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2018 DIGILAW 632 (GUJ)

PRAHLADBHAI KACHRABHAI PATEL v. STATE OF GUJARAT

2018-04-19

B.N.KARIA

body2018
Judgment and Order : B.N. Karia, J: By preferring this writ application, the petitioner has inter alia prayed for the following reliefs : "16.[b] The Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, direction or order in the nature of mandamus holding and declaring that the order Annexure-H dated 7th June 2006 is erroneous, illegal and contrary to the facts and law and same be quashed and set-aside and be further pleased to hold and declare that on expiration of the period on 10th October 2005, permission for conversion of the land namely, Survey No. 224/1 shall be deemed to have been granted under the provisions of Section 65 of the Bombay Land Revenue Code, and therefore, there is no need for written permission. [c] This Hon'ble Court be pleased to issue an appropriate writ, order or direction directing the respondent no. 2 herein to the effect that the N.A permission has been deemed to have been granted and therefore, AUDA be directed to hand over the plans to the petitioner dispensing with the submissions of written permission of the Collector for N.A." 2. Brief facts of the case are that the petitioner, his brothers viz., Govindbhai, Jayantibhai and Ambalal are the co-owners of a piece of land, bearing Block No. 130/1 [of original Survey No. 224/1] admeasuring 38 RA and 45 sq.m ie., 3845 sq.mtrs. Father of the petitioner named Kachrabhai was the original owner of the land and on his demise on 18th July 1977, names of the legal heirs of the deceased-Kachrabhai have been entered into the revenue record. 2.1 As per the averments made by the petitioner, the said land was of the old tenure land, which was originally belonging to Ramji Mandir and it was a Devasthanam land. The administrator of the said Ramji Mandir sold the land to the father of the petitioner Shri Kachrabhai for a consideration of Rs. 630/= and since then, he became the owner. That, the petitioner requested the District Collector to convert the land into Non-Agriculture under Section 65 of the Bombay Land Revenue Code on 11th July 2005. The administrator of the said Ramji Mandir sold the land to the father of the petitioner Shri Kachrabhai for a consideration of Rs. 630/= and since then, he became the owner. That, the petitioner requested the District Collector to convert the land into Non-Agriculture under Section 65 of the Bombay Land Revenue Code on 11th July 2005. The said Section 65 of the Bombay Land Revenue Code, 1879 ["BLR Code" for short] speaks of uses of the land, wherein, the Collector is required to grant or refuse permission; and if no reply is given, provision says that after the lapse of 90 days, permission shall be deemed to have been granted. 2.2 That, an application was moved by the present petitioner on 11th July 2005 and necessary procedure was followed by the petitioner. The reply, as per Schedule 4/18 was recorded by the Mamlatdar and as per Schedule 5/18, panchnama of the site was drawn and application alongwith all the documents were submitted to the Collector which was received on 19th July 2005. That, illegal construction on the land were removed and it was reflected in the panchnama. That, after receiving the application alongwith documents submitted by the petitioner, no reply whatsoever was given and therefore, such application for "non agricultural use" was to be treated as deemed to have been granted. That, in respect of entry, there was some litigation pending since 1960 viz., Ganot Case No. 16/Vejalpur. In that case, the Mamlatdar & Agricultural Lands Tribunal, Ahmedabad City passed an Order dated 19th September 1960 in which entry was effected that the land in question viz., Survey No. 224/1, admeasuring 38 Gunthas and of Survey No. 235, admeasuring 27 Gunthas are the lands which fall under Section 43 of the Tenancy Act, being restricted tenure, and therefore, the present petitioner and his brothers carried the matter before Deputy Collector by preferring Revision Application No. 469/1994 under Section 76A of the Gujarat Tenancy & Agricultural Lands Act, 1948 ["Tenancy Act" for short]. 2.3 The Deputy Collector vide Order dated 19th November 1994 held that both the Survey Nos. 224/1 and 235 were not of restricted tenure and to that extent, the order of the Mamlatdar & ALT dated 19th September 1960 came to be modified. 2.3 The Deputy Collector vide Order dated 19th November 1994 held that both the Survey Nos. 224/1 and 235 were not of restricted tenure and to that extent, the order of the Mamlatdar & ALT dated 19th September 1960 came to be modified. 2.4 The Government, being aggrieved by the Order passed by the Deputy Collector in Revision Application No. 469 of 1994 dated 19th November 1994, preferred Revision Application No. 519 of 1996 whereunder on 14th August 1997, an application was submitted before the Tribunal informing that the Government in the Revenue Department has decided to withdraw the revision application pending before the Tribunal, and on the basis of the said application submitted before the Tribunal, the Revision Application came to be dismissed as withdrawn unconditionally. 