NAFISABANU GULAMBHAI MEMON Vs. COLLECTOR

JUDGEMENT

(1.) The petitioner had purchased the land bearing City Survey No. 5199 and City Survey No. 6110 admeasuring 89.24 sq. mts. and 40.21 sq. mts. respectively situated at Idar on 23-4-1985 through a registered sale deed from one Harmilaben H. Gurjar. The land bearing City Survey No. 6110 had been originally allotted by the Collector to the petitioner's predecessor-in-title as new tenure land by the order dated 10-1-1984 and. therefore, the sale in respect of this City Survey No. 6110 was effected after obtaining the requisite permission from the Collector. who had granted such permission subject to the compliance of the condition of the original allotment. The date of original allotment in favour of Harmilaben H. Gurjar was 10-1-1984 and according to the conditions set out in the order of allotment in respect of this new tenure land the construction thereon was to be completed within a period of two years. Since the petitioner had stepped into the shoes of her predecessor-in-title and the permission in respect of the sale of this land to the petitioner was also made subject to the conditions of original allotment, the petitioner too was required to complete the construction within a period of two years from 10-1-1984. although she had purchased this land on 23-4-1985. Thus. the construction as per the original order of allotment was to be completed by 10-1-1986.

(2.) . The petitioner's case is that she had started the construction immediately after the sale but could not complete it because her neighbours were objecting to il and they had also protested and filed complaint before the Collector and on account of such obstructing activities of her neighbours she could not complete the construction within the time-limit of two years. The petitioner had also pleaded grounds of weak financial position and her prolonged ailment. The petitioner has also come with the case that she had also obtained construction permission from Idar Municipal Borough on 4-9-1996 and such permission was granted on the basis of the Resolution No. 4(5) of the Town Planning Committee having approved the plan submitted by the petitioner. In terms of this permission of the Municipal Borough with regard to the construction, the petitioner was to commence the construction within a period of one year from 4-9-1996. i.e., the construction was to commence on or before 4-9-1997. The petitioner's case is that the construction as such had been commenced on the basis of the permission dated 4-9-1996 but the same was objected to by her neighbours and certain interested persons with oblique and ulterior motive made a complaint before the Collector that the petitioner had not completed the construction within two years as required under the Sanad and the conditions mentioned in the original order of allotment in favour of the petitioner's predecessor-in-title. The case. which was raised against the petitioner. was that since she had stepped into the shoes of her predecessor-in-title and the permission had also been granted on the same conditions, the construction should have been completed within two years from the date of the original allotment, i.e., on or before 10-1-19S6. The Collector thereupon initiate proceedings against the petitioner for breach of the condition of the original allotment and after notice to the petitioner, the Collector passed the order dated 29-S-199S directing the restoration of the land to the Government for the alleged breach of condition. Aggrieved from the Collector's order dated 29-8-1998 the petitioner preferred a Revision Application being Revision Application No. 42 of 1998 before the Special Secretary (Appeals). Revenue Department, who allowed the said Revision by his order dated 9-12-1998 directing the petitioner to complete the construction within a period of two months from the date of the order, i.e., from 9-12-199S failing which the order passed by the Collector will operate. It was also directed by the Special Secretary (Appeals). Revenue Department in his order dated 9-12-1985 that if the construction is completed within a period of two months, the order of the Collector would be treated as quashed. In this background, so far as the controversy with regard to the period before which the construction was to be completed in terms of the condition stipulated in the original allotment order was concerned was over and even if the construction was not completed before 10-1-1986 as contemplated in the conditions of original allotment, under Special Secretary (Appeals) order dated 9-12-1998 the petitioner could complete the construction before 9-2-1999. i.e., within a period of two months from 9-12-199S and in fact petitioner had also taken the task of completing the construction in right earnest immediately after the passing of tlie aforesaid order dated 9-12-1998. However, that was not the end of the matter. The petitioner did come out of the constraints of time-limit as per the original allotment under the Land Revenue Act and Rules, but her trouble was not over because the question of the completing the construction within a period of one year from the dale on which the Idar Municipal Borough had granted the permission, i.f., 4-9-1996 was beyond her reach now as the period of one year had already expired on 4-9-1997 and now the petitioner was to lace the objection of the breach of the condition incorporated in the permission granted by the Municipal Borough. Idar according to which she was to start the construction before 4-9-1997 and. therefore. as per the say of the petitioner, the Officers of the Municipal Borough objected to the construction on 25-12-1998. The petitioner thereupon submitted a representation before the President of the Idar Municipal Borough on 26-12-1998 that the construction was being made within the time-limit granted by the Special Secretary (Appeals) of the Revenue Department. On this very date. i.e., 26-12-1998 a notice had also been given to the petitioner by the City Survey Superintendent relying upon the Collector's order under the Land Revenue Rules dated 29-8-1998 being oblivious of the subsequent order passed by the Special Secretary (Appeals). Revenue Department on 9-12-1998. It goes without saying that the City Survey Superintendent's notice dated 26-12-1998 was. therefore, of no consequence in view of the Special Secretary (Appeals) order dated 9-12-1998. The Chief Officer of the Idar Municipal Borough then issued a restraint order on 27-12-1998 against the petitioner not to go ahead with the construction without the permission of the Municipality and to stop further construction. This restraint order dated 27-12-1998 was served on the petitioner on 29-12-1998. which was replied by the petitioner on 30-12-1998 stating therein that she had already obtained the permission from respondent No. 3 and that the construction was being carried out within time-limit permitted by the Special Secretary (Appeals). The copy of the Special Secretary's order had also been submitted before the President of the Municipal Borough along with the earlier representation dated 2A-12-1998. The request was. therefore, made not to lake any further action against the petitioner. The petitioner's case is that in spile of this on 31-12-1998 the Officers and employees of the Municipal Borough along with members of the Committee came to the site of the construction with police force and demolished the entire construction including the walls and the shutters. Whereupon the present Special Civil Application was filed before this Court on 21-1-1999 and on 25-1-1999 notice returnable on S-2-1999 was issued. Thereafter. when the matter came up before the Court on 8-2-1999, after hearing the Counsel for the Municipal Borough and the learned Counsel for the petitioner, the Court passed an order directing the time-limit of two months (which was to expire on 9-2-1999) to be extended till 31-3-1999 subject to the rights and contentions of the authorities. The affidavit-in-reply dated 8-2-1999 filed on behalf of respondent Nos. 3 and 4 is on record to which the rejoinder dated 17-2-1999 has been filed by the petitioner. No return has been filed on behalf of respondent Nos. 1. 2. 5 to 7. When the matter came up before this Court on 6-3-1999 after hearing both the sides for some lime. the Rule was issued but Mr. Pandya wanted time to file an additional affidavit and accordingly a further affidavit on behalf ol respondent Nos. 3 and 4 dated 8-3-1999 has been filed today and in terms of the order recorded on 6-3-1999 on the request ol both the sides, the matter has been heard for final hearing today.

