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2022 DIGILAW 671 (GUJ)

Parmar Haribhai Maganji v. State Of Gujarat

2022-05-06

A.P.THAKER

body2022
JUDGMENT : Being aggrieved and dissatisfied with the impugned order dated 26.5.2021 passed by the District Collector in N.A application no.A. Jamin.2.Vashi.8641, the petitioner has preferred this petition under Article 226 of the Constitution of India. 2. Brief facts giving rise to the present petition are as under : 2.1 The dispute pertains to land situated at revenue survey no. 13P1 (New Survey No. 65) at village: Sanadar, Taluka :Deodar District Banaskantha which was running in the nameof one Rabari Vershibhai Khumabhai, who sold the land in question vide registered sale deed dated 7.5.1987 in favour of one Thakkar Mavjibhai Dalpatram and entry no. 249 was mutated and certified in the revenue record. Thereafter, said Mavjibhai sold the land in question to the father of the petitioners vide registered sale deed dated 2.4.1996 and revenue entry no. 324 dated 25.8.1997 came to be mutated. Thereafter, vide entry no. 790 the names of the petitioner and others were mutated and vide entry no. 798, other heirs including Maganji reliquished their rights in favour of the petitioners came to be mutated and same came to be certified. 2.2 Thereafter, the petitioner made an application for conversion of the land in question into N.A use on 6.11.2019. The said application came to be filed vide order dated 20.12.2019 on the ground that as per entry no. 392, the Special Civil Application No. 3179 of 2010 is filed against the order passed by the Gujarat Revenue Tribunal dated 30.6.2005. 2.3 Against that order the petitioner had approached this Court by filing Special Civil Application No. 589 of 2020 wherein this Court directed the learned Collector to reconsider the case after hearing the petitioners. 2.4 The learned Collector without appreciating the facts of the case vide impugned order dated 26.5.2021 rejected the said N.A permission application on the ground that the Special Civil Application No. 3179 of 2010 is pending before this Court. 3. Heard learned advocate Mr. Nishit Gandhi for the petitioner and learned AGP Nikunj Kanara for the respondent State and perused the material placed on record and the decisions cited at Bar. 4. Learned advocate Mr. 3. Heard learned advocate Mr. Nishit Gandhi for the petitioner and learned AGP Nikunj Kanara for the respondent State and perused the material placed on record and the decisions cited at Bar. 4. Learned advocate Mr. Gandhi for the petitioner has vehemently submitted that same facts which are narrated in the memo of the petition and submitted that in the year 2000 Mamlatdar and ALT initiated suo motu proceedings against the Thakkar Mavjibhai Dalpatram and others of breach of Section 63 of the Gujarat Tenancy and Agricultural Lands Act being, Ganot Case No. 104 and ultimately vide order dated 7.7.2000 held him to be non-agriculturist and ordered restoration of the land to the original owner. According to learned advocate Mr. Gandhi in the said order at internal page 9, it was clearly mentioned that the order will not apply to the lands which are already sold. According to him, the land in question was sold to the father of the petitioners three years prior to the initiation of the suo motu proceedings. Even the father of the petitioners were also not made party in the said proceedings. 4.1 He has also submitted that the said order of Mamlatdar was challenged by said Mavjibhai Dalpatram by preferring Ganot Appeal No. 15 of 2000 and the same came to be rejected by order dated 29.9.2001 which was challenged by Thakkar Mavjibhai before Gujarat Revenue Tribunal while preferring Revision Application No. 11 of 2002 which came to be allowed by the Tribunal by order dated 13.6.2005. Against that order, State of Gujarat has preferred Special Civil Application No. 3179 of 2010 which is pending. However, there is no any stay granted in favour of the State. 4.2 Mr. Gandhi has also submitted that the petitioners are also not made party in the said proceedings. The petitioners have moved application for being joined as party in the said proceedings and for necessary direction. He has also contended that identically situated person Patel Bhutaji Ranaji was granted N.A permission after accepting 10% premium as per the provisions of Section 63 of Gujarat Tenancy and Agricultural Lands. He has submitted that in view of this, it cannot be said that predecessor in title of the petitioner was not an agriculturist. He has also contended that identically situated person Patel Bhutaji Ranaji was granted N.A permission after accepting 10% premium as per the provisions of Section 63 of Gujarat Tenancy and Agricultural Lands. He has submitted that in view of this, it cannot be said that predecessor in title of the petitioner was not an agriculturist. Even if it is believed that said Mavjibhai Thakkar was non agriculturist, then also, the petitioner being the last purchasers of the land in question, the N.A permission as per the provisions of Gujarat Land Revenue Code 1879 is requried to be granted as the status of the petitioner as agriculturist is not in question. 4.3 Mr. Gandhi has submitted that petitioners are agriculturists and being the last purchasers, the State Government at the most seeks 10% of the Jantri Value which is already paid for the petitioner. He has also submitted that to put an end to the dispute the petitioners made an application showing his willingness to regularise the earlier transaction which was granted vide order dated 19.1.2020 and entry no. 2182 dated 21.3.2020 is also mutated for the same. 4.4 While referring to the similarly sitatuated persons i.e Patel Bhutaji Ranaji, he has submitted that he has filed Special Civil Application No. 16343 of 2019 which came to be disposed of by this Court with certain directions vide order dated 6.12.2019. On this ground also, he has submitted to allow the present petition by quashing the impugned order. Mr. Gandhi has also submitted that the petitioners are bonafide purchasers and the transaction has already attained finality and there is delay of almost 13 years and in earlier proceedings though the name of the father of the petitioners were in the revenue record, they were not made party. He has relied upon the following decisions :- (1) Order of Co-ordinate Bench dated 6.12.2019 passed in Special Civil Application No. 16343 of 2019 in the case of Patel Bhutaji Ranaji Vs State of Gujarat (2) Tusharbhai Harjjivanbhai Ghelani Vs State of Gujarat reported in (2019) GLR 2578 para 39 and 40. 