2.5 Thereafter, the petitioner moved an application before AUDA for development of the said land on 14th October 2004. This application was moved only qua the piece of land, bearing Revenue Survey No. 234/1, which was covered under the Town Planning Scheme No. 6 at Vejalpur, as per the averments made by the petitioner. That, the plans of the petitioner were passed, however, vide communication dated 8th December 2005 addressed by AUDA, it came to be informed to the petitioner that the development application stood granted, however, the same can be conveyed provided NA permission under Section 65 of the BLR Code from the Collector is submitted before it. 2.6 That, since no reply was received from the Office of the Collector by the petitioner, and after waiting for a long span, the petitioner sent a reminder dated 15th July 2006 to the Collector requesting that 90 days period stipulated in the Section has since been over, after application for NA permission under Section 65 was moved, and therefore, from the date of presentation of the application ie., 11th July 2005, the period of 90 days got over on 10th October 2005, and hence, as such there is no need for written permission, but it is deemed to have been granted. Thereafter, a letter came to be received by the petitioner from the office of the Collector dated 17th June 2006 stating that with regard to the application for permission of land of Block No. 130/1 of Jodhpur, permission as sought for by the petitioner cannot be granted for the reason that the land in question was under Devasthanam Abolition Act, and therefore, under Section 43 of the Tenancy Act, the land is a prohibited tenure land. 2.7 As per the averments of the petitioner, the stand taken by the Collector was illegal in as much as in the year 1997, the Government had withdrawn its revision application unconditionally from the files of the Gujarat Revenue Tribunal, and thus, the order of the Deputy Collector/Prant Officer passed on 19th November 1994 was confirmed holding that the land was of old tenure and not of new tenure or prohibited tenure land. Therefore, now the Government has no right to hold that the land was of new tenure or prohibited tenure land. 2.8 A further representation was made by the petitioner before the Collector on 15th July 2006 informing him about all the previous orders and pointing out that the land was an old tenure land and that his decision was contrary to the judgments and that the Government had also withdrawn revision application which was moved before the Tribunal against an order of Deputy Collector, and therefore, a request was made thereunder to reconsider the situation. 2.9 An additional prayer was subsequently made for treating the permission deemed to have been granted, since the period of ninety days had elapsed and no reply was received by the petitioner; either refusing or granting the permission; as envisaged under Section 65 of the BLR Code, from the office of the Collector. 3. Heard learned counsel Shri M.B Gandhi for the petitioner, Shri Venugopal Patel for the respondent no. 1 and Shri Nikhilesh Shah for the respondent no. 2. 4. It is submitted by learned advocate for the petitioner that the father of the petitioner was a tenant and tiller of the land, and therefore, by an order passed under Section 32 [g] right to hold the land was vested unto the father of the petitioner with effect from 13th December 1960. In the revenue record also, the original survey numbers were shown to be of old tenure. In the revenue record also, the original survey numbers were shown to be of old tenure. The petitioner was only required to seek a formal permission for conversion of agricultural land into non-agricultural land with respect to land, bearing Survey No. 130/1, and therefore, an application for such purpose was made by the petitioner on 10th July 2005. 4.1 Counsel for the petitioner submitted that under Section 65 of the BLR Code, if the permission is not granted within three months from the date of receipt of application or in a manner contemplated thereunder, permission must be deemed to have been granted, and therefore, cancellation of grant communicated by a letter dated 7th June 2006 is bad in law. Counsel further submitted that there is already a time-bound limit prescribed under the Statute, which even is exceeded too, and therefore, the deeming fiction would apply, and as such, permission as contemplated under the law is not necessary. It is further urged that under the circumstances, direction by the respondent no. 2 to furnish permission under Section 65 of the BLR Code from the office of Collector was not proper, though the plans were ready for delivery to the petitioner. 