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2018 DIGILAW 1049 (GUJ)

Hafejbhai Rustomji Dalal v. State of Gujarat

2018-09-04

R.SUBHASH REDDY, VIPUL M PANCHOLI

body2018
JUDGMENT & ORDER : Vipul M. Pancholi, J. This appeal is filed under Clause 15 of Letters Patent against an order dated 09.02.2018 passed by learned Single Judge in Special Civil Application No.20822 of 2017, by which, the learned Single Judge has dismissed the petition. 2. Brief facts leading to fling of the present appeal are as under: 3. It is the case of the appellants - original petitioners that the land bearing Block No.171 of Mouje Navapura, Taluka: Sanand, admeasuring 19000 sq. mtrs. was in dispute in the year 1946. A receiver was appointed by the Bombay High Court at the relevant time. The said receiver executed a registered sale deed on or around November 1946 in favour of Temulji Aerchasha Khambhata, Nariman Aerchasha Khambhata, Minocher Aerchasha Khambhata and Dolathai Kaikhshur Khambhata. Necessary entry in respect of the said transaction came to be mutated in the revenue record vide entry No.1246 on 03.10.1978. Thereafter, one Tenancy Case came to be initiated by the Mamlatdar & ALT being Tenancy Case No.4820 on 24.01.1978, whereby the names of the alleged tenant viz. Khuman Bapubhai as well as Niyogi Prasad Kaushikbhai came to be deleted since they were not declared as tenant. Necessary entry No.1254 dated 27.11.1978 came to be mutated with regard to the same. It is further stated that thereafter the purchasers of the land viz.Temulji Aerchasha Khambhata and others sold the land in question to the petitioners by way of registered sale deed dated 06.02.1980 and therefore entry No.1263 came to be mutated in the revenue record on 27.10.1980. 3.1. It is further stated that resurvey came to be introduced in village Navapura, and in the said process, old Block No.171 was given new number 255 wherein the petitioners were shown as occupants of the land in question. Entry No.1430 in respect of resurvey came to be mutated on 10.12.1986. Thereafter, another entry being entry No.1813 was mutated on 21.09.1999 with respect to rectification of measurement which was wrongly mutated. Now the land in question is included in Ahmedabad Urban Development Authority and the same is included in Logistic - L1 Zone. 4. In the aforesaid factual background, it is stated that the petitioners are desirous of utilizing the land for NA purpose and therefore they submitted an application on 27.01.2016 to the competent authority viz. Collector for grant of NA permission. 4. In the aforesaid factual background, it is stated that the petitioners are desirous of utilizing the land for NA purpose and therefore they submitted an application on 27.01.2016 to the competent authority viz. Collector for grant of NA permission. The Collector asked for the opinion of the concerned authority. However, though positive opinion was received, the Collector rejected the application of the petitioners vide communication dated 19.04.2016. Petitioners, therefore, submitted an application on 22.02.2017 and requested the Collector to reconsider his earlier decision. Therefore, the Collector asked for the opinion of Mamlatdar, Sanand and Mamlatdar and ALT, Sanand and both the authorities gave positive opinion in favour of the petitioners. It is alleged that in spite of the same, the respondent Collector rejected the request of the petitioners vide communication dated 17.05.2017. 5. Once again, the petitioners submitted an application dated 30.05.2017 to the respondent Collector and requested to reconsider his decision and pointed out relevant aspects. The Collector, therefore, once again asked for the report of the concerned authorities. Once again the said authorities gave positive opinion in favour of the petitioners. In spite of that, vide communication dated 18.07.2017, once again the respondent Collector rejected the application for grant of NA permission on the sole ground that as per the abstract of 7/12 since 1950-51, Bombay High Court has appointed a receiver and names of some of the occupants were reflected over the same. Moreover, during the year 1977-78, the mode of cultivation is shown as "3" and the Mamlatdar and ALT, while passing the order dated 24.01.1978, relied upon the photocopy of the entry No.1246 which was made in the year 1946. Thus, the title of the land in question does not seem to be clear. 6. Petitioner, therefore, filed the captioned petition in which the petitioners challenged the decisions/communications dated 19.04.2016, 17.05.2017 and 18.07.2017 issued by the respondent Collector and it was prayed that directions be given to the respondent Collector to grant NA permission as sought for vide application dated 27.01.2016 as well as considering the subsequent applications for reconsideration. The learned Single Judge, by the impugned order, dismissed the petition and therefore the appellants - petitioners have preferred this appeal. 7. Heard learned Senior Counsel Mr. Mehul S. Shah assisted by learned advocate Mr. Vimal Purohit for the appellants - petitioners and learned Assistant Government Pleader Mr. D.M.Devnani for the respondents. 8. The learned Single Judge, by the impugned order, dismissed the petition and therefore the appellants - petitioners have preferred this appeal. 7. Heard learned Senior Counsel Mr. Mehul S. Shah assisted by learned advocate Mr. Vimal Purohit for the appellants - petitioners and learned Assistant Government Pleader Mr. D.M.Devnani for the respondents. 8. Learned Senior Counsel Mr. Shah mainly contended that though the Mamlatdar as well as the Deputy Collector have, from time to time, submitted positive opinion to the respondent Collector, the Collector has rejected the request of the petitioners to grant NA permission for the land in question. It is contended that while exercising powers under Section 65 of the Gujarat Land Revenue Code, the Collector is not empowered to decide whether title of the land is clear or not. However, in the last order dated 18.07.2017 passed by the respondent Collector, he has stated that the title of the land in question is not clear and therefore NA permission cannot be granted. It is contended that whether the title of the land is clear or not is for the concerned Civil Court to examine if some proceedings are filed by the affected party. However, in the present case, nobody has raised any dispute/objection before the respondent Collector with regard to the title of the land in question and therefore the impugned decision taken by the respondent Collector was required to be quashed and set aside by the learned Single Judge. However, the learned Single Judge has wrongly dismissed the petition and therefore this appeal be allowed by quashing and setting the impugned communications/decisions of the respondent Collector as well as the impugned order passed by the learned Single Judge. 