Gujarat High Court
Bhikhabhai Kalabhai Harsoda vs State Of Gujarat on 5 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/19118/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19118 of 2019
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BHIKHABHAI KALABHAI HARSODA
Versus
STATE OF GUJARAT
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Appearance:
MR NIKHIL S KARIEL(2315) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3,4,5
MR. UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER/PP(99)
for the Respondent(s) No. 1
MR. R.S.SANJANWALA, SENIOR COUNSEL WITH MR AMAR D
MITHANI(484) for the Respondent(s) No. 6
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 05/02/2020
ORAL ORDER
1 The prayer of the petitioner reads as under:
"9a) YOUR LORDSHIPS may be pleased to admit and allow the present petition.
b) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order No.MVV/BHKHP/RJT/6/2019 dated 21.08.2019 passed by the Respondent No.02-Special Secretary, Revenue Department (at Annexure-A) confirming the order No. CB/NA/ Rajkot/ Kothariya/ 250P2/ 1004093/2019 dated 06.02.2019 (at Annexure-B) passed by the Respondent no.03 Collector granting the Non-Agriculture permission to the entire parcel of subject land situated at village Kothariya, Dist. Rajkot bearing revenue survey(old) no. 250/P/2 admeasuring 9-
20 gunthas i.e. 37737 sq. mtrs (2264.20 sq mtrs after deduction);"
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2 The present petition has been filed by the petitioner challenging the orders dated 06.02.2019 passed by the respondent No.3-Collector, so confirmed by the respondent No.2 Special Secretary, Revenue Department, by which, the respondents Nos. 2 and 3 have granted non agricultural permission to the respondent No.6 for the entire parcel of land situated at village: Kothariya, district : Rajkot.
3 The facts in brief are as under:
3.1 The respondent No.6- Universal Copper & Steel Rolling Mills made an application to the Collector, respondent No.3, for granting him N.A Permission for land bearing survey No.250/P/2, T.P.Scheme No. - F.P No. admeasuring 37,737.00 sq. metres paiki sub plot No. MA admeasuring 22642.20 sq metres.
3.2 The Collector, on examining the 7/12 record of the occupant, respondent No.6, and on inquiry found that the land was of old tenure and that the applicant / respondent No.6 had filed an affidavit with documents showing title clearance, and therefore, by the order of 06.02.2019 granted the N.A Permission to the respondent No.6.
3.3 Aggrieved by the N.A Permission granted to the respondent No.6, the petitioner preferred a revision before Page 2 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER the Special Secretary, who in turn, confirmed the order passed by the Collector. These orders are under challenge by the petitioner on various grounds.
4 Mr.Nikhil Kariel, learned counsel for the petitioner, submitted that originally the land admeasuring 9.20 gunthas i.e. 38445 sq. metres of agricultural land belonged to the father of the petitioner. The District Development Officer had granted permission for non agricultural use on 27.06.1964 and the land was so converted. Out of the total land admeasuring 37737 sq.metres, only part of the land, namely, 26141 sq.metres was sold to the respondent No.6 - Universal Coppers by a registered sale deed on 16.11.1964. 4.1 Mr.Kariel, learned counsel, further submitted that the respondent No.6 fraudulently mutated his name over the whole parcel of land being Entry No. 606 on 12.02.1965, though only a part of land was sold.
4.2 According to Mr.Kariel, learned counsel, the actual land sold, therefore, was 26141 sq.metres and the remaining land of 12304 sq.metres belonged to the petitioner's father, and therefore, the petitioner had ancestral rights. 4.3 It appears that the District Development Officer passed an order on 27.07.1964 on a breach of condition and Page 3 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER the N.A. Permission was cancelled on 09.10.1972. This was accepted by the respondent No.6 and was never challenged.
Based on this order of cancellation, the respondent No.6 continued to hold the lands as an agriculturist, as an occupier. 4.4 On a revision application preferred by the petitioner, on 31.01.1985 the entry was cancelled. On a revision being preferred by the respondent No.6, the same was rejected. On a representation being preferred by the respondent No.6, the proceedings were remanded.
4.5 Mr.Kariesl, learned counsel, further submitted that there was a dispute before the respondent - Collector, pertaining to the land for breach of section 54 of the Saurashtra Ghar Khed Act and the Collector by an order of 01.08.1995 ordered vesting of land in the government.That order on a challenge by the respondent No.6 in revision was confirmed. The High Court by its judgment and order dated 12.04.2013 allowed the petitioner's revision. The petitioner had preferred an appeal and an SLP thereafter, which was dismissed.
