Gujarat High Court
Dilipbhai Khushalbhai Patel & vs State Of Gujarat & on 13 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/15480/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15480 of 2015
With
SPECIAL CIVIL APPLICATION NO. 7514 of 2014
With
SPECIAL CIVIL APPLICATION NO. 18929 of 2015
With
SPECIAL CIVIL APPLICATION NO. 18930 of 2015
With
SPECIAL CIVIL APPLICATION NO. 18931 of 2015
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DILIPBHAI KHUSHALBHAI PATEL & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MEHUL SHARAD SHAH, ADVOCATE for the Petitioner(s) No. 1 - 2
MS NISHA THAKORE, AGP for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/06/2017
COMMON ORAL ORDER
Since the issues raised in all the captioned petitions are interrelated, those were heard analogously for the purpose of admission.
The dispute pertains to the lands bearing old Revenue Survey Nos.21/1, 26 and 589/2 situated at Mouje Vesu, Taluka Choryasi, District Surat. The Revenue Survey No.21/1 was given a new Revenue Survey No.16/1 and ultimately it is now Page 1 of 13 HC-NIC Page 1 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER Final Plot No.29 admeasuring 3020 sq.meters. The Revenue Survey No.26 is now in the form of two Final Plot Nos.31 and
32. The Final Plot No.31 admeasures 2934 sq.meters and the Final Plot No.32 admeasures 4585 sq.meters. The Revenue Survey No.589/2 is now Final Plot No.47 admeasuring 1000 sq.meters.
For the period between 1955-56 and 2004-2005, the name of one Jashwantgiri Ishwargiri Gosai was running in the 7/12 abstract as an 'Administrator' of Shri Thakorji Temple Trust, Vesu, Taluka Choryasi. The said Trust was registered as a public trust in the year 1960 under the provisions of the Bombay Public Trusts Act.
On 3rd February 1997, Jashwantgiri expired. Jashwantgiri left behind a Will executed by him and in the Will he bequeathed the properties in question in favour of his son, viz. Dipakgiri. Dipakgiri, after a lapse of almost ten years, applied to the Deputy Collector, Choryasi, to delete the word 'Administrator' from the record of rights and prayed to insert the words 'Independent Capacity'. It appears that immediately on demise of Jashwantgiri, the Sarpanch of the Vesu Gram Panchayat had also raised objections in mutating the name of Dipakgiri as the property was a trust's property and a trust's property cannot be acquired by inheritance.
The dispute was registered by the Mamlatdar as RTS Case No.8 of 1998. The Mamlatdar rejected the objections and certified the entry in favour of Dipakgiri. An appeal was filed before the Deputy Collector, Choryasi, being RTS Appeal No.35 of 1999, and on 16th August 2000, the Deputy Collector Page 2 of 13 HC-NIC Page 2 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER remitted the matter to the Mamlatdar. On 26th February 2001, the Remand Case No.21 of 2000 was disposed of and the Mamlatdar certified the original entry no.2226 mutated in favour of Dipakgiri. After Dipakgiri was successful in getting the word 'Administrator' deleted, applied to the Collector. It appears that Dipakgiri has sold certain parcels of land to the clients of Mr.Mehul Sharad Shah and Mr.Mihir Thakore, the learned senior counsel appearing with Mr.Mahavir Gadhvi.
So far as the client of Mr.Mehul Sharad Shah is concerned, i.e. the petitioner of the Special Civil Application No.15480 of 2015, he has prayed for the following reliefs :
"(A) to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 31.08.2015 passed by the District Collector, Surat and be further pleased to direct the Collector, Surat to grant N.A. permission u/s 66 of the Code in respect of land bearing revenue survey no.18/1, Final Plot No.31, TP Scheme-1-Vesu, Surat, admeasuring 2934 sq.mts., by charging necessary conversion charges as may be determined by the Collector.
(B) to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction, directing the Collector to accept conversion charges from the petitioners to grant NA permission for residential purpose in respect of the land bearing Revenue Survey No.18/1, Final Plot No.31, TP Scheme-1-Vesu, Surat, admeasuring 2934 sq.mts.
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the District Collector, Surat to accept conversion charges from the petitioners for grant of NA permission for residential purpose in respect of the land bearing Revenue Survey No.18/1, Final Plot No.31, TP Scheme-1-
Vesu, Surat, admeasuring 2934 sq.mts.
Page 3 of 13HC-NIC Page 3 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER (D) to pass such other and further orders as may be expedient and necessary in the circumstances of the case."
