Gujarat High Court
Ashwinbhai Chandulal Shah vs State Of Gujarat & 2 on 26 July, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11351/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11351 of 2017
==========================================================
ASHWINBHAI CHANDULAL SHAH....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR ARPIT A KAPADIA, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
MR ANUJ K TRIVEDI, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/07/2017
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the writ-application has prayed for the following reliefs :
"(A) Your Lordship may be pleased to admit and allow this petition;
(B) Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to quash and set aside the order dated 7.3.2017 rendered by the Ld District Collector, Ahmedabad -
Respondent No.2 herein bearing No.CB/CTS/N.A./S.R.2161/2016 and also the order dated 19.5.2017 rendered by the Ld. District Collector, Ahmedabad - Respondent no.2 herein bearing No.CB/J-
1/N.A./S.R.2161/C-19900, 22775/17 Vashi 355 and further be pleased to issue a mandamus or any other appropriate writ, order or direction to grant Non Page 1 of 23 HC-NIC Page 1 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER Agricultural permission with respect to the land bearing survey no.7 paiki admeasuring 11062 sq.yards (9249 sq.meter) situated at Narol being Final Plot No.51/2 of Town Planning Scheme No.56 (Narol Shahwadi), Ahmedabad.
(C) Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to direct the respondents to declare the land bearing survey no.7 paiki admeasuring 11062 sq.yards (9249 sq.meter) situated at Narol as Non Agricultural land as the same is included in urban agglomeration being Final Plot No.51/2 of Town Planning Scheme No.56 (Narol Shahwadi) and also for the reason that the Ahmedabad Municipal Corporation - Respondent No.3 continue to levy and collect the property tax from the petitioner.
(D) Pending the admission, hearing and till the final disposal of the present petition, Your Lordship may be pleased to stay the implementation, execution and operation of the order dated 7.3.2017 rendered by the Ld District Collector, Ahmedabad - Respondent No.2 herein bearing No.CB/CTS/N.A./S.R.2161/2016 and also the order dated 19.5.2017 rendered by the Ld. District Collector, Ahmedabad - Respondent no.2 herein bearing No.CB/J-1/N.A./ S.R.2161/C-19900, 22775/17 Vashi 355.
(E) Pending the admission, hearing and till the final disposal of the present petition, Your Lordship may be pleased to direct the respondents to grant the NA permission with respect to the land bearing survey no.7 paiki admeasuring 11062 sq.yards (9249 sq.meter) situated at Narol being Final Plot No.51/2 of Town Planning Scheme No.56 (Narol Shahwadi) (F) Pending the admission, hearing and till the final disposal of the present petition, Your Lordship may be pleased to direct the respondent to declare and hold the land bearing survey no.7 paiki admeasuring 11062 sq.yards (9249 sq.meter) situated at Narol being Final Plot No.51/2 of Town Planning Scheme No.56 (Narol Shahwadi) as Non Agricultural land.
(G) Your Lordship may be pleased to pass such other and further reliefs as may be deemed just and proper in the Page 2 of 23 HC-NIC Page 2 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER interest of justice."
It appears from the materials on record that one M/s.Amul Synthetics Private Limited was the owner of the land bearing Survey No.7 paiki admeasuring 11062 sq.yards (9249 sq.meters) situated at Narol. According to the writ-applicant, as the land in question is included in the Urban Agglomeration being the Final Plot No.51/2 of the Town Planning Scheme No.56 (Narol-Shahwadi) and considering that the Ahmedabad Municipal Corporation has continued to levy and collect the property tax, the same is a non-agricultural land. This parcel of land owned by M/s.Amul Synthetics Private Limited was mortgaged with the Bank of India as the company had availed of financial assistance. As the company failed to repay the amount of the loan, proceedings were initiated in that regard before the Debts Recovery Tribunal numbered as Recovery Proceedings No.937 (O.A. No.117 of 1997). Ultimately, this property came to be auctioned on 13th January 2013. The auction was conducted by the DRT. In the said auction, the petitioner was declared as the highest bidder. Ultimately, the sale was confirmed in favour of the petitioner and a sale certificate was also issued. The writ-applicant was put in possession of the property in question.
