JUDGMENT : 1. Rule. Learned AGP Mr.Nikunj Kanara for the respondents waive service of notice of rule. Rule is fixed forthwith and with the consent of the parties, the matter is taken up for final hearing. 2. Heard Mr.Marshall, learned Senior Counsel appearing with Mr.Arpti Kapadia for the petitioner and Mr.Nikunj Kanara, learned AGP for the respondents. 3. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged communication dated 28.1.2014 issued by Chitnis to the Collector, whereby the application for NA permission for commercial use came to be filed on account of entry no.156 dated 18.9.1963 made under Section 88-B of the Gujarat Tenancy and Agricultural Lands Act, and prayed to grant following reliefs:- “(A) YOUR LORDSHIPS may be pleased to admit and allow this petition; (B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction from this Hon’ble Court to declare the action of the District Collector, Surat as arbitrary and illegal in not granting non-agricultural permission for the Commercial Purpose U/s.65 of the Bombay Land Revenue Code, 1879 with respect to land bearing Survey No.1+2 Block No.1 paiki admeasuring 6778 sq.mtrs. and Survey No.3, Block No.2 paiki 5969 sq.mtrs. and Survey Nos.4, 5, 6 and 7, Block No.3 paiki 2250 sq.mtrs., thus in aggregate 14997 sq.mtrs. of land of Moje Sabargam, Tal.Choryasi, District:Surat and rejecting the application for N.A. purpose; (C) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction from this Hon’ble Court to quash and set aside the order dated 28- 01-2014 passed by the District Collector, Surat-respondent No.2 herein bearing No.NA/BKP/RSR No.253/13, rejecting the Non-Agricultural Permission for commercial purpose with respect to all the three parcels of land in question land bearing Survey No.1+2 Block No.1 paiki admeasuring 6778 sq.mtrs. and Survey No.3, Block No.2 paiki 5969 sq.mtrs. and Survey Nos.4, 5, 6 and 7, Block No.3 paiki 2250 sq.mtrs., thus in aggregate 14997 sq.mtrs. and Survey No.3, Block No.2 paiki 5969 sq.mtrs. and Survey Nos.4, 5, 6 and 7, Block No.3 paiki 2250 sq.mtrs., thus in aggregate 14997 sq.mtrs. of land of Moje Sabargam, Tal.Choryasi, District:Surat and be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction to direct the District Collector, Surat – respondent No.2 herein to grant N.A.Permission U/s.65 of the Code for the commercial Purpose with respect to all the three parcels of land in question i.e. land bearing Survey No.1+2 Block No.1 paiki admeasuring 6778 sq.mtrs. and Survey No.3, Block No.2 paiki 5969 sq.mtrs. and Survey Nos.4, 5, 6 and 7, Block No.3 paiki 2250 sq.mtrs., thus in aggregate 14997 sq.mtrs. of land of Moje Sabargam, Tal.Choryasi, District:Surat; (D) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the District Collector, Surat – respondent No.2 herein to grant N.A.Permission U/s.65 of the Code for the commercial Purpose with respect to all the three parcels of land in question i.e. land bearing Survey No.1+2 Block No.1 paiki admeasuring 6778 sq.mtrs. and Survey No.3, Block No.2 paiki 5969 sq.mtrs. and Survey Nos.4, 5, 6 and 7, Block No.3 paiki 2250 sq.mtrs., thus in aggregate 14997 sq.mtrs. of land of Moje Sabargam, Tal.Choryasi, District:Surat; (E) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the condition imposed by the Deputy Collector, Choryasi Prant, Surat in granting the order U/s. 63 of the Bombay Tenancy Act to get the N.A. Permission in a fixed period as well as the condition imposed by Surat Urban Development Authority, while granting in principle Development Permission to get the N.A. Permission in a fixed period with respect to land bearing Survey No.1+2 Block No.1 paiki admeasuring 6778 sq.mtrs. and Survey No.3, Block No.2 paiki 5969 sq.mtrs. and Survey Nos.4, 5, 6 and 7, Block No.3 paiki 2250 sq.mtrs., thus in aggregate 14997 sq.mtrs. of land of Moje Sabargam, Tal.Choryasi, District:Surat (F) To grant such other and further reliefs necessary in the interest of justice;” 3.1 The suit land was purchased by the petitioner which is a Fruit and Vegetable Growers Society, by registered Sale Deed. and Survey Nos.4, 5, 6 and 7, Block No.3 paiki 2250 sq.mtrs., thus in aggregate 14997 sq.mtrs. of land of Moje Sabargam, Tal.Choryasi, District:Surat (F) To grant such other and further reliefs necessary in the interest of justice;” 3.1 The suit land was purchased by the petitioner which is a Fruit and Vegetable Growers Society, by registered Sale Deed. It is the case of the petitioner that they have approached the authority for NA permission under Section 65 of the Code for commercial purpose. It is alleged that initially one tenant Prabhubhai Ranchhodbhai has purchased the suit land by registered Sale Deed dated 26.8.1963 from Jivan Bharti Trust and, thereafter, on the death, names of his heirs were entered into mutation entry. It is also contended that Jivan Bharti Trust was earlier granted certificate of exemption under Section 88- B of the Tenancy Act. The tenant could not have become the owner