4.6 Mr.Kariel, learned counsel, would further submit that the orders granting N.A. Permission to the respondent No.6 were illegal, inasmuch as, the petitioner had preferred a suit for cancellation of the Sale Deed of 1964, which though was Page 4 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER dismissed an appeal before the District Court being Appeal No.55 of 2017 was pending.
4.7 Drawing my attention to the Sale Deed, Mr.Kariel, learned counsel, would submit that what is clear on reading the sale deed is that what was in fact sold to the respondent No.6 was land admeasuring 26141 sq.metres only. He would draw my attention to page 36 and the relevant extract or portion of the sale deed to support his submission. He would submit that the respondent No.6 continued therefore to occupy the other extra area of the land and did not claim their right on such land. There was a serious dispute viz-a-viz the title of the land in view of the foregoing disputes and litigations, to which he has made a reference to during the course of his arguments.
4.8 Relying on Section 65 of the Gujarat Land Revenue Code, Mr.Kariel, learned counsel, would submit that in accordance with the provisions of Section 65, the Collector has to make inquiries with regard to whether the occupant of the land is entitled to the grant of N.A Permission. He can do so only after due inquiry. Such inquiry in the facts of the case would have indicated the nature of dispute with regard to the lands in question showing that the respondent No.6 was not entitled to occupy the lands i.e. the entire parcel of 37737 sq. Page 5 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER metres and the order of the Collector was confirmed by the Secretary (Appeals) was erroneous.
4.9 Mr.Kariel, learned counsel, relied on a decision of the Supreme Court in the case of The State of Gujarat vs. Patil Raghav Natha and others., reported in 1969 (2) SCC 187. Relying on para 14 of the decision, Mr.Kariel, learned counsel, would submit that when the title of the occupant is disputed by any party before the Collector or the Commissioner, and the dispute is serious, such must be inquired into. He would submit that though under Section 65 of the Land Revenue Code may be that the Collector in granting N.A Permission does not consider it to be an adversarial litigation because it is not in dispute that the respondent No.6 had no title to the entire land and only part of the land as so demonstrated from the sale deed which was a subject matter of challenge in a suit and against which order an appeal is pending. Mr.Kariel, learned counsel, also relied on a decision of this Court in the case of Bhayabhai Vajshibhai Hathalia & ors vs. State of Gujarat & Ors., reported in 2012 (2) GLR 1741 and distinguished on the ground that when it is acknowledged that respondent No.6 has no title over the entire parcel of land, the order of the Collector so granting permission is bad. Page 6 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER 5 Mr.R.S.Sanjanwala, learned Senior Counsel appeared with Mr.Amar Mithani, learned advocate for respondent No.6. He invited my attention to the sale deed in question and submitted that it was not in dispute that the entire parcel of land, namely, 9 acres and 13 gunthas was sold to the respondent No.6. Sale was done by a registered sale deed executed on 16.11.1964. 55 years after such a registration and after having pocketed the money, the petitioner now assails the disputed sale deed on the ground that the entire parcel of land was not sold. Referring to various recitals in the sale deed, Mr.Sanjanwala, learned Senior Counsel, would point out that the entire parcel of land admeasuring 9 acres and 13 gunthas, total admeasurment being 31265 sq.metres of which 26140 sq.metres was of plots demarcated, 43 in number was undisputedly sold by the petitioner's father by the sale deed in question. He would invite my attention to the recitals of the land being (chhot padtar) part of which was with common plot. The contention that the land area was 9.20 is misconceived because it was re-measured to be 9.13 acres. 5.1 Mr.Sanjanwala, learned Senior Counsel, would further submit that the petitioner has demonstrated that after having failed in series of litigations, the present petition has been filed. Initially, Regular Civil Suit No. 331 of 2012 was Page 7 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER filed before the Civil Court at Rajkot. Inviting my attention to the plaint, he would submit that even in plaint he had admitted the land to be 9.13 gunthas. The prayers also in such suit revealed such an admitted area of land. On the respondent No.6 filing an application under Order 7 Rule 11, of the Civil Procedure Code, 1908, the suit was dismissed as time bared. Secondly, Mr.Sanjanwala, learned Senior Counsel, would submit that on 27.07.1964 N.A Permission was granted and the land was thereafter transferred to the respondent No.6. Since the N.A Permission was cancelled in 1972, the respondent No.6 could not put up construction. When Suo Moto proceedings were undertaken by the Collector under the Saurashtra Ghar Khed Tenancy Act, the petitioner approached this Court after the revenue authorities held against him and by a decision of this Court in Special Civil Application No. 3031 of 2007 dated 12.04.2013, this Court allowed the respondent No.6's objection on the ground of delay of 20 years in initiation of proceedings under Section 54. On a leave to appeal filed by the petitioner in the Letters Patent Appeal, the order of the learned Single Judge was confirmed. No where in such proceedings was it the case of the petitioner that the land sold was not the actual land, and therefore, no dispute was raised regarding the sale deed. Therefore, in all Page 8 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER litigations, the petitioner having failed, there is now no dispute pending so as to create any cloud as to the title of the land in favour of the respondent No.6, and therefore, the orders passed by the authorities are legal and valid. 