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2024 DIGILAW 1081 (GUJ)

Shekhar Govindbhai Patel v. Collector

2024-05-01

NIRZAR S.DESAI

body2024
JUDGMENT : 1. Heard. Learned Advocate, Mr. Vakil, for the petitioner and learned AGP, Ms. Sarda, for the Respondent. 2. By way of this petition, the petitioner has challenged two separate orders, passed by the Collector, Ahmedabad, in respect of two separate piece of lands for which the petitioner had made an application for conversion from agricultural to non-agricultural land and which came to be rejected vide orders dated 18.12.2023, on the ground that the predecessor- in-title of the subject land, sold the same to the petitioner without obtaining necessary permission from the competent authority and therefore, there is breach of the provisions of Section 63 of the Gujarat Tenancy and Agricultural Land Act, 1948 (in brief, ‘Tenancy Act’). 3. Heard, learned Advocate, Mr. Vakil, appearing for the petitioner and learned AGP, Ms. Sarda, appearing for the Respondent-State. 4. Though, there are two separate petitions filed in respect of two separate lands, but, considering the fact that the orders impugned in both the petitions are passed on the same date and as the parties are also same in both the matters, they are taken-up for hearing together and being disposed of by this common order. 4.1 Hence, RULE. Learned AGP, Ms. Sarda, waives service of rule for the Respondent. 5. Special Civil Application No. 1048 of 2024 is filed in respect of the part of the old tenure land bearing Survey No. 268/2, admeasuring 5123 sq.mts. (out of the total area of 10,421 sq.mts.), situated at Village: Godhavi, Taluka: Sanand, District: Ahmedabad (i.e. the land in question, herein after). 5.1 The land in question in SCA No. 1048 of 2024 originally belonged to one Bai Sarla Hematsang W/d. Khodabhai, as her name came to be entered into revenue record under the provisions of the Taluqdari Abolition Act, 1949 and a mutation entry being Entry No. 359, came to be mutated on 05.06.1954. 5.1.1 It appears that Bai Sarla made an application under Section 63 of the Tenancy Act to sell/transfer the land in question to one Archita Farm Pvt. Ltd. (‘AFPL’, herein after). 5.1.1 It appears that Bai Sarla made an application under Section 63 of the Tenancy Act to sell/transfer the land in question to one Archita Farm Pvt. Ltd. (‘AFPL’, herein after). Pursuant thereto, a certificate dated 08.10.1984 came to be issued by the Deputy Collector to AFPL, as provided under Rule 36(1)(f) of the Bombay Tenancy and Agricultural Rules, 1956 (in brief, ‘Tenancy Rules’) and then, the Deputy Collector passed an order dated 08.10.1984 and granted permission to sell/transfer the land in question to AFPL, on the term and conditions mentioned in the order datd 31.12.1984. The order of the Deputy Collector came to be recorded in the revenue record vide Entry No. 2367, Dated: 31.12.1984. Bai Sarla, pursuant to the order dated 08.10.1984 passed by the Deputy Collector, executed a registered sale deed dated 23.10.1984 in favour of AFPL and consequently AFPL was handed over the possession of the land, admeasuring 10,421 sq.mts., and the name of the AFPL came to be mutated in the revenue Record vide Entry No. 2374 on 31.12.1984. 5.1.2 Once the AFPL was put into possession of the lands in question, pursuant to the aforesaid sale deed, the AFPL executed a sale deed in favour of one Uresh Jayantilal and Mehul Ureshbhai on 07.03.2007 in respect of the land, admeasuring 10,421 sq.mts.. Thereafter, Uresh Jayantilal and Mehul Ureshbhai executed a ale deed dated 05.07.2023 in favour of the present petitioner and sold the land, admeasuring 5123.4 sq.mts.. Pursuant thereto, the name of the petitioner came to be mutated in the revenue record vide Entry No. 10914, Dated: 08.08.2023, and the same has been in force, as on today. 5.2 Insofar as, the facts of Special Civil Application No. 1085 is concerned, the same is filed in respect of the land, which originally belonged to one Khodaji Modji, as his name came to be entered in the revenue records vide Entry No.69, Dated: 08.05.1954, as per the provision of the Taluqdari Abolition Act. Since, Khodaji Modji passed away, the name of Ugraji Khodaji, who was his heir, came to be entered into the revenue record vide Entry No.582 on 19.01.1958. 5.2.1 After his name was entered in the revenue record, Ugraji Khodaji made an application, under Section 63 of the Tenancy Act, for the sell/transfer of the land in favour of one Sitaram Farm Pvt. Ltd. (‘SFPL’, in short). 