4.2 Counsel for the petitioner urged that the land is of old tenure right from the beginning and no other restrictions are applicable on the said land. That, the order passed by Deputy Collector dated 19th November 1994 in Revision Application No. 469 of 1994 was challenged by the Government before the Tribunal and ultimately on 10th September 1997, the Government decided to withdraw the said revision application before the Tribunal. On the basis of the application and submissions made on behalf of the Government, Revision was dismissed as withdrawn. Thereafter also, after filing of this writ petition, second revision application which was preferred by the Government, though previous one was withdrawn/dismissed, second revision application No. TEN.B.A 157/2007 was dismissed by the Tribunal by an Order dated 13th October 2009, which is placed on record. Thereafter also, after filing of this writ petition, second revision application which was preferred by the Government, though previous one was withdrawn/dismissed, second revision application No. TEN.B.A 157/2007 was dismissed by the Tribunal by an Order dated 13th October 2009, which is placed on record. 4.3 In support of his arguments, learned counsel Shri M.B Gandhi for the petitioner has relied upon decision of this Court in the case of State of Gujarat v. Taluka Development Officer [First Appeal No. 1471 of 1982 :: Decided on 12th September 2002] and in the case of Alay Jitubhai Shah v. Secretary [Appeals], Revenue Department & Ors., (2016) 1 GLR 814 to urge this Court to declare order/letter dated 7th June 2006 [Annexure H to the petition] as illegal, bad in law and contrary to the facts and law, and to direct the respondent no. 2 that NA permission has been deemed to have been granted, and therefore, the respondent no. 2 shall hand over plans to the petitioner in respect of written permission for NA use. 5. Per contra, learned AGP Shri Venugopal Patel appearing for the respondent no. 1 strenuously opposing the submissions made on behalf of the petitioner, urged that the order passed by the Deputy Collector dated 19th May 1994 was absolutely based on wrong premise and wrong assumption that the Devasanam Inam Abolition Act, 1969 is applicable. In fact, land was allotted to the father of the petitioner under Section 32 [g] of Tenancy Act and hence, restrictions of Section 43 of the Act were applicable on the land. 5.1 Learned AGP further submitted that without payment of premium, NA use cannot be permitted. Thus, without considering all these aspects, an illegal order was passed by Deputy Collector, Ahmedabad dated 19th November 1994. That, deeming fiction would not be applicable in the present case, as the provisions of the Tenancy Act and amendment in BLR Code by which Sections 18 & 88E were inserted is not applicable. 5.2 Learned AGP pointed out that this Court in Spl. C.A No. 9876 of 1992 decided on 13th October 2000 has clarified the situation. That, the District Collector has also filed an affidavit stating that if the petitioner is ready and willing to pay premium, as per the present norms, the office of the Collector would reconsider the application for grant of NA permission; subject to merits of the case. C.A No. 9876 of 1992 decided on 13th October 2000 has clarified the situation. That, the District Collector has also filed an affidavit stating that if the petitioner is ready and willing to pay premium, as per the present norms, the office of the Collector would reconsider the application for grant of NA permission; subject to merits of the case. That, the case of petitioner is based on completely illegal premise and hence, no prayer made by the petitioner can be granted by this Court against the settled principles of law, and hence, it was requested to dismiss the petition. 6. Learned advocate Shri Nikhilesh Shah appearing for the respondent no. 2 has submitted that an application dated 14th October 2004 was submitted by the petitioner for development of the land and necessary permission was granted by the respondent no. 2 for development of the land. That, the land development plan as well as key-plans were ready for delivery to the petitioner; subject to his producing permission for NA use being granted to the petitioner under Section 65 of the Land Revenue Code by the competent authority, converting the land into Non-Agricultural. There is nothing wrong on the part of the respondent no. 2 asking the petitioner to furnish permission converting the land into nonagriculture under Section 65 of the BLR Code and order passed thereafter by the competent officer. Therefore, it was requested by him to dismiss the writ application, as no permission; as sought for, was produced by the petitioner. 7. Having considered the facts of the case, submissions made by learned counsel appearing on behalf of the respective sides and on perusing the record, it appears that some portion of the land, bearing Survey No. 130/1-Mouje Jodhpur of Taluka-City, District Ahmedabad was initially allotted to the father of the petitioner Shri Kachrabhai Patel way back in the month of December 1960 and pursuant to this, an order was passed by the Mamlatdar & ALT, Ahmedabad. As per the say of the respondent no. 1, the land in question of Survey No. 235/1 and 224/1 of Mouje-Vejalpur of Taluka-City, District-Ahmedabad was of restricted tenure under Section 43 of the Tenancy Act, which was allotted under Section 35[G] of the Bombay Tenancy & Agricultural Lands Act, 1948 by the Mamlatdar & ALT. As per the say of the respondent no. 1, the land in question of Survey No. 235/1 and 224/1 of Mouje-Vejalpur of Taluka-City, District-Ahmedabad was of restricted