So far as the petitioner of the Special Civil Application No.7514 of 2014 is concerned, he has prayed for the following reliefs :
"(A) to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the notice dated 06.05.2014 issued by respondent no.3 at Annexure-A and also condition no.4 of development permission dated 09.04.2011 (Annexure-H) and thereby direct the respondent no.3 to issue Building Use permission to the building constructed in Revenue Survey No.18/1, Final Plot 31 of TP Scheme-1-Vesu-Surat;
(B) to issue a writ of mandamus or any other appropriate writ, order or direction, declaring that revised Non-
Agricultural permission with respect to Revenue Survey No.18/1 and Final Plot No.31 admeasuring 2934 st.mtrs. And Final Plot No.32 admeasuring 4585 sq.mts. is deemed to have been granted, as it was not decided within a reasonable period from the date of application.
(C) Alternatively to issue a writ of mandamus or any other appropriate writ, order or direction directing respondent no.2 - District Collector, Surat to decide the application for N.A. permission forthwith in the interest of justice.
(D) pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the notice 6.5.2014 issued by respondent no.3 at Annexure-A and thereby restrain the respondent no.3 from taking any coercive steps in respect of Flats constructed in Survey No.18/1, Final Plot No.31 of TP Scheme -1-Vesu-Surat.
(E) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to direct the respondent no.2 to decide the application for N.A. permission as expeditious as possible.
Page 4 of 13HC-NIC Page 4 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER (F) to pass such other and further order/s as may be just and necessary in the circumstances of the case."
So far as the Special Civil Application No.15480 of 2015 is concerned, the N.A. permission has been declined and being dissatisfied with such decision, the petitioner is here before this Court. Whereas, so far as the Special Civil Application No.7514 of 2014 is concerned, the development permission has been canclled by the Surat Municipal Corporation as the petitioner of the Special Civil Application No.7514 of 2014 has not been able to obtain the N.A. permission from the competent authority as one of the terms and conditions incorporated in the development permission.
It appears that so far as the Special Civil Application No.7514 of 2014 is concerned, the construction has also been put up of a ten storeyed apartment.
So far as the Special Civil Application No.7514 of 2014 is concerned, the following order was passed on 28th May 2014 :
"The petitioner inter-alia challenges the legality and validity of the letter/notice dated 06.05.2014 issued/written by Town Development Officer, Surat.
Heard Mr. Mehul Sharad Shah, learned advocate appearing for the petitioner.
It is submitted that the petitioner has constructed Avinash Residency/Society in Final Plot no. 31 of TP Scheme -1- Vesu- Surat pursuant to the development permission granted by Surat Municipal Corporation on 09.04.2010 (Annexure H).
Learned advocate appearing for the petitioner has also drawn attention to the photogaphs annexed to the petition (Annexure L). Relying on the same, it was Page 5 of 13 HC-NIC Page 5 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER pointed out that building is also constructed and in fact eight family members are residing in the present building.
In the letter/notice under challenge the authority has asked the petitioner to produce revised N.A. Permission.
Learned advocate has also drawn attention to the judgement dated 05-06.04.2013 passed by this Court ( Coram: Honble Ms.Justice H.N.Devani, J.) rendered in Special Civil Application No. 8436 of 2011. In paragraph No. 24, it is observed as under:
"24) Thus, the position of law as obtaining today is that the Development Authority cannot impose any condition for obtaining N.A. permission before granting construction permission. As a natural corollary, it follows that when such condition could not have been imposed at the threshold while granting the construction permission, the Development Authority while considering an application for grant of Building Use Permission cannot insist upon compliance of such condition, which it could not even otherwise have legally imposed. As noticed earlier, neither under the B.P.M.C. Act nor under the rules, regulations or by-
laws, is there any requirement of obtaining N.A. permission prior to putting up construction in accordance with the rules. The respondent No.2- Corporation was, therefore, not justified in imposing condition No.5 while granting commencement letter to the petitioner and in insisting upon production of N.A. permission for the purpose of granting building use permission. As noted hereinabove, section 263 of the Act does not require the person to whom construction permission has been granted to produce N.A. permission for the purpose of obtaining building use permission."
Considering the submission made by learned advocate appearing for the petitioner and considering the aforesaid judgement, Notice returnable on 16.06.2014. Mr. Kkshyap Pujara, learned Assistant Government Pleader waives service of notice on behalf of respondent no.1- State.
Page 6 of 13HC-NIC Page 6 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER Ad-interim relief in terms of paragraph No. 8[D] is granted. Direct service is permitted today."
Since then, the ad-interim relief is continued till this date.
