of the land in question from agricultural purpose to industrial purpose. The aforesaid order was passed pursuant to the resolutions passed by the competent authorities under the Bombay Land Revenue Code. It transpires from the record that the aforesaid permission was granted along with the layout plan submitted by the original owner – Jiva Popat and Trikam Popat, as aforesaid, for the industrial purpose which came to be sanctioned.
3. It appears from the record that part of the land total admeasuring 420.80 sq. mtrs. came to be sold by the original owner – Jiva Popat and Trikam Popat to one Rajen Bhikhubhai Dhruv by registered sale deed on 19.9.1991. The said Rajen Dhruv obtained a permission to construct 11 shops upon the part of the land admeasuring 420.80 sq. mtrs. and constructed 11 shops upon the said land. It is the say of the petitioners that the petitioners have in turn purchased the constructed shops from said Rajen Dhruv. It further transpires from the record that after the sale of these shops to the petitioners, Rajen Dhruv applied for change of purpose from industrial to commercial in respect of the land bearing 420.80 sq. mtrs. upon which 11 shops have been constructed and respondent No.3 herein granted revised permission by an order dated 30.12.1990. It further transpires that respondent No.3 also collected penalty at the rate of 40 patt from Rajen Dhruv.
4. It also appears from the record that the objections were filed by respondent No.4 herein as well as one Galaxy Agrotech Ltd. It further transpires that the Taluka Panchayat, Kotdasangani vide resolution No.34 passed in its meeting dated 8.2.1996 granted permission for change of use from that of commercial as mentioned hereinabove which came to be stayed by order dated 29.3.1996 by the District Development Officer and therefore, the aforesaid resolution No.34 dated 8.2.1996 passed by the Executive Committee of Taluka Panchayat, Kotdasangani could not be implemented. The District Development Officer, after hearing Rajen Dhruv who was the applicant before it and on the basis of the record, by order dated 11.3.1999 quashed resolution No.34 dated 8.2.1996 passed by the Executive Committee of Taluka Panchayat, Kotdasangani and directed to remove the unauthorized construction by Rajen Bhikhubhai Dhruv forthwith. It further transpires that being aggrieved by the aforesaid decision of the District Development Officer, the present petitioners along with Rajen Bhikhubhai Dhruv, the person from whom they purchased the shops, preferred Revision Application as contemplated under Section 211 of the Bombay Land Revenue Code before the Secretary Revenue (Appeals). The Secretary Revenue (Appeals) passed order dated 6.4.1999 in the aforesaid revision, whereby stay came to be granted from demolition of the shops so constructed and also passed further orders. It further transpires from the record that being aggrieved by the aforesaid order dated 6.4.1999 passed by the Secretary Revenue (Appeals), respondent No.4 approached this Court by way of filing Special Civil Application No.4792 of 1999 and by order dated 28.1.2002 passed by this Court (Coram: Ms. R.M. Doshit, J. as she then was), this Court quashed and set aside the aforesaid order dated 6.4.1999 passed by the Secretary Revenue (Appeals) and remanded the revision for its fresh hearing. The Secretary Revenue (Appeals) on remand after hearing the parties (including the petitioners, respondent No.4 and the District Development Officer) has passed the impugned order dated 24/28.12.2004 dismissing the Revision Application as confirmed in the order passed by the District Development Officer dated 11.3.1999.
5. Being aggrieved by the aforesaid orders, the present petitioners who are occupiers of 11 shops have filed the present petition. On 22.3.2005, this Court (Coram: Jayant Patel, J.) while issuing notice, ordered that the statusquo to be maintained. This Court (Coram: Akil Kureshi, J.) by order dated 2.8.2005 admitted the matter and granted adinterim relief.
6. Heard Mr. M.A. Kharadi, learned advocate for the petitioners, Ms. Asmita Patel, learned AGP for respondent No.1, Mr. Premal R. Joshi, learned advocate for respondent Nos.2 and 3 and Mr. Anshin H. Desai, learned advocate for respondent No.4.
7. Mr. M.A. Kharadi, learned advocate for the petitioners has taken this Court through the factual matrix of the matter and has, interalia, contended that in fact while passing the order, the District Development Officer has not called for any report and without there being any basis, has come to the conclusion that there is a breach of Ribbon Development Rules. It is submitted that the petitioners are third party and on the basis of the information given by the owner – Rajen Bhikhubhai Dhruv, the present petitioners are bonafide purchasers of the 11 shops respectively. It is submitted that in fact the sale deeds have been executed in favour of all the petitioners and existence of 11 shops over the land in question, is not an encroachment. It is contended that the petitioners are middle class persons and in order to earn their livelihood have purchased the shops as bonafide purchasers. It is submitted that inspite of the fact that admittedly the land in question was earmarked for industrial purpose, as aforesaid, on representation of the owner from whom the petitioners have purchased the shops, represented that the land is converted into commercial use and hence, the shops were purchased. It is submitted that since long the petitioners are doing their business in the shops in question and earning their livelihood and therefore, the construction made by the original owner which is now a source of livelihood for the petitioners as a bonafide purchaser needs to be regularized. It is emphasized that the area in question is now falls within Rajkot Urban Development Authority and therefore, the issue involved in the present petition and more particularly, the question of regularization could be examined denovo.