5.2.1 After his name was entered in the revenue record, Ugraji Khodaji made an application, under Section 63 of the Tenancy Act, for the sell/transfer of the land in favour of one Sitaram Farm Pvt. Ltd. (‘SFPL’, in short). It appears that the Deputy Collector granted the permission under Section 63 of the Tenancy Act vide order dated 08.10.1984 and the same came to be recorded in the revenue record vide Entry No. 2368, Dated: 31.12.1984, whereupon, a registered sale deed came to be executed by said Ugraji Khodaji in favour of SFPL in respect of the land in question, admeasuring 11362 sq.mts, on 07.11.1984 and thereafter, the name of the SFPL came to be entered into revenue records vide Entry No. 2372 on 31.12.1984 and thereafter, the SFPL became the owner of the land in question upto 2006. 5.2.2 It appears that SFPL sold the land in question to one Uresh Jayantilal and Mehul Ureshbhai vide registered sale deed dated 29.01.2006 and for which Entry No. 5682 came to be mutated in the revenue record on 24.08.2007. 5.3 From now onward, the facts of both the petition are common and they are stated as under; After both the Farm companies, by way of the registered sale deed, executed in favour of Uresh Jayantilal and Mehul Ureshbhai in the year 2006 and 2007 respectively, the relevant revenue entries, in respect of respective sale deeds, were mutated in favour of Ureh Jayantilal and Mehul Ureshbhai in the revenue record. Thereafter, a part of the land, out of the land in question in both the petitions, came to be acquired by the railway. However, in view of the fact that the present petitions are filed only qua the rejection of the grant of permission of conversion of the land from agricultural to non- agricultural, the remaining, detailed history of the lands in question do not required to be gone into. However, in view of the fact that the present petitions are filed only qua the rejection of the grant of permission of conversion of the land from agricultural to non- agricultural, the remaining, detailed history of the lands in question do not required to be gone into. 5.4 The present petitioner purchased the lands in question in both the petitions from said Uresh Jayantilal and Mehul Ureshbhai by way of registered sale deeds in the year 2023 and thereafter, the petitioner made an application on 20.11.2023 for conversion of the land in question from agricultural to non-agricultural land, which came to be rejected by the Collector vide orders dated 18.12.2023, only the ground that there is breach of condition of the order, passed under Section 63 of the Tenancy Act. It is the aforesaid orders dated 18.12.2023, which are the subject-matter of theses petitions. Hence, the present petitions. 6. Learned Advocate, Mr. Vakil, appearing for the petitioner submitted that there is no valid justification for rejecting the application of the petitioner for grant of NA permission qua the lands in question, on the ground that no permission under Section 63 of the Tenancy Act was obtained by the predecessor-in-title of the petitioner, before selling the same. It was, further, submitted that the petitioner purchased the lands in question, by way of registered sale deeds, only in the year 2023 and prior thereto, whatever breach was committed, was committed by the predecessor-in-title of the petitioner, as the concerned Farm companies did not obtain any permission, as required under Section 63 of the Tenancy Act, to sell the land in question to Uresh Jayantilal and Mehul Ureshbhai and therefore, for the defaults committed by the erst-while owners of the lands in question, the petitioner cannot be penalized. It was submitted that the transactions in respect of the predecessors-in-title of the petitioner, which were executed in the year 2006-2007, and when the lands in question remained in possession of the predecessor-in-title of the petitioner for about 16 years, i.e. from 2006 to 2023, the Respondent-authority did not initiate any proceedings against them and not even a single notice was issued to them and it is only after the petitioner purchased the land in question in the year 2023 and made an application for conversion of the lands from agricultural to non-agricultural land, the same is denied on the ground of breach of the provisions of Section 63 of the Tenancy Act. It was submitted that no proceedings are initiated even as on today, against the persons, who are alleged to have committed the breach of Section 63 of the Tenancy Act. It was submitted that even after the rejection of the application of the petitioner for grant of NA permission, nothing has happened till date and therefore, the ground on which, the application of the petitioner for grant of NA permission is rejected, is not justifiable and therefore, the impugned orders deserve to be quashed and set aside. 