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2022 DIGILAW 1211 (GUJ)

Sanjay Pravinkumar Shah v. State Of Gujarat

2022-10-04

SANGEETA K.VISHEN

body2022
ORDER : 1. With the consent of the learned Advocates appearing for the respective parties, the matter is taken up for final hearing. 2. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioners have prayed for quashing and setting aside the order dated 16.12.2021 passed by the Collector in application bearing reference no. 31916202104863, whereby the Collector has rejected the application seeking Non-agricultural permission (hereinafter referred to as "the NA permission") on the ground of pendency of the RTS proceedings (six in number) before the learned Special Secretary, Revenue Department (hereinafter referred to as "the learned Secretary"). Being aggrieved, the petitioners have preferred the present writ petition, with the aforementioned prayers. 3. Briefly stated are the facts: 3.1. The land bearing survey no. 70, mauje Manjalpur, taluka Vadodara, admeasuring 8296 sq. mts. (hereinafter referred to as "the land in question") originally belonged to one Ramabhai Bariya. In the year 1940, Ramabhai Bariya had decided to transfer the land in question in favour of his grandson Bariya Babarbhai Shankarbhai through registered gift deed and accordingly, vide gift deed bearing registration no. 1262 dated 18.06.1940, the land in question was transferred in favour of Bariya Babarbhai Shankarbhai. Entry no. 220 was posted in the revenue record indicating the land in question being transferred to Bariya Babarbhai Shankarbhai. The name of the father Shankarbhai Ramabhai was entered as custodian/ guardian of Bariya Babarbhai Shankarbhai, as he was a minor. In the year 1980, RCS No. 970 of 1980 was preferred before the learned Civil Court, Vadodara against Bariya Babarbhai Shankarbhai seeking permanent injunction from entering into the land in question and from cutting the crops so also, entering into the house constructed over the land in question. The Civil Court, Vadodara, passed an ex-parte decree in favour of Shankarbhai Ramabhai allowing the suit and decree dated 31.08.1984 was drawn. As per the said decree, Bariya Babarbhai Shankarbhai was injuncted from entering into the land in question. On 06.03.1987, mutation entry no. 2506 was entered in the revenue record recording the factum of decree passed in RCS no. 970 of 1980. 3.2. In the year 1987, Shankarbhai Ramabhai, made an application before the concerned authorities to enter his name in the revenue record on the basis of the decree and the Mamlatdar, vide order dated 16.12.1987 rejected the application. 2506 was entered in the revenue record recording the factum of decree passed in RCS no. 970 of 1980. 3.2. In the year 1987, Shankarbhai Ramabhai, made an application before the concerned authorities to enter his name in the revenue record on the basis of the decree and the Mamlatdar, vide order dated 16.12.1987 rejected the application. Being aggrieved, appeal was filed before the Deputy Collector who vide order dated 24.06.1988 confirmed the order of the Mamlatdar and rejected the revision application. Aggrieved by the said order of the Deputy Collector, an appeal was filed before the learned Secretary which, was rejected vide order dated 17.11.1990. 3.3. After the death of Shankarbhai Ramabhai, the heirs of Shankarbhai Ramabhai, namely Smt. Revaben Shankarbhai, Smt. Shantaben Shankarbhai and Shri Rajubhai Harmanbhai, made an application before the Mamlatdar to enter their names in the revenue record on the basis of the Will of Shankarbhai Ramabhai, however, the entry was rejected. The Deputy Collector allowed the appeal and directed the Mamlatdar to enter the names of all the heirs vide order dated 16.06.1992, which, was confirmed by the Collector in appeal. Bariya Babarbhai Shankarbhai, preferred revision application before the learned Secretary and vide order dated 21.07.1995, revision came to be allowed and mutation entry no. 2721, recording the heirship, was canceled. 3.4. Bariya Babarbhai Shankarbhai preferred Regular Civil Suit No. 587 of 1992 seeking declaration and permanent injunction against the heirs of Shankarbhai Ramabhai and the Civil Court granted ex-parte injunction against the legal heirs of Shankarbhai Ramabhai protecting the possession of Bariya Babarbhai Shankarbhai, with respect to the land in question. 3.5. The land was covered under the provisions of Urban Land Ceiling Act, 1976 (hereinafter referred to as "the Act of 1976") and was declared excess land by the State Government. Subsequently, the authorities, did not initiate any proceedings in accordance with sub-sections (3) and (5) of Section 10 of the Act of 1976. By passage of time, the Act of 1976 came to be repealed and the land in question became free-hold land. The revenue record suggested that the possession of the land was taken over by the State Government which error, was corrected by the order dated 29.05.2019 passed by the Mamlatdar. 