Gujarat High Court
Vrajshyam Co-Operative Housing ... vs State Of Gujarat on 15 March, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10752 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VRAJSHYAM CO-OPERATIVE HOUSING SOCIETY LTD
Versus
STATE OF GUJARAT & 6 other(s)
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Petitioner(s) No. 1
MR. AKASH CHHAYA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1,6.1,7.1,7.2,7.3,7.4,7.5,7.6
RULE UNSERVED for the Respondent(s) No. 4,5,6
UNSERVED EXPIRED (R) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 15/03/2022
ORAL JUDGMENT
1. Heard learned advocate Ms. Archana R. Acharya for the petitioner and learned AGP Mr. Akash Chhaya for the respondent - State. Rule is un-served upon the private respondents. It appears that they have not interested in this Page 1 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022 C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 litigation and hence, have not appeared.
2. As it was pointed out to the learned advocate Ms. Acharya for the petitioner that rule is unserved qua the respondents no. 3, 4, 5 and 6 and respondent no. 3 is expired, learned advocate Ms. Archana Acharya drew attention of this Court to the affidavit dated 15.09.2021 filed by one Jayantibhai Chelabhai Prajapati who has stated that when the notice issued by the Coordinate Bench of this Court in Misc. Civil Application No. 1 of 2020 which was for restoration of the petition, the respondent no. 3,4,5,6.1 and 7.1 to 7.3 have refused to accept the notice of application for restoration by stating that they have sold the land to the present petitioner and therefore, now they have nothing to do with the land in question and therefore, despite the fact that the Board shows that the rule is un-served qua respondent no. 4,5,6 and unserved as expired qua respondent no. 3, the matter is taken up for final hearing as contesting respondent is State Government.
3. By way of the present petition, the petitioner has challenged the order dated 30.10.1998 passed by the Mamlatdar and ALT, Daskroi, Taluka: Ahmedabad, District: Ahmedabad in Tenancy Case No. 1517 of 1993 and the order dated 19.12.2007 confirming the aforesaid order dated 30.10.1998 passed in Tenancy Appeal No. 3 of 1999 by the Special Secretary, Revenue Department.
4. Vide order dated 28.08.2008, the Coordinate Bench of this Court has issued rule and granted ad-interim relief in terms of paragraph no. 9 (C) which reads as under:-
C) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the Page 2 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022 C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 implementation, operation and executing of the impugned order dated 19.12.2007 passed by the respondent No.1 in Ganot Appeal No. 3 of 1999 confirming the order dated 30.10.1998 passed by the respondent no. 2 in Ganot Case No.1517/93.
5. Today, when the matter was called out, with the consent of both the parties, the matter was taken up for final hearing, as learned advocate Ms. Archana Acharya appearing for the petitioner stated that in view of settled legal position of law and in view of certain admitted facts, even, if reply is not filed by the State Government, the matter may be taken up for final hearing.
6. Learned AGP Mr. Akash Chhaya appearing for the respondent - State initially had requested for time. However, the request for time was refused for the reason that the matter is of the year 2008,and yet, till date, no reply is filed. Further on perusal of record also, this Court found that there are certain admitted facts which learned AGP was not in a position to dispute and therefore, the matter was heard finally.
7. It is the case of the petitioner that land bearing Block no. 393 admeasuring 3541 sq. mtrs. situated at Village:- Ghuma, Taluka:
Daskroi, District: Ahmedabad originally belonged to respondents no. 3 to 7. Vide order dated 30.05.1990 the N.A. permission was granted in respect of the aforesaid land in question and after the land was converted into N.A. land after two months vide registered sale deed dated 30.07.1990, the petitioner purchased the land in question. The N.A. permission granted in respect of the land only for residential purpose.
8. Once the sale took place, the Mamlatdar, Daskroi initiated proceedings under section 32 P of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "the Tenancy Act").
Page 3 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 Those proceedings were numbered as Tenancy Case No. 1517 of 1993, though the petitioners were heard by the Mamlatdar, Daskroi vide order dated 30.10.1998, the Mamlatdar and ALT, Daskroi passed an order holding that the sale has become ineffective and therefore, the land in question is required to be disposed of by following the procedure prescribed under section 32 (P) (2) (C), by following the priority list prescribed as per section 32 (P) (2) (C).
