Gujarat High Court
Manojbhai Vinodchandra Shah vs State Of Gujarat & 3 on 20 July, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11840/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11840 of 2017
With
SPECIAL CIVIL APPLICATION NO. 11893 of 2017
With
SPECIAL CIVIL APPLICATION NO. 11892 of 2017
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MANOJBHAI VINODCHANDRA SHAH....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR SATYAM Y CHHAYA, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2 - 4
MS. THAKORE, ASST. GOVERNMENT PLEADER for the Respondent(s) No.
1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/07/2017
COMMON ORAL ORDER
1. Since the issues raised in all the captioned petitions are the same and the parties are also the same, those were heard analogously and are being disposed of by this common order at the stage of admission.
2. For the sake of convenience, the Special Civil Application No.11840 of 2017 is treated as the lead matter.
3. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;
Page 1 of 9HC-NIC Page 1 of 9 Created On Fri Jul 21 00:58:48 IST 2017 C/SCA/11840/2017 ORDER "(A) Admit/allow this writ petition.
(B) issue writ of certiorari or any other writ, order or direction and thereby quash and set aside the impugned communication dated 24.05.2017 and further direct respondent No.2 to grant N.A. permission. Further, Your Lordship may be pleased to quash and set aside the opinion dated 13.04.2017 given by Dy. Collector (Land Reform) Vadodara in TENANCY/SR/NA/VASHI/565/2017 as well as opinion dated 11.04.2017 given by A.L.T in TENANCY/VASHI/401/17;
ALTERNATIVELY Direct Collector, Vadodara to decide application preferred by present petitioner for non agricultural use permission, without being influenced by impugned opinions given by Dy. Collector in TENANCY/SR/NA/VASHI/565/2017 and that of ALT in TENANCY/VASHI/401/17;
(C ) During admission, hearing and final disposal of above captioned special civil application direct Collector, Vadodara to decide application for non agricultural use permission preferred by present petitioner without being influenced in any manner by opinion given by Dy.
Collector (Land Reform) Vadodara in TENANCY/SR/NA/VASHI/565/2017 as well as opinion dated 11.04.2017 given by A.L.T in TENANCY/VASHI/401/17;
(D) Any other and further order that deem fit in the interest of justice may kindly be passed."
4. It appears from the materials on record that the writ applicant herein purchased a parcel of land bearing Survey No.502/1, Town Planning Scheme No.2 of Sama-Dumad- Vemali, Final Plot No.70, admeasuring 3217 square meters. This parcel of land was originally owned by one Rameshbhai Jhaverbhai Patel. Rameshbhai Jhaverbhai Patel sold the land to one Surajprakash Bhagat by way of a registered sale deed Page 2 of 9 HC-NIC Page 2 of 9 Created On Fri Jul 21 00:58:48 IST 2017 C/SCA/11840/2017 ORDER executed on 19th May, 1982. An entry bearing No.2468 came to be mutated in the record of rights and was certified.
5. Thereafter, it appears that the proceedings under the Tenancy Act came to be initiated against Surajprakash Bhagat on the ground that he could not have purchased the land in question in the year 1982, he not being an agriculturist. In such circumstances, the Tenancy Case No.5237 of 1983 came to be registered. An order was passed against Surajprakash Bhagat holding the sale to be hit by section 63 of the Tenancy Act. I need not go further into the details of the various transactions.
6. All that I would like to observe is that after the proceedings came to be remanded for not less than three times, ultimately, it came to be held in favour of Surajprakash Bhagat that he is an agriculturist and the sale transaction of the year 1982 was held to be valid. The last order passed by the Mamlatdar & ALT is of the year 2016. This order of the Mamlatdar & ALT has been taken in suo motu review by the Deputy Collector in exercise of the power under section 76A of the Tenancy Act. It appears that the applicant herein filed five special civil applications challenging the suo motu proceedings initiated by the Deputy Collector in exercise of powers under section 76A of the Tenancy Act on the ground that he being an interested party, he should also be heard in the proceedings and in the light of the developments which took place in the interregnum period, his status as an agriculturist ought to have been considered. These five petitions were not entertained by this Court on the ground that the petitioner has an alternative remedy available. This Court observed while disposing of the Page 3 of 9 HC-NIC Page 3 of 9 Created On Fri Jul 21 00:58:48 IST 2017 C/SCA/11840/2017 ORDER five special civil applications that it would be open for the petitioner to file an application for being impleaded as a party respondent in the proceedings initiated under section 76A of the Tenancy Act.