5.2 Mr.Sanjanwala, learned Senior Counsel, relied on the decisions in the case of Bhupatbhai Ranabhai Lathiya vs. State of Gujarat., reported in 2016 JX (Guj) 1839, and in the case of Tusharbhai Harjibhai Ghelani vs. State of Gujarat, reported in 2018 JX (Guj) 703, where Section 65 of the Land Revenue Code had been interpreted and based on the revenue records, the Collector has found prima facie to show that the respondent No.6 is an occupant and no fault can be found in the orders so passed.
6 Considering the submissions made by the learned counsels appearing for the respective parties, and on perusal of the orders passed by the Collector and so confirmed by the Special Secretary, the following undisputed facts emerge from the record:
(I) The father of the petitioner entered into a transaction of sale on 16.11.1964 selling 9 acres 13 gunthas of land to the respondent No.6.
(II) The sale deed annexed to the petition would indicate Page 9 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER that total area of the land sold i.e. the entire parcel of land was admeasuring 37737 sq.metres, part of which was land of common plots and roads as it was sub divided into 43 plots .
That is how the total area as per the sale deed would come to 31265 sq.metres and taking the area of "Chhot Padtar" or common plots, the remaining parcel of land was 26141 sq.metres. In fact, the entire parcel of land was sold to the respondent No.6.
(III) The petitioner appears to have assailed the sale after a period of 55 years by filing Civil Suit No. 331 of 2012. Perusal of the plaint would indicate that the petitioner as a plaintiff admitted that the total area of land was 9 acres and 13 gunthas. The prayer was accordingly to set aside the sale to the entire land area. The suit was dismissed as hopelessly time barred.
(IV) When the Collector sought to initiate Suo Motu proceedings under Section 54 of the Ghar Khed Act that was challenged before this Court in Special Civil Application No. 3031 of 2007. This Court in the judgment and order so passed, categorically held in favour of the respondent No.6 by holding as under:
" 10. From the facts noted hereinabove, it is apparent that what was subject matter of challenge before the Tribunal, was an order passed by the Collector in exercise of powers under section 75 of the Ordinance for Page 10 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER breach of section 54 thereof.
Thus, it is not necessary to go into the merits of mutation entry No.1000, which was subject matter of challenge in the proceedings which came to be initiated by the Deputy Collector and culminated into the order passed by the Special Secretary, Revenue Department (Appeals) pursuant to which, the Collector has initiated the proceedings under section 54 of the Ordinance.
11. The facts of the present case are quite peculiar, inasmuch as, when the petitioners purchased the subject land, the same was non-agriculture land and as such, there was no breach of the provisions of section 54 of the Ordinance. Later on, in view of the order passed by the Collector for breach of conditions of non-agriculture, the land came to be again converted into agriculture land. The said order was passed by the Collector in the year 1972. Thereafter, the names of the petitioners came to be entered in the record of rights by virtue of mutation entry No.1000. At that relevant time also, no action was taken under the provisions of the Ordinance. Much later, when the petitioners filed an application under section 20 of the Land Ceiling Act, the Deputy Collector, sometime in the year 1985, initiated the proceedings under rule 108(5) of the Rules by taking the mutation entry No.1000 in suo motu revision. Even at that time also, no steps were taken for initiating the proceedings under section 75 of the Ordinance. Thereafter, the Deputy Collector passed an order setting aside the mutation entry which was challenged in appeal before the Collector and the order of the Collector was challenged in revision before the Special Secretary, Revenue Department (Appeals). It was only after the Special Secretary, Revenue Department (Appeals) remanded the matter to the Collector for deciding the matter afresh, that the Collector, by issuing a notice dated 28.2.1995, initiated the proceedings under section 75 of the Ordinance for breach of section 54 thereof. Thus, the proceedings came to be initiated after a period of about twenty-three years from the date of the order passed by the Collector converting the land into agriculture land and ten years from the date when the Deputy Collector issued notice for taking mutation entry No.1000 in suo motu revision.
