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2020 DIGILAW 306 (GUJ)

Anilbhai Bhimjibhai Vachhani v. State Of Gujarat

2020-02-18

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : ASHUTOSH J. SHASTRI, J. 1. The present Letters Patent Appeal under Clause 15 of the Letters Patent has been filed by the appellants – original petitioners, against judgment and order dated 9.2.2018 passed by the learned Single Judge in Special Civil Application No.2351 of 2018. 2. The background upon which the present Letters Patent Appeal has come up for consideration is that the old tenure land bearing Survey No.1348 admeasuring 7588 sq. mtrs. situated mouje Bavla, Taluka – Bavla, District – Ahmedabad and the appellants are the owners and occupiers and in charge of the land. Their names have also been mutated in the revenue record consisting of Form Nos.6, 7 and 8A. Originally, this land was in occupation of one Jivanji Dipaji in the capacity of a tenant by virtue of certificate granted to him under Section 32(M) of the Tenancy Act. Later on, in exercise of power under Section 63 read with Rule 36 of the Tenancy Act, the Assistant Collector, Dholka vide his order dated 7.8.1965 was pleased to grant permission to transfer/sell in favour of Ms/.Kanaiyalal Harjivandas, a partnership firm. Accordingly, a document was executed through its partners. The firm purchased the said land for the industrial purpose for producing puffed and flattened rice (locally known as ‘Mamra and Poha’). 2.1 Upon payment of amount of premium at the rate of 50% of the market value and on such other terms contained therein. In view of Condition No.2, it was specifically made clear that the land in question cannot be put to use for any other purpose. Whereas Condition No.3 has stipulated that the purchaser was required to obtain prior permission from the Assistant Collector & Prant Officer, Dholka. Accordingly, entries were also posted being Entry No.6320 dated 16.8.1965 which came to be duly certified in the revenue record. On 11.8.1965, the said amount of premium was also deposited with the treasury of the Authority vide Challan No.309 dated 11.8.1965. Upon completion of such formalities and pursuant to the permission, said Jivanji Dipaji had executed a registered sale deed in favour of Ms/.Kanaiyalal Harjivandas, through its partner and administrator Kanaiyalal Harjivandas. The deed was registered before the office of Sub Registrar, Dholka at Serial no.267 on 11.8.1965. Even the names of firm as well as partners came to be entered into in the revenue record. The deed was registered before the office of Sub Registrar, Dholka at Serial no.267 on 11.8.1965. Even the names of firm as well as partners came to be entered into in the revenue record. But on account of exclusion of one partner named as Kanaiyalal Harjivandas, the firm came to be dissolved. The said name of the partner came to be deleted from the revenue record. To that effect, a mutation entry took place on 10.9.1968 being Entry no.6765 which also came to be duly certified. 2.2 It is further the case of the appellants that the record revealed that one M/s.Mansukhlal Jivanlal & Co. had filed a money suit in the court of learned Civil Judge, Dholka against one Dharamsi Vashrambhai. The said suit came to be decreed against said Dharamsi Vashrambhai vide judgment and order dated 14.9.1977 and the effect of said money decree was also mutated in the revenue record being Entry No.7855 dated 6.1.1978. By efflux of time, said Dharamsi Vashrambhai died, leaving behind widow and 7 sons. As a result of this, the execution proceedings came to be contested by widow Madhuben. As per the order passed in execution proceedings, to realize the decreetal amount, the land in question was put up for auction. The auction had taken place through the process of the civil court. One Govindbhai Balchandbhai Thakkar had purchased the present land in question. On 21.4.1992, the Court Commissioner executed a sale deed in favour of said auction purchaser i.e. Govindbhai Balchandbhai Thakkar and the said auction sale had also been mutated on 22.4.1992 being Entry No.10014 which came to be duly certified and the name of auction purchaser was reflected in the record. 2.3 It is further the case of the appellants that the said auction sale came to be challenged by the widow Madhuben – judgment debtor before this Court by way of Civil Revision Application No.2058 of 1995 which came to be decided on 3.4.1996. Against this Civil Appeal No.3443 of 2001 with Civil Appeal No.3444 of 2001 came to be filed before the Supreme Court, wherein according to the appellants and to the reasonable knowledge, a consent terms came to be executed and the said appeals came to be disposed of by common order dated 5.2.2008. The gist of the said consent terms are reproduced hereinafter: “2. The gist of the said consent terms are reproduced hereinafter: “2. By the consent of the parties, Civil Appeal Nos.3443 of 2001 and 3444 of 2001 are disposed of in the following manner: The auction sale shall stand set aside after the appellants deposit in the Court of 3rd Joint District Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad a sum of Rs.50,00,000/- (Rupees Fifty Lacs only) within four months from this date. In the event, the aforesaid sum of Rs.50,00,000/- is not deposited within the time stipulated hereinabove, the auction sale already confirmed by the Courts below shall also stand confirmed, the appeals filed by the appellants shall stand dismissed and the peaceful vacant possession of the disputed auctioned properties shall be delivered to the respondent-auction purchaser within one month of failure to deposit the amount as directed hereinabove by the appellant.” 