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2024 DIGILAW 596 (GUJ)

Savitaben Harendrakumar Patel v. State Of Gujarat

2024-03-20

NIRZAR S.DESAI

body2024
JUDGMENT : 1. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal today itself. Rule. Ms. Nirali Sarda, learned Assistant Government Pleader waives service of rule on behalf of respondents. 2. By way of this petition, the petitioner has challenged the order dated 13.4.2023 passed by the respondent No.3 - Resident Additional Collector, Mahisagar whereby the petitioner's application under Section 65 of the Gujarat Land Revenue Code seeking N.A. permission in respect of the land bearing Survey / Block No.103 (Old No.34/1) of village Moti Charel, Taluka Lunawada, Dist. Mahisagar was rejected on the ground that one Rana Sandipkumar Ishwarlal was whether an agriculturist or not could not be verified. 3. It is the case of the petitioner that land bearing Survey No.103 (Old Survey No.34/1) admeasuring 00 - 31 - 36 Hectare - RA - Sq. Mts. of land situated at village Moti Charel, Tal. Lunawada, Dist. Mahisagar was owned and occupied by one Shakalbhai Shamjibhai. Upon death of Shakalbhai Shamjibhai, his legal heir, namely, Natha Shakal and Prabhudas Shakalbhai were entered into the revenue record for which mutation Entry No.239 dated 22.9.1963 was mutated and the same was certified. Thereafter, upon re-survey, new Survey Number was given in respect of the land in question for which revenue Entry No.251 dated 12.10.1964 was mutated. 3.1 Thereafter, a part of land admeasuring 0 - 18 - 22 Sq. Mts. which had come to the share of Prabhudas was sold to one Solanki Nanuben Vajabhai in the year 2007 and thereafter, upon death of Prabhudas Shakalbhai on 9.1.2011, names of his legal heirs, namely, Patel Rameshbhai Prabhudas, Patel Shantilal Prabhudas, Patel Surekhaben Hasmukhbhai and Patel Milankumar Hasmukhbhai were recorded in the revenue record vide Entry No.1037 dated 17.5.2012. Thereafter, the said legal heirs have sold remaining land admeasuring 0 - 13 - 14 Hecater - RA - Sq. Mts. to Rana Sandipkumar Ishwarlal by way of registered Sale Deed dated 25.5.2015 and the said transaction was recorded in Revenue Entry No.1231 dated 26.5.2015 and the said entry was certified. Thereafter, another portion of land which was held by Nanuben Vajabhai Solanki was sold admeasuring 0 - 18 - 22 Hectare - RA - Sq. Mts. Mts. to Rana Sandipkumar Ishwarlal by way of registered Sale Deed dated 25.5.2015 and the said transaction was recorded in Revenue Entry No.1231 dated 26.5.2015 and the said entry was certified. Thereafter, another portion of land which was held by Nanuben Vajabhai Solanki was sold admeasuring 0 - 18 - 22 Hectare - RA - Sq. Mts. to Rana Sandipkumar Ishwarlal by way of Registered Sale Deed dated 12.6.2016 and the same was recorded vide Entry No.1309 dated 15.2.2016 and the same was certified. 3.2 Thereafter, Rana Sandipkumar Ishwarlal sold the subject land to Rana Naginkumar Bhikhalal by registered Sale Deed dated 24.6.2020 and Entry No.1741 was mutated which was also later on certified. Thereafter, Rana Naginkumar Bhikhalal sold the subject land to the petitioner by registered Sale Deed dated 12.12.2022 and Entry No.1900 was mutated and later on came to be certified. 3.3 Upon becoming owner of the land in question, the petitioner applied for N.A. permission under Section 65 of the Gujarat Land Revenue Code vide application dated 23.2.2023. However, the same was rejected by the respondent No.3 vide order dated 13.4.2023 on the ground that Additional Resident Collector could not ascertain as to whether Rana Sandipkumar Ishwarlal who is the predecessor-in-title of the predecessor of the petitioner was an agriculturist or not. 3.4 Hence the present petition. 4. Mr. Dhruv D. Desai, learned advocate for the petitioner submitted that the consideration on which the petitioner's application has not been considered is absolutely irrelevant. He further submitted that Rana Sandipkumar Ishwarlal purchased two parcels of the land in question in the year 2015 and 2016 and thereafter, he sold the said land to Rana Naginkumar Bhikhalal in the year 2020 and thereafter, in the year 2022, the petitioner purchased the land by way of Registered Sale Deed from Rana Naginkumar Bhikhalal. He further submitted that for a period of four to five years, during which the land had remained in the name of Rana Sandipkumar Ishwarlal, his status as an agriculturist was never questioned. In fact, Entry No.1231 