Gujarat High Court
Jigar Amrutlal Thakkar vs State Of Gujarat on 27 July, 2023
NEUTRAL CITATION
C/SCA/14226/2022 ORDER DATED: 27/07/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14226 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 14228 of 2022
================================================================
JIGAR AMRUTLAL THAKKAR
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR HET N SHAH(11211) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 27/07/2023
ORAL ORDER
1. Rule. Rule returnable forthwith. By consent of learned counsel appearing for the parties the matter is taken up for final hearing.
2. The petitioner Mr. Jigar Amrutlal Thakkar has filed both the present Special Civil Applications in respect of two different parcels of land which he has purchased by way of an auction. That thereafter, the petitioner has applied for NA permission to the Collector, Patan, who by impugned order dated 02.02.2022 has rejected both the NA application. The learned counsel appearing for the petitioner submits that the agricultural lands in question were purchased by one Company M/s. Navdurga Industries through its partners for bonafide industrial use. That the Page 1 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined said M/s. Navdurga Industries has mortgaged these lands in favour of Punjab National Bank. That due to default in repayment of loan by M/s. Navdurga Industries, the Punjab National Bank had filed recovery proceedings against it and after obtaining decree in its favour, the bank had sold the lands in question through public auction. The petitioner herein has purchased the two parcels of agricultural land in such an auction from the Punjab National Bank. The petitioner being an agriculturist, the name of the petitioner came to be duly mutated in the revenue records as the owner. That the petitioner intended to use the said land for NA purpose, and therefore, made an application dated 17.12.2021 for NA permission before the Collector, Patan. By the impugned orders, the said application came to be rejected on the ground that the earlier owner M/s. Navdurga Industries had purchased the lands for bonafide industrial purpose after seeking permission under Section 63AA of the Gujarat Tenancy & Agricultural Lands Act. But, till date it had not obtained any NA permission or sold the land for said industrial purpose. It was further observed in the order that the said Company has also not taken any permission for the sale of the said land. In view thereof, the application for NA Page 2 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined permission of the petitioner came to be rejected. Learned counsel submits that the petitioner is the owner and legal occupier of the lands in question. This Court in a catena of decisions has held that for the purpose of grant of NA permission, the Collector should look into whether the applicant is occupant of the land which is being assessed or held for the purpose of agriculture, and second is to ascertain whether such land is being assessed and held for the purpose of agricultural use. He, therefore, submits that the reasons as prescribed in the order dated 02.02.2022 rejecting the application of the petitioner are bad in law and ought to be set aside.
3. Mr. Adityasinh Jadeja, learned AGP appearing for the respondent authorities submits that in the present case the erstwhile owners M/s. Navdurga Industries had purchased the land after obtaining permission under Section 63AA for bonafide industrial purpose. However, the said agricultural lands were never put to such use by the said Company and the said lands came to be sold in auction thereafter recover the dues of the said company. He submits that after going into the revenue records, the Collector, Patan had found that the Company has not started any industrial production on the said land and in one parcel of the land Page 3 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined even permission under Section 63AA is also not obtained. He, therefore, submits that the learned Collector was well within his powers to record these reasons for rejection of the said NA application of the petitioner. He submits that no interference is called for in the impugned orders and Special Civil Applications be dismissed.
4. Heard the learned counsel for the parties and perused the documents on record.
5. Section 65 of the Land Revenue Code reads as under:-
"65. Uses to which occupant of land for purposes of agriculture may put his land.-(1) Any occupant, of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.
Procedure if occupant wishes to apply his land to any other purpose or for other different non-agricultural purposes.- But, if any occupant wishes to use his holding or any part thereof for any other purpose or for other defferent purposes the Collector's permission shall in the fist place be applied for by the occupant.
[The Collector, on receipt of such application,
(a) shall send to the applicant a written acknowledgement of its receipt, and Page 4 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined
(b) may, after due inquiry, either grant or refuse the permission applied for.
Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the Collector sends a written acknowledgement within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the aplication.
Unless the Collector shall in particular instances otherwise direct, no such application shall be recognized except it be made by the occupant.
(2) Notwithstanding anything contained in sub-section (1) but subject to any terms and conditions laid down by the State Government in this behalf, where an occupant has his holding in an area comprising a gram and such area is not within an urban agglomeration or within a radius of five kilometres from the limits of a municipal borough or notified area or industrial estate and such occupant wishes to use his holding or a part thereof only for a residential purpose, it shall not be necessary for him to obtain permission of the Collector under sub-section (1)."
6. The exercise of power under Section 65 by the Collector is in the nature of executive or administrative character. This Court in the case of Bhayabhai Vajshibhai Hathalia v. State of Gujarat reported in 2012 (2) GLR 1741 has held as under:-
"20. Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the Page 5 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined 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 or 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 accupant. 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."Page 6 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023
NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined
7. Further, this Court in Special Civil Application No.1083 of 2023 has held as under:-
"9.This Court in various decisions, as referred to and relied upon by the learned advocate for the petitioner, has held time and again that the District Collector can only look into the aspect whether the applicant is an occupant of the land which is being assessed or held for the purpose of agriculture at the time of deciding the application for nonagriculture purpose.
10. The observations made by this Court in the various orders on similar nature are as under:
In case of Kherunben Valimahmadbhai vs. Special Secretary (Appeals), Revenue Dept. and ors (supra) this Court has held as under:
"9. At this stage, the observations made by the Division Bench of this Court in the case of Bankim Bipinbhai Desai in Special Civil Application No. 7354 of 2005 are required to be referred to. In the said decision, the Hon'ble Division Bench of this Court has observed as under:
"It appears to us that in accordance with the circular that has been issued by the Revenue Department, Government of Gujarat dated 15th November, 2001 the Collector can refuse NA Permission only on the grounds stated in the said circular. The said circular states that the permission can be refused if there is breach of Ribbon Development Rules committed by the concerned applicant or on the ground that the said land is under acquisition or under proposed acquisition or if the land is a new tenure land under the Tenancy Act or grant of such permission is prohibited in any such law unless the requisite premium is paid. The impugned order does not indicate that the NA Permission has been refused on any of these grounds. It, therefore, clearly appears to us Page 7 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined that the permission has been denied on irrelevant ground and hence the impugned order is required to be quashed and set aside and it is hereby ordered to be quashed and set aside. We now remit the matter back to the Collector to consider the application of the petitioner afresh and decide the same on its merits in light of the observations made in this order."
10. Thus, the Hon'ble Division Bench of this Court, after considering the provisions contained in Section 65 of the Code, has specifically observed that while deciding the application submitted for grant of NA permission, the Collector has to consider the relevant aspects stated in the said order.
11. In the case of Shaileshbhai Dahyabhai Patel reported in 2016 (2) GLR 3084 this Court has once again considered the provisions contained in Section 65 of the Code and observed in para 9 as under:
"[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.Page 8 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023
NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined
12. In the case of Laxmi Associates reported in 2006 (3) GLR 1982 , this Court has observed in para 7(iv) and
(v) as under:
"(iv) It has been held by this Court in the case of Evergreen Apartment Cooperative Housing Society Ltd.
