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2024 DIGILAW 539 (GUJ)

Nilamber Members Association v. State Of Gujarat

2024-03-14

NIRZAR S.DESAI

body2024
ORDER : 1. Though the record is bulky, the controversy in question is not as complex as it has been projected. 2. By way of this petition, the petitioner has challenged the order dated 30.6.2022 passed by the Special Secretary, Revenue Department (Appeals) in Revision Application No.MVV/BKP/VDD/8/2021 whereby the petitioner's revision application was rejected and order dated 27.12.2019 passed by the respondent No.2 - District Collector, Vadodara granting N.A. permission in favour of respondent No.4 was confirmed. 3. The brief facts, though are stated lengthy in the petition, which are relevant for the purpose of the present petition, are summarized as under :- 3.1 The petitioner is a Registered Association under the provisions of the Non-Trading Corporation Act, 1959 and the same was formed for the purpose of management and administration of the immovable properties owned by the members of the Association. A Scheme formed by the members of the petitioner Association known as Nilamber Bungalows No.1, which includes all the bungalows forming part of the said project which are 33 in number. The said project is developed on the land bearing Survey No.6/1, 6/2, 11/1 and 11/2 admeasuring about 15,885 Sq. Mts. Of village Vasanasaiyed, Taluka & District Vadodara. As per the petition, in respect of land in question, N.A. permission was granted in the year 1992 and thereafter, respondent No.4 who is holding Plot No.B/1 admeasuring 630 Sq. Mts. in the aforesaid Scheme applied for revised N.A. permission before the Collector, Vadodara which was granted vide order dated 27.12.2019. 3.2 It is the case of the petitioner that the aforesaid N.A. permission granted by the District Collector, Vadodara includes some of the land which is claimed to be the land of the Association and, therefore, the petitioner preferred Special Civil Suit No.136 of 2020 before the Civil Court at Vadodara with a prayer to restrain the respondent No.4 from putting up any construction. As the petitioner failed to get any relief from the Civil Court, in subsequent attempt, to stop respondent No.4 from putting up construction, in the year 2021, the petitioner challenged the order dated 27.12.2019 of the District Collector, Vadodara by preferring Revision Application No.MVV/BKP/VDD/8/2021 before the learned SSRD who rejected the revision application of the petitioner vide order dated 30.6.2022. 3.3 Hence the present petition challenging both the orders of the learned SSRD as well as District Collector, Vadodara. 4. 3.3 Hence the present petition challenging both the orders of the learned SSRD as well as District Collector, Vadodara. 4. It is pointed out by learned Senior Counsel Mr. D. C. Dave appearing with Mr. Jigar Raval for respondent No.4, upon instructions, that in the meantime, development plans submitted by respondent No.4 were approved and even the same was also challenged by the petitioner before this Court by way of Special Civil Application No.10831 of 2022. However, at the time of hearing of the petition on 15.9.2022, the said prayer was not pressed by the petitioner. Accordingly, the said petition was disposed of with a direction to the Vadodara Municipal Corporation to decide the representation of the petitioner. Even the said representation has also been rejected by the Corporation. 4.1. Learned Senior Counsel Mr. Dave further pointed out that the aforesaid efforts made by the petitioner would indicate that the petitioner has not left any stone unturned in ensuring that the respondent No.4 could not put up construction despite having N.A. permission as well as development plans in her favour. 5. In the above factual backdrop, the petition was heard. 6. Learned advocate Mr. Bhargav Hasurkar appearing for the petitioner has made the following submissions :- 6.1 At the time of granting revised N.A. permission, the authority did not consider the fact that the area for which N.A. permission was sought includes common land meant for other members of the Association as well. Therefore, the revised N.A. permission granted by the Collector, Vadodara was erroneous as the same is in respect of more area for which respondent No.4 was not entitled. 6.2 That since the petitioner did not get any relief in the civil litigation from the competent Civil Court at Vadodara, against the order dated 7.7.2021 passed by learned Additional Senior Civil Judge, Vadodara below application Exh.14 in Special Civil Suit No.136 of 2020, the petitioner has preferred Appeal From Order No.126 of 2022 which is pending before this Court. However, there is no relief granted by this Court in the said Appeal From Order. He, therefore, submitted that in view of the above facts, since the petitioner's substantial prayer in respect of restraining respondent No.4 from putting up construction has not been rejected till date, therefore, this Court may interfere with the impugned orders. 6.3 Except the aforesaid submissions, no other submissions were made by learned advocate Mr. He, therefore, submitted that in view of the above facts, since the petitioner's substantial prayer in respect of restraining respondent No.4 from putting up construction has not been rejected till date, therefore, this Court may interfere with the impugned orders. 6.3 Except the aforesaid submissions, no other submissions were made by learned advocate Mr. Hasurkar. 