Gujarat High Court
Shaileshbhai Dahyabhai Patel vs State Of Gujarat & on 16 December, 2015
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/9057/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9057 of 2015
With
CIVIL APPLICATION NO. 11464 of 2015
In
SPECIAL CIVIL APPLICATION NO. 9057 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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SHAILESHBHAI DAHYABHAI PATEL....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
MR RAKESH PATEL, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 16/12/2015
ORAL JUDGMENT
[1] Following are the prayers made in para 8 of the present petition filed under Article 226 of the Constitution of India:
Page 1 of 8HC-NIC Page 1 of 8 Created On Fri Dec 18 02:04:25 IST 2015 C/SCA/9057/2015 JUDGMENT "8(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 19.02.2015 passed by the District Collector, Surat and be further pleased to declare that NA permission deemed to have been granted in respect of the land bearing Revenue Survey No.179 and 180 Block No.218/3 ad measuring 69796 sq.mtrs. Of village Kadodara, Taluka Palsana, District Surat for residential purpose.
(B) Alternatively, to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction directing the District Collector, Surat to grant the application dated 05.09.2014 by accepting the charges for NA permission for residential purpose in respect of the land bearing Revenue Survey No.179 and 180 Block No.218/3 ad measuring 69796 sq.mtrs. Of village Kadodara, Taluka Palsana, District Surat.
(C) Pending admission, hearing and final disposal of this petition,Your Lordships may be pleased to direct the District Collector, Surat to reconsider the application of the petitioner dated 05.09.2014 for NA Permission in respect of the land bearing Revenue Survey No.179 and 180 Block No.218/3 ad measuring 68796 sq.mtrs. Of village Kadodara, Taluka Palsana, District Surat for residential purpose.
(D) to pass such other and further orders as may be expedient and necessary in the circumstances of the case. "
[2] The case of the petitioner is that the petitioner had applied for NA Permission under section 65 of the Gujarat Land Revenue Code, 1879 ("the Code") to respondent No.2 for the land bearing Survey No.179 and 180 Block No.2183 ad measuring 69796 square meters. However, such application was ordered to be filed (disposed of) by respondent No.2 on the ground that it was necessary to verify from the office of the Mamlatdar as to whether any appeal or revision was preferred against the judgment and decree passed in Regular Civil Suit No. 88 of 2003 by the Civil Court on 6.11.2009. The petitioner has averred in the petition that his grandfather was the owner of the land in question. However, after the death of his grand father, taking undue Page 2 of 8 HC-NIC Page 2 of 8 Created On Fri Dec 18 02:04:25 IST 2015 C/SCA/9057/2015 JUDGMENT advantage of his absence, the land was mutated in the revenue record in the name of the trust. The petitioner, therefore, filed the above said civil suit wherein the Joint Charity Commissioner was also a party. The suit was for declaration and permanent injunction. It is the further case of the petitioner that in such suit, settlement was arrived at between the parties and as per the settlement, the petitioner is declared to be the owner and in possession of the land bearing Block No.218A ad measuring 10 Hector 81 Are and 91 square meters situated at village Kadodara,Taluka Palsana, District Surat. The petitioner has averred that from the land of 10 Hector, 81 Are and 91 square meters, the land ad measuring 3 Hector, 62 Are and 49 square meters (35249 square meters) was acquired by the Government for public purpose and, thereafter by order dated 6.2.2010, the Deputy Collector passed order for making necessary changes in the revenue record. The case of the petitioner is that though in the revenue record, the petitioner is shown owning the land ad measuring 69796 square meters, the Collector has ordered to file/dispose of his application for NA Permission to verify whether any appeal or revision is preferred against the order/decree passed by the Civil Court.
[3] The petition is opposed by filing affidavit in reply on behalf of respondent No.2 mainly stating that the land was originally recorded in the revenue record as "Gam Samast Haripura" and in respect of such land, the petitioner got order in his favour from the civil court on the basis of the compromise arrived at between the parties in the civil suit wherein the State Government was not joined as party. It is further stated that since the land was used for the purposes as mentioned in the trust deed and was for the benefit of the village people, the Government is taking action for challenging the decree passed by the Civil Court in the suit preferred by the petitioner.
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[4] Learned Advocate Mr.Mehul Shah and Mr. D.K. Puj
appearing for the petitioner submitted that out of the total land ad measuring 10 Hector 81 Are and 91 square meters, the Government could be said to have right and interest only for the land ad measuring 3 Hector, 62 Are and 49 square meters (35249 square meters) from the land in question, however, the application for NA Permission preferred by the petitioner was not considered on the ground that the land claimed to be in the ownership and possession of the petitioner was of the trust and for the benefit of village people and, therefore, decree passed in favour of the petitioner was required to be challenged. However neither the decree is challenged nor it is the case of the Government that the land for which decree is passed was of the ownership of the Government. They submitted that neither the trust nor the Joint Charity Commissioner who were parties to the suit nor even the Gram Panchayat or any village people have challenged the decree passed in the civil suit and, therefore, the decree has become final under which the petitioner has been declared to be the owner and in possession of the land in question. They submitted that except the above objection, or except that the Collector wanted to inquire as to whether any appeal or revision application was filed against the decree passed by the civil court in the suit filed by the petitioner, there is no any other objection to grant NA Permission to the petitioner. Learned Advocates for the petitioner also took the Court through the record and Government orders to point out that the right, title or interest of the Government are only for the land admeasuring 3 Hector, 62 Are and 49 square meters (35249 square meters) for which the petitioner has not asked for NA Permission. They submitted that while deciding the application under sec. 65 of the Code, the Collector is not to decide the question about the title to the land in question and unless there is prohibitory order from any competent court, the Collector is to decide the application for the purpose of grant of NA Permission.
