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2022 DIGILAW 801 (GUJ)

DIPESHBHAI POPATBHAI MEHTA v. STATE OF GUJARAT

2022-06-23

VIPUL M.PANCHOLI

body2022
JUDGMENT : VIPUL M. PANCHOLI, J. 1. By way of this petition, which his filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 18.02.2009 passed by the Secretary, Revenue Department (Appeals). 2. Heard learned advocate, Mr. Tatvam Patel for the petitioner and learned AGP Mr. Hardik S. Soni for the respondents. 3. Learned advocate for the petitioner submitted that the dispute in the present petition is with regard to the land bearing Survey No. 267 pk. admeasuring 9105 Sq. Mtrs. situated in Village: Orvad, Taluka: Pardi, District: Valsad. The disputed land was originally owned and occupied by one Rohitkumar Babubhai Desai. The petitioner purchased the said land from the concerned land owner on 06.04.1999 by registered sale deed and, thereafter, the name of the petitioner came to be mutated in the revenue record on the basis of the registered sale deed. As the petitioner wanted to use the said land for bona-fide industrial purpose, he applied to the concerned panchayat for grant of no objection for granting permission under Section 65 of the Bombay Land Revenue Code (hereinafter referred to as “the Code” for short). It is submitted that the concerned Gram Panchayat passed Resolution on 28.12.2001, whereby the Panchayat has resolved to grant no objection for the grant of NA permission to the petitioner. It is submitted by learned advocate for the petitioner that as the petitioner wanted to set up factory for the production of Aluminum Collapsible Tubes, he applied for the development permission to be granted by the concerned panchayat. The petitioner got required forms filled up by the registered structural designer, who was holding valid licence. Thereafter, the petitioner submitted an application on 13.06.2002 for obtaining NA permission under Section 65 of the Code for the land in question. The said application was submitted to the Taluka Development Officer, who was the competent authority to grant such permission. It is submitted that the petitioner supplied all the required details and the documents along with the said application and after making necessary inquiry as contemplated under Section 65 of the Code, the concerned competent authority granted permission under Section 65 of the Code in favour of the petitioner. The petitioner, thereafter, started construction work in the land in question and installed machinery. It is submitted that the construction was carried out as per the sanctioned plans. 4. The petitioner, thereafter, started construction work in the land in question and installed machinery. It is submitted that the construction was carried out as per the sanctioned plans. 4. At this stage, learned advocate further submitted that thereafter, the respondent no. 1 issued show-cause notice dated 30.07.2003 while exercising suo motu powers under Section 211 of the Code. In the said show-cause notice, it has been alleged that the petitioner has not obtained opinion of the Executive Engineer, R&B Department, Valsad. The petitioner has also not obtained NOC from the Gujarat Pollution Control Board (“GPCB” for short”) as the petitioner obtained permission for running factory. It is also alleged that the petitioner did not submit Form Nos. 2(a), 2(b), 2(c) and 2(d) as per the order of the concerned department of the Government and lastly, it was alleged that the petitioner has not prepared the plan from the registered architect. The petitioner was therefore asked to show-cause why NA permission granted by the competent authority should not be cancelled. It was also observed in the said show-cause notice that till final decision is taken by the respondent no. 1, the petitioner shall not carry out any further construction in the land in question. 5. Learned advocate submits that the petitioner immediately gave reply on 08.08.2003 and pointed out correct facts. It is submitted in the reply that the Gram Panchayat has already granted NOC as NOC was required to be obtained from the Gram Panchayat as it is an internal village road. It is further stated in the reply that the application is already submitted to the GPCB, Vapi along with required fees and the site inspection was carried out and the file was forwarded to GPCB, Gandhinagar and in fact, as the project is for manufacturing of aluminum collapsible tubes, there is no emission of air and there is no usage of water and, hence, permission was not required. It is further stated that Form Nos. 2(a), 2(b), 2(c) and 2(d) were already submitted before the competent authority and the site plan was also prepared and submitted to the competent authority. The said plans were prepared by the registered architect, who was holding valid licence in his favour. 6. At this stage, learned advocate for the petitioner contended that though the said reply was given on 08.08.2003, the respondent no. The said plans were prepared by the registered architect, who was holding valid licence in his favour. 6. At this stage, learned advocate for the petitioner contended that though the said reply was given on 08.08.2003, the respondent no. 1 passed the impugned order after a period of six years i.e. on 18.02.2009. It is submitted that while passing the impugned order, the respondent no. 1 has observed that the permission was granted by the competent authority without the opinion of the Executive Engineer and as on 08.08.2003, NOC from GPCB was not obtained. Further, it was observed that Form Nos. 2(a), 2(b), 2(c) and 2(d) were produced subsequently. It is also observed that the plan was prepared by the Architect, however, there is no reference or details with regard to the registration. By observing aforesaid, the respondent no. 1 has cancelled NA permission, which was granted by the competent authority in favour of the petitioner. The petitioner has, therefore, filed the present petition challenging the impugned order. 