3.6. In the year 2003, Bariya Babarbhai Shankarbhai, had sold the land to Pravinbhai Manibhai Patel by executing registered sale deed and entry no. The revenue record suggested that the possession of the land was taken over by the State Government which error, was corrected by the order dated 29.05.2019 passed by the Mamlatdar. 3.6. In the year 2003, Bariya Babarbhai Shankarbhai, had sold the land to Pravinbhai Manibhai Patel by executing registered sale deed and entry no. 9860 dated 30.08.2019 was posted in the revenue record. In the year 2007, Pravinbhai Manibhai Patel sold the land in question to Bhailalbhai Pursottambhai Patel and three others vide registered sale deed and entry no. 9868 was posted in the revenue record on 26.11.2019. Nileshbhai Bhailalbhai Patel and others executed a registered sale deed in favour of the petitioners in the year 2020 and entry no. 9891 was posted in the revenue record and was certified on 31.08.2020. It is the case of the petitioners that entry nos. 9860, 9868 and 9891, are subject matter of challenge in RTS proceedings and are pending before the learned Secretary. The petitioners, applied for NA permission, the Collector, however, vide order dated 13.11.2020, rejected the same on the ground of pendency of the RTS proceedings. The petitioners, once again, applied for conversion of the land from agricultural to non-agricultural purpose, however, again, the Collector rejected the same vide order dated 30.09.2021 on the ground of pendency of the RTS proceedings. Twice, the petitioners applied for NA permission which came to be rejected. The petitioners once again applied for conversion of use from agricultural to non-agricultural which, came to be rejected by the Collector vide order dated 16.12.2021 on the ground of pendency of the proceedings before the revenue authorities. Hence, the present petition. 4. Mr. Jaimin Dave, learned Advocate, submitted that the ground, namely the pendency of the RTS proceedings cited by the Collector for rejecting the NA application is erroneous, inasmuch as, the said issue, stands answered by this Court in various judgments namely in the cases of Tusharbhai Harjibhai Ghelani vs State Of Gujarat reported in 2019 (4) GLR 2578 ; Bhayabhai Vajshibhai Hathalia vs. State of Gujarat, 2012 (2) GLR 1741 ; and Dhansukhbhai Somabhai Ahir vs. State of Gujarat in Special Civil Application No. 5924 of 2019. It is submitted that in the case of Tusharbhai Harjibhai Ghelani(supra) it has been held and observed that the key-word in Section 65 is the occupant of the land and for the purposes of Section 65, it is sufficient that the person applying for NA permission is an occupant of the land. It is also held and observed that it is not necessary that such person has to prove his title to the land before he makes an application. 4.1. In the another judgment in the case of Bhayabhai Vajshibhai Hathalia (supra), it has been held and observed that Section 65 of the Code does not envisage scope of raising any objection in any party who is not acknowledged right or interest in the land in question. When the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. 4.2. It is submitted that in the case of Dhansukhbhai Somabhai Ahir (supra), the order was passed by the Collector rejecting the NA application citing the instances of the pendency of the RTS appeals pending before the Deputy Collector. This Court, while considering legal principles in various judgments has held and observed that while refusing to grant the application for NA permission, the question, of pendency of the Civil Suit could not have been considered. Merely because there are proceedings pending before the revenue authorities in the RTS appeals, the same cannot be a ground to reject the permission of the petitioners. It is submitted that so far as the present petition is concerned the heirs of Shankarbhai Ramabhai are yet to establish their rights inasmuch as, the gift deed, was executed in the year 1940 in favour of Bariya Babarbhai Shankarbhai which, has remained unchallenged. So far as the suit is concerned, the same was filed by Shankarbhai Ramabhai with a limited prayer seeking permanent injunction against the petitioners from entering in the land in question which, would remain during the lifetime of Shankarbhai Ramabhai. It is submitted that even thereafter, in the RTS proceedings, the same have been decided against the heirs. It is submitted that so far as the entry no. It is submitted that even thereafter, in the RTS proceedings, the same have been decided against the heirs. It is submitted that so far as the entry no. 2721 is concerned, by which the names of the heirs of Shankarbhai Ramabhai was posted in the revenue record has attained finality after the rejection of the revision application by the learned Secretary. Entry no. 9862 was also posted in the revenue record and has been certified on 24.11.2019. No further steps have been taken by the heirs of Shankarbhai Ramabhai. 