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2021 DIGILAW 1232 (GUJ)

NITUBEN PAVANKUMAR AGRAWAL v. STATE OF GUJARAT

2021-12-20

A.P.THAKER

body2021
ORDER : 1. Heard learned Counsel Mr.Hriday Buch for the petitioner and learned AGP Ms.Dhwani Tripathi, for the respondent State. 2. Rule returnable forthwith, with the consent of both the sides. Learned AGP waives service of rule on behalf of respondent State. 3. By way of this petition, the petitioner has challenged the order dated 12.01.2021 passed by the learned Special Secretary Revenue Department (hereinafter referred to as “the SSRD”) cancelling the change in use permission of the entire subject land. 4.1. The brief facts of the petitioner’s case are that the petitioner had decided to purchase nonagricultural (commercial) subject land from respondent no.5 vide registered Agreement to Sale being AMG/257/2018 dated 30.10.2018 and entry of the same came to be mutated in the revenue records vide entry no.3101 and possession was handed over to the petitioner. In compliance of the agreement to sale, the respondent no.5 preferred an application before the concerned authority seeking permission to change the nature of usage of the subject land from non-agricultural- industrial to non-agricultural - commercial under Section 65 A of the Gujarat Land Revenue Code (for short ‘the Code’) and for that purpose, appointed petitioner no.2 as the Power of Attorney. The respondent no.3 after having considered the reports submitted by the concerned local authorities, granted the permission vide order dated 05.04.2019. 4.2 Thereafter, upon fulfilling the conditions of the Agreement to Sale and having examined all the relevant records including the order dated 05.04.2019, the petitioner no.1 had purchased the entire subject land vide registered sale deed being AMG/113/2019 dated 25.04.2019 and procured all the relevant documents pertaining to the title of the subject land. In pursuance of the sale deed, name of the petitioner came to be mutated into the revenue records vide entry no.3110. Thereafter, the petitioner no.1 had preferred an application before the Gram Panchayat, Palanpur seeking development permission for the subject land, which was granted vide order dated 11.06.2019 accordingly the lay out plans for the commercial complex were approved by the Town Planning Officer. 4.3 Thereafter, pursuant to the construction permission, the petitioner has started raising the commercial complex over the area of 1800 square meters out of the entire subject land. 4.3 Thereafter, pursuant to the construction permission, the petitioner has started raising the commercial complex over the area of 1800 square meters out of the entire subject land. Thereafter on 24.07.2019, Officials of the respondent no.4- Bank, without giving prior notice to the petitioners, have tried to trespass the subject premises and therefore, some scuffle took place between the security guard and the officials of the respondent no.4- Bank and ultimately cross complaints were given to the local Police Station, at that point of time, the petitioner came to know that the petitioners predecessor in title (i.e. respondent no.5) had mortgaged area of 1903.86 square meters (including construction of the plant and machinery situated thereon) of the subject land to the respondent no.4-Bank, vide registered mortgage deed (without possession) dated 13.07.2012, 19.11.2015 and 30.09.2016 without depositing any title deed, in order to avail cash credit loan facility aggregating to the tune of Rs.1,33,00,000/-. However, entry was not mutated in the revenue records regarding the mortgage deeds in respect of subject land. 4.4. The respondent nos. 4 to 6 have defaulted the loan and the loan account of the same came to be classified as Non Performing Assets by the respondent no.4-Bank on 31.03.2019. Resultantly, the respondent no.4-Bank has appointed registered estate valuer to carry out an inspection of the mortgaged property and prepare its valuation report. In pursuance thereof, the estate valuer submitted its report dated 11.04.2019, wherein, the petitioner no.2 was shown to be in a possession of the property and that the original owners of the subject land have never informed the petitioners about the said mortgage. 4.5. On 28.09.2019, the respondent Bank has initiated recovery proceedings before the learned Debt Recovery Tribunal, Ahmedabad wherein vide order dated 25.10.2020, learned Debt Recovery Tribunal has granted injunction in favour of the respondent no.4-Bank, restraining the original owners including the present petitioner from disposing of the secured assets. Wherein, respondent no.5 has also offered One Time Settlement agreeing to repay the dues, of the respondent no.4-Bank. Smultaneously on 05.11.2019, the respondent no.4-Bank had approached learned SSRD challenging the order dated 05.04.2019, passed by the respondent no.3 granting permission to the petitioners under Section 65 A of the Code. Wherein, respondent no.5 has also offered One Time Settlement agreeing to repay the dues, of the respondent no.4-Bank. Smultaneously on 05.11.2019, the respondent no.4-Bank had approached learned SSRD challenging the order dated 05.04.2019, passed by the respondent no.3 granting permission to the petitioners under Section 65 A of the Code. It is contended that though the Bank has no locus standi to challenge the said order, the said application came to be entertained by the learned SSRD and the it has passed the impugned order cancelling the change in usage permission of the entire subject land admeasuring 7132 square meters against the secured assets of 1903.86 square meters. This action of the SSRD has been challenged by the petitioner. 