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2023 DIGILAW 184 (GUJ)

STATE OF GUJARAT v. AJAY SURENDRABHAI PATEL

2023-01-23

ARAVIND KUMAR, ASHUTOSH SHASTRI

body2023
JUDGMENT : ARAVIND KUMAR, J. 1. The appeal is of the year 2015. The same was admitted on 27.4.2015, hence, it is taken up for final disposal. 2. We have heard the arguments of Shri Sahil Trivedi, learned Assistant Government Pleader appearing for the State and Shri Dhaval Dave, learned senior counsel assisted by Shri Jigar M. Patel, learned advocate appearing for the respondent and perused the records. 3. The land bearing Revenue Survey Nos. 250/1 to 250/6 admeasuring 13891 sq. mtrs. Mauje: Makarba, Taluka: Daskroi, District: Ahmedabad (hereinafter referred to as “the subject land”) was allotted initially, in favour of one Lavar Chhaganlal Gangaram with a condition that same could not be subdivided vide order dated 15.6.1943. On the death of the original allottee on 5.3.1997, his legal heir namely Shri Purshottambhai, sought for mutating the revenue records and accordingly, it was mutated. On his demise, the legal heirs of Purshottambhai, sought for mutation of the revenue records and accordingly, the mutation was carried out in their names. The legal heirs of Purshottambhai, sold the land bearing Survey No. 250 to eight persons. Pursuant to which, the revenue records were mutated on 2.8.1996 as per entry no. 8065. 3.1 In 2002, at the instance of the State, the District Inspector of Land Records made six divisions of the land each admeasuring 2411/2412 sq. mtrs. resulting in mutation entry no. 9000 being effected in the revenue records on 20.6.2002 which, came to be certified on 30.10.2002. 3.2 The writ applicant, purchased all the divided pieces of land. Pursuant to which, the revenue records came to be mutated and was duly certified. The land bearing survey nos. 250/1 to 250/4, was purchased by petitioner 12.5.2005 and entry to the said effect was also made in the revenue records bearing entry no. 9736. The land bearing survey no. 250/5, was purchased by the petitioner on 1.8.2005, resulting in mutation of the revenue records in entry no. 9822. Likewise, the petitioner, purchased the land bearing survey no. 250/6 on 7.11.2005 and mutation entry no. 9878 was carried out accordingly. 9736. The land bearing survey no. 250/5, was purchased by the petitioner on 1.8.2005, resulting in mutation of the revenue records in entry no. 9822. Likewise, the petitioner, purchased the land bearing survey no. 250/6 on 7.11.2005 and mutation entry no. 9878 was carried out accordingly. 3.3 On account of entire land, not being possible to be cultivated; not being able to maintain the land by fighting against the powerful Bharwads who are said to have ravaged the crops through their cattle and the entire surrounding area having been constructed, resulted in petitioner seeking for conversion of the land for non- agricultural purposes. The Town Planning Scheme was also introduced in the adjacent area, which resulted in petitioner submitting an application under section 65 of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as “the Code”) seeking conversion of the subject land into non-agricultural purposes (hereinafter referred to as “N.A. permission”) vide application dated 6.1.2010 (at Annexure ‘G’). Said application came to be rejected on 23.3.2010 and being aggrieved by the same, petitioner approached the learned Single Judge in Special Civil Application no. 9045 of 2012 who, by impugned order allowed the petition and has directed the respondent to reconsider the case of the petitioner for grant of N.A. permission within a period of four weeks. Hence, the appeal. 4. This Court, while admitting the petition on 27.4.2015, had granted interim relief, staying the implementation, operation and execution of the order of the learned Single Judge dated 21.8.2014. 5. The thrust of the arguments of the learned Assistant Government Pleader appearing for the State, is to the effect that learned Single Judge, committed an error in directing the grant of N.A. permission in respect of the subject land by completely ignoring the fact that revenue authorities who are empowered to pass an order either granting or refusing the N.A. permission and as such, the impugned order directing grant of N.A. permission is liable to be set aside. It is also the contention of the learned Assistant Government Pleader that powers which are exercisable by the revenue authorities have been usurped by the learned Single Judge by directing the revenue authorities to grant N.A. permission and this, is contrary to the mandate of section 65 of the Code. It is also the contention of the learned Assistant Government Pleader that powers which are exercisable by the revenue authorities have been usurped by the learned Single Judge by directing the revenue authorities to grant N.A. permission and this, is contrary to the mandate of section 65 of the Code. 5.1 To contend that the State is required to act bona fide within the limits of the powers conferred under the Act and as such, the instrumentalities of the State are alone empowered to examine the claim of an applicant and hence, the power of judicial review is to be limited to that extent only and exercising the power of the executive by the judiciary, is impermissible, he prays for allowing the appeal. 5.2 The learned Assistant Government Pleader, would also contend that issue of title being of paramount consideration, while deciding an application for grant of N.A. permission, is required to be looked into or examined by the revenue authorities alone and without scrutiny of the same, the N.A. permission, cannot be ordered to be granted in favour of the applicant as has been done by the learned Single Judge. 6. Per contra, Shri Dhaval Dave, learned senior counsel appearing for the respondent, would support the impugned order. 7. Having heard the learned advocates appearing for the parties and after bestowing our careful attention to the rival contentions raised at the Bar, we are of the considered view that arguments canvassed by the learned Assistant Government Pleader, is fallacious. We say so, for the simple reason, that learned Single Judge, has only issued a writ of mandamus directing the respondents to consider the case of the petitioner for grant of N.A. permission and has not directed the authorities straightaway to grant the N.A. permission. For precise understanding of the writ issued by the learned Single Judge, it would be apt and appropriate to extract the very writ issued by the learned Single Judge which, is to the following effect: “7. The background of the facts xxx xxx quashed and set aside. The respondents are directed to consider the case of the petitioner for grant of NA permission within a period of 4 weeks. The memo of petition itself may be treated as a representation which may be considered. The background of the facts xxx xxx quashed and set aside. The respondents are directed to consider the case of the petitioner for grant of NA permission within a period of 4 weeks. The memo of petition itself may be treated as a representation which may be considered. In case of any difficulty it will be open for the petitioner to take appropriate steps including filing of the fresh proceedings. Rule is made absolute. No order as to costs. Sd/- (Judge).” 8. The above direction/mandamus issued by learned Single Judge, by no stretch of imagination could be construed as respondent authorities having been directed to grant N.A. permission. The words and expression clearly used are to consider the case of the petitioner for grant of N.A. permission. Thus, respondent authorities being within their power to examine the claim of petitioner in the manner known to law, said direction cannot be construed, as otherwise, as is sought to be canvassed by the learned Assistant Government Pleader. As such, we have opined hereinabove, the arguments of the learned Assistant Government Pleader is fallacious. 9. On account of pendency of the litigation for the past 13 years and for no fault of petitioner, he has been made to suffer. Had there been an appropriate order passed by the respondent authorities, in due compliance of the writ issued by the learned Single Judge, the matter would have gone to its logical end; however, we notice from records that on account of this appeal which, was admitted seven years back, has still been pending it has not seen the light of the day. 10. Hence, by not only dismissing this appeal and affirming the order of the learned Single Judge, we are constrained to observe that respondent authorities are required to consider the claim of the petitioner as directed by the learned Single Judge, expeditiously but we deem it proper to direct them to complete the exercise expeditiously and at any rate within an outer limit of 10 days from today, without waiting for copy of this order. 11. Subject to above, appeal stands dismissed. Order of the learned Single Judge dated 21.8.2014, stands affirmed. Rule is discharged. No order as to costs. 12. Pending applications, if any, stands consigned to records.