DINESHKUMAR MANILAL PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The prayer of the seven petitioners in this writ petition is to quash the order dated 2.4.1994, Annexure : A, communicated on 13.4.1999 and the order dated 10.1.1997 at Annexure : C.

(2.) Brief facts essential for disposal of this petition are as under : Sub Plot Nos. 7, 8, 21 and 26 situate on the Highway, opposite Lakhtar Petrol Pump, Lakhtar, District Surendranagar are owned by the respondent No.4. On 20.4.1974 the respondent No.2 granted N.A. permission for the said land to the owner - respondent No.4 to be used for residential use only. Thereafter lay out plan was approved by the respondent No.2 on 6.11.1974. Lay out plan and the N.A. permission were not in the knowledge of petitioners. Petitioners took portion of the aforesaid land on rent from respondent No.4 between the years 1982 to 1985. Rent Notes were executed and the petitioners were paying rent regularly to the respondent No.4 and there was no default in payment of rent from the side of the petitioners. Petitioners put up small Dhaba for earning their livelihood. There is no pakka construction and only temporary structure was raised by the petitioners for running Dhaba on the Highway. They occupied the land without objection till 6.1.1994. Petitioners received notices from the respondent No.2 alleging certain breaches of N.A. permission order and requiring the petitioners to show cause as to why the order for the alleged breach be not passed. Petitioners submitted detailed reply to the respondent No.2 wherein it was inter-alia stated that the liability to pay Rs.19,327.27 ps. towards land revenue and deposit of Rs.1000.00 was on the land owner and he was to meet this financial liability. As regards non-residential use of the land it was submitted before the Authority that in view of specific Government Resolution providing for regularisation of such use as contained in Annexure : I to the additional affidavit the respondent No.2 was bound to accept the request for regularisation. However, without giving any reasons he passed impugned order, Annexure : A. Thereafter the petitioners filed Civil Suit before the Civil Judge (J.D.), Surendranagar and challenged the said order. They were not informed that they could avail of remedy under Sec.211 of the Bombay Land Revenue Code. Ex-parte injunction was granted by the Civil Court against dispossession of the petitioners and upon hearing the parties Civil Court vacated the injunction order on the ground of alternative remedy. Thereafter petitioners filed Revision under Sec. 211 of the Bombay Land Revenue Code in August, 1996. This revision was dismissed by order dated 10.1.1997, Annexure : C to the writ petition. Thereafter respondent No.3 issued notice to respondent No.4 on 7.1.1997 to comply with the orders and pay the land revenue and also to remove the petitioners from the land. Respondent No.3 by order dated 19.2.1997 directed the petitioners to vacate the land failing which appropriate action was to be taken against them for removing their structures vide Annexure:D.

(3.) Respondent No.2 in his Counter Affidavit has deposed that the petition suffers from suppression of fact hence it is required to be dismissed in limine. It is also pleaded that the petitioners have got alternative remedy hence also the petition is not maintainable. Another stand in this counter Affidavit is that since the petitioners have filed Civil Suit No.30 of 1995 which is pending the writ petition is not maintainable. It is further pleaded that since the petitioners are not the owners of the land hence they have no locustandi to file present petition. On merits it is pleaded in the counter Affidavit that N.A. permission was granted to the land owners for residential use only, but the land owner violated the conditions laid down in the N.A. permission and they had changed the purpose from residential to commercial without taking prior permission. Hence proceedings under the Bombay Land Revenue Code were initiated and proper order was passed after full inquiry.