2.4 It is further the case of the appellants that as per the revenue record, said Dharamsibhai had sold 30 ft. wide road situated on the western side of the edge of the Survey No.1348 in favour of one Hari Om Cooperative Housing Society. A dispute arose which resulted into filing of Civil Suit No.209 of 1978 by the society against said Dharamsibhai. This was, later on compromised where the sale and admitted right of way of the said society indicated above to the extent of 290 x 30 ft. was accepted. To that effect, the mutation entry had also taken place being Entry No.8086 on 21.2.1980 and Entry No.9065 on 29.11.1984 which also came to be duly certified. Now, in response to the consent terms which took place before the Supreme Court in the civil appeals, Madhuben Dharamsibhai Thakkar deposited an amount of Rs.50 lakhs agreed upon within a stipulated period. As a result of this, the auction sale that took place with respect to the land in question purchased by Govindbhai Balchandbhai Thakkar came to be set aside. On 23.10.2008, the name of Madhuben Dharamsibhai Thakkar had been mutated in the revenue record bearing Entry No.13714. The land area that was sold as a right of way to Hari Om Cooperative Housing Society came to be excluded. Subsequently, said Madhuben widow of Dharamsibhai Vasrambhai Thakkar in the capacity of being Karta of HUF sold this portion of land to the present appellants. The land area that was sold as a right of way to Hari Om Cooperative Housing Society came to be excluded. Subsequently, said Madhuben widow of Dharamsibhai Vasrambhai Thakkar in the capacity of being Karta of HUF sold this portion of land to the present appellants. All her legal heirs put their signature in the sale deed as confirming parties and the registered sale deed came to be executed on 28.4.2010. Accordingly, on the basis of this registered sale deed, name of the present appellants came to be mutated in the revenue record being Form No.6 bearing Entry No.14504 dated 7.6.2010 which also came to be duly certified. 2.5 Subsequently, it has been asserted that one of the members from the family of Madhuben had disputed the said sale entry. Such dispute is pending before the revenue authorities. But, so far mutation that has taken place in favour of appellants – petitioners is concerned, the same has not been disturbed nor any stay granted by the civil court in the civil suit challenging the sale deed. By that time, the land in question covered under the development plan of town planning scheme reserved for residential purpose and the same is surrounded by several residential societies. As a result of this, the appellants had preferred an application on 21.9.2010 before the Deputy Collector, Dholka, seeking permission for residential NA use. Pursuant to the said application, the respondent No.3 – Authority, called for an opinion from the concerned authorities as a part of procedure. Therein, it was revealed that the matter was referred to the Deputy Collector (Land Reforms and Appeals) Ahmedabad, who is a competent authority to verify regarding the breach of condition of permission dated 7.6.1965. After due verification in view of Government Resolutions dated 20.5.1980 and 4.7.2008, it was opined by the Deputy Collector (Land Reforms and Appeals) Ahmedabad on 28.1.2011 that proceedings for breach of condition of order dated 7.8.1965 cannot be initiated. There will be no financial loss caused to the State Government. Thereby, by giving positive opinion for grant of NA permission for residential use, it was suggested to accord such permission. There will be no financial loss caused to the State Government. Thereby, by giving positive opinion for grant of NA permission for residential use, it was suggested to accord such permission. It is the case of the appellants that despite such positive opinion of the competent authority and despite the fact that there is no other hurdle in granting NA permission for residential purpose, since the entire area is covered under the development plan of town planning scheme and this land in question is surrounded by residential societies, the Deputy Collector and Prant Officer, Dholka, without granting any opportunity of hearing, communicated his decision on 10.2.2011 rejecting the request essentially on the ground that there is a breach of condition Nos.2 and 3 of the permission dated 7.8.1965. 