There are three petitions being Special Civil Application No.18929 of 2015, 18930 of 2015 and 18931 of 2015 filed by the State against the order passed by the SSRD. The history of this litigation is that against the order passed by the Deputy Collector deleting the word 'Administrator', the Collector, Surat, took suo motu cognizance of the entry and cancelled the same. Dipakgiri, being dissatisfied with the order passed by the Collector taking suo motu cognizance and cancelling the entry, challenged the same before the SSRD and the SSRD has quashed the order passed by the Collector and has affirmed the order passed by the Deputy Collector.
So far as the State is concerned, it has raised the following issues :
"1. Can a Public Trust property be entered on the basis of Will, without prior permission of the learned Charity Commissioner under section 36 of the Bombay Public Trust Act, 1960 ?
2. Section 114 of the Evidence Act raises presumption if any entry remains to continue on 7/12 extract for 43 long period ?
3. Father of the Dipakgiri never disputed the fact as regard right, title and possession of the Trust during his life time and in fact, if the entry of the said Dipakgiri is to be believed based on Will then the said Will specifically refers to bequeathing of property in the name of Dipakgiri as Administrator of the Shri Thakorji Temple Trust.
4. Was the Deputy Collector justified in removing the Page 7 of 13 HC-NIC Page 7 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER words 'administrator' Shri Thakoreji Mandir Trust, when no independent inquiry was made by the Deputy Collector from the office of Charity Commissioner. In fact, learned Charity Commissioner passed an order dt. Removing the property from the schedule of register PTR pursuant to the order of the Deputy Collector dt...
5. That the order of removal of the word 'administrator' Shri Thakorji Mandir Trust by the Deputy Collector is without jurisdiction and is void ab initio in as much as :
a. Delay of almost 43 years. The entry in the name of administrator of Shri Thakorji Mandir Trust has continued all throughout during period 1955-56 to 2004-05 and in view of section 114 of the Evidence act presumption arises as to correctness of the fact when the same has been entered during the official discharge of duty while maintaining revenue record.
b. No evidence to justify that by mistake "administrator" continued. In fact, authority has overlooked and ignored the fact that entry has continued for 43 years and the property was registered as trust property in PTR register.
c. Entry is for fiscal purpose, if actually not trust property then competent authority is Charity Commissioner under section 79 of the Bombay Public Trust act, to take decision as to whether trust exist and property is the property of trust.
6. That the SSRD grossly erred in quashing and setting aside the order of the Collector by finding that the power exercised by the Learned Collector under section 108(6) of the BLR code is beyond reasonable period in as much as :
a. On 3.02.1997, name of Dipakgiri was entered as "administrator" based on "will" vide M.E. no.2226 whereas almost after delay of 10 years applicant Dipakgiri applied vide application dt.04.07.2007 to enter in his independent capacity rather as "administrator", as by mistake entered. Proper course would be to challenge the mutation entry before the higher officer, under what provision of Page 8 of 13 HC-NIC Page 8 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER law did Deputy Collector passed order when he himself vide order dt. 16.08.2000 passed in RTS appeal 21/2000 remanded the matter at behest of villagers. SSRD took note of the fact of delay of Collector in initiation of suo moto proceedings after 4 years (ME 2226 dt. 03.02.1997 ME 5503 dt. 19.02.2009 Revision in Year 2013) but simultaneously ignores the fact of delay of applicant of 10 years and also lack of inherent jurisdiction of Deputy Collector.
b. If any person has acquired the Khatedari rights in the land belonging to the deity, the said transaction is to be ignored being illegal and the deity was entitled to retain the possession as well as the Khatedari rights in such lands. Moreover, the present petitioner-temple is a public temple and a particular cultivator can hold such land only at a specifically willed instance of the trustees and strictly on terms and conditions and for a particular period determined between them and any person, who claims any rights or interest on such property, has to show prima facie authority on behalf of and bona fides vis-a-vis the public trust, i.e. the temple. Thus, in such circumstances, the revenue as well as the administrative authorities have a legal obligation to protect interest prejudicial to the effective exercise of a permanent domain and right of property by the temples on their lands.
c. Respondents Nos. 2 and 3, being purchaser from respondents Nos., cannot claim to have better title than respondents Nos. could have, being successors of Jashwantgiri Gosai Administrator, who had no title, right or interest in the land in dispute in the eye of law as acquisition of Khatedari right by him was contrary to law and thus illegal, was obtained by fraud, thus void. Respondents Nos. 2 and 3 are merely trespassers and liable to be evicted forthwith.
d. While deciding the instant case, the Secretary Revenue Department has taken a very hyper technical view. It is settled law that a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even Page 9 of 13 HC-NIC Page 9 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER infraction of the rules of procedure. Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 and M/s. Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353, the Apex Court observed as under: "When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done. Similarly in Noorduddin v. Dr. K. L. Anand, 1995 (1) SCC 242; (1994 AIR SCW 5093) the Apex Court observed as under (at page 5099 of AIR SCW) : "The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and alma meter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the Court to subvert justice." It is a plain and simple case of sabotage of public policy and legal philosophy "Tribunal should be astute in the declaration of law or in its solemn judicial review or dispensation of justice to issue directions or mandamus. against the law, constitutional comments or public policy." (State of Punjab v. G.S.Gill, 1997(6) SCC 129 : 1997 AIR SCW 2209."