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. 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. 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. (3) Order in Shaileshbhai Dahyabhai Patel Vs State of Gujarat (2015)(o) AIJEL HC 233676 (4) Order passed in Special Civil Application No. 12126 of 2021 in case of Hajabhai Patabhai Suthat Vs. State of Gujarat . Nowhere is it contemplated in Section 65 that the Collector is empowered to undertake an inquiry into the title of the occupier. (3) Order in Shaileshbhai Dahyabhai Patel Vs State of Gujarat (2015)(o) AIJEL HC 233676 (4) Order passed in Special Civil Application No. 12126 of 2021 in case of Hajabhai Patabhai Suthat Vs. State of Gujarat . (5) Order dated 22.7.2019 passed in Special Civil Application 12401 of 2019 in the case of Laxmanbhai Nathaibhai Bharwad Vs State of Gujarat with order of the Division Bench dated 17.11.2021 passed in LPA No. 1036 if 2002 filed against the order of the learned Single Judge dated 22.7.2019 . (6) Order dated 20.10.2021 passed by the Division Bench of this Court passed in Civil Application N. 2068 of 2021 in (F) LPA 11498 and allied matters in the case of State of Gujarat Vs Chandubhai Desai 5. Per contra learned AGP has vehemently submitted that the Collector has provided proper reasons and the Collector has not committed any error in passing the impugned order. He has submitted that the order of the Collector is based on the fact that Special Civil Application No. 3179 of 2010 is pending wherein the present petitioner has already filed an application for joining him as a party. He has submitted that since the matter is pending before the co-ordinate Bench pertaining to the same land i.e order passed against the predecessor of the main petition, this petition may be dismissed. 6. In rejoinder learned advocate Mr. Gandhi has submitted that SCA No. 3179 of 2010 is preferred by the State against the order of the Gujarat Revenue Tribunal setting aside the order of the Mamlatdar and there is no stay in operation, therefore, according to him the order of the Revenue authority declaring the transaction of the predecessor in title of the petitioners is not in existence. He has stated that considering the material placed on record the present petition be allowed. 7. Having considered the submissions made on both the sides coupled with the material placed on record and the decisions cited at bar, it appears that there is no dispute as to the purchase of the land by the petitioner’s father from one Mavjibhai Thakkar in the year 1997. 7. Having considered the submissions made on both the sides coupled with the material placed on record and the decisions cited at bar, it appears that there is no dispute as to the purchase of the land by the petitioner’s father from one Mavjibhai Thakkar in the year 1997. It appears from the record that the Mamlatdar and ALT has initiated suo motu proceedings against the said Mavjibhai and others for breach of Section 63 wherein the petitioner’s fathers were not made party though their names were already mutated in the revenue records. It also appears that the order of the Mamlatdar came to be challenged before the Revenue Tribunal and it has set aside the order. The order of the Tribunal is challenged by the State by filing the Special Civil Application which is pending before this High Court. However, there is no any stay granted against the order of the Tribunal. It also appears that petitioners has also moved an application for N.A permission which came to be rejected earlier by the Collector against that order the petitioner had earlier preferred SCA No. 589 of 2020 which came to be disposed of by this Court vide order dated 22.9.2020 setting aside the same as no opportunity was being given to the petitioner. It appears that thereafter the Collector has passed the impugned order on the ground that SCA No, 3179 of 2010 is pending before this Court affecting the breach of Section 63 of the Tenancy Act. Thus, the Collector has rejected the application only on the ground that Special Civil Application is pending. However, he has not even considered the other fact which has been put forth by the petitioners regarding the facts of granting of N.A permission in respect of one Mr. Bhutaji Ranabhai Patel who himself has also purchased the land from the Thakkar Mavjibhai Dalpatbhai the order of which has been placed on record at Annexure I pg 65. Thus, the seller of the land in respect of the father of the petitioners as well as one Butaji Ranaji Patel is the same and in respect of Butaji Ranaji order has been passed granting N.A permission. 8. Thus, the seller of the land in respect of the father of the petitioners as well as one Butaji Ranaji Patel is the same and in respect of Butaji Ranaji order has been passed granting N.A permission. 8. It also appears from the record that vide order dated 13.2.2022 the Mamlatdar and ALT Deodar has regularised the transaction between the present petitioners and Mavjibhai Dalpatbhai relating to the said land for the purpose of agricultural use. This fact is not denied by the respondent. Not only that but also the said order is mutated in the revenue record vide entry no. 812 dated 21.3.2022 in village form no. 6 which also came to be certified on 23.4.2020. Thus, this fact has not been considered by the learned Collector while passing the impugned order though both these orders of this Court and the revenue entries mutated in the revenue record. Thus, the impugned order of the Collector needs to be set aside and the matter needs to be remanded back to the learned Collector to decide afresh after providing appropriate opportunity being granted to the petitioner. 9. In view of above, the present petition is partly allowed. The impugned order dated 26.5.2021 passed by the respondent District Collector in N.A Application No. A. Jaimin.2.Vashi.8641, is quashed and set aside. The matter is remanded back to the Collector to decide afresh in accordance with the observations made hereinabove, and after affording appropriate opportunity of being given to the petitioner. Such exercise shall be completed by the learned Collector as early as possible within a period of three months from the date of the receipt of the copy of this order. No order as to costs. Direct Service is permitted.