under Section 32-G and 32-H of the Tenancy Act. It is contended that no proceedings have ever been initiated under Section 84-F of the Tenancy Act with respect to the land bearing Block No.3, Survey Nos.4, 5, 6 and 7 and the Sale Deed has been executed by the Trust in favour of the tenant in 1963. It is contended that the proceedings under the Tenancy Act was never initiated. It is also contended that the petitioner sought for NA permission on 9.9.2008. Mamlatdar, Choryasi, vide his communication to the District Collector has stated that there is no impediment if the permission is granted by taking the opinion of Surat Urban Development Authority. It is also contended that Mamlatdar, Choryasi, has given the certificate that all the three parcels of land were purchased by the petitioner after getting permission under Section 63 of the Tenancy Act and the land in question is old tenure land and it has been purchased by the petitioner. 3.2 It is further contended that thereafter on 29.11.2008, Deputy Collector, Choryasi Prant, Surat informed District Collector, Surat, that there is no appeal pending in his office with respect to all the three parcels of land. 3.2 It is further contended that thereafter on 29.11.2008, Deputy Collector, Choryasi Prant, Surat informed District Collector, Surat, that there is no appeal pending in his office with respect to all the three parcels of land. It is contended that inspite of clear opinion on the basis of the inquiry made by the concerned subordinate offices, learned District Collector has banged on not to grant NA Permission under Section 65 of the Bombay Land Revenue Code for commercial purpose to the petitioner for the land in question. 3.3 It is contended that when the subordinate officers of District Collector, Surat, has clearly given opinion that no proceeding is pending in their office and even otherwise, the proceeding under Section 84-C of the Tenancy Act, after lapse of long period, is not initiated, which may even may not be sustainable, there cannot be any justification to reject NA permission sought by the petitioner solely on the ground that mutation entry no.156 dated 18.9.1963 granting exemption certificate under Section 88-B of the Tenancy Act is not cancelled. 4. An affidavit in reply has been filed by District Collector, Surat. The main defence taken therein is that the land in dispute was in the name of Jivan Bharti Trust, Surat, and the Trust has obtained exemption under Section 88-B of the Tenancy Act for the purpose of not to be declared as “tenant” in the said land and even though, the trustees of the Trust i.e. Ranchhodram etc. have sold the land in question to Prabhubhai Ranchhodbhai by executing registered Sale Deed dated 26.8.1963 and on that basis entry has been mutated in the Village record vide entry no.157 dated 9.10.1963, it is contended that it prima facie appears to be perverse to the provisions of the Tenancy Act and, therefore, it needs detailed scrutiny and inquiry and due to that necessary detailed opinion has been sought for from Charity Commissioner, yet it is not received. On that basis, it is prayed to dismiss the petition. 5. Mr.Marshall, learned Senior Counsel appearing for the petitioner vehemently submitted the same facts, which are narrated in the petition memo, which have been referred to herein above. Mr.Marshall has also submitted that the petitioner has purchased the land being Block nos.1, 2 and 3, out of which dispute is only with regard to Block No.3. 5. Mr.Marshall, learned Senior Counsel appearing for the petitioner vehemently submitted the same facts, which are narrated in the petition memo, which have been referred to herein above. Mr.Marshall has also submitted that the petitioner has purchased the land being Block nos.1, 2 and 3, out of which dispute is only with regard to Block No.3. He has submitted that there is no dispute regarding purchase by the petitioner from the earlier owner of the land and regarding ownership of the present petitioner. While referring to various correspondence, learned Senior Counsel, Mr.Marshall submitted that necessary permission under Section 63 of the Tenancy Act was granted way back in 2006 and same came to be extended from time to time. He has also submitted that Surat Urban Development Authority has also granted permission vide communication dated 22nd May 2009. He has submitted that the observations made in the impugned communication dated 28.1.2014 is irrelevant as at no point of time any proceeding under the Tenancy Act was initiated against the original owner of the land. According to him, title and possession of the petitioner are not disputed. Mr.Marshall, learned Senior Counsel submitted that Block No.3 was purchased by the petitioner from private individual and there was no any proceeding initiated by the authority since 1963 to 2014 under the Tenancy Act. He has submitted that communication needs to be set aside and Court may remand the matter to the authority with the observation that without resorting to Section 88-B of the Tenancy Act, fresh hearing be conducted and opportunity be given to the petitioner. Mr.Marshall has also submitted that so far as Section 65 of the Bombay Land Revenue Code is concerned, there is no question of the title being decided. In view of all these, he has prayed to pass appropriate order. 