4.3. It is submitted that so far as entry nos. 9860, 9868 and 9891 are concerned, the Collector, has remanded the matter and the issue, is pending before the Deputy Collector. The said orders of remand were also challenged by the petitioners and erstwhile purchaser before the learned Secretary. It is submitted that however, the fact remains that the sale deed which has been executed in favour of the petitioners and other purchasers are not challenged and therefore, when the sale deeds executed in favour of the petitioners and other purchaser, are not challenged, the principle laid down by this Court in the above referred three judgments would squarely apply to the facts of the present case inasmuch as, the heirs of Shankarbhai Ramabhai are yet to establish their right. It is next submitted that the order, passed by the learned Collector is without offering any opportunity to the petitioners. Had any opportunity been conferred, the petitioners could have brought to the notice of the Collector, all the facts namely the execution of the registered sale deed so also, principle governing the grant of the NA permission. It is therefore urged that the order deserves to be quashed and set aside with a direction to the Collector to decide it afresh after hearing the petitioners. 5. On the other hand, Mr. Nikunj Kanara, has submitted that the petitioners can very well avail of alternative remedy available against the order dated 16.12.2021. It is submitted that the RTS proceedings raising the dispute has regards the mutation of the entries are pending before the learned Secretary and therefore, it would be in the fitness of things that the application seeking NA permission is decided after final outcome of the RTS proceedings. Therefore, no error has been committed by the Collector in passing the order dated 16.12.2021. 6. Therefore, no error has been committed by the Collector in passing the order dated 16.12.2021. 6. Heard the learned Advocates appearing for the respective parties and perused the documents available on record. 7. By the above referred two judgments namely Tusharbhai Harjibhai Ghelani(supra) and Bhayabhai Vajshibhai Hathalia (supra), it is by now well settled that while exercising the powers under Section 65 of the Code, the Collector, is to examine that the person applying, is occupant of the land. For the purpose of Section 65, it would be sufficient that the person applying for NA permission is occupant of the land, considering the fact that Section 65 nowhere provides that the applicant should have a title or occupation over the land for which the NA permission is sought. In case of Tusharbhai Harjibhai Ghelani(supra), this Court while considering the judgment of the co-ordinate bench in the case Bhayabhai Vajshibhai Hathalia (supra) has held and observed thus: “38. Thus, the plain reading of section 65 makes it clear that for the purpose of grant of N.A. Permission, the first thing the Collector should look into is whether the applicant, seeking N.A. Permission, is an occupant of the land which is being assessed or held for the purpose of agriculture. For the purpose of ascertaining this, the Collector is expected to look into the revenue records. The name of the applicant in the revenue records would prima facie go to show or rather indicate that he is the occupant of the land. The second step in the process would be to ascertain whether such land is being assessed or held for the purpose of agriculture. 39. Section 65 of the Code provides for the uses to which an occupant of land for the purpose of agriculture may put his land to. If the occupant of the land wishes to use the land for purposes other than the agriculture or agriculture-related activities, he is required to make an application to the Collector for permission to do so. It may be noted that the key-word in Section 65 is the occupant of the land. It is sufficient for the purposes of Section 65, that the person applying for NA Permission is an occupant of the land. It is nowhere stated in the said provision that the applicant should have title or ownership over the land for which NA Permission is sought. It is sufficient for the purposes of Section 65, that the person applying for NA Permission is an occupant of the land. It is nowhere stated in the said provision that the applicant should have title or ownership over the land for which NA Permission is sought. The legislature, in its wisdom, has thought it fit that it should suffice if an occupant of the land applies for NA Permission. It is not necessary that such person has to prove his title to the land before he makes an application. The present case is on a far better footing. Not only are the petitioners occupants of the land, they are also the owners thereof, by a legal and valid registered Sale Deed. The said sale deed may be a subject matter of challenge before the Civil Court but the fact remains that the Civil Court has not yet passed any decree cancelling the same or declaring it to be illegal or obtained by fraud. 