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2011 DIGILAW 335 (GUJ)

R. Square Realty v. District Collector

2011-04-21

M.R.SHAH

body2011
Judgment M.R. Shah J.—Rule. Ms. M.O. Narshingani, learned AGP waives service of notice of Rule on behalf of the respondent State and Shri Tattvam Patel, learned advocate waives service of notice or Rule on behalf of contest private respondents. With the consent of the learned advocate for the respective parties, the matter is taken up for final hearing today. 2.0. All these petitions arise out of the interlocutory order passed by the Secretary (Appeals), Revenue Department, State of Gujarat dated 4.2.2011 passed in respective Revision Application Nos. 38 to 40 of 2010, by which the stay applications submitted by the petitioners-original revisionist to stay the respective orders passed by the District Collector, Vadodara by which applications submitted by the respective petitioners for certificate and/ or permission under Section 63-AA of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as “the Act”) have been refused. 3.0 The facts leading to the present Special Civil Application in nutshell are as under: 3.1. Respective petitioners have applied for certificate / permission of the Collector, Vadodara to purchase the respective lands in question, as required under Section 63-AA of the Act. Despite the objection by the private respondents herein who are claiming title on the basis of the registered sale deed executed prior to the sale deed in favour of the respective petitioners, the Collector, Vadodara granted certificate/ permission under Section 63-AA of the Act in favour of the respective petitioners which were subject matter of Special Civil Application Nos. 10346 of 2009 to 10348 of 2009 and with the consent of the learned advocates for the respective parties of the aforesaid three Special Civil Applications came to be disposed of by this Court by quashing and setting aside the certificate issued by the Collector, Vadodara issued in favour of the respective petitioners issued under Section 63-AA of the Act dated 25.11.2008 and the matters were remanded to the Collector, Vadodara for deciding the respective applications submitted by the respective petitioners for granting certificate under Section 63-AA of the Act afresh in accordance with law and on merits dealing with the objections submitted by the private respondent herein. 3.2. 3.2. It appears that thereafter on remand, the Collector, Vadodara decided the applications submitted by the respective petitioners for grant of certificate under Section 63-AA of the Act and after considering the objections raised by the private respondent herein rejected the said applications and refused to grant certificate / permission under Section 63-AA of the Act with respect to the lands in question. Being aggrieved and dissatisfied with the orders passed by the Collector, Vadodara dated 4.8.2010, the respective petitioners have preferred the revision application before the Secretary (Appeals), Revenue Department, State of Gujarat being Revision Applications No. 38 to 40 of 2010. In the said revision applications, the respective petitioners have submitted the stay applications requesting to stay the further implementation and operation of the orders passed by the Collector, Vadodara dated 4.8.2010 refusing to grant certificate / permission under Section 63-AA of the Act. That by the impugned orders, the Revisional Authority has rejected the said stay applications for the reasons stated in the said orders. Hence, the respective petitioners herein-original revisionist have preferred Special Civil Applications under Articles 226 & 227 of the Constitution of India. 4.0. Shri S.I. Nanavati, learned Senior Advocate has appeared on behalf of the petitioner in Special Civil Application Nos. 4766 of 2001 and 4768 of 2011 and Shri P.C. Kavina, learned Senior Advocate has appeared on behalf of petitioner of Special Civil Application No. 4767 of 2011. Shri Mihir Joshi, learned Senior has appeared with Shri Tattvam Patel, learned advocate for the contesting private respondent. 5.0. Learned counsel of the respective petitioners have submitted that by not granting interim relief as prayed for and not staying the orders passed by the District Collector refusing to grant permission/certificate under Section 63-AA of the Act, not only the revision application would become infructuous but even considering the Section 63AA(3)(C)(ii) of the Act and on rejection of said permission/ certificate under Section 63-AA of the Act the transaction in favour of the petitioners would be automatically considered to be in breach of Section 63 of the Act and therefore, immediately the proceedings shall be initiated by the Mamlatdar for breach of Section 63 of the Act. Therefore, it is submitted that, to that extent the revisional authority ought to have granted the interim relief. 6.0. Therefore, it is submitted that, to that extent the revisional authority ought to have granted the interim relief. 6.0. Shri Mihir Joshi, learned Senior Advocate for the contesting private respondent has submitted that as such the orders passed by the Collector, Vadodara as well as impugned order passed by the Revsional Authority refusing to grant stay of the orders passed by the Collector, Vadodara refusing to grant permission/ certificate under Section 63-AA of the Act are just and proper and in accordance with law and on merits and more particularly under Section 63-AA of the Act read with Section 65-B of the Bombay Land Revenue Code. It is submitted that in fact considering Section 65-B of the Bombay Land Revenue Code while considering the application under Section 63-AA of the Act granting the permission for transferring the land for industrial purpose, applicants must have valid title and in the present case the private respondents are having registered sale deed in their favour prior in time. Therefore, it is submitted that as such respective petitioners had no valid title on the land in question. It is further submitted that even the applications were submitted by the petitioners for grant of permission / certificate under Section 63-AA of the Act for construction of the Township only and not for industrial purpose and therefore, also the respective petitioners are not entitled to the permission/ certificate under Section 63-AA of the Act. It is further submitted by Shri Joshi, learned Senior Advocate for the contesting private respondents that if this Court is inclined to consider and grant limited relief to the extent restraining the appropriate authority from initiating the proceedings under Section 63 of the Act, in that case, it may be clarified that by that petitioners shall not use the land at all and it may not be construed