V/s. Special Secretary (Appeals), Revenue Department reported in 1991(1) GLH 155 especially in para12 thereof, as under:
"12. There is much substance in the second submission of Mr.Hawa also. Ordinarily when a transfer of property takes place by a registered account, an entry is effected in the revenue record and it is certified by the Mamalatdar after making necessary injuries. If there is any dispute regarding mutation, the dispute has to be entered in the register of the disputed cases and then such disputes are to be disposed of by the Mamlatdar. Under subrule (5) of Rule 108 of the Rules, the aggrieved party can prefer an appeal within 60 days from the date of the service of the order. The State Government has power to call for and examine the record of any enquiry or the proceedings of any subordinate revenue officer and to review the same under subrule (6) of the rules. It is to be noted in the present case that no appeal had been presented within 60 days from the date of Mamlatdar's order certifying the initial entry. The Assistant Collector, Surat took the said entry in suo motu revision, even though he had no such power under the provisions of Rule 108. It, therefore, appears that the Additional Chief Secretary, Revenue Department remanded the proceeding to the Collector for treating the same as an appeal. This was done after a period of 4 years after the certification of the entry. It was only the State Government which had the power to call for a record of inquiry or proceeding under subrule (6) of Rule 108. Even the State Government was empowered to satisfy itself "as to the regularity of such proceedings and as to the legality or Page 9 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined propriety of any decision or order passed in such proceedings." So the entire inquiry and revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulations) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entires made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entires on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from legal position that Section 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the Page 10 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined order of the revisional authority has proceeded on a misconception of relevant legal provisions also."
In view of the aforesaid decision, powers exercised by the collector, Vadodara in the communication dated 21st November,2005 read with the order dated 7th March,2006 passed by Collector, Vadodara deserves to be quashed and set aside.
(v) It is an admitted fact that the Collector has not issued notice till today under the provisions of Act,1947 and, therefore, the impugned orders deserves to be quashed and set aside, mainly and chiefly for the reason that while passing the order under B.L.R. Code, 1879, the Collector has interwoven the breach of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Before throwing the petitioner at the speculation of breach of the Act, 1947, the rule of law requires, notice for alleged breach under another Act (be it ULC Act or the Act, 1947 or the Bombay Tenancy and Agricultural Lands Act,1948 or the like) and hearing under that Act. In the facts of the present case, there is no notice, no hearing for the alleged breach of section 9 of the Act, 1947 therefore, it cannot be a reason, as given by the Collector, for refusal of N.A. Use permission under section 65 of the Code, 1879."
13. Keeping in view the aforesaid decisions rendered by this Court, if the facts as discussed hereinabove are carefully examined, it is revealed that the respondent Collector, while considering the application submitted under Section 65 of the Code has wrongly considered the status of the petitioner by observing that the petitioner was not an agriculturist for a period of 10 months and on that ground application submitted by the petitioner is rejected. Learned AGP has failed to point out from the record that there was any policy in the year 1990 which is now prevailing as per Resolution dated 01.07.2009 upon which the reliance is placed by Page 11 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined the Collector.
14. Even otherwise, while considering the application under the Code, it was not open for the respondent Collector to consider as to whether the petitioner was an agriculturist or not and more particularly when the competent authority under the Bombay Tenancy and Agricultural Lands Act has till date not passed any adverse order against the petitioner by holding that the petitioner is not an agriculturist."
In case of State of Gujarat vs. Kherunben Valimahmadbhai (supra)this Court has held as under:
"The learned Single Judge has relied upon a Division Bench judgment of this Court in the case of Bankim Bipinbhai Desai Vs. State of Gujarat and others (SCA No.7354 of 2005, decided on 2.8.2005) and also few other judgments of this Court. The question before the learned Single Judge was, whether the Collector could have declined to grant N.A. permission under Section 65 of the Gujarat Land Revenue Code, 1879, to the original writ-applicant on the ground that, for a particular period of time, i.e. for about 10 months, the writ- applicant ceased to be an agriculturist and, therefore, could not have purchased a parcel of agricultural land during that interregnum period. The learned Single Judge took notice of the fact that the original writ- applicant is an agriculturist and she had relinquished her share in a parcel of agricultural land by way of Relinquishment Deed No.457 dated 6th February 1990, and in regard to this transaction, an entry bearing No.2020 was also mutated in the record of rights on 20th February 1990. Thereafter, the writapplicant purchased another parcel of agricultural land by way of a registered sale-deed dated 11th December 1990, and an entry in this regard bearing No.965 was mutated in the revenue record dated 4th June 1991. It is with respect to this parcel of agricultural land purchased way back on 4th June 1991 that the writapplicant prayed for Page 12 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined N.A permission.