Evidently therefore, there is a considerable delay in Page 11 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER initiation of the proceedings under section 75 of the Ordinance.
12. A perusal of the impugned order passed by the Tribunal reveals that the Tribunal, after considering the decisions cited by the petitioners on the question of delay in initiation of proceedings, has held that once the transaction apparently appears to be void, the concerned authorities would be at liberty to initiate such proceedings even at a subsequent stage once it comes to their notice and they are convinced that such transaction is prima facie void and not supported by the relevant provisions of the Ordinance. In the opinion of this court, the aforesaid observations made by the Tribunal are in the face of the catena of decisions rendered by the Supreme Court as well as this High Court to the effect that even a void order is required to be challenged within a reasonable time. In the case of Bhanji Devshibhai Luhar v. State of Gujarat and others (supra), a Division Bench of this court, after referring to various decisions of the Supreme Court as well as this High Court on the issue as regards the delay in initiation of proceedings, found that even though the order passed by the competent and appellate authority holding the transaction in question as void, is in consonance with the provisions of the Ordinance and could not be faulted, in the interest of justice and equity, it also ought not be overlooked that the impugned action in exercise of the power under section 75 of the Ordinance to summarily evict the petitioner, after having allowed the transaction to remain alive for 17 years not only ignores the wide chasm between the date of transaction and the dates of the notice and the order, but also overlooks the continued possession of the petitioner who had put its land to use for agricultural purpose and has not changed the status and nature of the land.
13. Apart from the fact that in the present case, there is a delay of about more than twenty years in initiation of proceedings under section 54 of the Ordinance from the date of the order of the Collector and the delay of ten years from the time when the Deputy Collector initiated proceedings by taking mutation entry No.1000 in suo motu revision, the respondents are not in a position to offer any plausible explanation for such delay. The averments made in paragraph 6.3 of the affidavit-in-reply merely refers to the proceedings which Page 12 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER have taken place. According to the learned Assistant Government Pleader, there is no delay in initiation of the proceedings, inasmuch as, the proceedings under section 75 of the Ordinance came to be initiated pursuant to the order passed by the Special Secretary, Revenue Department (Appeals). However, the said contention does not merit acceptance, inasmuch as, there is nothing in the order passed by the Special Secretary while remanding the matter to the Collector, which indicates that the Special Secretary had directed the Collector to initiate the proceedings under section 54 of the Ordinance. Moreover, even if one may overlook the period from the date of the order of the Collector, cancelling the non-agriculture permission, the respondent authorities were well aware of the transaction in question when the Deputy Collector initiated proceedings of cancellation of the mutation entry in the year 1985. Thus, it is apparent that the respondents have not taken any action at the relevant time and have permitted a considerable period of time to elapse from the date of transaction. Under the circumstances, the exercise of powers under section 75 of the Ordinance after a period of more than twenty years, cannot be said to have been exercised within a reasonable period.
14. Moreover, having regard to the peculiar facts of the present case, wherein at the time when the transaction came to be entered into, the subject land was non-agriculture land, there is a doubt as to whether the provisions of section 54 of the Ordinance would at all be attracted in the present case.
However, having regard to the fact that the court is inclined to allow the petition mainly on the ground of powers of suo motu revision having been exercised after an unreasonable period of time, it is not necessary to enter into the merits of the order passed under section 75 of the Ordinance.
15. In the light of the aforesaid discussion, the petition succeeds and is, accordingly, allowed. The impugned order dated 26.4.1999 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BR/No.32/95 (Annexure "R" to the petition) as well as the impugned order dated 18.7.1995 / 1.8.1995 passed by the respondent No.2 - Collector, Rajkot, (Annexure "P" to Page 13 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER the petition), are hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs."