that the permission has been granted in favour of the petitioner s under Section 63-AA of the Act. It is further submitted that even the dispute with respect to title and possession is still pending before the Civil Court and therefore, it is requested not to make any observations with respect to the same. It is further submitted that even the dispute with respect to title and possession is still pending before the Civil Court and therefore, it is requested not to make any observations with respect to the same. 7.0 In response to the above, Shri S.I. Nanavati, learned Senior Advocate for the respective petitioners has submitted that in fact the respective petitioners are going to use the land in question only for industrial purpose and no activity shall be carried out for the purpose other than industrial use. It is further submitted that even while granting the interim relief it may be clarified that by granting the limited relief, it may not be construed that the permissions have been granted in favour of the petitioners under Section 63-AA of the Act and that till the revision applications are decided and disposed of and / or appropriate orders are passed, the petitioner s shall not use the land in question for any purpose. It is further submitted by Shri Nanavati, learned Senior Advocate for the respective petitioners that whatever the contentions and submissions are made on behalf of the private respondents, all are required to be considered by the Revisional Authority while deciding the aforesaid revision applications and therefore, it is requested not to enter into the aforesaid contention on merits. 8.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that applications submitted by the respective petitioners for grant of permission / certificate under Section 63-AA of the Act to transfer / sale the land in question in favour of the petitioners for industrial purpose has been rejected by the Collector, Vadodara by orders dated 4.8.2010 which are subject matter of the revision applications before the Revisional Authority. In the said revision applications, the respective petitioners submitted the stay application and requested to stay the further implementation and operation of the orders passed by the Collector dated 4.8.2010, during the pendency and final disposal of the aforesaid revision application. The said stay application have been dismissed by the revisional authority by the impugned order. In the said revision applications, the respective petitioners submitted the stay application and requested to stay the further implementation and operation of the orders passed by the Collector dated 4.8.2010, during the pendency and final disposal of the aforesaid revision application. The said stay application have been dismissed by the revisional authority by the impugned order. It is apprehended on behalf of the petitioners that by not granting the interim relief as prayed for considering the provision of Section 63-AA of the Act, more particularly, Section 63-AA 3(C)(ii) on the refusal of the permission/certificate under Section 63-AA of the Act, the sale of the land to the purchasers (respective petitioners) shall be deemed to be in contravention of Section 63 and therefore, if the orders passed by the Collector, Vadodara are not stayed, in that case, the proceedings for contravention of Section 63 of the Act would be initiated immediately. Therefore, it is requested to grant limited interim relief to the aforesaid extent. Having heard the learned advocates for the respective parties, it appears to the Court that the request on behalf of the petitioners to grant limited interim relief restraining the appropriate authority from initiating any proceedings for contravention of Section 63 on refusal of the certificate under Section 63-AA of the Act by the Collector, Vadodara deserves consideration, otherwise the revision applications would become infructuous. However, at the same time, the petitioners also cannot be permitted to use the land in question for any purpose as the certificate in favour of the respective petitioners under Section 63-AA of the Act for sale of the land in question in their favour has been refused by the Collector, Vadodara which are the subject matter of the revision applications, pending before the revisional authority. 9.0 Now, so far as the contentions made on behalf of the respective parties recorded hereinabove, all are required to be considered by the Revisional Authority at the time of deciding the main revision applications and it goes without saying that while deciding the aforesaid revision applications, the revisional authority shall consider the same and deal with the same and take appropriate decision in accordance with law and on merits. 10.0 In view of the above and for the reasons stated above, all the petitions succeed in part. The impugned orders passed by the revisional authority dated 4.2.2011 passed in respective Revision Application Nos. 10.0 In view of the above and for the reasons stated above, all the petitions succeed in part. The impugned orders passed by the revisional authority dated 4.2.2011 passed in respective Revision Application Nos. 38 to 40 of 2010 rejecting the stay applications are hereby modified to the extent that the appropriate authorities are restrained from initiating any proceedings in contravention of Section 63 of the Act on refusal of the certificate under Section 63-AA of the Act by the Collector by order dated 4.8.2010 till the final disposal of the aforesaid Revision Application Nos. 38 to 40 of 2010. However, the same shall be without prejudice to the rights and contentions of the respective parties in the aforesaid revision applications and by the aforesaid it may not be construed that the permission/ certificate under Section 63-AA of the Act have been issued / granted in favour of the petitioners and that respective petitioners shall not use the land in question for any purpose till final disposal of the aforesaid revision applications. In the facts and circumstances of the case, the revisional authority is directed to decided and dispose of the aforesaid Revision Application Nos. 38 to 40 of 2010 in accordance with law and on merits and after giving an opportunity to all concerned at the earliest but not later than four months from the date of receipt of the present order. It goes without saying that revisional authority shall decide and dispose of the aforesaid Revision Application Nos. 38 to 40 of 2010 in accordance with law and on merits and dealing with all contentions to be raised on behalf of the respective parties and without in any way being influence by the present order. Rule is made absolute to the aforesaid extent in each of the petition. No costs. Direct service is permitted.