5. Learned counsel Mr.Hriday Buch for the petitioner has submitted that the action of the learned SSRD is without jurisdiction. He has also submitted that during the pendency of the petition, certain subsequent developments have occurred. He has submitted that those facts have been produced on record by the petitioner by way of filing additional affidavit, which is at page no.93 to 96 of the compilation. He has prayed to pass appropriate order in view of the latest development occurred by quashing and setting aside of the impugned order of the learned SSRD and restore the order of the competent authority granting the non agricultural permission to the petitioner. 6. Learned AGP has submitted that considering the latest development, appropriate order may be passed. She has further submitted that, at the relevant point of time, the stand taken by the learned SSRD was proper. 7. Having considered submissions made on behalf of both the sides and considering the material placed on record, it appears that during the pendency of the petition, there is settlement arrived at between the respondent no.5 and the Bank concerned. The factum thereof is reflected by an affidavit of the petitioner especially in para 6 to 8 which reads as under: “6. I say and submit that during the pendency of the present Pent White Gold Micron PVT. LTD.' has again proposed One Time Settlement (0.T.S.) to the Respondent No. 4 Bank Vide let dated 05.08.2021 agreeing to pay an amount of Rs. 90,00,000/- for full and final settlement against the dues of Rs.1,33,00,000/- on the subject land. The said proposal has been accepted by the Respondent No. 4 - Bank. LTD.' has again proposed One Time Settlement (0.T.S.) to the Respondent No. 4 Bank Vide let dated 05.08.2021 agreeing to pay an amount of Rs. 90,00,000/- for full and final settlement against the dues of Rs.1,33,00,000/- on the subject land. The said proposal has been accepted by the Respondent No. 4 - Bank. A copy of the communication of acceptance dated 23.08.2021 is annexed at ANNEXURE - H of this affidavit. Pursuant thereto, an amount of Rs. 90,00,000/- was paid on 23.08.2021. A copy of the bank account statement of White Gold Micron PVT. LTD.' is annexed at ANNEXURE -I of this affidavit. 7. I further say and submit that pursuant to the payment of agreed amount, the Respondent No. 4 Bank has issued 'No Due Certificate' in favour of White Gold Micron PVT. LTD, and ultimately on 25.08.2021 the Respondent No. 4 - Bank had executed a deed of release with respect to the mortgage portion of the subject land in favour of Jay Umiya Minerals PVT. LTD. (i.e. the Petitioner's predecessor in title). A copy of the No Due Certificate and a release deed dated 25.08.2021 is annexed at ANNEXURE - J Collectively of this affidavit. 8. In view of above I say and submit that the dispute between the Respondent No. 4- Bank and my predecessor in title, which led the Respondent No. 2 to pass the impugned Order, has been settled and hence the cause doesn't survive. In that view of the matter, I pray that the present Petition may kindly be allowed, and the impugned Order dated 12.01.2021 passed by the Respondent No. 2 may kindly be quashed and set aside in the interest of justice.” 8. Considering the aforesaid affidavit coupled with the documentary evidence produced along with this affidavit, it appears that the respondent no.4-Bank has already accepted the One Time Settlement proposal of respondent no.5 and necessary amount has also been paid. Considering the aforesaid affidavit coupled with the documentary evidence produced along with this affidavit, it appears that the respondent no.4-Bank has already accepted the One Time Settlement proposal of respondent no.5 and necessary amount has also been paid. It also appears from the page no.101 of the compilation that the Chief Manager, Bank Of Baroda, Palanpur Main Branch had issued letter to the Sub-Registrar, Taluka -Amirgadh, District Banaskantha regarding the release of property Mortgage of account of M/S. White Gold Micron Pvt. Ltd. It also appears from the release deed at page 103 onwards that the release deed has also been registered thus the very foundation of passing of the impugned order by the learned SSRD has come to an end and there is “No Due Certificate” issued by the concerned Bank regarding the mortgaged property. 9. Therefore, in view of the development occurred during the pendency of the petition, the petition deserves to be allowed. Accordingly, the petition is allowed, the impugned order dated 12.01.2021 passed by the learned SSRD (Appeals) in MMV-BKPBNS- 9-2019 is hereby set aside and the order dated 05.04.2019 passed by the learned Collector, Banaskantha at Palanpur is hereby restored. 10. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.