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2019 DIGILAW 933 (GUJ)

Hiralal Nagarbhai Gandhi v. State of Gujarat

2019-10-16

V.M.PANCHOLI

body2019
JUDGMENT : V.M. Pancholi, J. 1. Rule. Learned AGP Mr. K.M. Antani waives service of notice of rule for respondents. 2. By way of this petition, which is filed under Article 226 of the Constitution of India, the petitioners have prayed for following reliefs, "(A) This Hon'ble Court may be pleased to issue a writ of certiorari and/or writ of mandamus and/or any other appropriate writ, order or direction to quash and set aside the conditional order impugned to the extent that it holds that the land in question shall not be considered for the purpose of determining the status of the petitioners. (B) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to hold and declare that the petitioners shall be authorized and competent to purchase agricultural lands over and above the land in question. (C) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to grant ex parte ad interim relief in terms of para 8(B). (D) xxx xxx xxx." 3. By way of draft amendment, the petitioners have also prayed for following relief, "(A/1) The Hon'ble Court may be pleased to issue a writ of certiorari and/or writ of mandamus and/or any other appropriate writ, order or direction to quash and set aside the Order dated 27.06.2018 passed by the Ld. Collector Bharuch." 4. Heard learned advocate, Mr. Viral K. Shah for the petitioners and learned AGP Mr. K.M. Antani for the respondent authorities. 5. The facts of the case leading to the filing of the present petition are as under, 5.1. The land bearing old Survey No. 78, new Survey No. 650 of Village : Karach, Taluka : Hasot, District : Bharuch (hereinafter referred to as "the land in question") was purchased the father of the petitioners and, therefore, mutation entry No. 1702 came to be mutated in the revenue record and certified on 23.07.1984. The land in question was converted into non-agriculture use for the purpose of construction of Godown-Shed by the competent authority vide order dated 15.04.1985. Thereafter, the father of the petitioners died and, therefore, the names of the petitioners were mutated in the revenue record vide entry No. 3038. The said land in question was not being used by the petitioners for non-agriculture use, more particularly, for the construction of godown. Thereafter, the father of the petitioners died and, therefore, the names of the petitioners were mutated in the revenue record vide entry No. 3038. The said land in question was not being used by the petitioners for non-agriculture use, more particularly, for the construction of godown. Therefore, the Talati issued notice for the breach of condition of non-agriculture permission given to the father of the petitioners, however for the breach of the conditions of NA order, penalty of Rs. 1,18,980/- was paid by the petitioners and the said aspect is reflected in the order dated 03.12.2013 passed by the concerned authority. The petitioner has produced Chalan at Page No. 26 of the compilation. 5.2. In fact, the petitioners are cultivating the sugarcane on the land in question and to substantiate the said facts, photographs are produced on record along with other documentary evidence at Page No. 32 of the compilation. 5.3. Thereafter, the petitioners submitted an application for conversion of the land in question from non-agriculture use to agriculture use, however, the said application was rejected by the respondent - Collector vide order dated 03.11/12.2014. The petitioners, therefore, filed Revision Application before the respondent No. 1 - SSRD. The respondent - SSRD remanded the matter back for deciding the issue afresh. However once again, the respondent - Collector rejected the application given by the petitioner vide order dated 05.05.2017. The petitioners, therefore, once again filed Revision Application before the respondent - SSRD and the respondent - SSRD, by impugned order dated 08.01.2018, partly allowed the Revision Application and thereby quashed and set aside the order of Collector. However, the respondent - SSRD has observed that though the land in question would stand to be an agricultural land, same is liable to be assessed as such but same shall not be considered for the purpose of deciding the status of the petitioners as agriculturists. 5.4. By way of amendment, as stated above, the petitioners have challenged the order dated 27.06.2018 passed by the respondent - Collector, by which, the Collector has rejected the application given by the petitioners for converting the land from non-agriculture use to agriculture use. The said order is placed on record at Page No. 48 of the compilation. 6. Learned advocate, Mr. The said order is placed on record at Page No. 48 of the compilation. 6. Learned advocate, Mr. Shah appearing for the petitioners referred to the order dated 23.09.2015 passed by the respondent - SSRD, copy of which is placed on record at Page No. 34 of the compilation. It is submitted that in fact, by way of the said order, the respondent - SSRD has directed the respondent - Collector to convert the land from non-agriculture use to agriculture use and to pass formal order within a period of four months, however inspite of that, now the impugned order has been passed by the respondent - Collector, by which, once again the application given by the petitioner has been rejected. It is contended that the order dated 23.09.2015 passed by the respondent - SSRD has attained finality and, therefore, there was no option for the Collector but to abide by the direction given by the superior authority. It is, therefore, urged that the impugned order passed by the respondent - Collector be set aside. 