9. The aforesaid order dated 30.10.1998 passed in Tenancy Case No. 1517 of 1993 was challenged by the petitioner before the Special Secretary, Revenue Department by preferring an Appeal No. Tenancy/AMD/3/99. Ultimately, after hearing the petitioner, even the Secretary, Revenue Department (Appeals) rejected the appeal preferred by the petitioner and vide order dated 19.12.2007 confirmed the order dated 30.10.1998 passed by the Mamlatdar and ALT, Daskroi in Tenancy Case No.1517 of 1993.
10. Being aggrieved by both the aforesaid orders dated 30.10.1998 passed by the Mamlatdar, ALT, Daskroi as well as order dated 19.12.2007 passed by the Special Secretary (Appeals) Revenue Department, the petitioner has challenged those orders by way of this petition.
11. Initially vide order dated 28.08.2008, rule was issued and ad- interim relief in terms of paragraph no. 9 (C) was granted. Though the petition was preferred in the year 2008, since, reply is not filed till date and also the fact about the NA permission granted in respect of the land in question has not been disputed, the present petition is taken up for final hearing.
12. Learned advocate Ms. Archana Acharya first took this Court to Page 4 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022 C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 the definition of land, as per section 2 (8) of the Gujarat Tenancy and Agricultural Lands Act, 1948, which reads as under:-
"2(8) "land" means-
(a) land which is used for agricultural purpose [or which is so used but is left fallow, and includes the sites of farm buildings] appurtenants to such land; and
(b) for the purposes of sections 11, 16, 17, 17A, 17B, 18, 19, 20, 26, 28, 29, 29A, 30, 41, 4 [43] , 63, 64, 64A, 84A ,84B and 84C-
(i) the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses.
(ii) the sites of structures used by agriculturiests for allied pursuits;]"
13. From the definition of 'land', learned advocate Ms. Acharya for the petitioner pointed out that section 2 (8) (a) starts with the word land which is used for agricultural purpose, would suggest that the provisions of the Tenancy Act would apply only to the agricultural lands. In view of the fact that N.A. permission was granted to the predecessor in title of the petitioner from whom the petitioner purchased the land, the petitioner had purchased the N.A. land. Permission converting the agricultural land into Non Agricultural land vide order dated 30.05.1990 was never challenged by any private party nor it was taken in suo moto revision by the State Government at any point of time and therefore, since, 30.05.1990 status of the land has remained same of Non Agricultural land which was to be used for residential purpose. When the petitioner has purchased the land for which NA permission was granted, once the land is converted into non agricultural land, it ceased to be agricultural land and therefore, all the Acts which are meant for agricultural lands would not operate in respect of N.A. land and therefore, she submitted that the proceedings initiated under the Tenancy Act were without jurisdiction and therefore, both the orders impugned in this petition were passed in a proceedings which were without Page 5 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022 C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 jurisdiction and therefore, nullity and deserved to be quashed and set aside.
14. In support of the aforesaid submissions, Ms. Acharya placed reliance upon the two decisions of this Court in the case of Ravichand Manekchand Sheth V/s. State of Gujarat in Special Civil Application No. 1994 of 1995 reported in 2006 (2) GLR 1567 and another judgment reported in 2007 3 GLR 2290 in the case of Navinchandra Krushnalal Shroff V/s. State of Gujarat delivered in Special Civil Application No. 8666 of 1985. By citing both the judgments, learned advocate Ms. Acharya submitted that once, the permission for Non Agricultural land use is granted then, the land would lose its character and such land cannot be treated to be agricultural land, on which agricultural operation can be performed and therefore, any provision which is in respect of the agricultural land would not operate in respect of N.A. land and therefore, initiation of such proceedings was without jurisdiction and therefore, the order passed in a proceedings which is without jurisdiction, cannot be sustained and therefore, she urged that both the orders may be quashed and set aside.
15. Learned AGP Mr. Akash Chhaya for the respondent - State vehemently opposed the petition by stating that though the land was N.A. land at the time when the petitioner has purchased the land, however, learned AGP Mr. Chhaya has submitted that in respect of the land in question, there were tenants also. Name of the tenants, according to learned AGP Mr. Chhaya were Nagji Mohanji, Sabuji Takhuji and Bachu Mora. According to learned AGP Mr. Chhaya proceedings under the Tenancy Act were initiated to protect the right of tenant, as it appears from the record that while granting N.A. Permission, the tenants were not Page 6 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022 C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 heard and only on the basis of an application made by the land lords, the N.A. permission was granted. He therefore, urged that by way of impugned orders, both the authorities have tried to protect the right of tenants as per the priority list and name of the tenant would come at the top priority.
16. No other submissions were made by either advocates nor any other judgments except those which are referred in the foregoing paragraphs were stated.