(3.) . Having heard learned Counsels tor both the sides and having gone through the pleadings of the parties. I find that - (a) so tar as petitioner's title in respect of the land bearing City Survey No. 5 199 and City Survey No. 6110 admeasuring 89.24 sq. ml. and 40.21 sq. ml. respectively situated at Idar is concerned, there is no dispute; (b) In view of the order of Special Secretary (Addl. Chief Secretary) (Appeals). Revenue Department dated 9-12-1998 issued on 21-12-1998 there is no dispute with regard to such construction being raised under the Land Revenue Rules and it was open tor the petitioner to complete the construction within the period as granted by the order dated 9-12-1998 issued on 21-12-1998 by the Special Secretary (Appeals). Revenue Department: (c) The dispute is about the construction being raised by the petitioner on City Survey No. 5199 and City Survey No. 6110 on the ground that the petitioner had failed to commence the construction within a period of one year from the date of permission, i.e.. 4-9-1996 to 4-9-1997 and now she could not take up the construction work without a permission afresh and the order dated 9-12-1998 passed by the Special Secretary (Addl. Chief Secretary) (Appeals). Revenue Department granting two month's time upto 9-2-1999 under the Land Revenue Rules was irrelevant to extend the time-limit under the Municipal laws : (d) The dispute is with regard to the requirement of permission afresh after 4-9-1997 by the Idar Municipal Borough in respect of this construction and the action which lias been subsequently taken by the Municipal Borough in December 1998 to demolish the construction, which had already been raised by the petitioner.