Gujarat High Court
Devshankarbhai Naranjibhai Pandya vs State Of Gujarat & 4 on 10 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/4846/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4846 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
===============================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
===============================================================
DEVSHANKARBHAI NARANJIBHAI PANDYA....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
================================================================
Appearance:
MR. ARCHIT P JANI, ADVOCATE for the Petitioner(s) No. 1
MR. MANAN MEHTA, AGP for the Respondent(s) No. 1
MR BM MANGUKIYA, ADVOCATE for the Respondent(s) No. 5
MS BELA A PRAJAPATI, ADVOCATE for the Respondent(s) No. 5
MS SEJAL K MANDAVIA, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
==========================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 10/04/2017
Page 1 of 9
HC-NIC Page 1 of 9 Created On Mon Aug 14 04:56:55 IST 2017
C/SCA/4846/2017 JUDGMENT
ORAL JUDGMENT
1. Heard Mr. Jani learned advocate for petitioner, Ms. Mandavia, learned advocate for respondent no.2 and Mr. Mehta, learned AGP for respondent no.1.
2. In present petition, the petitioner has prayed, inter alia, that:
"9(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or certiorari or a writ in the nature of mandamus or certiorari any other appropriate writ, order or direction by quashing and setting aside the order dated 28.10.2015 passed by DDO Surat of granting permission for nonagriculture use u/s. 65 of the GLRC, in favour of respondent no.5."
3. So far as factual background is concerned, the petitioner has averred and stated in the petition that:
"4.1 That, originally land bearing Block No.266 admeasuring Hector 52306 of mouje village: Karmala, Taluka: Olpad, District: Surat was running in the name of deceased Nanubhai Dahyabhai Desai (hereinafter referred to as " land in question" for short) It is submitted that after demise of the original land owner Shri Nanubhai, the names of his heirs are mutated in the revenue record and legal heirs of deceased have become owner and occupier of the land in question by virtue of heirship.
4.2 That, on 25.01.2011, the deceased father of the petitioner Shri Devshanka Pandya was willing to purchase part of the land question and therefore an agreement to sale was executed between the deceased father and one Shri Rajendrabhai Desai S/o. Nanubhai Dahyabhai.
Page 2 of 9
HC-NIC Page 2 of 9 Created On Mon Aug 14 04:56:55 IST 2017
C/SCA/4846/2017 JUDGMENT
It is submitted that the said agreement to sale was executed before the Notary public and it is for undivided share of the executor of the agreement to sale Shri Rajendrabhai Desai and the mutual price was agreed of Rs.20,25,000/ per vigha on the basis father has paid the advance consideration of Rs.2,51,000/. A copy agreement is enclosed herewith and marked as Annexure A to this petition.
4.3 That, on 08.05.2012, as the executor of the agreement to sale Shri Rajendrabhai Desai was not giving any heed to the deceased father of the petitioner and therefore, the deceased father of the petitioner and therefore the deceased father of the petitioner had instituted Regular Civil Suit No.34 of 2012 New No. 18 of 2015) before learned Court of Principal Senior Civil Judge, Olpad for specific performance, declaration and permanent injunction, along with an application for interim injunction at Exh.5.
It is submitted that in the said suit the notices are issued and the same is pending for its ajudication before the learned Court below. A copy of the plaint is enclosed herewith and marked as ANNEXURE B to this petition.
4.4 That, on 06.06.2012, the deceased father of the petitioner had instituted lispendence being its registration No.5873 of 2012 before the office of the SubRegistrar Olpad. A copy of the deed of lispendence is enclosed herewith and marked as Annexure C to this petition.
4.5 That, on 01.09.2012, behind the back of the deceased father of the petitioner, the executor of the agreement to sale Shri Rajendrabhai Desai had relinquished his rights over land in question in favour of his brother namely Chandravadan Desai and a revenue entry to said effect was mutated being revenue entry no. 3139 dated 01.09.2012. A copy of the revenue entry no. 3139 is enclosed herewith and marked as Annexure D to this petition.
It is submitted that both the brothers conspired and in connivance with each other with a view to frustrate the rights of the present petitioner or the land in question had done this.
4.6 That, on 04.05.2015, the land in question was sold in favour of one Shri Dipakbhai Manubhai Sachani by Chandravadan Desai (the brother of the executor of the agreement to Sale to the deceased father of the petitioner) of registered sale deed being its Index No. 7461 of 2015 dated 04.05.2015.
A revenue entry being No.3434 dated 04.05.2015 was mutated in the revenue record by recording the name of the purchaser of the land in question. A copy of the revenue entry no. 3434 is enclosed herewith and marked as Annexure E to this petition.
4.7 That, the present petitioner has filed an
Page 3 of 9
HC-NIC Page 3 of 9 Created On Mon Aug 14 04:56:55 IST 2017
C/SCA/4846/2017 JUDGMENT
objection to the certification of the revenue entry No.3434 dated 04.05.2015 before the office of the Mamlatdar, Olpad.
