KESARBHAI BHAGWANBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The order passed by the Collector of Junagadh (respondent No. 2 herein) on 16th March 1983 as affirmed in revision by the order passed by the Secretary (Appeals) of the Government of Gujarat (respondent No. 3 herein) on behalf of the State Government (respondent No. 1 herein) on 25th May 1983 is under challenge in this petition under Art. 226 of the Constitution of India. By his impugned order, respondent No. 2 ordered imposition of penalty of 20 times the N. A. assessment for breach of conditions with respect to allotment of one parcel of Government waste land admeasuring 3 acres situated at Dhanser in Taluka Veraval (the disputed land for convenience).

(2.) The facts giving rise to this move in a narrow compass. The disputed land was granted to the petitioners for seven years by one order passed by and on behalf of respondent No. 2 on 30th December 1976 for starting khandsari industry therein. It appears that the petitioners applied for a licence in that regard and their application for licence came to be rejected. The petitioners carried the matter in appeal before the State Government and the matter was remanded to the licensing authority for his fresh consideration of the application for licence for starting khandsari industry by the petitioners. The licensing authority did not decide the matter. In the mean time, it came to the notice of respondent No. 2 that the petitioners did not use the disputed land for the purpose for which it was granted. He thereupon issued one show-cause notice on 9th August 1982 calling upon the petitioners to show-cause why the land should not be resumed by and on behalf of the Government for breach of certain relevant conditions attached to the grant of land. Its copy is at Annexure- C to this petition. The petitioners filed their reply thereto on 15th February 1983. Its copy is at Annexure-D to this petition. Thereafter, by the order passed on 16th March 1983, respondent No. 2 imposed a fine of 20 times the assessment with respect to the disputed land for breach of the relevant conditions. The petitioners were granted time till 31st July 1983 for placing the disputed land to use for their khandsari industry failing which it was to be resumed by and on behalf of the Government. Its copy is at Annexure-A to this petition. The aggrieved petitioners carried the matter in revision before respondent No. 1 under S.211 of the Bombay Land Revenue Code, 1879 (the Code for brief). It appears to have been heard by respondent No. 3. By the order passed by respondent No. 3 on behalf of respondent No. 1 on 25th May 1983, the aforesaid revisional application came to be rejected. Its copy is at Annexure-B to this petition. The aggrieved petitioners have thereupon approached this Court by means of this petition under Arts. 226 and 227 of the Constitution of India for questioning the correctness of the order at Annexure-A to this petition as affirmed in revision by the order at Annexure-B to this petition. During the pendency of this petition, petitioner No. 2 breathed his last and his name came to be deleted by an order passed on 18th June 1996. The surviving petitioner has continued with the proceeding.

(3.) Learned Advocate Shri Chhaya for the petitioners made two submissions in support of this petition. In the first place, it has been urged that the show cause notice at Annexure-C to this petition does not speak of imposition of any fine for breach of any conditions attached to the grant of land. In that view of the matter, runs his submission, the impugned order at Annexure-A to this petition imposing fine on the petitioners cannot be sustained in law as no opportunity of hearing was given to the petitioners in that regard. He has further submitted that, before putting the disputed land to industrial use for starting a khandsari manufacturing unit, the petitioners were required to obtain the necessary licence according to law. He has further urged that the application for licence made by the petitioners was initially rejected and the matter was remanded to the licensing authority by an order passed in appeal. Thereafter, the fate of the application for licence was not decided by the licensing authority and the petitioners could not, therefore, start their khandsari manufacturing unit. In the context of this fact-situation, learned Advocate Shri Chhaya for the petitioners has submitted that there was no wilful breach of conditions on the part of the petitioners and no imposition of fine was called for as law cannot direct a person to perform an impossibility. As against this, learned Assistant Government Pleader Shri Sompura for the respondents has urged that the petitioners ought not to have clung to the land once their application for licence to start their khandsari manufacturing unit was rejected. According to learned Assistant Government Pleader Shri Sompura for the respondents, the very fact that the petitioners clung to their land would justify the order of imposition of penalty at Annexure-A to this petition as affirmed in revision by the order at Annexure-B to this petition.