7. Being dissatisfied with the order passed by this Court dated 27th June, 2017, the petitioner has filed five letters patent appeals before the Division Bench of this Court, and the Division Bench of this Court, vide order dated 14th July, 2017, has stayed the further proceedings initiated by the Deputy Collector under section 76A of the Tenancy Act. The order passed by the Division Bench dated 14th July, 2017, reads as under;
"Appellants are permitted to amend the cause title.
Notice to the respondents, returnable on 15th September, 2017. There shall be interim relief in terms of paragraph 4(b) of the Civil Applications.
Direct service permitted."
8. Bearing in mind the aforesaid background, let me now consider the controversy in the present three petitions. The petitioner herein, being the purchaser of the land in question, applied with the Collector for N.A. Permission. The Collector, by his order dated 24th May, 2017, declined to pass any order, that is, neither thought fit to allow the application nor reject the application but ordered that the application be filed. Being dissatisfied with such stance on the part of the Collector, the petitioner is here before this Court by way of these three petitions.
9. On 27th June, 2017, the following order was passed;
Page 4 of 9HC-NIC Page 4 of 9 Created On Fri Jul 21 00:58:48 IST 2017 C/SCA/11840/2017 ORDER "1 Since the issues raised in all the captioned petitions are the same and the parties are also the same, those were heard analogously and are being disposed of by this common order at the admission stage.
2 Since there are five survey numbers, the proceedings with regard to each of the parcels of land have been initiated, and therefore, five petitions. For the sake of convenience, the Special Civil Application No.11896 of 2017 is treated as the lead matter.
3 By this petition under Article 226 of the Constitution of India, the applicant has prayed for the following reliefs:
21a. Admit/allow this writ petition;
b. issue writ of certiorari or any other writ, order or direction and thereby quash and set aside the impugned Notice dated 01.04.2017 (Annexure-H) issued by respondent No.3;
c. Pending admission, hearing and final disposal of above captioned special civil application, Your Lordship may be pleased to stay the operation, implementation and execution of the impugned Notice dated 01.04.2017 (Annexure-H) issued by the respondent No.3;
d. Any other and further order that deem fit in the interest of justice and kindly be passed.
4 The facts of this case may be summarised as under:
4.1 The dispute pertains to a land bearing survey No.497 situated at village: Sama, Taluka: Vadodara. This parcel of land bearing survey No.497 and the other parcels of land, which are the subject-matter of cognate petitions, came to be purchased by the petitioner herein from one Surajprakash Bhagat, a resident of Mumbai. The said Surajprakash Bhagat is said to have sold these parcels of land in the year 2016 to the present petitioner.
4.2 It appears from the materials on record that way back in the year 1982, the Revenue Authorities Page 5 of 9 HC-NIC Page 5 of 9 Created On Fri Jul 21 00:58:48 IST 2017 C/SCA/11840/2017 ORDER questioned the transaction as regards the purchase of the parcels of land by Surajprakash Bhagat from the original predecessor-in-title. Almost for three times, the matter came to be remitted from the G.R.T. Ultimately, recently, the Mamlatdar and A.L.T. has given a declaration that Surajprakash Bhagat is an agriculturist and was entitled to purchase the parcels of land in the year 1982. The Revenue Authorities are not satisfied with the status of Surajprakash Bhagat. According to the Revenue Authorities, the status of Surajprakash Bhagat is still in a cloud.
4.3 Under Section 76A of the Gujarat Tenancy Act, the Deputy Collector has powers to take suo motu review of the order passed by the Mamlatdar and A.L.T. In such circumstances, with respect to all five parcels of land purchased by the petitioner, the Deputy Collector, Vadodara has issued show cause notice to the Predecessor-in-title i.e. Surajprakash Bhagat dated 1st April 2017. The show cause notice issued by the Deputy Collector is for the purpose of calling upon the Predecessor-in-title to show cause why his earlier transaction should not be declared as in violation of the provisions of the Gujarat Tenancy Act, he not being an agriculturist. Since the petitioner is now the owner of the land by virtue of the sale deed executed by Surajprakash Bhagat and if the status of Surajprakash Bhagat is being questioned by the Revenue Authorities, the petitioner is worried about his transaction.
