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2015 DIGILAW 1027 (GUJ)

State of Gujarat v. Jitendra Ramabhai Patel

2015-10-12

JAYANT M.PATEL, N.V.ANJARIA

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JUDGMENT : Jayant Patel, J. Admit. Mr. Rutul Desai, learned advocate for the respondents waives notice for admission. 2. With the consent of learned advocates appearing for both the sides, the appeal is finally heard. 3. The present appeal is directed against the order dated 19.08.2014 passed by the learned single Judge of this court in SCA No. 6126 of 2011, whereby the learned single Judge has for the reasons recorded in the order, allowed the petition in terms of para 21(A) and 21(AA) and has directed the authority to decide the application of the petitioners and to pass appropriate orders within a period of six months. 4. We have heard Mr. Rakesh Patel, learned AGP appearing for the appellants-State and Mr. Prashant Desai, learned Senior Counsel with Mr. Rutul Desai, learned advocate for the respondents-original petitioners. 5. The contention raised on behalf of the appellants was that as per Rule 25(C) of the Bombay Tenancy and Agricultural Lands Rules, 1956 (hereinafter referred to as the ‘Rules’), maximum power available to the Collector for extension is of two years and after expiry of the period of two years, the Collector would become functus officio and it will not be permissible for the Collector to extend the period. It was also submitted that once the period has expired, the consequence is provided in sub-Rule (3) of Rule 25(C) that the sanction granted under section 43(1) of Bombay Tenency & Agricultural Lands Act, 1948 (hereinafter referred to as the ‘Act’) shall be deemed to be treated as cancelled and the transfer also shall be deemed to have been made without previous sanction of the Collector, and the consequence would be that fresh permission under section 43(1) of the Act will be required to be obtained by the holder of the land. It was submitted that the learned single Judge has committed error in not considering the said aspect properly, hence this court may consider in the present appeal. 6. Whereas, Mr. Desai, learned Senior Counsel appearing for the respondents-original petitioners submitted that it is on account of the proceedings of the 84(C) of the Act, the petitioners could not apply for N.A. permission under sections 65 of the Bombay Land Revenue Code (hereinafter referred to as ‘the Code’). 6. Whereas, Mr. Desai, learned Senior Counsel appearing for the respondents-original petitioners submitted that it is on account of the proceedings of the 84(C) of the Act, the petitioners could not apply for N.A. permission under sections 65 of the Bombay Land Revenue Code (hereinafter referred to as ‘the Code’). Such proceedings under 84(C) of the Act came to be concluded at the level of Mamlatdar on 26.5.2009 and before the Deputy Collector on 9.4.2010. After the order of the Mamlatdar, the original petitioners had applied for extension of time before the Collector for making application under section 65 of the Code on 6.12.2009, but the Collector without considering the aspects of the dispute on account of the proceedings under section 84(C) of the Act, rejected the application and therefore, it could not be said that there was default on the part of the original petitioners in making application for extension of time to make application under section 65 of the Code. He submitted that the learned single Judge rightly considered the said aspect and hence, this court may not interfere. 7. However, on the aspect of operative relief granted by the learned single Judge, Mr. Desai learned Senior Counsel for the original petitioners could not properly explain because the relief prayed in para 21(A) is for grant of permission under section 65 of the Code, which was not even the subject matter before the learned single Judge and the subject matter before the learned single Judge was only for extension of time to make application under section 65 of the Code. He lastly submitted that this court may modify the relief, if finds appropriate, in order to see that the original petitioners may be in a position to apply for permission under section 65 of the Code, if the time limit so extended by the Collector. 8. We may record that the following positions on facts are undisputed. (i) The land was originally held by Bhagvanbhai Motibhai being the legal heir of original tenant-Motibhai Ranchodbhai, who was declared as tenant and who was granted land as per the Act. (ii) Bhagvanbhai Motibhai (hereinafter referred to as the ‘original owner of the land’) had applied to the Collector for removal of restriction under section 43 of the Act by converting the land from restricted tenure to unrestricted tenure. (ii) Bhagvanbhai Motibhai (hereinafter referred to as the ‘original owner of the land’) had applied to the Collector for removal of restriction under section 43 of the Act by converting the land from restricted tenure to unrestricted tenure. On 14.8.92 the permission came to be granted by the Collector whereby upon payment of premium of Rs. 54,228.30 paise the permission was granted to sale the land in