Navinchandra Dahyabhai Patel vs State of Gujarat and Another

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In about the month of April, 1983, the Secretary (Appeals), Revenue Department, State of Gujarat, issued show cause notices under S. 211 of the Code to the petitioners for canceling the permission granted by the TDO under S. 65 of the Code read with S. 157 of the Gujarat Panchayats Act, 1961 and the relevant notifications issued thereunder by the State Government x x x x x x x x.

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Normally, such writ petitions would be under Art. 227 of the Constitution but Art. 226 of the Constitution is invoked on the basis of certain allegations made in paragraph 8 of the petition. It is alleged that after Vaghodia was Declared a Grade C growth center it was obvious that the area would soon develop into an industrial township. Since one of the Cabinet Ministers hailed from the constituency comprising Vaghodia Taluka, there was political jealousy as it was '' felt that the benefit of prosperity of that area would help boost his image. A decision was, therefore, taken at the highest level by the Chief Minister that the permissions granted for non-agricultural use to the occupants should be cancelled and with th4t in view the Secretary (Appeals) was given special instructions to exercise power under S. 211 of the Code,;, in pursuance whereof the show cause notices came to be issued and the ultimate orders cancelling the. permissions came to be passed regardless of the merits of the matter. According to the petitioners the impugned decision to en masse cancel the permissions granted to the occupants was the outcome of a sheer political jealousy and had nothing to do with the merits of the TDO''s decision. The petitioners, therefore, contend that the impugned orders were passed mala fide at the behest of the then Chief Minister and were, therefore, liable to be quashed and set aside

Dealing with the contention regarding, do mala fide exercise of jurisdiction under.1 S. 211 of the Code, Miss Shah, the learned counsel for the petitioners, pointed out that the averments made in paragraph 8 of the, petitions are not controverted and, therefore, they should be taken at their face value and the impugned orders cancelling the permission should be 1truck down on that single ground. I am afraid the submission made at the bar cannot be upheld. If we carefully peruse the averments made in this behalf we find that there are only two averments : (i) on Vaghodia being declared a Grade C growth center It held out it promise for prosperity for the people of that area and (ii) since one of the Cabinet Ministers hailed from the, constituency comprising Vaghodia Taluka there was political Jealousy which prompted the then Chief Minister to issue directions for the cancellation of permission in exercise of power under S. 211 of the Code. In the flat no material has been placed on record support of the contention that there was political jealousy which actuated the then chief Minister to direct recourse to S. 211 of the Code. it is pertinent to note that there is no, allegation that there was any political rivalry between the Cabinet Minister hailing from the constituency Comprising Vaghodia -Taluka and the then Chief Minister of the State. It is a matter of common knowledge'' that when such incentive schemes are floated, the benefit under such schemes go to certain areas or to certain sections of the populace but that is a conscious decision on the part of the State Government of which the Chief minister would not be oblivious. The Chief Minister would know when the State Government grants certain incentive benefits! that there would be a spurt in industrial activity in that backward area which, by itself, without'' anything more, would not generate any political jealousy. Therefore, in the absence of positive facts which would go to show that the relations between the said Cabinet Minister and the Chief Minister were strained on account of certain reasons, the conclusion'' of political Jealousy and the consequential exercise of power under S. 211 of the Code cannot be upheld. It matters not if a vague allegation of ''political jealousy'' benefit of supporting facts and details is, not controverted since such a vague and general allegation is incapable of being answered. Unless facts and details in support of the allegation of political jealousy are laid, there is nothing to controvert and failure on the ''part of the then Chief Minister to file an affidavit cannot in any manner substitute the missing facts. I am, therefore, of the view that failure to controvert cannot advance the case of the petitioners and bring home the charge of the action having been initiated as a result of a political jealousy. I therefore, reject this contention.