7. Mr. D. C. Dave, learned Senior Counsel assisted by Mr. Jigar Raval for respondent No.4 submitted that the petitioner does not have any locus to challenge the impugned orders for the reason that the petitioner is a Non-trading Association and is only a Service Society and it is formed for taking care of maintenance and other common amenities of the Association. 7.1 Learned Senior Counsel Mr. Dave further submitted that though the petitioner has run from pillar to posts, the petitioner has not succeeded even once before any of the authorities as the petitioner's challenge in respect of restraining the respondent No.4 from putting up construction before the Civil Court did not find any favour. The petitioner also challenged the N.A. permission where also the petitioner failed. Not only that, when development plans were approved by the Corporation, the petitioner also challenged the same before this Court and ultimately, the petitioner preferred representation before the Corporation which also came to be rejected which would indicate that at no point of time, there were any prohibitory orders against the respondent No.4 restraining her to put up any construction. He further submitted that on account of order of status-quo passed by this Court, the respondent No.4 is restrained from putting up any further construction since 2022 and hence, considering the fact that the substantial challenge of the petitioner is restraining the respondent No.4 from putting up the construction and for that Appeal From Order is pending before this Court wherein till date, no relief is granted in favour of the petitioner, this Court may not entertain the petition. 7.2 Learned Senior Counsel Mr. Dave further submitted that merely because the petitioner has is claiming some right over the overlapping land, as claimed by the petitioner, but not admitted by the respondent No.4, such permission cannot be said to be granted erroneously. 7.3 Learned Senior Counsel Mr. 7.2 Learned Senior Counsel Mr. Dave further submitted that merely because the petitioner has is claiming some right over the overlapping land, as claimed by the petitioner, but not admitted by the respondent No.4, such permission cannot be said to be granted erroneously. 7.3 Learned Senior Counsel Mr. Dave further submitted that revised N.A. permission is just an extension of original N.A. permission and, therefore, once original N.A. permission was granted in respect of entire Society, the same may not be interfered with at this stage by this Court. Even otherwise, the petitioner has failed to point out any irregularities committed either by the Collector, Vadodara or by the SSRD while passing the impugned orders. By making the aforesaid submissions, he prayed for dismissal of the petition. 8. Ms. Nirali Sarda, learned Assistant Government Pleader appearing for respondent Nos.1 and 3 submitted that the impugned orders passed by the authorities are in accordance with law and, therefore, this Court may pass appropriate order as the State is only a formal party. 9. I have heard learned advocates for the parties and perused the record. On perusal of the record, I find that the petitioner has made all possible attempts to stop the respondent No.4 from putting up the construction despite the fact that revised N.A. permission was granted in favour of respondent No.4 and thereafter, development plans are also sanctioned by the Corporation. From the grievance of the petitioner, what transpires is the fact that real grievance is in respect of revised N.A. permission which is granted in respect of a portion of land which is claimed by the Society as the same is a common portion which can be said to be of the members of the Society and not exclusive portion of the present respondent No.4. In respect of the said dispute, the petitioner has rightly approached the Civil Court. However, Civil Court has not granted any relief in favour of the petitioner. Therefore, the petitioner has challenged the order of the Civil Court before this Court by way of Appeal From Order which is pending as on date where also no relief is granted. I have also further considered that thereafter, even development plans were also approved by the Corporation which was subject matter of Special Civil Application No.10831 of 2022. Therefore, the petitioner has challenged the order of the Civil Court before this Court by way of Appeal From Order which is pending as on date where also no relief is granted. I have also further considered that thereafter, even development plans were also approved by the Corporation which was subject matter of Special Civil Application No.10831 of 2022. However, even the said writ petition was also not decided in favour of the petitioner and this Court directed the Corporation to decide the representation of the petitioner which was also decided by the Corporation against the petitioner. 10. Considering the aforesaid background, now what is required to be seen is as to what extent, petitioner is entitled to challenge the revised N.A. permission granted by District Collector, Vadodara. In this regard, observations made by this Court in the decision in the case of Tusharbhai Harjibhai Ghelani v. State of Gujarat, reported in 2019 (4) GLR 2578 , more particularly paragraphs 35 to 47 are relevant, which are reproduced as under :- "35. Section 65 of the Code, referred to above, on its plain reading, do not provide for any scope of raising objection by any party who is yet to establish its right in his favour over the land in question. In other words, the proceedings under section 65 of the Code is not an adversary proceeding at all. 36. In section 65 of the Code, referred to above, two words are of pivotal importance; (i) "occupant" and (ii) "holding". It reads as under :- "3 (12) :- "holding" :- "holding" means a portion of land held by a holder." 