question to Shri Jitendrarai Ramabhai Patel and Shri Sandeepbhai Thakorebhai Patel for Baroda Cap Liners and M/s. Autocam Industries respectively. As per the said order, the sale deed was to be executed within a period of 90 days and permission to apply for N.A. under section 65 of the Code was to be made within six months and actual use of N.A. was to be made within a period of three years. It was specifically provided that if such is not undertaken, the permission shall stand cancelled and the transfer shall be treated as without permission of the Collector. (iii) It appears that the premium came to be paid on 22.7.1992 and thereafter, two sale deeds came to be executed on 16.10.1992. (iv) Before the application could be made for N.A., it appears that on 26.3.1993, the proceedings under section 84(C) of the Act came to be initiated and the notice was served upon the original petitioners on 30.3.1993. There were various litigations thereafter, inasmuch as on 3.12.1996, the Mamlatdar found that there was a breach of the condition and the matter was thereafter remanded by the higher forum to the Mamlatdar again on 26.5.2009. Ultimately, the Mamlatdar found that the sale deeds were executed within a period of 90 days and in the proceedings initiated under section 84(C) of the Act, no further action was to be taken, and therefore the notice was withdrawn. (v) On 16.12.2009, the original petitioners applied to the Collector for extension of time to make application under section 65 of the Code. (vi) Against the order of the Mamlatdar dated 26.5.2009, the matter was taken up in revision by the Government before the Deputy Collector and ultimately vide order dated 9.4.2010 (which is wrongly typed as 9.4.2009) the order of the Mamlatdar remained confirmed. (vii) The Collector in the application for extension, rejected the application on the ground that the same was not within the prescribed period. (vii) The Collector in the application for extension, rejected the application on the ground that the same was not within the prescribed period. Under the circumstances, the original petitioners approached to this court by preferring the SCA. (viii) Learned single Judge found that on account of 84(C) of the Act proceedings, delay was caused and therefore, pragmatic view was required to be taken on the part of the Collector and ultimately he found that rejection of the application was wrong and the direction has been issued. Learned single Judge also found that the reliance upon the decision in the case of Jivrambhai Vastbhai Desai vs. State of Gujarat reported in 2013 (3) GLR 2094 could not be made applicable in the present case. 9. Under the circumstances, the present appeal by the State before the Division Bench of this court. 10. We may record relevant statutory provisions of Rule 25(C)(3), which reads as under: “(3) The sanction of the Collector under clause (e) of sub-rule (1) shall be subject to a further condition that the person in whose favour the transfer is made shall apply for N.A. permission before a competent authority under the Bombay Land Revenue Code, 1879 for non-agricultural use of the land within six months from the date of transfer of land and this period may be extended upto two years in aggregate by the Collector for genuine reasons to be recorded in writing and that such person shall use the land for the purpose for which the sanction has been granted within three years from the date of grant of non-agricultural permission under the provisions of the said Code, or within such further period not exceeding five years in the aggregate as the Collector for reasons to be recorded in writing may from time to time fix or within such further period exceeding five years as aforesaid as the Collector may fix with the prior approval of the State Government. If the person fails to comply with the condition within the period so specified, the sanction given under subsection (1) of Section 43 shall be deemed to have been cancelled and the transfer shall be deemed to have been made without the previous sanction of the Collector. If the person fails to comply with the condition within the period so specified, the sanction given under subsection (1) of Section 43 shall be deemed to have been cancelled and the transfer shall be deemed to have been made without the previous sanction of the Collector. Provided that commencement of bona fide steps to use the land for the purpose for which sanction has been granted shall be deemed to be compliance with the condition regarding the use of the land for non-agricultural purpose within the sanctioned period: Provided further that if the Collector is satisfied that the person in whose favaour the transfer is made is unable to make use of the land within the specified period for the purpose for which the sanction has been granted on account of genuine reasons, he may allow him to use the land for a different purpose including agricultural use after specifying such conditions as may be considered necessary and thereupon the person concerned shall use the land for the said purpose within the sanctioned period.” (Emphasis Supplied) 11. It is true that earlier in body of sub-Rule (3) outer limit