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[5] Learned A.G.P. Mr. Patel on the other hand submitted that
as per the revenue record, the land for which the NA Permission was asked for is shown as Government land and in the civil suit preferred by the petitioner, since the State Government was not made a party, the Collector took impugned decision in the interest of the State to inquire as to whether any appeal or revision is preferred against the order made by the Civil Court. Mr. Patel submitted that as stated in the affidavit in reply, since the Gram Sabha and the panchayat which could be said to be the stake holders were not a party before the civil court, valuable land was allowed to be owned under the compromise decree and, therefore, the Collector is justified in not considering the application of the petitioner for NA Permission till the appropriate steps are taken to challenge the decree passed in the civil suit.
[6] Having heard the learned advocates for the parties, the Court finds that in the suit being Regular Civil Suit No. 88 of 2003 filed by the petitioner against the Joint Charity Commissioner, and the trustees of Haripura Gamat Dhorcharan (Cattle Grazing) Trust, consent terms were arrived at to treat the petitioner as owner for the land ad measuring 7 Hectors, 29 Are and 46 Gunthas from the land bearing Block No. 218A admeasuring 10 Hector 81 Are and 91 square meters. Based on the consent terms, the Civil Court decreed the suit vide order dated 6.11.2009 as per the compromise purshis at Exh. 192 and the petitioner was declared to be the owner and in possession of the land bearing block No.218A paiki land ad measuring 10 Hector 81 Are and 91 square meters. Learned advocates for the petitioner stated that as per the compromise, the petitioner would become entitled to ownership rights for the land admeasuring 7 Hectors 29 Are 46 gunthas which was reduced on actual measurement to 69796 square meters for which the NA was applied.
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[7] Learned Advocates for the petitioner drew attention of the
court to the copies of extract of 7/12 forms annexed with the additional affidavit filed in support of the petition so as to point out that the land in question was subject matter of proceedings under the Agricultural Land Ceiling Act and after the petition before this court being Special Civil Application No. 4595 of 1995 filed by Haripura Gamat Dhorcharan Trust was disposed of, the land admeasuring 3 hectors 52 Are 49 square meters stood recorded in the name of the Government pursuant to the correction recorded by the District Inspector of Land Record ("the DILR").
[8] It appears that the Deputy Collector vide order dated 6.2.2010 at annexure C while taking note of the order passed by the Civil Court in favour of the petitioner declaring him as owner of the land admeasuring 7 Hector 29 Are 46 square meters, ordered to separate two portion from the land bearing block no.218A, one for the petitioner and one Nathulalbhai as Manager of undivided family and another in the name of the Government for the land admeasuring 3 Hector 52 Are 49 Gunthas of village Kadodara. If the State Authority was of the view that the interest of the State was affected in any manner by the decree passed by the civil court in favour of the petitioner based on the compromise purshis, it could have taken appropriate remedy before the higher forum and could have obtained prohibitory orders against the petitioner either against the development of the land or against the transfer of the land. As on today, no such prohibitory order is passed by any court against the petitioner. Decree on the basis of the compromise purshis was passed as back as on 6th November, 2009. More than five years have passed and still no challenge is made to the decree either by any of the parties to the suit or by any State Authority. The District Collector however disposed of / filed the application of the petitioner for NA Permission simply on the ground that it was required to be ascertained from the Mamlatdar that Page 6 of 8 HC-NIC Page 6 of 8 Created On Fri Dec 18 02:04:25 IST 2015 C/SCA/9057/2015 JUDGMENT any appeal or revision was preferred against the decree passed by the Civil Court. The Court finds that the application preferred by the petitioner for NA Permission under sec.65 of the Code cannot be kept undecided on such ground which is not germane for taking the decision under sec. 65 of the Code.
[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.
[10] During the course of hearing of the petition, learned advocates for the petitioner stated that they do not press for the prayer to declare that N.A. permission is deemed to have been granted in respect of the land in question on account of efflux of time as provided in section 65 of the Code, however, the main concern of the petitioner is that for no valid reason, the Collector is not granting N.A. permission to the petitioner.
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[11] The Court is of the view that if there is no sustainable
objection against grant of N.A. permission to the petitioner, the Collector should take decision in accordance with the provisions of section 65 ignoring the reasons for which the application of the petitioner for N.A. permission is disposed of / filed by the impugned order.
[12] At this stage, learned advocate Mr. Shah pointed out that since subsequently, development permission was granted to the petitioner by the Surat Urban Development Authority of which the Collector is Chairman for commercial purpose, the petitioners may now require to request the Collector to consider the application for N.A. permission for commercial purpose. The petitioner may make appropriate application for such permission to the Collector seeking amendment in the original application which was for residential purpose within one week from today.
[13] For the reasons stated above, the petition is partly allowed. The impugned order / communication dated 19.02.2015 issued to the petitioner is quashed and set aside and the Collector is directed to decide the application of the petitioner for N.A. permission within a period of one month from the date of receipt of this order. Rule is made absolute accordingly.
[14] Since the main matter is disposed of and since learned advocates for the petitioner have not pressed for declaration as regards deemed grant of N.A. permission, the Civil Application shall not survive and hence disposed of. Direct service is permitted.
(C.L.SONI, J.) satish Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Dec 18 02:04:25 IST 2015