7. Learned advocate for the petitioner would submit that as per the provision contained in Section 65 of the Code, the petitioner submitted an application with required documents and, thereafter, it was for the competent authority to make necessary inquiry as per the guidelines issued by the State Government. It is further submitted that the petitioner supplied necessary details and, thereafter, the competent authority obtained opinion of various authorities and, thereafter, granted NA permission in favour of the petitioner. While granting such permission, the competent authority was required to examine whether the petitioner was occupant or not and the land in question is assessed for the agriculture purpose or not. These two requirements are required to be fulfilled by the petitioner when the application for grant of NA permission was submitted. As the petitioner was fulfilling both the aforesaid conditions, the competent authority, after making inquiry, granted permission in favour of the petitioner. It is further contended that after getting NA permission from the competent authority, the petitioner carried out construction and machinery were installed and after a period of more than seven months, show-cause notice was issued by the respondent no. 1 while exercising powers under Section 211 of the Code. It is further contended that after getting NA permission from the competent authority, the petitioner carried out construction and machinery were installed and after a period of more than seven months, show-cause notice was issued by the respondent no. 1 while exercising powers under Section 211 of the Code. It is submitted that as per the decision rendered by the Hon’ble Supreme Court in case of State of Gujarat vs. Patel Raghav Natha, (1969) 2 SCC 187 , such powers are required to be exercised within few months of the order of the Collector. It is further submitted that as per the decision rendered by this Court in case of Chhotalal Madhavbhai Patel and Another vs. State of Gujarat, 1995 (1) GLR 407 , whole exercise of revision must be done within time frame as provided by the Supreme Court in case of Raghav Natha (supra). In the present case, the respondent no. 1 though issued show-cause notice after a period of seven months from the date of passing of the order by the competent authority, passed final order on 18.02.2009. Thus, it is submitted that the impugned order is required to be quashed and set aside on this ground also. 8. Learned advocate for the petitioner, thereafter, contended that even the grounds stated in the impugned order are also not correct. In fact, the petitioner got NOC from GPCB on 28.08.2003 even prior to the impugned order passed by the respondent no. 1. The said permission is renewed by the GPCB from time to time and as on date, the petitioner is having valid NOC from GPCB. It is further submitted that required forms were also produced before the authority. Further, the opinion of the Executive Engineer, R&B Department was not required, which was clearly pointed out to the respondent no. 1 and in fact, NOC of the Gram Panchayat was already obtained. Further, the plan was prepared by the Architect, who was holding the valid licence issued by the competent authority. Thus all four grounds referred to in the impugned order are not tenable in eye of law and, therefore, the impugned order passed by the respondent no. 1 be quashed and set aide. 9. Learned advocate for the petitioner has placed reliance upon the decision rendered by this Court in case of Tusharbhai Harjibhai Ghelani vs. State of Gujarat, 2019 (4) GLR 2578 . 1 be quashed and set aide. 9. Learned advocate for the petitioner has placed reliance upon the decision rendered by this Court in case of Tusharbhai Harjibhai Ghelani vs. State of Gujarat, 2019 (4) GLR 2578 . Learned advocate has more particularly referred to the observations made in Paragraph Nos.38 and 39 of the said decision. Learned advocate, therefore, urged that the impugned order be quashed and set aside. 10. On the other hand, learned AGP has opposed this petition. Learned AGP has referred to the show-cause notice issued by the respondent no. 1 and, thereafter, submitted that the said show-cause notice was immediately issued to the petitioner within a period of seven months from the date of granting permission by the concerned authority in favour of the petitioner. Thus within reasonable time, the respondent authority has initiated proceeding under Section 211 of the Code. It is further submitted that the petitioner did not submit required documents before the competent authority at the time of filing of application under Section 65 of the Code and, therefore, the respondent no. 1 initiated the proceeding under Section 211 of the Code. It is further submitted that in the show-cause notice itself, the petitioner was asked to stop the construction, inspite of that, it appears that the petitioner has carried out construction and, therefore merely because the petitioner has carried out construction in the land in question, this Court may not quash and set aside the impugned order. Learned AGP has referred to the reasoning recorded by the respondent no. 1 while passing impugned order and, thereafter, submitted that the respondent no. 1 has not committed any error, therefore, this Court may not entertain the present petition. 11. I have considered the submissions canvassed by learned advocates appearing for the parties. I have also perused the material placed on record and the decisions upon which reliance is placed by learned advocate for the petitioner. 