Gujarat High Court
Omprakash Sudarshan Dubedi vs State Of Gujarat on 16 January, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/11186/2021 ORDER DATED: 16/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11186 of 2021
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OMPRAKASH SUDARSHAN DUBEDI
Versus
STATE OF GUJARAT
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Appearance:
MR DILIP L KANOJIYA(3691) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 16/01/2023
ORAL ORDER
1. Rule. Learned AGP waives service of notice of rule on behalf of the concerned respondents.
2. In the present writ petition, the petitioner has assailed the impugned order passed by the Secretary, Revenue Department (Ahmedabad) dated 13.07.2017 and the order dated 23.02.2016 passed by the District Collector, Gir Somnath in the Case No.NA Application No.15/2015-16.
3. The brief facts leading to filing of the present petition are that the petitioner became the owner of the land bearing Survey No.153/1/1 situated at Prabhaspatan, Taluka Veraval, by a will and an entry to that effect came to be mutated in revenue record vide Entry No.1077 dated 01.07.1985. It is the case of the petitioner that he is the lawful owner and is in possession of the property since the year 1985. Pursuant thereto, the petitioner made an application for conversion of agricultural land into non-agricultural land to the respondent authorities on 30.11.2015. The respondent authorities have Page 1 of 7 Downloaded on : Wed Jan 18 20:45:14 IST 2023 C/SCA/11186/2021 ORDER DATED: 16/01/2023 rejected the same on 23.02.2016, on the ground that the petitioner is not an agriculturist. It is the case of the petitioner that other erroneous reasons given to reject the application were that the Forest Officer did not render his opinion and that vide letter dated 19.01.2016, the Veraval Nagarpalika had stated that there is no scheme to be developed on the particular land. It is further case of the petitioner that on 16.02.2016, the Forest officer forwarded his opinion where nothing objectionable was found and the Veraval Nagarpalika also. Thereafter, the petitioner made an application for reconsideration of the order passed by the District Collector in July, 2016, however the same was also rejected. Against this order of rejection, the petitioner preferred Revision Application before the Secretary, Revenue Department but the order of Collector was upheld in Revision vide order dated 13.07.2017, thus, rejecting the contentions of the petitioner.
4. Learned advocate Mr.Popat, appearing for the petitioner has submitted that in fact, Veraval Nagarpalika vide letter dated 08.07.2016 has opined in favour of the petitioner with regard to the grant NA permission to the petitioner. It is further submitted that similarly, the Forest Officer on 16.02.2016 has opined that the department has no objection, if NA Permission is granted, however without considering the aforesaid communication or opinions, the impugned orders have been passed.
4.1 Learned advocate Mr.Popat, has further submitted that the respondent authorities have not questioned the validity of the multiply transactions qua the land from 1985-2016 since Page 2 of 7 Downloaded on : Wed Jan 18 20:45:14 IST 2023 C/SCA/11186/2021 ORDER DATED: 16/01/2023 the legal heirs and the predecessor in title of the petitioner has purchased multiple other land as a lawful agriculturists, however no objections are taken.
4.2. Learned advocate Mr.Popat, has submitted that the petitioner has inherited the agricultural as well as the status of the lawful agriculturist land from the legal heirs by way of will and it is noted that the entry No.455 mutated on 12.05.1961 in favour of the legal heirs of the petitioner recognizing them as an agriculturist, which has not been questioned for the period of 35 years.
4.3 Learned advocate Mr.Popat, has submitted that as on today, no proceedings under the provisions of Tenancy Act, has under taken and hence, the respondent District Collector cannot reject, the application of the petitioner seeking NA permission. In support of his submissions, learned advocate Mr.Popat, has placed reliance on the judgment of this Court in the case of Tusharbhai Harijibhai Ghelani Vs. State of Gujarat [2019 (4) GLR 2578] and the order dated 25.09.2019 passed by the Co-ordinate Bench in Special Civil Application No.19455 of 2018. Thus, it is submitted that the impugned orders may be quashed and set aside.
5. Per contra, learned Assistant Government Pleader Mr.Kanara, appearing for the respondent authorities has supported the impugned orders rejecting the application of the petitioner seeking NA permission. He has submitted that for being entitled for such permission, the petitioner has to prove Page 3 of 7 Downloaded on : Wed Jan 18 20:45:14 IST 2023 C/SCA/11186/2021 ORDER DATED: 16/01/2023 that he has been an agriculturist for all these years. It is submitted that the District Collector has precisely doubted that the land in question could not have been further granted by way of will to the petitioner. Learned Assistant Government Pleader thus has submitted that the application filed by the petitioner seeking NA permission is rightly rejected.
6. I have heard the learned advocates appearing for the respective parties.
7. It is not disputed by the respondent authorities that the petitioner is in possession of the property since the year 1985 of the land bearing Survey No.153/1/1 situated at Prabhaspatan, Taluka Veraval. The petitioner become owner of the said land by a will and an entry No. 1077 has been mutated in revenue record on 01.07.1985. The respondent authorities have questioned the aforesaid entry at the time when the petitioner applied for conversion of agricultural land into non-agricultural land on 30.11.2015. Initially, the request of the petitioner was rejected by the District Collector by opining that there was no opinion yet tendered by the Veraval Nagarplika and the Forest Department, however it is pertinent to note that vide communications dated 19.01.2016 and 16.02.2016, the Veraval Nagarpalika as well as the Forest Officer have opined that they have no objections if the said land is converted. The petitioner thereafter applied for reviewing the order dated 23.02.2016, since he had obtained the requisite opinion, however by the impugned order dated 24/29.08.2016, his application for review has been rejected.
Page 4 of 7 Downloaded on : Wed Jan 18 20:45:14 IST 2023C/SCA/11186/2021 ORDER DATED: 16/01/2023 The SSRD by the order dated 13.07.2017 has also rejected the revision application of the petitioner. Thus, it is not in dispute that the respondent authorities after a period of 35 years have taken an objection with regard to the entry No.1077, which has been mutated on 01.07.1985 on the aspect of will. It is well settled proposition of law and no more res integra that the respondent authorities can only question mutation of entry within a reasonable period and cannot question the same after a period of more than 30 years.
8. At this stage, it would be apposite to refer to the observations made by this Court in the case of Tusharbhai Harijibhai Ghelani (supra), 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 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 Page 5 of 7 Downloaded on : Wed Jan 18 20:45:14 IST 2023 C/SCA/11186/2021 ORDER DATED: 16/01/2023 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 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.
10. In the order dated 25.09.2019 passed in Special Civil Application No.19455 of 2018, a similar view has been taken.
"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 Page 6 of 7 Downloaded on : Wed Jan 18 20:45:14 IST 2023 C/SCA/11186/2021 ORDER DATED: 16/01/2023 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."
11. Under the circumstances, as on today since the Competent Authority have not yet taken any adverse order under the provisions of Bombay Tenancy Act, the respondent authorities cannot question the entry, which has been mutated in the year 1985 as well as the status of the petitioner. Hence, the writ petition succeeds. The impugned orders are hereby quashed and set aside.
12. Learned advocate Mr.Popat, has submitted that the petitioner will file appropriate application before the concerned authorities seeking NA permission. The same shall be processed and decided as per the observations made by this Court.
13. If such an application is made, appropriate order shall be passed in light of the order passed by this Court within a period of three months from the date of receipt of such application. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
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