6.1 Learned Advocate, Mr. Vakil, submitted that in view of the settled position of law, what is required to be seen by the Collector, at the time of considering an application under Section 65 of the Bombay Land Revenue Code is the ‘Occupant’ of the land in question, who wishes to use the land or any part thereof for any other purpose, shall apply to the Collector for his permission to do so and the Collector is not required to go into facts or into the question of ‘Title’ of the applicant. 6.2 Learned Advocate, Mr. Vakil, submitted that there are catena of decisions on this issue and some of the decisions, which will squarely apply to the facts of the case on hand are as under; (1) ‘Shaileshkumar Dahyabhai Patel Vs. State of Gujarat’, reported in 2016 (4) GLR 3084 ; (2) ‘Bhupatbhai Ranabhai Vs. State of Gujarat’, rendered on 27.12.206 in SCA No. 21219 of 2015; (3) ‘Tushar Harjibhai Ghelani Vs. State of Gujarat’, 2019 4 GLR 2578 ; (4) ‘Siraj Yakub Vs. State of Gujarat’, rendered on 09.06.2022 in SCA No. 18825 of 2019; (5) ‘Wellspun Decors LLP Vs. State of Gujarat’, reported in 2016 (4) GLR 3084 ; (2) ‘Bhupatbhai Ranabhai Vs. State of Gujarat’, rendered on 27.12.206 in SCA No. 21219 of 2015; (3) ‘Tushar Harjibhai Ghelani Vs. State of Gujarat’, 2019 4 GLR 2578 ; (4) ‘Siraj Yakub Vs. State of Gujarat’, rendered on 09.06.2022 in SCA No. 18825 of 2019; (5) ‘Wellspun Decors LLP Vs. State of Gujarat’, rendered on 04.08.2022 in SCA No. 5254 of 2022; (6) ‘Dipak Patel and Shekhar Patel Vs. State of Gujarat and Others’, rendered on 28.03.2023, 25.04.2023 in SCA No. 2220 of 2023; 6.3 By making the above submissions, it was prayed that these petitions be allowed and by quashing and setting aside the impugned orders dated 18.12.2023, the matter be remanded back to the Collector, Ahmedabad, for deciding the same afresh and in accordance with law and with a direction not to reject the application of the petitioner for grant of NA permission, on the ground of breach of the provisions of Section 63 of the Tenancy Act. 7. On the other hand, learned Advocate, Ms. Sarda, appearing for the Respondent-State vehemently opposed both these petitions and submitted that in the year 1984, when the permission to sell/transfer the lands in question was granted by the Deputy Collector, on the condition that the lands in question shall be used by those Pharma companies, only for the purpose for which the permission is granted and that they have to obtain a prior permission of the competent authority before sell/transfer, thereof, to any other person. It was submitted that in view of the fact that, those Pharama companies did not obey the conditions imposed upon them vide orders passed in the year 1984 and sold the lands in question to Uresh Jayantilal and Mehul Ureshbhai in the year 2006-2007, the Collector is justified in rejecting the application of the petitioner for grant of NA permission. Thus, by making the above submissions she vehemently opposed these petitions and tried to justify the action of the Respondent authority, however, he could not point out anything more, than, what is already stated in affidavit-in-reply, which narrates the history of the land and the facts, as to how the provisions of Section 63 of the Tenancy Act are breached. Thereby, she prayed that the impugned orders being just, legal and proper, these petitions be dismissed. 7.1 However, learned AGP, Ms. Thereby, she prayed that the impugned orders being just, legal and proper, these petitions be dismissed. 7.1 However, learned AGP, Ms. Sarda, even after taking the instructions, could not dispute the fact that neither any proceedings are initiated nor any action is taken against the Pharma companies, who sold the lands in question to Uresh Jayantilal and Mehul Ureshbhai, i.e. the predecessor-in-title of the present petitioner, and not even a single notice is issued to anyone interested in the lands in question, at any point of time, after the orders dated 18.12.2023 were passed. 7.2 Thus, by making the above submissions, learned AGP, Ms. Sarda, tried to justify the action on the part of the Respondent- authorities, however, she could not point out anything, other than what is already stated in the affidavit-in-reply and which only narrates the history of the land and as to how the provisions of Section 63 of the Tenancy Act are breached. She, therefore, prayed for dismissal of these petitions by trying to defend the orders passed by the Respondent-authorities as just, legal and proper. 