40. Thus, it transpires that, no power is available to the Collector under Section 65 of the Code to examine or conclude regarding the title of the writ applicants over the land in question. A bare reading of the said provision makes it clear that it only provides for the uses to which an occupant of land for agricultural purposes, may put his land to. The provision further lays down the procedure to be followed for making an application for NA Permission by the occupier and the manner in which it is to be processed by the Competent Authority. Nowhere is it contemplated in Section 65 that the Collector is empowered to undertake an inquiry into the title of the occupier. 41. A perusal of the impugned order dated 19th November, 2014 passed by the Collector makes it clear that the reason for the rejection of the application of the writ applicants is that their title to the land in question is defective on the ground that two civil suits are pending. 42. In State of Gujarat v. Patel Raghav Natha, (1969)2 SCC 187 , the Supreme Court has clearly held as below: "14. We are also of the opinion that the Commissioner should not have gone into question of title. 42. In State of Gujarat v. Patel Raghav Natha, (1969)2 SCC 187 , the Supreme Court has clearly held as below: "14. We are also of the opinion that the Commissioner should not have gone into question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent Court and not decide the question of title himself against the occupant." 43. This was also a case where the NA Permission under the provisions of Section 65 of the Code was in issue. The above principles of law therefore, squarely apply to the present case. 44. Considering the provisions of Section 65 of the Code as well as the above pronouncement of law by the Supreme Court, this Court cannot but arrive at the inevitable conclusion that the denial of NA Permission to the writ applicants under the garb of a purportedly defective title over the land in question amounts to a transgression of the limits of jurisdiction vested in the second respondent under the Code. The impugned order is, therefore, one without jurisdiction. For such reason also the plea of alternative remedy should fail. 45. In the aforesaid context, let me look into a decision of this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat, 2012 (2) GLR 1741 . I may quote the relevant observations : "20. Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the contentions in respect of the order impugned in this petition. Plain reading of section 65 of the Code in my view would persuade the Court to hold that section 65 of the Code does not envisage scope of raising any objection in any party who is not acknowledged right or interest in the land in question. In other words proceedings under section 65 of the Code is not an adversely proceeding at all. If any interested party is apprehending any smart practice on any one in respect of land it can always take recourse to the civil court for obtaining appropriate injunction or prohibitory orders. In other words proceedings under section 65 of the Code is not an adversely proceeding at all. If any interested party is apprehending any smart practice on any one in respect of land it can always take recourse to the civil court for obtaining appropriate injunction or prohibitory orders. When the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, atleast in my view, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. Or else it will lead to a situation where on account of showing semblance of some interest in the land in question or for that matter even substantive interest the party who has not been successful in establishing its right and obtain any prohibitory orders would succeed in thwarting and throttling the occupant of the land in question who is legitimately acknowledged to be occupant by revenue authorities. The N.A. Permission under section 65 cannot be said to be in any manner conferring and or abridging title of any one if it exists in the land in question. It is merely an act of granting permission by the authority qua the piece of land in question. In other words it can well be said that the land which was an agricultural land and it was supposed to put up to agricultural purpose, is decided to be freed from restrictions and permitted to be developed. Thus the permission is attached to the land in question and not to the person. Therefore in my view the interpretation of section 65 of the Code cannot be said to be in any manner rendering it to be adversarial proceedings at all. 21. Bearing the aforesaid proposition of law in mind when one examines the aspect of appeal preferred by the contesting respondents, one would find it difficult to accept as to how the right to appeal is said to have been conferred upon a third party who has failed in establishing any right before the civil court so far as the land in question is concerned. When the party has not obtained any order or has not been successful in obtaining any order in any manner from civil court, which is competent, i.e. only court to adjudicate upon and acknowledge their rights and title in the land in question, that party cannot be permitted to throw spanner in the wheels of development set in motion by the legitimate competent authority, whose entry is there in the revenue record. Therefore the appeal itself from the point of view of locus was also not obtained." 