1 now proceed to consider the pontentions directed against the exercise of revisional jurisdiction by the Secretary (Appeals) under S. 211 of the Code. It was firstly contended that the Secretary (Appeals) had no authority to revise the order regarding the grant of permission to make non agricultural use of the agricultural lands in question as the TDO was not his immediate subordinate. There is no merit in this submission. Chapter XIII of the Code deals with appeals and revisions. S. 203 states that ''in the absence of any express provision in the Code, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue Officer under the Code or any other law for the time being in force, to that officer''s immediate superior, whether such decision order may itself have beep passed on appeal, from a subordinate officer''s decision or order or not. On a plain reading of this section it becomes clear that an appeal from a subordinate officer''s decision or order lies to that officer''s immediate superior. However, when we turn to S. 211 of the Code, we find, an altogether different language. That section provides that the State Government and any revenue officer, not inferior in rank to an Assistant or Deputy Collector or if Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer'' for the purpose of satisfying itself or, himself, as the, case may be, as to the legality or propriety of any decision or order passed and as to the regularity of the proceedings of such officer. The expression used is subordinate revenue officer and not its or his immediate subordinate. The revisional jurisdiction is, therefore, conferred on the State Government and officers of certain rank to examine the legality or propriety of any decision or order passed by any subordinate, revenue officer. Two conditions must, therefore, be satisfied for the exercise of power under this provision namely, (i) that the power must be exercised by the State Government or any revenue officer not inferior in rank to an Assistant or Deputy Collector or a:. Superintendent of Survey; and (ii) the decision or order proposed to be revised must be that of a subordinate revenue officer. It is not disputed before me that the TDO, while exercising power under S. 65 of the Code, was acting as a revenue officer and since he was admittedly subordinate to the Secretary. (Appeals), his decision was liable to be revised under S. 211 of the Code by the latter.

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It is further found on a perusal of the impugned order that the Secretary (Appeals) came to the conclusion that the TDO had committed an error in overlooking the guidelines prescribed by the Government Resolution dt. 25th Mar. 198 1. Superseding as many as. 57 earlier Government resolutions/Orders, the State Government issued a comprehensive resolution dt. 25th March 1981 laying down guidelines for the Collector/District Development Officer in-the matter of disposal of applications made under S. 65 65A and 71 of the Code. While stating that such applications will be in the form prescribed in Schedule I to the Resolution and shall be accompanied by. maps, etc., to enable its speedy disposal within the prescribed period of three months, it directed that the opinions of the concerned Departments should be obtained to the extent necessary to ascertain if the lay out plans, proposed construction, etc., do not conflict with the rules or bye-laws of the local authority/ municipality/municipal corporation, public health requirements, proposals for accuisition of land, etc. The concerned departments are expected to convey their reactions within fifteen days. It is clearified that only opinitions of departments shought which are considered absolutely necessary and a note should be made that it is unnecessary to seek the reactions of the other departments. Where the land is situated in the industrial zone or is proposed to used for industrial purpose, clause 10 of the Government Resolution requires that the opinion of the industries Development Corporation Gujarat Agro-Industries Corporation. The Secretary (Appeals) has come to the conclusion that the TDO had failed to, adher to these guidelines and had granted the permission en masse without consulting the concerned department and authorties as required thereunder. It is not in dispute that these guidelines were not followed by the TDO. Miss Shah-submitted that the Secretary, (Appeals) was in error in thinking that the said guidelines were issued under S. 214 of the Code. I think there is force in this submission. S. 214 entities the State Government to make, prospectively, or retrospectively, rules not inconsistent with the the provisions of the Code to carry out the purposes and objects thereof and for the guidance of all persons in matters connected with the enforcement of the provisions of the Code or in cases not expressly provided therein. It is, therefore, obvious that S. 214 empowers the State Government to frame rules inter alia for guidance of all persons in matters connected with the enforcement of the provisions of the Code, etc. On a mere perusal of the Government Resolution be 25th March 1981 it becomes clear that the said guidelines are not in exercise of power under S. 214 of the Code. The Resolution does not say so nor does it reflect in any manner that it was intended to have statutory force.

Mr. Bukhari submitted that even if the said guidelines do not have statutory flavour as contended by Miss Shah, there can be no doubt that the State Government can in exercise of its executive power issue guidelines for the, exercise of power conferred upon its officers under the Code provided the said guidelines are not consistent with the provisions of the Code So far as the guidelines in question are concerned, Miss Shah was not able to point out any guide-One which conflicted with the provisions of the Code except stating that since S. 65 was silent on the question of obtaining the opinions of different departments, the guidelines make inroads in the exercise of power by the competent officer under that provision. I see no force in this submission. It is clear to me that even if these guidelines are not issued under S. 214 of the Code, since they do not conflict with the provisions of the Code and merely require the officer granting permission under S. 65 to consult , beforehand certain departments of the State Government and seek their reaction, the guidelines cannot be inconsistent or ultra vires the statute x x x x x x x x x x x x x x x x

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Petitions allowed.