1 has not committed any error, therefore, this Court may not entertain the present petition. 11. I have considered the submissions canvassed by learned advocates appearing for the parties. I have also perused the material placed on record and the decisions upon which reliance is placed by learned advocate for the petitioner. It would emerge from the record that the petitioner purchased the land in question by registered sale deed from the original land owner on 06.04.1999, thereafter, the name of the petitioner was mutated in the revenue record as the petitioner is the owner and occupier of the land in question and as the petitioner wanted to use the said land for bona-fide industrial purpose, he submitted an application before the competent authority for the grant of NA permission under Section 65 of the Code. The competent authority, after making inquiry and after obtaining the opinion from the concerned authority, granted such permission in favour of the petitioner on 02.11.2002. The petitioner, thereafter, started construction of the building in the land in question and installed machinery and, thereafter, the respondent no. 1 issued show-cause notice on 30.07.2003 alleging that the petitioner has not obtained required opinion and not supplied required details and, thereafter, the impugned order has been passed by the respondent no. 1 on 18.02.2009. 12. At this stage, this Court would like to refer to the provision contained in Section 65 of the Code, which reads as under: “65. Uses to which occupant of land for purposes of agriculture may put his land: (1) Any occupant, of land [assessed or held for the purpose of agriculture] is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient [use for the purpose aforesaid]. But, if any occupant [wishes to use his holding] or any part thereof for any other purpose [or for other different purposes] the Collector’s permission shall in the first place be applied for by the [***] occupant. The Collector, on receipt of such application: (a) shall send to the applicant a written acknowledgement of its receipt. But, if any occupant [wishes to use his holding] or any part thereof for any other purpose [or for other different purposes] the Collector’s permission shall in the first place be applied for by the [***] occupant. The Collector, on receipt of such application: (a) shall send to the applicant a written acknowledgement of its receipt. (b) may, after due inquiry, either grant or refuse the permission applied for: Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the Collector sends a written acknowledgement within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application. Unless the Collector shall in particular instances otherwise direct, no such application shall be recognized except it be made by the [***] occupant. (2) Notwithstanding anything contained in sub-section (1) but subject to any terms and conditions laid down by the State Government in this behalf, where an occupant has his holding in an area comprising a gram and such area is not within an urban agglomeration or within a radius of five kilometres from the limits of a municipal borough or notified area or industrial estate and such occupant wishes to use his holding or a part thereof only for a residential purpose, it shall not be necessary for him to obtain permission of the Collector under sub-section (1).” 13. From the aforesaid provision, it is revealed that any occupant of land, who wants to use the agriculture land for any other non-agriculture purpose, he has to submit application before the competent authority and the competent authority can, after making necessary inquiry either grant or refuse the permission within stipulated time. 14. In case of Tusharbhai Harjibhai Ghelani (supra), this Court has observed in Paragraph Nos. 38 and 39 as under: “[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. 38 and 39 as under: “[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. 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.” 15. 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.” 15. From the aforesaid observation made by this Court, it is clear that for the purpose of grant of NA permission, the Collector should look into whether the applicant seeking NA permission is an occupant of the land, which is being assessed or held for the purpose of agriculture. In the present case, it is not in dispute that the petitioner is the owner and occupant of the land in question and the said land was assessed as agriculture purpose. 16. Further, the State Government issued guideline for issuance of NA permission by the competent authority, copy of the said Government Resolution dated 01.07.2008 issued by the State Government is placed on record at Page No. 99. From the aforesaid resolution, it is clear that before granting NA permission, the competent authority is required to follow certain procedure. In this case, the authority has followed such procedure. It is reflected from the record that in the present case, the petitioner has already obtained NOC from GPCB in the month of August, 2003 i.e. prior to the impugned order passed by the respondent no. 1. It is also clear from the record that the land in question is situated near the village road and, hence, opinion of Executive Engineer, R&B Department was not required and in fact, the said authority has issued certificate to that effect, copy of which is placed on record at Page No. 78 of the compilation. The petitioner has also submitted required Form Nos. 2(a), 2(b), 2(c) and 2(d) and the plan was also prepared by the registered architect. Thus the petitioner has not committed any irregularities/ illegalities as alleged in the show-cause notice as also as observed by the respondent no. 1 while passing impugned order. It is also reflected from the record that the construction was carried out by the petitioner in the land in question and machinery was installed and, thereafter, the show-cause notice was issued by the respondent no. 1 to the petitioner. 