Gujarat High Court
Ismail Yusuf Raja vs State Of Gujarat on 21 March, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/1903/2022 ORDER DATED: 21/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1903 of 2022
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ISMAIL YUSUF RAJA
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
JAYDEEP H SINDHI(9585) for the Petitioner(s) No. 1
MR KISHANKUMAR R MAURYA(10580) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3,4
MR AYAAN PATEL, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 21/03/2022
ORAL ORDER
1. With the consent of the learned Advocates appearing for the respective parties, the matter is taken up for final disposal.
2. Issue Rule returnable forthwith. Mr. Ayaan Patel, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondents.
3. The facts giving rise to the present petition are that the agricultural land bearing survey/ block no.195 (old survey no. 14) admeasuring 10,078 sq. mts. situated at Village- Vada, Taluka:
Jalalpore District : Navsari (hereinafter referred to as "the land in question") is old tenure land, and was originally owned and occupied by Firoza D/o Ahmadsaeed and W/o Shokat Hussain and 17 others. The original land owners had executed Power of Attorney in favour of Mohammad Usama Gulam Rasool, who, executed a registered sale deed dated 11.3.2015 in favour of the petitioner and one Mohammad Yusuf Bulbuliya in lieu of consideration of Rs.13,00,000/-. The registered sale deed is registered at sr. no. 1820/2015 with the office of the Sub-Registrar. Apropos the said Page 1 of 9 Downloaded on : Sat Dec 24 13:20:04 IST 2022 C/SCA/1903/2022 ORDER DATED: 21/03/2022 transaction, entry no. 2046 came to be mutated in the revenue record and was certified on 10.8.2015.
4. The co-owner i.e. Mohammad Yusuf Bulbuliya, executed a registered gift deed dated 6.2.2018, in favour of the petitioner which was registered at sr. no. 735 of 2018 before the Sub-Registrar and as a result whereof, entry no. 2528 dated 26.2.2018 was posted in the revenue record and was certified on 25.4.2018. Since the petitioner was desirous of developing the land in question, applied for permission under Section 65 of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as "the Code") on 27.1.2021. The Collector, rejected the application vide order dated 15.3.2021 on the sole ground that the Regular Civil Suit no. 182 of 2014 has been filed and is not finally disposed of. Hence, the present petition.
5. Mr. Kishankumar Maurya, learned Advocate submitted that the entry no. 2046 was posted in the revenue record on 19.6.2015 and was certified on 10.8.2015 followed by entry no. 2528 dated 26.2.2018 and certified on 25.4.2018. It is also submitted that so far as the entry no. 2046 is concerned, the same was as a result of the registered sale deed no. 1820 dated 11.3.2015 executed by the Power of Attorney of the original land owners in favour of the petitioner and one another. Thereafter, Mohammad Yusuf Bulbuliya, executed a registered gift deed in favour of the petitioner which transaction has been registered vide entry no. 2528 dated 26.2.2018 and certified on 25.4.2018. Both the entries namely 2046 dated 19.6.2015 and entry no. 2528 dated 26.2.2018 have not been challenged and have attained finality.
5.1 It is submitted that the original owners, had also applied for mutation of the heirship entry no. 1796 against which objections were raised by Mohammad Asif Ibrahim Patel and Abdulhaiy Mahamadi Patel and the Mamlatdar rejected the entry no. 1796, however in the appeal, the Deputy Collector quashed and set aside Page 2 of 9 Downloaded on : Sat Dec 24 13:20:04 IST 2022 C/SCA/1903/2022 ORDER DATED: 21/03/2022 the order of the Mamlatdar and directed certification of the entry no. 1796. It is submitted that somewhere in the year 2014, Mohammad Asif Ibrahim Patel and Abdulhaiy Mahamadi Patel had filed Regular Civil Suit no. 182 of 2014 before the Court of Principal Senior Civil Judge, Navsari seeking permanent injunction and declaration against the defendants. Though the suit has been filed, in the year 2014 together with Exh. 5 application, no stay or injunction has been granted by the civil court. It is therefore submitted that the reason assigned by the Collector, in its order dated 15.3.2021, about the pendency of the Regular Civil Suit No. 182 of 2014 is unjust and improper.
5.2 Reliance is placed on the judgment in the case of Bhayabhai Vajshibhai Hathalia and anr. v. State of Gujarat and Ors. reported in 2012 (2) GLR 1741. It is submitted that this Court has held and observed that Section 65 of the Code, on its plain reading, does not provide for any scope of raising objection in the party who is yet to establish its right in his favour on the land in question. Reliance is also placed on the oral order dated 20.1.2020 passed by this Court in Special Civil Application No. 5924 of 2019. It is submitted that the co-ordinate bench has followed the principle laid down by this Court in the case of Bhayabhai Vajshibhai Hathalia (supra) so also on the judgment in the case of Tusharbhai Harjibhai Ghelani v. State of Gujarat reported in 2019 (4) GLR 2578. It is therefore urged that the edifice on which the NA application has been rejected is erroneous, illegal and deserves of be rejected.
6. Mr. Ayaan Patel, learned Assistant Government Pleader fairly conceded that the issue is no longer res integra and is covered by the two judgments in the cases of Bhayabhai Vajsibhai Hathalia (supra) and Tusharbhai Harjibhai Ghelani (supra). It is therefore urged that appropriate order be passed.
7. Heard the learned Advocates appearing for the respective Page 3 of 9 Downloaded on : Sat Dec 24 13:20:04 IST 2022 C/SCA/1903/2022 ORDER DATED: 21/03/2022 parties.