17. Before dealing with the submissions made by the learned advocate for the petitioner, what is important to consider is the fact that in the present petition, the original landlords who are joined as respondent no. 3 to 7 have categorically stated that reference which is made in the affidavit filed by Mr. Jayantibhai Chelabhai Prajapati who had gone to serve the notice of restoration application when the petition was dismissed for default. In the affidavit, he has stated that when he went to serve notice to the respondents no. 3 to 7 who were the landlords of the land in question, they submitted that they are not interested in this litigation as they have already sold the land in question to the petitioner and therefore, now there are not the contesting respondents in this petition.
18. As far as the contentions of the learned AGP about the fact that in the present petition, impugned orders were passed to protect the interest of tenant is concerned, the record indicates that though before the Mamlatdar, Daskroi tenants were made a party and at no point of time, tenants have taken any action or objected to any of the proceedings. In fact they never participated in any of the proceedings and therefore, a presumption can be drawn that after more than 13 years after the Page 7 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022 C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 sale deed was executed in favour of the present petitioner and when the land is converted into N.A. land, the tenants by passage of time, now have lost the interest in land in question and therefore, though request was made to adjourn the matter to take instruction, the matter was heard finally.
19. As far as the submission of learned advocate for the petitioner is concerned, there is some force in the submission that the definition of land as defined under section 2 (8) (a) specifically states that for the purpose of this Act, the land which is used for agricultural purpose would be considered as land. In the instant case, the sale deed was executed in favour of the petitioner on 30.07.1990 and therefore, the date on which the sale deed executed in favour of the petitioner, the sale deed was executed in respect of the Non Agricultural land as land is converted into NA land vide order dated 13.05.1999.
20. Now in this background, if the two judgments cited by the learned advocate for the petitioner is considered, in the case of Ravichanra Manekchandra Sheth V/s. State of Gujarat, this Court has observed in paragraph no. 9 vii as under:-
"There is also an error committed by the authorities below while passing the impugned order. After granting the N.A. Permission under section 65 of the Code,1879, the petitioner no.1 has altered his position, expenditure has been incurred in the land bearing revenue Survey No.1005 paiki and the land has been divided into 20 sub-plots, after sale of all these 20 sub-plots to several persons by registered sale deeds. Once the petitioner no.1 has altered his position and has sold away the sub-plots especially when N.A.Permission is granted (which is valid till today), it was not warranted for the respondent authority to issue Notice dated 12th November,1992 under the Ordinance,1949, read with, Rule 108(6) of the Rules,1972. The execution of the registered sale deeds, upon receipt of the consideration makes the position of the petitioner no.1 so much altered, that now, it cannot be put Page 8 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022 C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 back, if, at all, the impugned orders held valid and legal. Neither the mutation entry no.1800, which was certified on 23rd March,1991, neither the N.A Use permission dated 22nd October,1992 has been upset by the respondent authority. The division of the plot in 20 sub-plots, thereafter sale by registered sale deed to 20 persons etc. is due to investment in the land for its development. This aspect of the matter has not been appreciated by any of the authorities below as stated hereinabove. N.A. Use Permission is such Non- transparent wall that once the N.A. use Permission is given, the agricultural land cannot be seen by the respondent authority, except, through window of breach of any conditions of N.A. use Permission. Once valid N.A. use Permission granted for any land under section 65 of the Bombay Land Revenue Code,1879, it ceases to be agricultural land and, therefore, provisions of any Act, which are applicable to agricultural land are not applicable to such land, whether it is the Ordinance,1949 or the Bombay Tenancy and Agricultural Lands Act,1948 or the like. It has been held by this Court in the case of Bipinchandra G. Dalal & Another V/s. State of Gujarat and Another reported in 1987(2) GLH 127 especially in para-9 thereof, as under :-
"9. The Secretary (Appeals) has relied on two decisions of this Court, both rendered by S.H. Sheth, J. In the case of Kamalkhan Ajitkhan (supra), the Mamlatdar granted land to the petitioner on 3rd January 1973 and the Assistant Collector issued notice under section 211 of the Code on 21st January, 1975, that is, after a lapse of two years. Relying on the decision of the Supreme Court that the power must be exercised within a reasonable time, it was observed that reasonable time must depend on the facts and circumstances of each case. Taking note of the fact that the petitioner had not done anything on the wada land and the land had remained as it was during the said period of two years, this Court held that it was permissible to exercise revisional power as the same was not likely to cause any prejudice to the petitioners. In the case of Gulam Yasinmiva (supra), the order made