17. In case of Raghav Natha (supra), the Hon’ble Supreme Court has observed in Paragraph Nos. 11 and 12 as under: “11. 1 to the petitioner. 17. In case of Raghav Natha (supra), the Hon’ble Supreme Court has observed in Paragraph Nos. 11 and 12 as under: “11. The question arises whether the Commissioner can revise an order made u/s. 65 at any time. It is true that there is no period of limitation prescribed u/s. 211, but it seems to us plan that this power must be exercised in reasonable time and the length of the reasonable time must be determined of the facts of the case and the nature of the order which is being revised. 12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act u/s. 211. u/s. 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Ss. 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on 12.10.1961, i.e. more than a year after the order and it seems to us that this order was passed too late.” 18. In case of Chhotalal Madhavbhai Patel, this Court has observed in Paragraph No. 19 as under: “19. The learned Government Counsel Ms. Mandavia wanted to urge with great emphasis that, even if the principle is to be accepted that the revisional powers must be exercised under Section 211 of the Code within a reasonable time, the resonableness of the time should be decided qua the date of the commencement of the proceedings. The learned Government Counsel Ms. Mandavia wanted to urge with great emphasis that, even if the principle is to be accepted that the revisional powers must be exercised under Section 211 of the Code within a reasonable time, the resonableness of the time should be decided qua the date of the commencement of the proceedings. M/s. Mandavia placing reliance upon the observations of the revisional authority wanted to urge further that, this all was brought to the notice of the Government, some officer was appointed to make necessary inquiries and ultimately the notices were issued and the powers were exercised. The learned Counsel Mr. Patel for the petitioners while replying this contention wanted to urge that, there is absolutely no mention in the show-cause notice saying that the Government would like to treat the orders as orders in nullity. The learned Counsel further urges that, what the Government had done as a spade work, preparatory to the exercise of the powers under Section 211 was never brought to the notice of the petitioners and that this becomes evident for the first time, when one reads the orders of the revisional authority. The question appears to have been decided in case of Raghav Natha (supra). The Supreme Court does not speak of the initiation of the proceedings under Section 211 of the Code. This decision of the Supreme Court and the decision referred to above, would speak not of initiation of the proceedings but the exercise of the revisional powers under Section 211. The whole exercise of revision must be done within the time frame as provided by the Supreme Court in the case of Raghav Natha (supra). If the Supreme Court wanted to rule that even an initiation of the proceedings by way of notice within a reasonable time would salvage the situation. It would have so befallen from the Supreme Court, which has not happened. Moreover, no decision says that some preliminary exercise to be done by the Government popularly known as ‘Spade Work’ would amount to the exercise of the powers within the meaning of Section 211 of the Code. Moreover, if initiation is to be taken into consideration, then also, as seen from the Table, it is definitely not within the time frame. The spade work or the inquiry by some Government officer would not tantamount to exercise of the powers under Section 211 of the Code. Moreover, if initiation is to be taken into consideration, then also, as seen from the Table, it is definitely not within the time frame. The spade work or the inquiry by some Government officer would not tantamount to exercise of the powers under Section 211 of the Code. In view of this position even if it is accepted, disregarding the contention of the learned Counsel Mr. Patel that nothing was brought to the petitioner even during the course of the hearing, then also, all what is done by the revisional authority cannot be said to be the exercise within the time frame provided by the Supreme Court in case of Raghav Natha (supra).” 19. From the aforesaid decisions rendered by the Hon’ble Supreme Court as well as this Court, it is clear that the respondent authority is required to exercise the power under Section 211 of the Code within few months from the date of passing of the order under Section 65 of the Code by the competent authority and such exercise is to be completed within time framed as provided by the Hon’ble Supreme Court in case of Raghav Natha (supra). In the present case, it is not in dispute that the respondent no. 1 has initiated proceeding under Section 211 of the Code while issuing show-cause notice after a period of seven months from the date of granting NA permission from the competent authority and the impugned order has been passed on 18.02.2009 i.e. after a period of more than six years. 20. Considering the aforesaid facts and circumstances of the present case, this Court is of the view that the respondent no. 1 has committed an error while passing impugned order cancelling NA permission granted by the competent authority in favour of the petitioner and, therefore, the impugned order is required to be quashed and set aide and accordingly the same is quashed and set aside. Rule is made absolute.