5 In such circumstances, the petitioner is here before this Court questioning the legality and validity of the notice issued by the Deputy Collector in exercise of his powers under Section 76A of the Gujarat Tenancy Act.
6 There is no question of examining the legality and validity of the notice issued by the Deputy Collector in exercise of his powers under Section 76A of the Gujarat Tenancy Act at the instance of the present petitioner being the purchaser of the land in question.
7 All that I can say is that since the petitioner has a direct interest in the land in question, he should be heard by the Deputy Collector, Vadodara before passing any final order as regards the notice issued under Section 76A of Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri Jul 21 00:58:48 IST 2017 C/SCA/11840/2017 ORDER the Gujarat Tenancy Act. For this purpose, the petitioner shall file an application addressed to the Deputy Collector, Vadodara within a period of one week from today with a request to join him in the proceedings and also hear him on the question of facts and of law. If such application is filed by the petitioner before the Deputy Collector, Vadodara, the Deputy Collector shall pass an appropriate order permitting the petitioner herein to be joined in the proceedings and to be heard on both question of facts and of law. This order will hold good so far as the connected matters are concerned.
8 With the above, all the petitions are disposed of. Direct service is permitted."
10. Ms. Thakore, the learned AGP, while vehemently opposing all the three petitions, submitted that as the Collector did not receive, in time, the necessary information called for from the four authorities viz. (1) The Deputy Collector, Land Reforms Branch, Vadodara, (2) The Deputy Collector, Vadodara City (3) Town Planning Branch, Vadodara Mahanagar Seva Sadan, Vadodara and (4) The Special Land Acquisition Officer, Vadodara, he was left with no other option but to order filing of the application. Ms. Thakore has one additional submission to canvass. According to Ms. Thakore, the status of Surajprakash Bhagat, that is the person from whom the petitioner purchased the land as an agriculturist, is in cloud. According to the learned AGP, if Surajprakash Bhagat was not an agriculturist, he could not have purchased the agricultural land, and if that be so, he could not have sold the land to the petitioner by a sale deed. The submissions is that till the time the proceedings initiated under section 76A of the Tenancy Act are not concluded, it is difficult for the Collector to take an appropriate decision whether to grant the N.A. Permission or not.
11. Well what is submitted by the learned AGP does not seem Page 7 of 9 HC-NIC Page 7 of 9 Created On Fri Jul 21 00:58:48 IST 2017 C/SCA/11840/2017 ORDER to have been weighed with the Collector while passing the order dated 24th May, 2017. The plain reading of the communication dated 24th May, 2017 would indicate that from none of the four authorities, referred to above, the Collector received the necessary information or opinion. In such circumstances, the Collector thought fit to file the application.
In my view, the stance of the Collector is not tenable in law. On account of failure on the part of a particular authority in furnishing the necessary information, although called for, cannot be a ground to file an application seeking N.A. Permission. The Collector could have called for the necessary information at the earliest and could have taken one view or the other. The Collector could have rejected the application assigning the reasons for the same so that the party aggrieved can take a recourse available in law.
12. I am of the view that the Collector should reconsider the matter afresh. It shall be open for the Collector to call for the necessary information or report or opinion from the four authorities referred to above. While deciding the application afresh, the Collector shall also keep in mind that the proceedings initiated under section 76A of the Tenancy Act have been stayed by the Division Bench of this Court as noted above. The Collector is also obliged to consider the developments which have taken place during the interregnum period and, more particularly, the status of the petitioner, he being an agriculturist.
13. In the result, the communication dated 24th May, 2017 in all the three matters is quashed. The matter is remitted to the Collector, Vadodara for fresh consideration of the issue as Page 8 of 9 HC-NIC Page 8 of 9 Created On Fri Jul 21 00:58:48 IST 2017 C/SCA/11840/2017 ORDER regards the grant of N.A. Permission bearing in mind the observations made by this Court. Let such decision be taken within a period of six weeks from the date of the receipt of the writ of this order. As the facts of these matters are quite complicated, it would be appropriate to hear the petitioner before taking any final decision in the matter.
14. With the above, all the three applications are disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 9 of 9 HC-NIC Page 9 of 9 Created On Fri Jul 21 00:58:48 IST 2017