Gujarat High Court
Rajabhai Patabhai Suthar vs State Of Gujarat on 18 November, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/1216/2021 ORDER DATED: 18/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1216 of 2021
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RAJABHAI PATABHAI SUTHAR
Versus
STATE OF GUJARAT
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Appearance:
MR K B VIRVADIYA(11272) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MS URMILA DESAI, AGP (1) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 18/11/2021
ORAL ORDER
1. The petitioner has filed this petition under Article 226 of the Constitution of India, for following reliefs:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 23.11.2020 passed by the District Collector (at ANNEXURE-K hereto) and further be pleased to direct the learned District Collector to grant N.A. permission qua the land in question;
(B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of the impugned order dated 23.11.2020 passed by the District Collector (at ANNEXURE-K hereto) and further be Page 1 of 7 Downloaded on : Fri Nov 19 06:12:10 IST 2021 C/SCA/1216/2021 ORDER DATED: 18/11/2021 pleased to direct the learned District Collector to reconsider the application of the petitioner for grant of N.A. permission strictly in accordance with the provisions of Section 65 of Gujarat Land Revenue Code, 1879;
(C) Pass any such other and/or further orders that may
be thought just and proper, in the facts and
circumstances of the present case;"
2. Heard learned advocate Mr.N.P.Gandhi for the petitioner and learned AGP Ms.Urmila Desai for the State.
3. Learned advocate Mr.Gandhi for the petitioner has submitted that application for NA permission of the petitioner came to be filed only on the ground that Letters Patent Appeal is pending before this Court. He has submitted that this is not a legal ground for passing the order of filing the application of the petitioner. He has vehemently submitted that there is no stay or prohibitory order passed qua the land in question by any Court of law and, therefore, the stand taken by the Collector that the State Government is in the process of filing Letters Patent Appeal is not justified. He has also contended that the order of Collector is patently incorrect and is contrary to the law laid down by this Court in catena of decisions. He has also submitted that the impugned order is contrary to the provisions of Section 65 of the Gujarat Land Revenue code and the Collector cannot file the application for NA permission on the grounds unknown to law. He has submitted that earlier also the petitioner had approached this Court, at that time, the Court had set aside the order of Collector and directed him to reconsider the same. However, inspite of such direction now Page 2 of 7 Downloaded on : Fri Nov 19 06:12:10 IST 2021 C/SCA/1216/2021 ORDER DATED: 18/11/2021 the Collector has taken a stand that due to pendency of Letters Patent Appeal, NA permission is refused. He has relief upon following decisions:-
(i) Tusharbhai Harjibhai Ghelani v. State of Gujarat reported in 2019 (4) GLR 2578.
(ii) Patel Bhutaji Ranaji v. State of Gujarat reported in 2019 JX (Gujarat) 1158.
(iii) Aadityakumar Dhruvkumar Patel v. State of Gujarat reported in 2019 JX (Gujarat) 960.
3.1 Learned advocate Mr.Gandhi has submitted that now Letters Patent Appeal has been dismissed by this Court. Considering this fact and the law laid down in aforesaid decision, he prayed that this petition may be allowed.
4. Per contra, Ms.Urmila Desai, learned AGP for the State has submitted that now the Government is contemplating filing of Special Leave Petition and, therefore, no order may be passed in this matter. She has submitted that the Collector has not committed any serious error of facts and law in refusing NA permission as the title of the land is in dispute.
5. It is well settled that existence of alternative remedy is required to be taken into consideration by the Court while entertaining petition under Article 226 of the Constitution of India. Generally, when there is an alternative efficacious remedy available, petition under Article 226 of the Constitution of India may not be entertained. However, there may be cases wherein the action of the authority is without jurisdiction and it appears to be ab initio void, in such cases, the High Court Page 3 of 7 Downloaded on : Fri Nov 19 06:12:10 IST 2021 C/SCA/1216/2021 ORDER DATED: 18/11/2021 under Article 226 can exercise powers of granting appropriate relief and there is no need to relegate the petitioners to avail alternative remedy.
6. Having considered the submissions made on behalf of both the sides, it appears that the sole ground for refusal of the application for NA permission is that pendency of Letters Patent Appeal. Thus, the concerned authority has not considered the application for NA permission on its merits. This Court in the case of Tusharbhai Harjibhai Ghelani v. State of Gujarat reported in 2019 (4) GLR 2578 has dealt with the provisions of Section 65 of the Gujarat Land Revenue Code, which pertains to NA permission. The observations made therein are as under:-
"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. 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 Page 4 of 7 Downloaded on : Fri Nov 19 06:12:10 IST 2021 C/SCA/1216/2021 ORDER DATED: 18/11/2021 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. 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."Page 5 of 7 Downloaded on : Fri Nov 19 06:12:10 IST 2021
C/SCA/1216/2021 ORDER DATED: 18/11/2021
7. In the case of Adityakumar Dhruvkumar Patel (supra), the coordinate Bench of this Court (Honourable Mr.Justice Vipul Pancholi) has referred to the decisions of this Court in the case of Shaileshbhai Dahyabhai Patel, wherein it is observed as under in paragraph 9:-
"[9] It is required to note that nobody including trust and the Panchayat has objected to grant of N.A. Permission to the petitioner on the ground that their right survive on the land for which N. A. permission is asked for. In such circumstances and in absence of prohibitory order from any competent Court against grant of N.A. Permission or development of land by the petitioner, the Collector was required to decide the application under section 65 of the Code. It is now settled that the Collector is not to go into question of title of the land and is expected to decide the application within reasonable time period available to him under the provisions of section 65 and it is not open to him to pass unreasonable long time on the grounds not available in law. To keep application pending for long time just to ascertain from Mamlatdar whether any appeal or revision is filed against decree passed by the Civil Court where State was not party is certainly no ground available in law for not deciding the application."
8. Admittedly in this case, the Collector has refused the application only on the ground that Letters Patent Appeal is pending before this Court, regarding title under the Tenancy Act. Now, in catena of decisions, as observed herein above, the Page 6 of 7 Downloaded on : Fri Nov 19 06:12:10 IST 2021 C/SCA/1216/2021 ORDER DATED: 18/11/2021 limitation of powers in the matters under Section 65 of the Land Revenue code is well defined to the effect that Collector cannot decide the question of title of the land while dealing with an application for NA permission. The ground mentioned in the impugned communication of the Collector is not in consonance with law. It also needs to be observed that the Letters Patent Appeal filed by the State being Letters Patent Appeal No.293 of 2021 has been dismissed by Division Bench of this Court on 24.2.2021, which order is placed on record. Thus, the ground on which the application is ordered to be filed is not in existence now. Further, merely because the State is contemplating to file Special Leave Petition is also not a ground to sustain such order. Such grounds are not legally tenable.
9. Under these circumstances, in light of aforesaid decisions of this Court, present petition is partly allowed. The impugned order dated 23.11.2020 passed by the Collector, Banaskantha, is hereby set aside and the matter is remanded back to the respondent-Collector for deciding the same afresh in accordance with law. The Collector shall decide the application of the petitioner filed under Section 65 of the Gujarat Land Revenue Code within a period of three months from the date of receipt of copy of this order and keeping in mind the provision of Section 65 of the Code.
10. With aforesaid observation and direction, present petition is partly allowed. Direct service is permitted.
(DR. A. P. THAKER, J) R.S. MALEK Page 7 of 7 Downloaded on : Fri Nov 19 06:12:10 IST 2021