46. Thus, the above referred decision makes the legal position abundantly clear. The position, as on date, is that the order of status quo passed by the Civil Court in the suit filed by the respondents Nos.3 to 17 has been stayed by this Court in an Appeal From Order No.16 of 2018. As on date, there is no prohibitory order operating against the writ applicants or in favour of the respondents Nos. 3 to 17. In such circumstances, what is the Collector expected to do while deciding an application seeking N.A. Permission. Indisputably, the names of the writ applicants figure in the record of rights as the owners of the subject land. The entry, mutating their names in the record of rights, is on the basis of the sale deed executed in their favour in the year 2006. The respondents Nos.3 to 7 are yet to obtain appropriate declaration as regards the legality and validity of the sale deed of the year 2006 executed in favour of the writ applicants. The only proceeding pending as on date is the civil suit filed by them.” 8. Therefore, it is very clear that while considering the application for NA permission, what the Collector, is required to examine is that the person is occupant or not and the Collector, cannot venture into inquiry about the title ownership of the land in question. Also, in the case of Dhansukhbhai Somabhai Ahir (supra), the NA permission, was rejected by the Collector by passing an order citing the pendency of RTS appeal before the Collector, so also, revenue authorities. This Court while considering the above referred judgments in the cases of Tusharbhai Harjibhai Ghelani(supra) and Bhayabhai Vajshibhai Hathalia (supra), quashed and set aside the order passed by the Collector. This Court while considering the above referred judgments in the cases of Tusharbhai Harjibhai Ghelani(supra) and Bhayabhai Vajshibhai Hathalia (supra), quashed and set aside the order passed by the Collector. It has been held and observed that merely because there are proceedings pending before the revenue authorities in the RTS appeals, the same cannot be made a ground to reject the permission. This Court, remitted the matter to the Collector with a direction to decide it, afresh keeping in mind the principles laid down by this Court, in the above referred judgments. 9. In the present case, as can be discern out from the record, Bariya Babarbhai Shankarbhai executed a registered sale deed in the year 2003 followed by another registered sale deed in the year 2007 i.e. dated 20.09.2007 and the last in line was registered sale deed in favour of the petitioners in the year 2020. It has been confirmed by the learned Advocate appearing for the petitioners that none of the sale deeds namely (i) registered sale deed dated 15.11.2003 by Babarbhai Shankarbhai Solanki in favour of Pravinbhai Manibhai Patel (ii) registered sale deed dated 20.09.2007 by Pravinbhai Manibhai Patel in favour of Nileshbhai Manibhai Patel and three others and (iii) registered sale deed dated 18.06.2020 in favour of the petitioners have been challenged. Therefore, it is clear that there are registered sale deeds in succession executed by the respective owners. The registered sale deed dated 18.06.2020 in favour of the petitioners has not been challenged, the petitioners, are the lawful owners of the land in question. Therefore, the aforesaid principles laid down by this Court in the above referred judgments, apply on all fours to the facts of the present case. One more aspect which is required to be taken note of is that the Collector while passing the order dated 16.12.2021 does not appear to have given opportunity of hearing to the petitioners and therefore, the order is in violation of principles of natural justice. Therefore, on both these counts, the order dated 16.12.2021 passed by the Collector, rejecting the application, deserves to be quashed and set aside and is hereby quashed and set aside. 10. Therefore, on both these counts, the order dated 16.12.2021 passed by the Collector, rejecting the application, deserves to be quashed and set aside and is hereby quashed and set aside. 10. In view of the above mentioned discussion, the Collector is directed to once again consider the prayer of the petitioners for grant of NA permission after hearing the petitioners and bearing in mind the above referred discussion so also the observation made by this Court more particularly, in the case of Tusharbhai Harjibhai Ghelani(supra) and Bhayabhai Vajshibhai Hathalia (supra). The Collector is also directed to keep in mind that while deciding the application under Section 65, the title of the parties, cannot be looked into. The Collector, shall decide the application within a period of eight weeks from the date of receipt of copy this order, strictly in accordance with law. 11. The petition stands allowed to the aforesaid extent. No order as to costs.