tenure under Section 43 of the Tenancy Act, which was allotted under Section 35[G] of the Bombay Tenancy & Agricultural Lands Act, 1948 by the Mamlatdar & ALT. 7.1 This Court noticed that after demise of Shri Kachrabhai Patel father of the petitioner, he and his brothers became owners of the land, being the legal heirs of the deceased. That, the restrictions imposed by the said order was challenged by the petitioner alongwith three other persons by preferring a revision application before the Deputy Collector [Land Reforms], Ahmedabad being Tenancy Case No. 469 of 1994 under Section 76A of the Bombay Tenancy & Agricultural Lands Act, 1948 which was allowed by an Order dated 19th November 1994, removing the restrictions under Section 43 of the Act and subsequently, an entry to this effect has been inserted, being Entry No. 6970 dated 22nd November 1994. 7.2 Being aggrieved and dissatisfied with the order passed by the Deputy Collector in Tenancy Case No. 469 of 1994 dated 19th November 1994, the Government preferred a revision application before the Gujarat Revenue Tribunal, Ahmedabad challenging the said order. Thereafter, it appears that by a letter dated 20th June 1997 of the Revenue Department of the State of Gujarat, a direction was issued for withdrawal of the said revision application alongwith other fifteen such revisions which were pending before the Tribunal. Accordingly, the said revision was dismissed as withdrawn by the Government. Thereafter, it also appears that after passing of ten years' span, again the Government decided to challenge previous order passed by Deputy Collector [Land Reforms], Ahmedabad passed in Tenancy Case No. 469 of 1994 dated 19th November 1994 by preferring second revision, being Revision Application No. TEN.B.A/157/2007 against the present petitioner and his brothers. 7.3 It appears from the record that on the ground of delay, this Revision Application preferred by the State was dismissed, as the delay was not condoned. This order was never challenged by the Government before the higher forum, as admitted by learned AGP. Hence, it has attained finality. 7.3 It appears from the record that on the ground of delay, this Revision Application preferred by the State was dismissed, as the delay was not condoned. This order was never challenged by the Government before the higher forum, as admitted by learned AGP. Hence, it has attained finality. 7.4 It also appears from the record that on 11th July 2005, an application was moved by the petitioner under Section 65 of the BLR Code to convert the land into non-agricultural [NA] to the Collector and for which, the petitioner has also completed Schedule 3/18; his reply was recorded by the Mamlatdar in Schedule 4/18 and panchnama of the site was also prepared under Schedule 5/18. Application of the petitioner alongwith all the documents were submitted before the Collector which were received by the office on 19th July 2005; illegal constructions standing on the land were removed and the said fact gets reflected from the panchnama produced on the record. All the documents were presented before the Collector so as to process his application for conversion of the land from agriculture to non-agriculture on 11th July 2005, however, there was no reply whatsoever from the office of the Collector to the petitioner. 7.5 After a long span, the petitioner received a letter dated 17th June 2006 from the office of the Collector stating that permission for non-agricultural use with respect to land bearing Block No. 130/1 of Jodhpur, Taluka-City, District Ahmedabad cannot be granted for the reason that the land in question was falling under Devasthanam Abolition Act and under Section 43 of the Tenancy Act, the said land is a prohibited tenure land. The petitioner further reiterated his request by a letter dated 15th July 2006 stating that he had made an application under Section 65 of the BLR Code previously for grant of NA permission and a period of ninety days was over on 10th October 2005 from the date of such application, and therefore, as such, there was no need for written permission, but permission is deemed to have been granted. 7.6 It is an undisputed fact that the order passed in Revision Application No. TEN.B.A 157/2007 dated 13th October 2009 preferred by the Collector on behalf of the State was dismissed by the Revenue Tribunal and the said order was not challenged before the higher forum by the State. 8. 7.6 It is an undisputed fact that the order passed in Revision Application No. TEN.B.A 157/2007 dated 13th October 2009 preferred by the Collector on behalf of the State was dismissed by the Revenue Tribunal and the said order was not challenged before the higher forum by the State. 8. Here, this Court would like to refer to Section 65 of the Bombay Land Revenue Code, which describes as under : "65. Uses to which occupant of land for purposes of agriculture may put his land.-[(1) Any occupant, of land [assessed or held for the purpose of agriculture] is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient [use for the purpose aforesaid]. Procedure if occupant wishes to apply his land to any other purpose.