2.6 It is the case of the appellants that feeling aggrieved by the said decision, the appellants preferred an appeal before the District Collector, Ahmedabad being Appeal No.34 of 2011. It was contended that even the restriction under Section 53 of the Tenancy Act has been removed upon payment of premium. Only thereafter, the land came to be sold by the tenant vide registered sale deed dated 11.8.1965. The Collector, without appreciating the said submission of the appellants, came to a conclusion that appeal is not entertainable. As a result of this, vide order dated 19.1.2013, the appeal came to be dismissed. As a result of this, the appellants constrained to prefer Revision Application before the Secretary (Appeals), Revenue Department, Gujarat State, Ahmedabad. But the same also came to be dismissed without due application of mind vide order dated 6.10.2017. It is under this circumstance that the appellants has been constrained to approach this Court by way of writ petition, seeking the following reliefs : “A. This Hon’ble Court may be pleased to issue writ of certiorari or any appropriate writ, order or direction and be pleased to quash and set aside the impugned orders passed by respondent Nos.13 produced at Annexures A/1 to A/3 and be further pleased to direct the respondent Nos.23 to grant permission for residential NA purpose in relation to the old tenure land of S. No.1348 admeasuring 7588 sq.mtrs. situated mouje Bavala, Ta.Bavala, District – Ahmedabad, and B. This Hon’ble Court may be pleased to stay the impugned orders passed by resp. Nos.13 produced at Annexures A/1 to A/3 and be further directed the resp. situated mouje Bavala, Ta.Bavala, District – Ahmedabad, and B. This Hon’ble Court may be pleased to stay the impugned orders passed by resp. Nos.13 produced at Annexures A/1 to A/3 and be further directed the resp. no.3 to reconsider his decision for grant of NA permission in favour of petitioners in relation to the subjected land, during the pendency and final disposal of this petition, and C. This Hon’ble Court may be pleased to grant adinterim relief in terms of Para.(B) pending hearing and final disposal of this petition, and D. This Hon’ble Court may be pleased to pass such other and further orders may be deemed just and proper in the facts and circumstances of the present case.” 2.7 The said writ petition came up for consideration before the learned Single Judge, who, by judgment and order dated 9.2.2018, was pleased to dismiss the same with cost of Rs.500/to be deposited before the Legal Aid Committee of the High Court. It is this judgment and order passed by the learned Single Judge as well as the orders passed by the authorities, which is made the subject matter of present Letters Patent Appeal. 3. We have heard Shri N.V.Gandhi, learned counsel for the appellants and Shri J.K. Shah, learned Assistant Government Pleader for the State – respondents, on advance copy. With the consent of learned counsels appearing for the respective parties, the present appeal is taken up for its disposal finally. 4. Shri N.V. Gandhi, learned counsel appearing on behalf of the appellants, has submitted that there is a gross error in exercising powers by the revenue authorities at a much belated stage. Apart from that, even today the entire area is under the town planning scheme, wherein there is a declaration of residential zone including the land belonging to the appellants. Therefore, grant of NA permission ought to have been considered by the authority. It has been submitted that despite all the circumstances, the first order passed by the Deputy Collector is absolutely non-speaking order and reflects non-application of mind. Unfortunately, the subsequent orders are mere mechanical exercise of powers by superior authority. That circumstance ought to have been considered by the learned Single Judge. It has been submitted that despite all the circumstances, the first order passed by the Deputy Collector is absolutely non-speaking order and reflects non-application of mind. Unfortunately, the subsequent orders are mere mechanical exercise of powers by superior authority. That circumstance ought to have been considered by the learned Single Judge. Learned counsel while contending this has referred to the decision delivered by the original authority that has specifically contended that though there was a positive opinion to grant NA permission, such attention has not been paid to. Even from the relevant papers, it has been submitted before us that this entire area has been declared as a residential zone. This is reflected from page 61 of appeal compilation, wherein on 24.9.2012, the Town Planning Officer has categorically submitted that this block survey No.1348 is within the residential zone. Apart from that, there is no embargo with regard to the Sections 43 or 63 of the Tenancy Act in any nature