8. I have heard the learned Advocates for the parties and also perused the material on record and I find that the lands in question were the lands for which, at the relevant point of time, i.e. in the year 1984, the permissions to sell/transfer the same were sought by the original owners of the lands in question and accordingly, both the lands were sold to two different Farm companies. It is true that when the permission to sell/transfer the lands in question was granted vide orders dated 08.10.1984, certain conditions were imposed on those Farm Companies. Thereafter, as can be seen from the record, the lands in question remained with the Farm companies from 1984 to 2006-2007, i.e. until they sold the same to Uresh Jayantilal and Mehul Ureshbhai. At the relevant point of time, it seems that both the Farm Companies breached the condition of the order dated 08.10.1984 and did not obtain the permission of the competent authorities, as required under Section 63 of the Tenancy Act. The aforesaid act of the Farm companies was viewed as a breach by the Respondent-authorities, while denying the permission to convert the lands in question to NA lands. The aforesaid act of the Farm companies was viewed as a breach by the Respondent-authorities, while denying the permission to convert the lands in question to NA lands. However, what is important is the fact that the Respondent-authorities completely ignored or overlooked the fact that such breach had taken place in the year 2006 and 2007 and thereafter, the lands in question had remained with Uresh Jayantilal and Mehul Ureshbhai for the period of about 16 years, as the present petitioner purchased the lands in question only in the year 2023. For 16 years, though, the breach committed by those Farm Companies continued, no notice was issued either to the Farm Companies or Uresh Jayantilal and Mehul Ureshbhai, who were the predecessors- in-title of the lands in question. As far as the present petitioner is concerned, in absence of initiation of any proceedings during the period of 16 years, i.e. during the time when the breach of Section 63 of the Tenancy Act had continued in respect of the lands, which were sold by those Farm Companies to the predecessors-in-title of the lands in question, neither any steps were taken by the State Government nor any actions initiated against those persons and it is only after the aforesaid breach of condition, which had continued for about 16 years, when the petitioner purchased the lands in question in the year 2023 and made an application for getting NA permission, the Respondent-authorities rejected the same by highlighting the aforesaid breach of Section 63 of the Tenancy Act, which is committed by some other persons and which the petitioner would not be even knowing. 8.1 This is the sole ground on which the petitioner’s application for NA is rejected. Though, considering the fact that the order was passed on 18.12.2023, even thereafter also till today, no proceedings are initiated against anyone, which go to show that the aforesaid ground, on which the petitioner’s application seeking NA permission was rejected, was only an excuse to deny the NA permission to the petitioner. As there are no actions taken against any of the persons, who were a party to the aforesaid breach, or even now also, as learned AGP, Ms. As there are no actions taken against any of the persons, who were a party to the aforesaid breach, or even now also, as learned AGP, Ms. Sarda, even after taking instructions, could not point out that, at any point of time, even a notice is served upon the persons, who are actually responsible for the breach of Section 63 of the Tenancy Act and who did not obtain the prior permission before selling the lands in question. Therefore, the ground on which the petitioner’s application for NA permission is rejected is absolutely unjustifiable and therefore, the same is required to be quashed and set aside. 9. Resultantly, the impugned orders dated 18.12.2023 are required to be quashed and set aside and the same are quashed and set aside, accordingly. The matter is remanded to the Collector, Ahmedabad, for fresh consideration of the petitioner’s application dated 20.11.2023 and he is directed to consider and decide the same in accordance with law and within the time frame prescribed under Section 63 of the Tenancy Act. 9.1 With the aforesaid observations, both the petitions are allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.