- But, if any occupant [wishes to use his holding or any part thereof for any other purpose] the Collector's permission shall in the first place be applied for by the occupant. [The Collector, on receipt of such application, (a) shall send to the applicant a written acknowledgment of its receipt, and (b) may, after due inquiry, either grant or refuse the permission applied for; Provided that, where the Collector fails to inform the applicant of his decision of the application with a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application. Unless the Collector shall in particular instances otherwise direct, no such application shall be recognized except it be made by the occupant. " 8.1 It appears that after receiving application and necessary documents from the petitioner seeking conversion of the land into non-agricultural use, from 11th June 2005, no reply was given to the petitioner within a period of ninety days ie., 10th October 2005. " 8.1 It appears that after receiving application and necessary documents from the petitioner seeking conversion of the land into non-agricultural use, from 11th June 2005, no reply was given to the petitioner within a period of ninety days ie., 10th October 2005. For the first time, after a period of one year, a reply was given to him by a communication dated 17th June 2006 stating that permission as sought for cannot be granted, as the land was under Devasthanam Abolition Act and under Section 43 of the Tenancy Act, the land is a prohibited tenure land. This Court has to consider the order passed by the Deputy Collector in Revision Application No. 469 of 1994 preferred under Section 76 of the Tenancy Act holding that both the Survey numbers were not of restricted tenure and to that extent, the order of Mamlatdar & ALT, Ahmedabad dated 19th September 1996 was modified. 8.2 This order was challenged by the Government in Revision Application No. 516 of 1996 which was withdrawn on 14th August 1997, and thereafter, again another revision application was preferred ie., Revision Application No. TEN.B.A157/2007 which eventually too came to be dismissed on 13th October 2009. After that, it appears that the Government has not challenged any of the order before the higher form, as admitted by the learned AGP, and therefore, the order passed in Revision Application No. 169 of 1994 by the Deputy Collector [Land Reforms] dated 19th November 1994 became final order so far as this issue is concerned. 8.3 This Court in First Appeal No. 1471 of 1982, on a similar issue, was pleased to hold that that the petitioners were entitled to put the land to non-agricultural use, as the defendants have not informed the plaintiffs the decision in respect of the plaintiffs application, within three months of their application, as there was nothing to show that there was any inquiry held by the District Development Officer or the Taluka Development Officer. 8.4 In another decision in the case of Alay Jitubhai Shah [Supra], this Court has held that N.A permission is deemed to have been granted, if the Collector fails to communicate his decision within period of three months from receipt of application under Section 65 of BLR Code. 8.4 In another decision in the case of Alay Jitubhai Shah [Supra], this Court has held that N.A permission is deemed to have been granted, if the Collector fails to communicate his decision within period of three months from receipt of application under Section 65 of BLR Code. The order passed by the Collector was found to be bad in law and therefore, the Court quashed and impugned orders alongwith all subsequent proceedings of issuance of notice under Section 79A of the BLR Code. 9. In the instant case, it appears that the permission for NA use of the land, as sought for by the petitioner way back in the year 2005, was not granted or refused by the Collector within three months from the date of receipt of the application, or in the manner contemplated thereunder, nor any reply was given to the petitioner, and hence permission must be deemed to have been granted, and therefore, the cancellation of the grant by the Collector dated 7th June 2006 is bad in law. 9.1 However, it emerges from the order passed by the Tribunal in second Revision Application No. TEN.B.A.815/2007 and fresh representation made by the petitioner on 15.07.2006 addressed to the District Collector, Ahmedabad that as declared by the respondents in the said proceedings, the said lands were transferred to third party and some financial transactions have taken place as well as equity has changed. The petitioner, without waiting for issue to get finalized by the competent authority, has entered into transaction of the land in question. 10. Under the circumstances, the present writ application stands partly allowed; subject to payment of premium as per the present norms of the Government. However, the respondent no. 2 shall not insist for written permission of the Collector for NA use of the land from the petitioner, while handing over the lay out plans and permission for development of the land in connection with the application of the petitioner dated 14th October 2004. Rule nisi made absolute to the aforestated extent with no separate order as to the costs.