Manifold contentions have been raised by the learned counsel appearing for the respondents in the petitions filed by the State. The first is, as regards the maintainability of the Page 10 of 13 HC-NIC Page 10 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER petitions filed by the State challenging the order passed by the SSRD. The vociferous submission is that the Collector cannot challenge the order passed by the SSRD unless the Collector is of the view that it is necessary to do so to protect the interest of the State. The argument is, so far as the land in question is concerned, the Government is not at all concerned and, therefore, it cannot be said that the Collector is concerned about protecting the interest of the State. Beside this, the argument is that once the land is given a final plot number, it ceases to be an agricultural land and once it ceases to be an agricultural land, no N.A. permission is necessary. In this regard, reliance is placed on a Division Bench decision of this Court, to which I was a party, in the case of Sachin Udhyognagar Sahakari Mandali Ltd. v. State of Gujarat and others, (2013)2 GLH 83. In the said decision, this Court took the view in paragraphs 31 and 32 as under :
"31. Thus, the plain reading of Section 65 of the Code makes it very clear that if any occupant of land assessed or held for the purpose of agriculture wishes to use his holding or any part thereof for any other purpose, the Collectors permission shall, in the first place, be applied for by such occupant. The State Government vide Notification dated 14.11.1991 already specified the lands designated for non-agricultural & industrial use. Apart from the above, before putting the land to non- agricultural use, if Section 65 permission is a must then could it be said that when development permission under Section 29 of the Act was granted for layout and sub- division of the plot, the land was already put for non- agricultural use because layout and sub-division plot is included in the definition of the term development. The answer unquestionably has to be in the affirmative. If there was already a development in the year 1997 for non-agricultural use without permission under Section 65 of the Bombay Land Revenue Code then in our view, the SUDA is not justified in insisting for N.A. Permission, now at this stage, when construction is to be made on the Page 11 of 13 HC-NIC Page 11 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER plot.
32. Whether a particular land is agricultural land or not must depend on the general nature or character of the land and in order to ascertain the general nature or character of the land, various factors would have to be taken into account. The development and use of the land in the adjoining area and the surroundings and situation of the land would be an important factor which would have a bearing on the question whether the land is agricultural land or not. This factor may affect the land and its capacity of being used for agriculture and would also indicate the purpose for which the land would ordinarily be likely to be used. The physical characteristics of the land would be another factor to be taken into account. The physical characteristics may show the general nature of character of the land particularly in regard to its adaptability for being used for agricultural purpose. Then the intention of the owner as gathered from all the relevant circumstances would also have a bearing on the general nature or character of the land. In the present case, the plots in question are part of industrial township. The land in question was designated as an industrial zone by way of Notification dated 25.01.1988. Thereafter, vide Notification dated 14.11.1991 passed under Section 88(1)(b) of the Act, 1948, the land in question was being reserved for non- agricultural and industrial purpose, and thereafter, there has been substantial development on the land in question and around 300 industries are in operation today without there being any non-agricultural use permission as in the litigation between the parties way- back in the year 2003, the SUDA had conceded that no N.A. Permission was required before the plans for construction could be sanctioned and accordingly, the order cancelling the development permission which was made a subject matter of challenge in Special Civil Application No.13259 of 2003 was ultimately withdrawn by the SUDA."
Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that all the matters require detailed consideration.
Page 12 of 13HC-NIC Page 12 of 13 Created On Sat Aug 12 08:47:26 IST 2017 C/SCA/15480/2015 ORDER Let RULE be issued in all the captioned petitions, returnable on 14th July 2017.
So far as the Special Civil Application No.7514 of 2014 is concerned, the interim relief granted earlier shall continue till the final disposal of this petition.
So far as the three petitions filed by the State are concerned, the order passed by the SSRD shall remain stayed from its operation, implementation and execution till the final disposal of the three petitions.
(J.B.PARDIWALA, J.) MOIN Page 13 of 13 HC-NIC Page 13 of 13 Created On Sat Aug 12 08:47:26 IST 2017