Indisputably, the transaction with respect to the registered sale deed dated 11th December 1999 never came to be challenged by the revenue authority at any point of time on the ground of breach of Section 63 of the Tenancy Act. In such circumstances, the learned Single Judge is justified in taking the view that it would be too much to say that on 11th December 1990 when the writ-applicant purchased another parcel of agricultural land, she had ceased to be an agriculturist. The issue being covered by the judgment of this very High Court, in our opinion, no error, not to speak of any error of law, could be said to have been committed by the learned Single Judge in passing the impugned order."
In case of Rajendra Mulchand Verma vs. State of Gujarat (supra) this Court has held as under:
"7. A reference can be made to the decision of this Court in the case of Laxmi Associate Vs. Collector, Vadodara reported in 2006 (3) GLR 1982, wherein it was held that while exercising powers under one revenue law, the Collector cannot concurrently exercise powers vested in him under another revenue law. It is also observed therein that while dealing with an application under Section 65 of the Bombay Land Revenue Code, the Collector cannot exercise powers vested in him under any other revenue law.
8. It is well settled principle of law that the Collector is not entitled to go into the title of the land and is expected to decide the application within reasonable period of time as per the provisions of Section 65 of the Bombay Land Revenue Code. Now, admittedly in the present case, the Collector has not followed the law settled by this Court in various decisions and has passed the impugned order, which is not sustainable in the eyes of law. The Collector ought to have followed the Page 13 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined Government Circulars, wherein detailed procedure is prescribed for dealing with an application under Section 65 of the Bombay Land Revenue Code for granting NA permission. It appears that the Collector has not followed that procedure and has rejected the application on another ground. When no inquiry under Tenancy Act during the lifetime of the mother of the petitioners was made, the Collector ought not to have exercised powers under another Act while dealing with an application for NA permission under Section 65 of the Bombay Land Revenue Code. Under these circumstances, the impugned order of the Collector deserves to be quashed and set aside and direction is required to be issued to him to consider application dated 9.3.2021 for grant of NA permission in accordance with settled legal principles within reasonable time."
In case of Omprakash Sudarshan Dubedi vs. State of Gujarat (supra) this Court has held as under:
"8. At this stage, it would be apposite to refer to the observations made by this Court in the case of Tusharbhai Harijibhai Ghelani vs. State of Gujarat [2019 (4) GLR 2578], whereby the Coordinate Bench after survey of the various judgments of this Court as well as the provisions of Section 65 of the Code as well as the definition as mentioned therein with regard to the occupant and holding under Sections 3(12) and 3(16) of the Act and has held thus:-
"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 Page 14 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined 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 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 Page 15 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023 NEUTRAL CITATION C/SCA/14226/2022 ORDER DATED: 27/07/2023 undefined into the title of the occupier."
9. The Coordinate Bench has categorically held that the District Collector can only look into the aspect whether the applicant is an occupant of the land, which is being assessed or held for the purpose of agricultural."
8. In view of the aforesaid observations and the law laid down by this Court, the impugned orders dated 02.02.2022 are quashed and set aside. The respondent No.2 Collector is directed to reconsider the applications of the petitioner for NA permission in light of the abovementioned decisions and keeping in mind the observations made therein while deciding the application afresh.
9. Let the applications be decided in accordance with law on its own merits within a period of six weeks from the date of the receipt of this order.
10. With the aforesaid directions, the Special Civil Applications stand disposed of. No order as to costs. Direct service is permitted.
(ANIRUDDHA P. MAYEE, J.) Manoj Kumar Rai Page 16 of 16 Downloaded on : Sat Sep 16 23:04:42 IST 2023