Proper consideration of terms and conditions of non-agricultural permission and adherence to show cause notice are essential in imposing penalties for alleged violations.

V.M. Pancholi, J.

1. This petition is filed under Article 226 of the Constitution of India, whereby the petitioner has challenged the order dated 16.9.2005 passed by respondent No. 2 as well as the letter dated 22.9.2005 issued by Taluka Development Officer, Vaghodia.

2. The factual matrix of the present case is as under:-

"2.1 The petitioner is a charitable trust registered under the Bombay Public Trust Act and it has set up the educational institution at village Vaghodia in Vadodara district and has filed this petition through its Managing Trustee. The respondent No. 2 granted permission for non-agricultural use of land bearing survey No. 986/1A admeasuring hectare 0.18.21, survey No. 986/1B admeasuring hectare 12.43.23 and survey No. 986/2-B hectare 13.7617 on certain conditions vide order dated 8.4.2003. It is the case of the petitioner that out of total land admeasuring 2,63,761 sq. mtrs. the permission to make construction was granted on 38,508 sq. mtrs of land as per the plans which may be sanctioned by the Urban Development Authority, Vadodara.

2.2 It is the case of the petitioner that plans were sanctioned by the office of Nagar Ayojan and Valuation Department, Government of Gujarat, Vadodara which has permitted the petitioner to make construction of 31,104.44 sq. mtrs of land out of which the petitioner has put up the construction on only 14,603 sq. mtrs of land as on 20.1.2005. It is the say of the petitioner that plans were sanctioned by the competent authority and the remaining work was in progress. In the meantime, the respondent No. 2 issued notice on 1.1.2005 calling upon the petitioner to reply as to why action should not be taken against the petitioner for alleged violation of condition Nos. 3 and 5 of order dated 8.4.2003, by which the permission for non-agricultural use of land was given to the petitioner. The petitioner submitted the reply on 20.1.2005. However, the respondent No. 2 by the impugned order dated 16.9.2005 while exercising the powers under Section 67 of the Bombay Land Revenue Code directed the petitioner to pay a sum of Rs. 10,55,080/- towards the charge of regularizing the alleged illegal construction carried out by the petitioner. The petitioner was further directed to remove the construction made around the transformer unit put up by Gujarat Electricity Board. The petitioner has, therefore, filed the present petition."

3. Heard learned advocate Mr. Pradeep Patel for the petitioner and learned advocate Mr. Munshaw for respondent No. 2 and learned AGP Mr. Sharma for respondent No. 1 and 3.

3.1 Learned advocate Mr. Patel submitted that the petitioners submitted an application for grant of non-agricultural permission before the respondent No. 2. However, in anticipation of grant of such permission, the petitioner had carried out the construction work in certain portion of the land. Therefore, the respondent No. 2 vide order dated 8.11.2002 refused the non-agricultural permission. However, thereafter, the petitioner again applied on 8.1.2003 for grant of non-agricultural permission which was granted by taking fine of Rs. 4,22,020/-. The permission was granted to make construction only in 38,508 sq. mtrs. of land. However, the fine was levied on the entire piece of land admeasuring 2,63,761 sq. mtrs. as if the petitioner has carried out the construction on the entire piece of land. At that time, the petitioner without any objection paid the said amount. However, as per the order dated 8.4.2003 granting the non-agricultural permission to the petitioner, the petitioner was allowed to make construction on 38,508 sq. mtrs of land out of 2,63,761 sq. mtrs of land. Thereafter, the petitioner has started the construction as per the plan submitted before the Town Planning Authority. However, revised plans were also submitted which were sanctioned by the Town Planning Authority. It is further