by the Assistant Collector on 7th August,1967 was sought to be revised after a lapse of almost three years by notice dated 27th October 1970. Taking note of the decision of the Supreme Court as well as this Court in Habib Nasir's Case (supra), the learned Judge observed that since the period of reasonable time must depend on the facts and circumstances of each case, it would have been necessarily to seriously view the proposed action if the evidence had disclosed that after the land was granted to the petitioner, the petitioner had invested moneys in the land, developed it or had done something to Page 9 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022 C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 develop it. In the absence of such evidence, this Court held that notwithstanding the lapse of time, since the proposed action was not likely to cause prejudice to the petitioner, the same must be upheld. Both these decisions do not pertain to exercise of revisional powers relating to permission granted under section 65 of the Code. As pointed out earlier, cases governed by Section 65 read with Section 211 stand on a different footing and in view of the observations made by the Supreme Court extracted earlier, the power must be exercised within a few months from the date of permission. Besides, in the present case the petitioners have averred that after the grant of permission, they have sold or entered into an agreement to sell the plot for the purpose of development and if the permission granted is belatedly cancelled, it would have a direct impact on the transaction entered into by the petitioners. Miss Shah was, therefore, right in contending that so far as the present two petitions are concerned, since the first respondent has not given any satisfactory explanation for the delay, this Court must hold that the power was not exercised within reasonable time. She submitted that in the present case it is not the contention of the first respondent that any preliminary inquiry was made to determine whether these were fit cases for exercise of revisional powers as in the batch of petitions, Special Civil Application No.4530 of 1983 and allied matters disposed of today and, therefore, there is no explanation whatsoever why the power was not exercised promptly within a few months from 6th November 1982. This is all the more so because in similar circumstances the Secretary (Appeals) had while dealing with land in Block No.18 admeasuring 2723 sq.yards, withdrawn the show cause notice on the ground that the proposed action was delayed. I am inclined to agree with the submissions made by Miss Shah in this behalf." (emphasis supplied)
21. Further in the case of Navinchandra Krushnalal Shroff V/s State of Gujarat, this Court observed in paragraph no. 8 would read as under:-
Section 65 of the Tenancy Act applies in a case where it appears to the State Government that for any two consecutive years any land has remained uncultivated or full and efficient use of the land has not been made for the purpose of agricultural etc. Once, permission for non-agricultural use is granted then, the land would lose its character and such land cannot be treated to be agricultural land, land on which agricultural operation can be performed. The order passed by the learned Dy. Collector is patently illlega, it deserves to and is accordingly quashed. The petition is allowed. Rule is made absolute. No costs.Page 10 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022
C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022
22. Observations made in both the aforesaid cases, which are cited by the learned advocate for the petitioner, makes it abundantly clear that once N.A. permission is granted, the land would lose its character of being an agricultural land and therefore, any of the Act which are meant for agricultural land would not operate in respect of the N.A. land. In the instant case, also the petitioner has purchased the N.A. land for which N.A. permission was granted on 30.05.1990 and sale deed was executed in favour of the petitioner on 30.07.1990 which would suggest that when the petitioner was purchased the land, status of the land was N.A. land.
23. In view of that, submission of learned advocate Ms. Acharya that proceedings initiated by the authority were without jurisdiction and therefore, such orders cannot sustain has force in it. Learned AGP Mr. Chhaya for the respondent - State neither from the record nor by way of any instructions from the officer could point out that at any point of time, this NA permission was withdrawn and therefore, in view of that, this settled legal position of law that once NA permission is granted, the laws related to agricultural land ceased to operate would apply in the present case also. Resultanly, the proceedings initiated under the Tenancy Act after the land was converted into N.A. land were proceedings without jurisdiction and therefore, any order passed in those proceedings were nullity and therefore, those orders required to be quashed and set aside.
24. Resultantly, both the impugned orders dated 30.11.1998 passed by the Mamlatdar and ALT, Daskroi, Taluka: Ahmedabad, District: Ahmedabad in Tenancy Case No. 1517 of 2019 and the order dated 19.12.2007 passed in Tenancy Appeal No. 3 of 1999 Page 11 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022 C/SCA/10752/2008 JUDGMENT DATED: 15/03/2022 by the Special Secretary, Revenue Department are quashed and set aside.
25. The present petition is allowed as disposed of. Rule is made absolute. No order as to costs.
Direct service is permitted.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 12 of 12 Downloaded on : Sat Dec 24 12:57:11 IST 2022