coming that may hamper the process of grant of NA permission. On the contrary, from the proceedings, it appears that throughout there was, on the contrary, not only a positive opinion but also no objection is reflected from the record. For that purpose, our attention is drawn to page 60/B/3 of appeal compilation. Additionally, learned counsel has submitted that pursuant to the earlier transaction not only has the payment been made, even the premium amount has been paid. As a result of this, there is hardly any circumstance available for the authority to refuse the request prayed for. By referring to several pages attached to the appeal compilation, a contention is reiterated that there was a positive opinion reflected regarding granting NA permission. Pursuant to the registered sale transaction, the land came to be purchased which was old tenure land and there is no breach of any of the conditions. Further, once the permission has been accorded under Section 63, no other permission is required, which is a settled position of law. All these circumstances are relevant to the controversy. But form a bare reading of the order passed by the Collector, there appears to be no discussion at all. Learned counsel has submitted that if appropriate direction be given to the authority to reconsider and reexamine this material, the interest of justice would be met. All these circumstances are relevant to the controversy. But form a bare reading of the order passed by the Collector, there appears to be no discussion at all. Learned counsel has submitted that if appropriate direction be given to the authority to reconsider and reexamine this material, the interest of justice would be met. Hence, the learned counsel has submitted to set aside the impugned order with a consequential direction to reconsider the request of the appellants. 4.1 Learned counsel for the appellants has submitted alternatively that every statutory authority is under an obligation to deal with and decide the matter on merits, after assigning appropriate reasons. From a bare look at the order passed by the authority below, it clearly transpires that no circumstances above are even dealt with. As such, this is a fit case where appropriate direction to the authority deserves to be granted. For that purpose, learned counsel has alternatively pressed the relief contained in Para.7(B). 4.2 Additionally, Shri Gandhi has submitted that pursuant to the previous hearing and discussion which took place before another bench, the appellants were required to submit an undertaking. In due deference to that, a specific undertaking was also filed which was affirmed on 27.7.2011, wherein it was categorically undertaken that appellants will not utilize the land in question for any other purpose than the residential or otherwise, as ordered during the pendency of the captioned appeal. As such, all bonafides have been shown by the appellants. Resultantly, these material issues, at an appropriate stage, ought to have been examined by the authority while dealing with the request of present appellants. Having not done so, the learned Single Judge ought to have considered the same in its right spirit. However, be that as it may, a request is reiterated to remand the proceedings to the office of the Collector/competent authority to reconsider the issue i.e. request of the appellants and pass a fresh order in accordance with law, without being influenced by the observation made in the impugned order. 5. As against this, Shri J.K. Shah, learned Assistant Government Pleader appearing on behalf of the State – respondents, has vehemently contended that all the authorities have concurrently held against the present appellants. That having been the record of the case, no fault can be found of the learned Single Judge. 5. As against this, Shri J.K. Shah, learned Assistant Government Pleader appearing on behalf of the State – respondents, has vehemently contended that all the authorities have concurrently held against the present appellants. That having been the record of the case, no fault can be found of the learned Single Judge. It has been submitted that the land in question came to be purchased on 28.4.2010. Therefore, the appellants are bound to pay the premium which is to be fixed by the State authorities. For the purpose of contesting this proceeding, reliance has been placed by the Shri Shah on a decision of this Court in the case of Jivrambhai Vastabhai Desai v. State of Gujarat, reported in 2010 (0) GLHELHC 223649. By referring to this decision, it has been submitted that no interference be made. However, regarding alternative submission made by the learned counsel for the appellants, Shri Shah has candidly submitted that such reconsideration request if considered of the appellants, the authority will surely relook to the aspect and the grievance of the appellants will be examined at length, in accordance with law. From the reading of the order passed by the authority, Shri Shah has candidly submitted that it can be said by the appellants that detailed reasons are not assigned and ultimately, left it to the discretion of the Court. 