(v) On an appeal filed by the petitioner herein, the Division Bench of this Court specifically observed that it cannot be said that the petitioner can be termed as an aggrieved person once he has sold the land in question and pocketed the money. Relevant observations made by the Division Bench in Letters Patent Appeal No. 1015 of 2017 dated 04.09.2018 read as under:
"16. Keeping in view the aforesaid decisions, if the facts of the present case as discussed hereinabove are considered, it can be said that the applicants cannot be termed as aggrieved party once they have sold the land in question and pocketed the money. Learned Single Judge has rightly considered the fact that the respondent Collector exercised the powers under the provisions of the Ordinance after a period of 20 years and therefore on that ground, quashed and set aside the orders passed by the respondent- Collector and Tribunal. Similarly, in absence of sufficient cause shown by the applicants before the learned Single Judge for not filing the review application within the stipulated time limit, learned Single Judge has rightly dismissed the said Civil Application along with the Miscellaneous Civil Application filed for review.
17. In view of the foregoing discussion, we are not inclined to grant the Civil Application which has been filed by the applicants for condonation of delay in absence of sufficient cause shown by the applicant and also Civil Application No.2887 of 2018 which has been filed by the applicants seeking leave of this Court to grant permission to the applicants to file an appeal against the judgment and order dated 12.4.2013 passed by the learned Single Judge in Special Civil Application No.3031 of 2007 as it is not required to be entertained in the facts of the present case as discussed Page 14 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER hereinabove. In view of the foregoing discussion, both the Civil Applications are dismissed."
7 What is therefore evident from the chronology of the controversy with regard to the land in question is that the Collector having satisfied himself that the respondent was the occupant cannot be faulted to have granted non agricultural permission to the respondent No.6.
8 The litigations referred to hereinabove initiated at the hands of the petitioner have been unsuccessfully pursued by him and he has failed to prove his case not only viz-a-viz the challenge to the sale deed of 1964 but also when he tried to intervene in a challenge to the proceedings under Section 54 of the Ghar Khed Act.
8.1 The sale deed, admittedly, was for the entire parcel of land, namely, 9 acres and 13 gunthas and the land pertaining to plot nos. 43 in principle, minus 37737 was "Chhot Padtar"
which the sale deed clearly mentions.
9 In accordance with the decision of this Court in the case of Bhayabhai Vajshibhai Hathalia & Ors., vs. State of Gujarat & Ors., reported in 2012 (2) GLR 1741, this Court in para 20 of the judgment held as under:
"20.Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the Page 15 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER contentions in respect of the order impugned in this petition. Plain reading of section 65 of the Code in my view would persuade the Court to hold that section 65 of the Code does not envisage scope of raising any objection in any party who is not acknowledged right or interest in the land in question. In other words proceedings under section 65 of the Code is not an adversely proceeding at all. If any interested party is apprehending any smart practice on any one in respect of land it can always take recourse to the civil court for obtaining appropriate injunction or prohibitory orders. When the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, atleast in my view, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. Or else it will lead to a situation where on account of showing semblance of some interest in the land in question or for that matter even substantive interest the party who has not been successful in establishing its right and obtain any prohibitory orders would succeed in thwarting and throatling the occupant of the land in question who is legitimately acknowledged to be occupant by revenue authorities. The N.A. Permission under section 65 cannot be said to be in any manner conferring and or abridging title of any one if it exists in the land in question. It is merely an act of granting permission by the authority qua the piece of land in question. In other words it can well be said that the land which was an agricultural land and it was supposed to put up to agricultural purpose, is decided to be freed from restrictions and permitted to be developed. Thus the permission is attached to the land in question and not to the person. Therefore in my view the interpretation of section 65 of the Code cannot be said to be in any manner rendering it to be adversarial proceedings at all."
10 That judgment was referred to in the case of Tusharbhai Harjibhai Ghelani (supra) wherein, this Court while interpreting Section 65 of the Gujarat Land Revenue Code held as under:
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"35. Section 65 of the Code, referred to above, on its plain reading, do not provide for any scope of raising objection by any party who is yet to establish its right in his favour over the land in question. In other words, the proceedings under section 65 of the Code is not an adversary proceeding at all.