in favour of Rana Sandipkumar Ishwarlal in respect of land in question was certified after due verification on 6.7.2015 as can be seen from Form No.6 annexed along with the petition and as regards another parcel of land purchased by the said Rana Sandipkumar Ishwarlal, Entry No.1309 was mutated and was certified on 2.5.2016 after due verification. Once the name of the predecessor-in-title of the predecessor of the petitioner, namely, Rana Sandipkumar Ishwarlal was already mutated in the revenue record, thereafter, when the land has changed hands twice and the petitioner is the third purchaser, such objection is absolutely irrelevant and, therefore, on such ground, the petitioner's application seeking N.A. permission could not have been rejected. 4.1 Mr. Desai relied upon the decision of this Court in the case of Tusharbhai Harjibhai Ghelani v. State of Gujarat, reported in 2019 (4) GLR 2578 and submitted that for grant of N.A. permission, relevant consideration would be only holding and whether the applicant is the occupant of the land in question or not. Such consideration about the predecessor of the petitioner was whether an agriculturist or not is absolutely irrelevant, more particularly, when during the time when the predecessor-in-title of the petitioner was holding the land, no such proceedings were initiated against him and, therefore, such ground on which N.A. permission of the petitioner is rejected is absolutely baseless. 4.2 Learned advocate Mr. Desai further submitted that the Collector of the District is the custodian of revenue records and for verification of the status of the predecessor-in-title, entire record was very much available with the District Collector and hence, in absence of there being any material adverse to the petitioner, this is just one of the excuse on the basis of which the petitioner's application for N.A. permission is rejected on flimsy grounds. 4.3 Learned advocate Mr. Desai further relied upon the decision of this Court dated 6.3.2024 in case of Ukani Jaykumar Kantilal and others v. State of Gujarat and another, Special Civil Application No.16329 of 2023 and submitted that consideration of status of predecessor-in-title of the petitioner about whether he was an agriculturist or not is absolutely irrelevant consideration while considering the petitioner's application for N.A. permission. He further submitted that in view of the fact that no proceedings are initiated against the predecessor-in-title of the predecessor of the petitioner as to whether he was an agriculturist or not, such consideration is absolutely baseless and irrelevant and, therefore, the impugned order passed on the basis of such extraneous, irrelevant and baseless consideration is bad-in-law and, therefore, the petition may be allowed and the impugned order is required to be quashed and set aside. 5. Ms. 5. Ms. Nirali Sarda, learned Assistant Government Pleader appearing for the respondents has vehemently opposed and petition and submitted that the respondent No.3 has acted in bonafide manner with an intention to protect the interest of the State Government and, therefore, if he has tried to verify the status of predecessor-in-title of the petitioner as to whether he was an agriculturist or not, the same cannot be said to be extraneous or baseless consideration. She further submitted that the petitioner's application is not rejected and the petitioner has been asked to approach the Collector again once such inquiry about the status of Rana Sandipkumar Ishwarlal being an agriculturist or not is over. Therefore, the order does not affect the petitioner adversely and, therefore, the petition is misconceived and it is always open for the petitioner to apply again seeking N.A. permission under Section 65 of the Code before the District Collector. She, therefore, prayed for dismissal of the petition. 