8. The facts are not in dispute. The land in question was purchased by the petitioner and one another vide registered sale deed no. 1820 dated 11.3.2015 for the consideration of Rs.13,00,000/- from the original owners. As a result of the registered sale deed, entry no. 2046 dated 19.6.2015 was posted in the revenue record and certified on 10.8.2015. Subsequently, Mr. Mohammad Yusuf Babuliya also had executed a registered gift deed no. 735 dated 6.2.2018 in favour of the petitioner and entry no. 2528 has been posted in the revenue record and certified on 25.4.2018. Nothing has been brought on record to suggest that either the entry no. 2046 dated 10.8.2015 or entry no. 2528 dated 26.2.2018 has been challenged. The Regular Civil Suit no. 182 of 2014, has been filed by Mohammad Asif Ibrahim Patel and Abdulhaiy Mahamadi Patel in the Court of Principal Senior Civil Judge together with application Exh. 5; however, as has been stated by the learned Advocate for the petitioner that no stay or permanent injunction has been granted by the civil court. In absence of any injunction, in the opinion of this Court, the ground cited in the order dated 15.3.2021 is against the principle laid down by this Court in the cases of Bhayabhai Vajshibhai Hathalia (supra) and Tusharbhai Harjibhai Ghelani (supra).
9. In the case of Bhayabhai Vajshibhai Hathalia (supra), the facts were that the respondent therein had filed a Civil Suit wherein no prohibitory order was granted and despite that the Collector has rejected the application citing the ground of pendency of the suit. This Court in paragraphs 19(5), 19(6), 20 and 21 has observed thus:
"19(5) The contesting respondents have filed civil suit, wherein till date no prohibitory order has been obtained against any one including present petitioners and or to the predecessors. In other words the contesting respondents have not been successful in establishing even semblance of their right which would have qualified them for obtaining temporary injunction or atleast status-quo of the land in question. In Page 4 of 9 Downloaded on : Sat Dec 24 13:20:04 IST 2022 C/SCA/1903/2022 ORDER DATED: 21/03/2022 other words had there been any right found in favour of the contesting respondents by the competent civil court then only there would have been an order of status-quo restraining the predecessor of the petitioners and petitioners from alienating the character of land or creating more equities in respect of the land in question.
19(6) The Section 65 of the Code on its plain reading do not provide for any scope of raising objection in the party who is yet to establish its right in favour on the land in question.
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 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 successful in Page 5 of 9 Downloaded on : Sat Dec 24 13:20:04 IST 2022 C/SCA/1903/2022 ORDER DATED: 21/03/2022 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 development set in motion by the legitimate competent authority, whose entry is there in the revenue record. Therefore the appeal itself from the point of view of locus was also not obtained."
10. In paragraph 20, this Court, has observed 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. It has been further observed and held that If any interested party has any grievance with respect to the land, it can always take recourse to the civil court seeking appropriate injunction or prohibitory orders, but if the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. It has noted that the party who has not been successful in establishing its right and obtain any prohibitory orders would succeed in thwarting and throttling the occupant of the land in question who is legitimately acknowledged to be occupant by revenue authorities. The non agricultural permission under section 65 of the Code 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.
11. In another decision in the case of Tusharbhai Harjibhai Ghelani (supra) the co-ordinate bench has referred to the judgment in the case of Bhayabhai Vajshibhai Hathalia (supra). Paragraph Nos. 43 to 46 read thus:
"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 apply to the present case.Page 6 of 9 Downloaded on : Sat Dec 24 13:20:04 IST 2022
C/SCA/1903/2022 ORDER DATED: 21/03/2022
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 throattling 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 Page 7 of 9 Downloaded on : Sat Dec 24 13:20:04 IST 2022 C/SCA/1903/2022 ORDER DATED: 21/03/2022 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 successful 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 development set in motion by the legitimate competent authority, whose entry is there in the revenue record. Therefore the appeal itself from the point of view of locus was also not obtained."
46. Thus, the above referred decision makes the legal position abundantly clear. The position, as on date, is that the order of status quo passed by the Civil Court in the suit filed by the respondents Nos.3 to 17 has been stayed by this Court in an Appeal From Order No.16 of 2018. As on date, there is no prohibitory order operating against the writ applicants or in favour of the respondents Nos. 3 to 17. In such circumstances, what is the Collector expected to do while deciding an application seeking N.A. Permission. Indisputably, the names of the writ applicants figure in the record of rights as the owners of the subject land. The entry, mutating their names in the record of rights, is on the basis of the sale deed executed in their favour in the year 2006. The respondents Nos.3 to 7 are yet to obtain appropriate declaration as regards the legality and validity of the sale deed of the year 2006 executed in favour of the writ applicants. The only proceeding pending as on date is the civil suit filed by them."
Therefore, the aforesaid principle laid down by this Court, applies on all fours to the facts of the present case.
12. As discussed hereinabove, the sole reason which weighed with the Collector in rejecting the application was that the Regular Civil Suit no.182 of 2014 pending with the Civil Court, Navsari, is not finally disposed of. In view of the principle laid down in the aforesaid judgment, such reason assigned by the Collector, is without jurisdiction, illegal and erroneous, which warrants interference by this Court. Hence, the order dated 15.3.2021 of the Collector is Page 8 of 9 Downloaded on : Sat Dec 24 13:20:04 IST 2022 C/SCA/1903/2022 ORDER DATED: 21/03/2022 quashed and set aside and the Collector is directed to consider the application of the petitioner keeping in mind the principle laid down by this Court in the cases of Bhayabhai Vajshibhai Hathalia (supra) as well as Tusharbhai Harjibhai Ghelani (supra) and take a decision within a period of six weeks' from the date of the receipt of the copy of this order.
13. Petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(SANGEETA K. VISHEN,J) SINDHU NAIR / Ravi P. Patel Page 9 of 9 Downloaded on : Sat Dec 24 13:20:04 IST 2022