8. Per contra, Ms. Asmita Patel, learned AGP for respondent No.1 has supported the orders passed by the District Development Officer as well as the Principal Secretary, Revenue Department. She pointed out that it is crystal clear from the observations made by both the authorities that the petitioners' conduct disentitles themselves for any sympathy of this Court. Learned AGP relying upon the observations made by the District Development Officer canvassed that though the petitioners have not constructed the shops, it is an admitted position that the shops were constructed upon open land, which according to original layout, was required to be kept as open land i.e. common open plot. Learned AGP pointed out that it is recorded by the authorities that the original owners – Jiva Popat and Trikam Popat have not taken any prior permission of transfer of this land in favour of Rajen Bhikhubhai Dhruv and no prior permission whatsoever has been obtained for making construction over the land, which was as per the layout, part of the common open plot. Learned AGP further pointed out that there is no error much less any error apparent on the face of record which warrants interference of this Court in its extraordinary jurisdiction under Article 226 and/or 227 of the Constitution of India. Mr. Premal R. Joshi, learned advocate for respondent Nos.2 and 3 has also reiterated the stand taken by the learned AGP. Mr. Anshin H. Desai, learned advocate for respondent No.4 has also supported both the orders.
9. Considering the submissions made by the learned advocates appearing for the respective parties and on perusing the orders impugned, it is an admitted position that the land in question was permitted to be converted from the agricultural use to industrial use and this fact is not even denied by the petitioners. On perusal of the conditions attached and the documents attached with the permission which are on record also indicate that the land in question was to be used for industrial purpose only. The conditions more particularly condition No.6(2) (page18) indicates that the development, if any, for the industrial purpose was to be carried out after making the provision of open land as per the map annexed (Page90). On perusal of the order impugned passed by the District Development Officer, it further transpires that in fact the petitioners had approached the Civil Court, Rajkot by way of filing a Civil Suit and on the basis of the judgment and order of the Civil Court dated 5.11.1996, the petitioners were also heard by the District Development Officer. It, therefore, transpires that the grounds raised in the petition that the impugned order dehors the principles of natural justice does not hold good on the basis of the observations made by the District Development Officer in its order impugned dated 11.3.1999. The District Development officer has threadbare examined the issue involved in the present petition. It is specifically recorded as a finding of fact that, 11 shops have been constructed on the land which was meant for industrial development and that too, upon the land which was forming part of open land. Apart from the fact that the authority has also found on the basis of the record that there is a breach of Ribbon Development Rules. On perusing the order passed by the Secretary, it has categorically stated that the construction of 11 shops is upon the portion of the land which was otherwise as per the permission granted for industrial purpose to be kept as open land. The learned advocate for the petitioners has not been able to buttress the contentions raised by him, except the fact that the petitioners are bonafide purchasers. This Court is, therefore, of the opinion that the concurrent findings arrived at by both the authorities is flawless. There is neither any error nor any error apparent on the face of the record.
10. However, one of the contention raised by the learned advocate for the petitioners also needs to be appreciated. From the record, it transpires that even though the construction is unauthorized, the petitioners are in occupation of these 11 shops and are earning their livelihood since 1991 and even after the impugned orders, this Court by an order dated 22.3.2005 has protected the possession of the petitioners. It is no doubt true that the conduct of the petitioners itself is such that no leniency should be shown to the petitioners as during pendency of the petition, the petitioners have not approached the authorities for regularization. The contention raised by the learned advocate for the petitioners that some time may be granted to approach the concerned authorities for regularization as such at the first glance deserves to be negatived. However, considering the fact that few of the petitioners are small businessmen, of course, this Court has noted that out of 11 shops, 2 shops are occupied by the transport Company and 1 shop is occupied by the electric store, still however, even while rejecting the petition on merits, the petitioners are at liberty to approach the authorities for regularization. It is, however, made clear that this Court has not opined anything on merits whether the impeding construction can be regularized or not, only on the basis of the statement of the learned advocate for the petitioners, the same is observed. The authorities shall consider any such application, if any, filed by the petitioners on its own merits strictly in accordance with law.
11. In light of the above, the petition is meritless and the same deserves to be dismissed and is hereby dismissed. Rule discharged. There shall be no order as to costs.
12. The learned advocate for the petitioners requests to extend the order of statusquo to enable the petitioners to approach the authority as aforesaid. Considering the fact that the statusquo is operating since considerable time, the statusquo shall continue for a period of two weeks from today in order to enable the petitioners to approach the authorities for regularization as stated by the learned advocate for the petitioners.
[R.M.CHHAYA, J.] mrpandya