6. Having heard the learned counsels appearing for the respective parties and having gone through the material on record, prima facie it appears that the original authority appears to have not assigned cogent reasons while substantiating the conclusion. Several aspects stated before us, as referred to above, appear to have not been discussed and dealt with by the authority in origin or under an obligation to be dealt with the contentions. 7. While rejecting the request by the authority the transaction that has taken place of the appellants, the land is now covered under the residential zone in view of the town planning scheme. Further, the permission has already been granted under Section 63 of the Tenancy Act. All these circumstances touch the root of controversy and have not been dealt with by the authority. Additionally, it appears that it is not disputed that the entire area is now a residential zone and the land in question is surrounded by several residential societies. Further, the permission has already been granted under Section 63 of the Tenancy Act. All these circumstances touch the root of controversy and have not been dealt with by the authority. Additionally, it appears that it is not disputed that the entire area is now a residential zone and the land in question is surrounded by several residential societies. If that is so, it appears to this Court that while dealing with the request of the appellants, at least all these circumstances pressed into service ought to have been dealt with by the authority. It further appears to us that Shri Gandhi is successful enough to point out that there appears to be no discussion. The authority has not dealt with these circumstances which entitles the appellants to seek at least reconsideration and relook to the grievance of the appellants. 8. This view that we are inclined to take is upon broad consensus, particularly when the authorities have not passed a reasoned order. As such, keeping in view the proposition of law laid down by the Apex Court on exercise of power by assigning proper reasons, we are inclined to consider the request of the appellants to direct the authority to reconsider the request of the appellants and pass a fresh order, in accordance with law. The relevant observations contained in the decision delivered by the Apex Court in the case of Commissioner of Income Tax I v. Rashtradoot (HUF) reported in (2019) 5 SCC 149 , since we have considered, we deem it appropriate to reproduce the same hereinafter : “13. This Court has consistently laid emphasis that every order/judgment which decides the lis between the parties, must contain the reasons(s) ground(s) for arriving at a particular conclusion. Indeed, what is decisive for deciding the case is not the conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion. 14. In order to decide as to whether the impugned order is legally sustainable or not, the appellate court is entitled to know as to what impelled the court below to pass such order in favour of one party and against the aggrieved party. We find that that this requirement is missing in the impugned order of this case and hence the interference is called for.” 9. We find that that this requirement is missing in the impugned order of this case and hence the interference is called for.” 9. This request for reconsideration is accepted by us in view of the submission made by learned counsel on instructions. Upon such readiness and willingness, in view of aforesaid peculiar set of circumstance, we are inclined to consider the request. 10. In view of aforesaid circumstance and in view of settled legal proposition and upon candid submission by both the sides, we deem it appropriate to dispose of this appeal on following line which will meet the ends of justice between the parties : (1) The impugned order dated 9.2.2018 and the successive orders which are under challenge are hereby quashed and set aside, with a consequential direction to the competent authority, namely, respondent No.2 Collector to reconsider the request of the present appellants in respect of grant of NA permission for the land in question and shall pass a reasoned order strictly in accordance with law. (2) Since we have directed the competent authority to relook at the issue and request of the appellants, we have not expressed any opinion on merits and it is independently left it open for the competent authority to examine and pass a suitable orders, in accordance with law. (3) Since the present proceedings have taken a considerable long time, such fresh decision shall be taken by the competent authority within a short period, preferably within a period of 3 months from the date of receipt of writ of this Court. 11. With above observations and directions, present appeal is allowed and the connected civil application stands disposed of.