6. Per contra, learned AGP, Mr.Kanara, while referring to the affidavit-in-reply has vehemently submitted that the petitioner was in knowledge from the very beginning that there is an entry under Section 88-B of the Tenancy Act made in the revenue record. Therefore, now they cannot object to any proceedings under the Said Act. He has also referred to revenue entry placed on record, at page 165, which were made in the name of Jivan Bharti Trust. He has supported the impugned communication and prayed to dismiss the petition. 7. Therefore, now they cannot object to any proceedings under the Said Act. He has also referred to revenue entry placed on record, at page 165, which were made in the name of Jivan Bharti Trust. He has supported the impugned communication and prayed to dismiss the petition. 7. Considering the submissions made on behalf of both the sides coupled with the facts on record, it transpires that there is no dispute with regard to purchase of the suit land by the petitioner from individual owner. It is also undisputed fact that necessary permission under Section 63 of the Tenancy Act was accorded and, thus, Surat Urban Development Authority has also technically gave permission to the petitioner herein way back in 2004. It also reveals from various correspondence entered into between the parties inter se that no proceeding under the Tenancy Act has been initiated till 2014. It also reveals that, even after 2014, no proceedings under the Tenancy Act have been initiated. It appears from the entry at page 165 that it is of the year 1963 i.e. more than 57 years back. Considering this long period and especially the averment made in the registered sale deed document placed on record, at page 106 onwards, on which reliance has been placed by learned AGP, it transpires that out of very same land of Block No.3, land admeasuring 772 sq.mtr. was acquired for the purpose of Kadodara Highway for which revenue entry has been mutated vide entry No.466 dated 27.1.2002. This fact reflects that the portion of the land of block No.3 was acquired by the Government itself. Therefore, now at a later stage, stand taken by the Government regarding Section 88-D of the Tenancy Act is meritless. It is an admitted fact that original Trust has transferred the land in question before many years to Prabhubhai Ranchhodbhai. Even at that point of time, no proceedings under the Tenancy Act have been initiated by the authority concerned. Not only that it also reveals that many entries in the revenue record have been recorded regarding mutation of names of heirs of Prabhubhai and onward transfer of the land. 8. Even at that point of time, no proceedings under the Tenancy Act have been initiated by the authority concerned. Not only that it also reveals that many entries in the revenue record have been recorded regarding mutation of names of heirs of Prabhubhai and onward transfer of the land. 8. On perusal of the impugned communication, it clearly reveals that without taking into consideration all the aforesaid aspects, the authority concerned has merely observed that there is an entry no.156 dated 18.9.1963 made in the revenue record under Section 88-B of the Tenancy Act. As observed earlier, resort to Section 88-B of the Tenancy Act, at this stage, is not maintainable in the eyes of law. Under these circumstances, the matter is required to be remanded back to the concerned authority i.e. respondent no.2 to consider the application of the petitioner for N.A.Permission afresh and decide it in accordance with law, after giving opportunity of hearing to the petitioner and without resorting to the provisions of Section 88-B of the Tenancy Act. At the same time, some time period needs to be prescribed since the land in question is required for the Members of the Cooperative Society. 9. In view of above, communication dated 28.1.0214 issued by District Collector, Surat, Annexure-A, page 33, is hereby quashed and set aside. District Collector, Surat, is hereby directed to decide the application of the petitioner for N.A.Permission afresh after giving opportunity of being heard to the petitioner and without resorting to the provisions of Section 88-B of the Tenancy Act. Such exercise shall be completed within a period of three months from the date of receipt of writ of this order. Accordingly, this petition is allowed. Rule is made absolute to above extent. No order as to costs. Direct service is permitted. ORDER IN CIVIL APPLICATION In view of above order passed in main petition, learned counsel for the petitioner does not press this application. Hence, this application is disposed of accordingly.