9. On the other hand, learned Assistant Government Pleader Mr. Devnani has submitted that the respondent Collector has not committed any illegality while rejecting the application of the petitioners for grant of NA permission on the ground that title of the land in question is not clear. In support of the said submission, learned AGP has placed reliance upon the provisions contained in Section 65B of the Gujarat Land Revenue Code. He, therefore, urged that no error is committed by the learned Single Judge and therefore this appeal be dismissed. 10. In support of the said submission, learned AGP has placed reliance upon the provisions contained in Section 65B of the Gujarat Land Revenue Code. He, therefore, urged that no error is committed by the learned Single Judge and therefore this appeal be dismissed. 10. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it is revealed that for the land in question, a receiver was appointed by the Bombay High Court at the relevant point of time in the year 1946 who had sold the land in question by a registered sale deed in favour of Mr. Temulji Aerchasha Khambhata, Mr. Nariman Aerchasha Khambhata, Minocher Aerchasha Khambhata and Mr. Dolathai Kaikhshur Khambhata. Necessary entry No.1246 came to be mutated in the revenue record on 03.10.1978. However, in the meantime, proceedings being Tenancy Case No.4820 was initiated by Mamlatdar and ALT. However, after the initiation of the said proceedings, names of alleged tenant viz. Mr. Khuman Bapubhai as well as Mr. Niyogi Prasad Kaushikbhai were deleted as they were not declared as tenant. Said fact is mutated in the revenue record by entry No.1254 on 27.11.1978. It is not in dispute that the petitioners have purchased the land in question from Mr. Temulji Aerchasha Khambhata and others by a registered sale deed executed on 06.02.1980 and entry No.1263 was mutated on 27.10.1980 with regard to the same. Since then the petitioners are the owners and occupiers of the land in question. It is required to be noted that the alleged tenants or any other persons have not disputed the entries made in the revenue record nor anybody has challenged the sale deed executed in favour of the petitioners by Mr. Temulji Aerchasha Khambhata and others. 11. In the aforesaid factual background of the case, if the order dated 19.04.2016 is examined, it is revealed that the respondent Collector rejected the application submitted by the petitioners for grant of NA permission on five different reasons. However, thereafter when the request for reconsideration of the said decision was received from the petitioners, the respondent Collector asked for the opinion of the concerned Mamlatdar and though positive opinion was received from the concerned Mamlatdar, once again the request of the petitioners came to be rejected on 17.05.2017. But, at that time only two reasons were assigned by the respondent Collector. But, at that time only two reasons were assigned by the respondent Collector. It is further required to be noted that the petitioners once again requested the Collector to reconsider his decision and by representation dated 30.05.2017, once again the respondent Collector asked for the opinion of the Deputy Collector who has given his positive opinion by communication dated 08.06.2017 and thereafter lastly the respondent Collector rejected the request of the petitioners by an order dated 18.07.2017 only on one ground. In the said order, the respondent Collector has observed that title of the land in question is not clear. However, with regard to the same, the concerned Mamlatdar as well as the Deputy Collector have given their positive opinion after considering the relevant aspects to the Collector and stated that request of the petitioners can be accepted for grant of NA permission. 12. At this stage, it is relevant to observe that the sale deed executed by the receiver of the Bombay High Court in favour of Mr. Temulji Aerchasha Khambhata and others and the entry made with regard to the same are not challenged before the competent Court by the concerned party. The entry with regard to deletion of names of the alleged tenants is also not challenged by the concerned alleged tenants before any competent forum. Further the sale deed executed by Mr. Temulji Aerchasha Khambhata and others in favour of the petitioners is also not challenged by any party before the competent civil court nor entry made in the revenue record pursuant to the sale deed executed in favour of the petitioners has been challenged. Thus, the reason given by the Collector that the title of the petitioners with regard to the land in question is disputed, is not correct in view of the aforesaid facts of the present case. Similarly, at the time of consideration of the application of the petitioners for grant of NA permission, nobody has raised any dispute/objection for grant of such permission before the Collector. In absence of any dispute/objection raised by any person with regard to the title of the land in question, it is not open for the respondent Collector to reject the application submitted by the petitioners on the ground mentioned in the impugned order dated 18.07.2017. 13. In absence of any dispute/objection raised by any person with regard to the title of the land in question, it is not open for the respondent Collector to reject the application submitted by the petitioners on the ground mentioned in the impugned order dated 18.07.2017. 13. In view of the aforesaid discussion, we are of the view that the impugned communications/decisions dated 19.04.2016, 17.05.2017 and 18.07.2017 issued by the respondent Collector are required to be set aside. Consequently, the order dated 09.02.2018 passed by learned Single Judge is also required to be set aside. 14. For the foregoing discussion, the appeal is allowed. The communications/decisions dated 19.04.2016, 17.05.2017 and 18.07.2017 issued by the respondent Collector are set aside. Similarly, the order dated 09.02.2018 passed by learned Single Judge is also set aside. The respondent Collector is hereby directed to decide the application submitted by the petitioners for grant of NA permission afresh. While taking decision, the respondent Collector shall consider the observations and discussion made by us in the present order. Such decision shall be taken by the respondent Collector within a period of four weeks from the date of receipt of this order. Consequently, civil application also stands disposed of.