The objection application was dismissed vide order dated 15.07.2015 and a revenue entry No. 3434 dated 04.05.2015 was ordered to be certified by the office of the Mamlatdar, Olpad.
4.8 That, on 02.09.2015, the purchaser of the land in question is with the proper had submitted an application in the title of "Reopen Application" seeking permission of nonagricultural use of the land in question to the office of the District Development Officer, District Panchayat, Surat.
It is submitted that there is no such provision to "Reopen Application" under the provisions of Section 65 of the Gujarat Land Revenue Code, 1879."
4. From the details mentioned in the petition and the relief prayed for by the petitioner and so also from the submission by learned advocate for the petitioner and also from the document at Annexure "A" (Page15) it has emerged that the petitioner has taken out the present petition on strength of agreement to sell which is said to have been entered into between petitioner and the respondents on 25.1.2011.
5. Mr. Jani, learned advocate for petitioner submitted that the petitioner is aggrieved by the order passed by respondent no.2 whereby the said authority granted NA permission to the respondent Page 4 of 9 HC-NIC Page 4 of 9 Created On Mon Aug 14 04:56:55 IST 2017 C/SCA/4846/2017 JUDGMENT no.5 in respect of the same land for which the petitioner has entered into the agreement to sell in 2011. He further submitted that the original owners of the property in question "agreed to sell" the property to the petitioner by virtue of the "agreement to sell" dated 25.1.2011, however, subsequently they committed breach of the said agreement to sell and sold the property in question to respondent no.5, who, thereafter submitted application for permission for non agricultural use. The said application is granted by respondent no.3 and that, therefore, the petitioner is aggrieved.
6. According to the petitioner, the rights and claim of the petitioner in respect of the property in question which accrued to him vide agreement to sell which adversely affected and will be jeopardized if the said order is not set aside.
7. Mr. Jani, learned advocate for the petitioner Page 5 of 9 HC-NIC Page 5 of 9 Created On Mon Aug 14 04:56:55 IST 2017 C/SCA/4846/2017 JUDGMENT submitted that he has registered lis pendence is registered and the petitioner has already filed a suit i.e. Regular Civil Suit No.34 of 2012 for specific performance of the Agreement to sell.
8. He also submitted that during pendency of the suit present respondent no.3 relinquished his right in favour of respondent no.4 and the said entry is mutated in revenue record.
9. I have considered the said submission by learned advocate for the petitioner.
10. In view of this Court, the petition does not deserve to be entertained in view of the fact that as of now the petitioner has not acquired any right or title in respect of property in question and in view of the fact that the petitioner has taken out the present petition merely on strength of agreement to sell.
11. Agreement to sell does not confer any title or create any right in favour of the petitioner.
Page 6 of 9
HC-NIC Page 6 of 9 Created On Mon Aug 14 04:56:55 IST 2017
C/SCA/4846/2017 JUDGMENT
In present case, another important and relevant aspect is that the agreement to sell is without possession. The petitioner is not put in possession and the vendor did not part with possession when the agreement came to executed. The agreement to sell contains specific clarification and declaration that the possession is not handed over to the petitioner.
12. Besides this, a Suit for Specific Performance of Agreement to sell is already filed by the petitioner.
13. Moreover, the petitioner claims that he has also got lis pendence registered.
14. In this view of the matter, if at all the petitioner has any justification or if he has right to claim any relief then the petitioner can do so in the suit proceedings instituted by the petitioner where the terms of the agreement canbe examined.
Page 7 of 9
HC-NIC Page 7 of 9 Created On Mon Aug 14 04:56:55 IST 2017
C/SCA/4846/2017 JUDGMENT
15. At this stage, it is also relevant to take into account the fact that even otherwise the right of the petitioner is duly protected by virtue of condition No.40 of the NA permission issued/ granted by the authority vide order dated 28.10.2015 inasmuch as by the said condition/ Clause No.40 of the order dated 28.10.2015 the authority has clarified that the permission would be subject to final outcome of Special Civil Suit No.18 of 2015 (which, as clarified by the petitioner, is new number of Regular Civil Suit No.34 of 2012).
16. In this view of the matter, the petition which is taken out on strength of agreement to sell without possession and having regard to the fact that the agreement to sell does not create right and does not confer any title to the petitioner, the petitioner has no right or locus to raise any objection against the order dated 28.10.2015 passed by the authority granting NA Page 8 of 9 HC-NIC Page 8 of 9 Created On Mon Aug 14 04:56:55 IST 2017 C/SCA/4846/2017 JUDGMENT permission.
17. There is one more reason for not entertaining the petition inasmuch as the order came to be passed by the authority in October, 2015 whereas the petitioner filed present petition in February, 2017 i.e. almost 2 years after the authority passed the order in question.
18. For all these reasons, the petition does not deserve to be entertained. Consequently, the petition is disposed of. Notice discharged.
(K.M.THAKER, J.) saj Page 9 of 9 HC-NIC Page 9 of 9 Created On Mon Aug 14 04:56:55 IST 2017