has been provided, but the proviso makes room for considering the commencement of the bona fide steps to use the land for the purpose for which sanction has been granted. Therefore, it cannot be said that a complete bar would operate. At the same time, even if the outer limit provided under sub-Rule (3) is considered for the purpose of commencement of the use of the land for the purpose for which the sanctioned has been granted, the bona fide steps has the role to play. One way of interpreting the sanction is that it may apply for the actual use of the land and the another way is to consider the use of the land for all purposes including the steps to be taken for making application under section 65 of the Code. It sounds rational to interpret proviso to apply in respect of both circumstances because the outer limit so provided should apply minus the bona fide steps taken. It sounds rational to interpret proviso to apply in respect of both circumstances because the outer limit so provided should apply minus the bona fide steps taken. In any case, it appears from the language used under sub-Rule (3) and more particularly on account of the proviso that the Collector would be required to apply mind for commencement of the period and while examining the said aspect, he may consider the aspect of bona fide steps taken. In any case, the provisions of sub-Rule (3) could not be read as sine qua non in all circumstances because it leaves express room for consideration of period for commencement based on bona fide steps taken for the person who by relying upon the permission granted has paid consideration, purchased the land. 12. If the facts of the present case are further examined, until the proceedings under section 84(C) of the Act are concluded, one can say that the title of the property or vesting of the land in question would not be complete. Unless one is found to be lawful owner or the occupier of the property, he can not apply for permission under section 65 of the Code. When the proceedings were initiated by the authority itself under section 84(C) of the Act after the original petitioners purchased the property in bona fide and the outer limit was put to stake, even if application was made under section 65 of the Code, no useful purpose would have been served since he could not at the relevant point of time be said a lawful owner or occupier of the property as the proceedings under section 84(C) of the Act were initiated. Such proceedings have been concluded in any case on 9.4.2010 before the Deputy Collector. Prior thereto the application for extension is made on 16.12.2009. Having considered the same, the Collector ought not to have rejected the application on the ground that the outer time limit is over and therefore, the application for extension cannot be granted. In the decision of this court in the case of Jivrambhai Vastbhai Desai (supra), the original owner of the land had applied for extension, which are not the fact situation coupled with the aspect of initiation of proceedings under section 84(C) of the Act after land was sold in the present case. 13. In the decision of this court in the case of Jivrambhai Vastbhai Desai (supra), the original owner of the land had applied for extension, which are not the fact situation coupled with the aspect of initiation of proceedings under section 84(C) of the Act after land was sold in the present case. 13. In the facts and circumstances of the case, it could be said that learned single Judge did not commit any error in finding that the approach of the authority ought to have been pragmatic and the learned single judge can also not be said as having committed any error in setting aside the order passed by the collector. However, it appears that the relief prayed by the petitioners in paragraph No. 21(A) is also to direct respondent No.2 to issue permission under section 65 of the Bombay Land Revenue Code forthwith, which could not have been granted because even if the time was extended, the application and process for grant of permission under section 65 of the Code would be required to be followed. Further in any case, the subject matter of the petition was for grant of extension of time to make application under section 65 of the Code, and not for grant of permission under section 65 of the Code. Therefore, the direction issued by the learned single Judge to that extent cannot be sustained. 14. In view of the above, the impugned order passed by the Collector rejecting the application for extension of time to make application under section 65 of the Code is set aside. The Collector shall consider the application made by the original petitioners for extension of time to make application under section 65 of the Code in light of the observations made by this court in the present judgment and appropriate decision shall be taken within a period of six months from the date of receipt of a copy of this order. 15. The judgment and the order of the learned single Judge shall stand modified to the aforesaid extent. The appeal is partly allowed as aforesaid. Considering the facts and circumstances of the present case, there shall be no order as to costs. Petition partly allowed.