7. On the other hand, learned AGP Mr. Antani has opposed this petition and referred to the affidavit-in-reply filed by the respondent No. 2-District Collector. After referring to the averments made in the said affidavit, it is submitted that after considering the provision contained in Section 63 of the Gujarat Tenancy & Agricultural Lands Act, 1948, which prohibits holding of agriculture land by non-agriculturist, the order was passed by the respondent - Collector. It is submitted that the petitioner was not holding any agriculture land and as per the guidance given by the State Government, when the State Government has directed to take appropriate decision at the level of the Collector, the impugned order has been passed by the Collector and, therefore, no error is committed by the respondent - Collector while passing impugned order. It is, therefore, urged that the petitioner is not entitled to claim any relief as prayed for in the present petition. 8. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the father of the petitioners gave an application for converting the land in question from agriculture to non-agriculture use and such permission was granted by the competent authority, however, the said land in question was never used for non-agriculture purpose. It is the specific case of the petitioners on the basis of the documentary evidence placed on record that they are cultivating the land since beginning and they are cultivating sugarcane on the land in question. Therefore, notice was issued to the petitioners for breach of the condition of the order granting NA permission by the concerned authority. Pursuance to the said proceedings, penalty was also paid by the petitioners, copy of Chalan is produced on record at Page No. 26 of the compilation. Thus from the said documentary evidence, it is clear that the land in question was never used for non-agriculture purpose. The petitioners, therefore, requested the respondent authority to convert the land in question from non-agriculture use to agriculture purpose and the respondent - Collector passed impugned order dated 27.06.2018, by which, the request of the petitioners is rejected. 9. At this stage, it is pertinent to note that the respondent - SSRD vide order dated 23.09.2015 allowed the Revision Application filed by the petitioners and thereby quashed and set aside the order dated 03.11/12.2014 passed by the respondent - Collector and in fact, direction was given to the respondent - Collector to pass an order for converting the land from non-agriculture to agriculture use within a period of four months, however inspite of that, the impugned order has been passed by the respondent - Collector. It is not in dispute that the order dated 23.09.2018 passed by the respondent - SSRD has attained finality and, therefore, it was not open for the respondent - Collector to reject the application given by the petitioners. 10. It is also reflected from the record that report 09.06.2014 by the Mamlatdar and the report dated 25.08.2014 by the Deputy Collector are given in favour of the petitioners, copies of which are produced on record at Page Nos. 29 and 40 respectively of the compilation. Even in the affidavit-in-reply filed by the respondent - Collector, no averments and contentions have been made with regard to the said reports and thus, those reports are not doubted. 29 and 40 respectively of the compilation. Even in the affidavit-in-reply filed by the respondent - Collector, no averments and contentions have been made with regard to the said reports and thus, those reports are not doubted. It is required to be noted that the petitioners have also challenged the order dated 08.01.2018 passed by the respondent - SSRD on the ground that once the respondent - SSRD has passed an order dated 23.09.2015, by which, direction is given to the respondent - Collector to pass formal order within four months for conversion of the land in question from non-agriculture use to agriculture use, it was not appropriate on the part of the respondent - SSRD to once again remanding the matter back to the respondent - Collector for deciding the issue vide order dated 08.01.2018 with additional condition as stated in the said order. Therefore the order passed by the respondent - SSRD dated 08.01.2018, by which, additional condition is imposed, deserves to be set aside to that extent. 11. In view of the aforesaid facts of the present case, the present petition stands allowed. The impugned order dated 08.01.2018 passed by the respondent - SSRD so far as it holds that the land in question shall not be considered for the purpose of determining the status of the petitioners and the order dated 27.06.2018 passed by the respondent - Collector are hereby quashed and set aside. Therefore, the respondent - Collector is directed to pass formal order granting permission to the petitioners by converting the land in question from non-agriculture use to agriculture use within a period of three months from the date of receipt of this order as directed by the respondent - SSRD in the order dated 23.09.2015. 12. Rule is made absolute to the aforesaid extent. Direct service is permitted.