6. I have heard learned advocates for the parties and perused the record. On perusal of the record, I found that the only ground on which the petitioner's application seeking N.A. permission has not been favourably considered is that predecessor-in-title of the predecessor of the petitioner, namely, Rana Sandipkumar Ishwarlal is an agriculturist or not that verification could not take place. Hence, I am required to consider the submission made by learned advocate Mr. Desai in respect of whether such ground can be said to be a valid ground for denying the petitioner's N.A. permission. On perusal of the record, I found that vide Entry Nos.1231 and 1309 which are certified on 6.7.2015 and 2.5.2016 respectively, sale in favour of Rana Sandipkumar Ishwarlal in respect of two parcels of land which later on were purchased by Rana Naginkumar Bhikhalal and thereafter by the petitioner were already mutated in the revenue record. On perusal of the record, I found that vide Entry Nos.1231 and 1309 which are certified on 6.7.2015 and 2.5.2016 respectively, sale in favour of Rana Sandipkumar Ishwarlal in respect of two parcels of land which later on were purchased by Rana Naginkumar Bhikhalal and thereafter by the petitioner were already mutated in the revenue record. It is the normal practice that is followed by the revenue authorities to mutate the name and certify Entry only after due verification and when the Entry is certified in respect of sale of the land in question in favour of Rana Sandipkumar Ishwarlal and when the aforesaid entry has not been taken into suo-motu revision or the same has not been questioned till date, it is not open for the authority in absence of there being any proceedings either pending or had taken place and decided against such applicant to deny N.A. permission to the petitioner on the ground that predecessor-in-title of the predecessor of the petitioner was not an agriculturist. As observed by this Court in the case of Tusharbhai Harjibhai Ghelani v. State of Gujarat (Supra) that the relevant consideration for considering application for converting the land into N.A. would be occupancy of the land and holding of the land. 7. Further, though reply is not filed in this petition, even though the Instructing Officer is present in the Court to assist the learned AGP, no justification is coming forward for this extraneous consideration as to how it is relevant for considering an application of a person seeking N.A. permission to consider the status of his predecessor-in-title as to whether he was an agriculturist or not, more particularly, when no proceedings were initiated against him during the time during which he is holding the land or no proceedings have been contemplated or no proceedings are pending against such a person who was predecessor-in-title of the predecessor of the petitioner and, therefore, I have no hesitation in accepting the contention raised by learned advocate Mr. Desai that the consideration on which the petitioner's application was denied was absolutely baseless, irrelevant and extraneous. Desai that the consideration on which the petitioner's application was denied was absolutely baseless, irrelevant and extraneous. Further, this Court in similar set of facts in the case of Ukani Jaykumar Kantilal and others v. State of Gujarat and another, Special Civil Application No.16329 of 2023 (Supra) in paragraphs 7 and 8 has considered similar submission and while allowing the petition, the impugned order passed by the Collector in that petition was quashed. 8. Further, when the entire revenue record is available and now with the advancement of technology, the record is available to the office of the Collector just with a click of mouse, the Collector ought not to have denied the N.A. permission to the petitioner on the ground that status of the predecessor-in-title of the predecessor of the petitioner i.e. Rana Sandipkumar Ishwarlal could not be verified. Such N.A. permission application remained pending before the Collector right from date of application i.e. 23.2.2023 till 13.4.2023 i.e. almost for a period of 50 days to verify status of a person as an agriculturist is not a herculean task which may require months when the entire record is available with the office of the District Collector. 9. In view of the above, the impugned order dated 13.4.2023 passed by the respondent No.3 - Resident Additional Collector, Mahisagar is required to be quashed and set aside and the same is quashed and set aside. The matter is remanded back to the respondent No.3 - Resident Additional Collector for considering the application of the petitioner seeking N.A. permission afresh ignoring the aspect of whether predecessor-in-title of the predecessor of the petitioner was an agriculturist or not as till date, as no proceedings about the predecessor-in-title of the predecessor of the petitioner whether he was an agriculturist or not are initiated, as stated by learned advocate Mr. Desai for the petitioner. 10. With the above observation and direction, present petition stands allowed. Rule is made absolute. No order as to costs.