37. Section 3(16) defines the term "occupant". It reads as under :- "3(16):-"occupant"; "occupant means a holder in actual possession of unalienated land, other than a tenant; provided that where the holder in actual possession is tenant the landlord or superior landlord, as the case may be, shall be deemed to be the occupant." 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. 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. 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. 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. 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. 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 C/SCA/494/2015 JUDGMENT 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 throatling 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. 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. 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. 47. It would have been in the fitness of things if the appeal from order pending before this Court would have been decided by now one way or the other. However, the question is whether this appeal from order has any bearing over the issue in question. Let me assume for the moment that the appeal from order is ordered to be dismissed and the order of status quo passed by the Civil Court is affirmed. Will this be a legal impediment in the way of the Collector in considering the prayer for grant of N.A. Permission. In my view, the answer is in the negative. The order of status quo would mean that the writ applicants shall not change or alter the nature, character and possession of the property in question. The order of status quo cannot be a legal impediment so far as the grant of N.A. Permission is concerned. In future, if any further injunction is granted by the Civil Court in the suit filed by the respondents Nos.3 to 17, or as noted above, if the order of status quo passed by the Civil Court is affirmed by this Court in the appeal from order, then the writ applicants will not be in a position to develop the land. However, that does not mean that they cannot pray for permission to put the land for non-agricultural use." 11. The above referred observations, particularly observations made in paragraphs 36 and 37 would indicate that the important factors for grant of N.A. permission are "holding" and "occupant" in respect of the land in question. It is an undisputed fact that the present respondent No.4 is the holder and occupant of the land in question. The above referred observations, particularly observations made in paragraphs 36 and 37 would indicate that the important factors for grant of N.A. permission are "holding" and "occupant" in respect of the land in question. It is an undisputed fact that the present respondent No.4 is the holder and occupant of the land in question. Further, as far as pendency of civil litigation is concerned, this Court in the above referred decision, in paragraphs 45 to 47 has elaborately discussed about the impact of pendency of civil dispute. In fact, while relying upon the decision of this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat, 2012 (2) GLR 1741 , observations made in paragraphs 20 and 21 were reproduced in the above referred decision wherein in paragraph 20, this Court has observed that the N.A. permission under Section 65 cannot be said to be 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, which would indicate that the permission is granted in respect of land and, therefore, if any grievance is in respect of any construction put up on the private land, the same has already been challenged by the petitioner by way of civil suit and now Appeal From Order is pending before this Court. 12. Further, on perusal of the order passed by learned SSRD, I find that a specific observation is made that final outcome of Special Civil Suit No.136 of 2020 shall bind the parties. According to me, that observation takes care of the interest of the petitioner as well and, therefore, I do not see any illegality in the impugned order of the learned SSRD. 13. Further, on perusal of the order of the District Collector, Vadodara granting revised N.A. permission, the same has also been granted by taking into consideration the relevant factors. I do not see any reason to interfere with the said order also. 14. Accordingly, in my view, none of the authorities, namely, District Collector, Vadodara as well as SSRD have committed any error while passing the impugned orders. Therefore, the present petition is required to be dismissed and the same is dismissed accordingly. Notice is discharged. No order as to costs. Ad-interim relief granted earlier stands vacated. 15. 14. Accordingly, in my view, none of the authorities, namely, District Collector, Vadodara as well as SSRD have committed any error while passing the impugned orders. Therefore, the present petition is required to be dismissed and the same is dismissed accordingly. Notice is discharged. No order as to costs. Ad-interim relief granted earlier stands vacated. 15. At this juncture, learned advocate Mr. Hasurkar prayed for extension of relief which the petitioner was enjoying since 9.12.2022. However, in view of the reasons stated herein above, the said request is rejected.