DHIRAJLAL GORDHANBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr.Desai, Ld.AGP appears for respondent Nos 1 to 3 waives service of rule on behalf of respondents. With the consent of learned advocates for parties, matter is taken up for final hearing today.

(2.) The short facts of the case are that the petitioner was holding agricultural lands admeasuring 3 acres 25 gunthas bearing S.No.24 at village Dudharej, taluka Wadhwan and the petitioner applied for permission to convert the land for NA purpose as per order dated 5.8.98. It appears that thereafter the permission has been granted by the Collector on 27.8.98. The petitioner continued the agricultural operations over the land in question and not used the land for NA purpose for which the permission was granted and therefore the show cause notice, dated 20.5.2003 was issued by the Collector for taking action for committing breach of permission for NA purpose. The petitioner replied to the said show cause notice and submitted that there was situation of drought and as a result thereof the petitioner could not comply with the conditions of NA permission and therefore prayed for extension of two years. The petitioner also submitted before the District Collector that since the breach is for the first time the same may be condoned and the petitioner shall complete the construction over the land in question within two years from 17.7.2003. It appears that thereafter the District Collector considered the matter and found that the petitioner has continued the agricultural operations over the land in question and earned income after the land was converted for NA purpose and granted extension of two years on payment of fine of 40 times of revenue assessment for each year, i.e.for 2001-02 and 2002-03. The petitioner carried the matter in revision before the State Govt and ultimately the said revision has been dismissed as per the order, dated 6.3.2004 and under the circumstances the petitioner approached this court by preferring the present petition.

(3.) Upon hearing Mr.Parikh, Ld.advocate for the petitioner and Mr.Desai, Ld.AGP for respondents, it appears that so far as the imposition of penalty for breach of conditions of NA is concerned, the issue is covered by the decision of this court taken in Spl.Civil Application No.4650/04, dated 6.12.2004 and therefore when it is matter of first breach the maximum penalty could be imposed is of 10 times of revenue assessment and the extension can be granted for a period of two years. If it is a matter of breach for second time while granting further extension, the maximum penalty can be imposed is of 20 times of revenue assessment. As per the view taken in the aforesaid matter, rule provides for enabling power with the Collector to impose penalty of 40 times of revenue assessment, but in view of the instructions issued by the Government referred to in the said decision read with the reasons recorded therein, the penalty, at the most, can be imposed by the Collector is of 10 times of the revenue assessment, while considering the case for first breach and the Collector ought to have granted extension of two years. Even if is considered that the said period of two years has expired in the year 2003 and the land is uptil now not used for residential purpose or any construction is made. While considering the case for second extension, which would be upto 27.8.05, the penalty could be imposed, at the most, of 20 times of revenue assessment. It may be recorded that even before the Collector the petitioner has given undertaking to comply with all the conditions including for making construction over the land in question within a period of two years from 17.7.03 and therefore the order passed by the Collector and its confirmation thereof by the State Govt imposing penalty exceeding 10 times of revenue assessment for the first breach and 20 times of revenue assessment for second breach would illegal and can not be maintained in the eye of law.