36. In section 65 of the Code, referred to above, two words are of pivotal importance; (I) "occupant" and (ii) "holding". Section 3(12) defines the term "holding". It reads as under;
"3(12):-"holding":-"holding" means a portion of land held by a holder"
37. Section 3(16) defines the term "occupant". It reads as under;
"3(16):-"occupant"; "occupant means a holder in actual possession of unalienated land, other than a tenant; provided that where the holder in actual possession is tenant the landlord or superior landlord, as the case may be, shall be deemed to be the occupant."
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 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 Page 17 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER 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.
41. A perusal of the impugned order dated 19th November, 2014 passed by the Collector makes it clear that the reason for the rejection of the application of the writ applicants is that their title to the land in question is defective on the ground that two civil suits are pending.
42. In State of Gujarat v. Patel Raghav Natha,(1969)2 SCC 187, the Supreme Court has clearly held as below:
"14. We are also of the opinion that the Commissioner should not have gone into question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent Court and not decide the question of title himself against the occupant."
43. This was also a case where the NA Permission under the provisions of Section 65 of the Code was in issue. The above principles of law therefore, squarely Page 18 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER apply to the present case.
44. Considering the provisions of Section 65 of the Code as well as the above pronouncement of law by the Supreme Court, this Court cannot but arrive at the inevitable conclusion that the denial of NA Permission to the writ applicants under the garb of a purportedly defective title over the land in question amounts to a transgression of the limits of jurisdiction vested in the second respondent under the Code. The impugned order is, therefore, one without jurisdiction. For such reason also the plea of alternative remedy should fail.
45. In the aforesaid context, let me look into a decision of this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat, 2012 (2) GLR 1741. I may quote the relevant observations;
"20. Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the contentions in respect of the order impugned in this petition. Plain reading of section 65 of the Code in my view would persuade the Court to hold that section 65 of the Code does not envisage scope of raising any objection in any party who is not acknowledged right or interest in the land in question. In other words proceedings under section 65 of the Code is not an adversely proceeding at all. If any interested party is apprehending any smart practice on any one in respect of land it can always take recourse to the civil court for obtaining appropriate injunction or prohibitory orders. When the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, atleast in my view, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. Or else it will lead to a situation where on account of showing semblance of some interest in the land in question or for that matter even substantive interest the party who has not been successful in establishing its right and obtain any prohibitory orders would succeed in thwarting and throatling the occupant of the land in question who is legitimately acknowledged to be occupant by revenue authorities. The N.A. Permission under section 65 cannot be said to be in any manner conferring and or abridging title of any one if it exists in the land in question. It is merely an act of Page 19 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER granting permission by the authority qua the piece of land in question. In other words it can well be said that the land which was an agricultural land and it was supposed to put up to agricultural purpose, is decided to be freed from restrictions and permitted to be developed. Thus the permission is attached to the land in question and not to the person. Therefore in my view the interpretation of section 65 of the Code cannot be said to be in any manner rendering it to be adversarial proceedings at all.
21. Bearing the aforesaid proposition of law in mind when one examines the aspect of appeal preferred by the contesting respondents, one would find it difficult to accept as to how the right to appeal is said to have been conferred upon a third party who has failed in establishing any right before the civil court so far as the land in question is concerned. When the party has not obtained any order or has not been succeeful in obtaining any order in any manner from civil court, which is competent, I.e. only court to adjudicate upon and acknwoeldge their rights and title in the land in question, that party cannot be permitted to throw spanner in the wheels of developemnt set in motion by the legitimate competent authroty, whose entery is there in the reveue record.
Therefore the appeal itself from the point of view of locus was also not obtained."
11 As held in the case of Virambhai Bharatbhai Bhachkan vs. State of Gujarat reported in 2015 JX(GUJ) 873, in exercise of powers under Article 226 of the Constitution of India and having examined the orders of the Collector and the Special Secretary, once the Collector has undertaken the task and found that the permission under Section 65 was validly granted to respondent No.6, this Court will not take a re-look at the issue at the hands of the petitioner and undertake the task of deciding private land Page 20 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020 C/SCA/19118/2019 ORDER disputes with regard to ascertainment of measurement of land. On the basis of the documents on record produced in the petition, I see no reason to interfere with the order of the authorities and the petition is accordingly, dismissed.
(BIREN VAISHNAV, J) Bimal Page 21 of 21 Downloaded on : Sun Jun 14 04:58:26 IST 2020