It appears that in the year 2003, the writ-applicant had paid about Rs.27 lac to the bank. Thereafter, the writ-applicant preferred an application that his name be mutated in the record of rights. The Chief General Manager of the Bank of India, vide letter dated 31st July 2007, stated that the bank had no objection if the land was being transferred in the name of the writ-applicant. Thereafter, the Talati-cum-Mantri made a pencil entry no.3406 dated 23rd March 2007.
Page 3 of 23HC-NIC Page 3 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER It appears that the original owners raised some technical objections in this regard, and in such circumstances, the writ- applicant had to come before this Court by filing the Special Civil Application No.6984 of 2009. The said petition came to be allowed by judgment and order dated 16th August 2010. The order reads as under :
"1. Rule. Ms. Trusha Patel, learned AGP waives service of notice of Rule on behalf of the respondent State and Shri Mehul Mehta, learned advocate waives service of notice of Rule on behalf of the respondent nos. 7 and 8. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing.
2. By way of this petition under Article 226 of the Constitution of India,the petitioner who has purchased the property in question in a Court auction conducted by DRT and who has paid full sale consideration, has prayed for an appropriate writ, direction and order quashing and setting aside the order dated 12.12.2008 passed by the City Deputy Collector, Ahmedabad passed in RTS Appeal Case No.82 of 2008, upholding the order passed by the City Mamlatdar, Ahmedabad passed in RTS No.67 of 2007 quashing and setting aside the mutation entry No.3405 which was in favour of respondent no.4-Amul Synthetic Pvt. Ltd. It is also further prayed for an appropriate writ, direction and order quashing and setting aside the order dated 24.12.2008 passed by the City Mamlatdar passed in RTS Case No.157 of 2008 canceling the mutation entry no. 3406 in favour of the petitioner herein qua land bearing City Survey No. 7/11062 sq.yards situated at Narol Tal: Ahmedabad City.
3. The facts leading to the present Special Civil Application in nutshell are as under:
That the husband of respondent no.3-Harshadbhai Ambalal Patel was the owner of the land bearing city Survey No.7 paiki admeasuring 11062 sq.yards of land situated at Narol. By registered sale deed dated 6.4.1987 the said Harshadbhai Patel in his Page 4 of 23 HC-NIC Page 4 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER personal capacity as a power of attorney of his widowed mother Smt. Shantaben A. Patel sold the aforesaid land in favour of respondent no.4 herein i.e. Amul Synthetic Pvt. Ltd for a sale consideration of Rs.2,77,025/-. It appears that thereafter respondent no. 4 Company erected factory over the said piece of land and started its business. That the said respondent no.4 company sought financial for assistance from respondent no.5 Bank by putting the aforesaid property as collateral security by way of equitable mortgage. That respondent no.4 failed to repay the amount borrowed from respondent no.5 bank and therefore, respondent no.5 bank approached the DRT by way of R.P. No. 237 (Original Application No.177 of 1997) and the DRT issued recovery certificate dated 13.1.2003. Pursuant to the said recovery certificate, respondent no.5 bank sought to recover the amount under the recovery certificate by auctioning the property in question, which was given as equitable mortgaged by the borrower - Amul Synthetic Pvt. Ltd. A public notice came to be issued fixing Rs.35 lacs as upset price. In the public auction which took place on 13.11.2003 petitioner was found to be the highest bidder / offerer with Rs. 27,25,000/- and the bid of the petitioner came to be accepted and petitioner paid full sale consideration and respondent no.6 issued no objection certificate and / or certificate with respect to payment of full sale consideration and even the sale certificate came to be issued in favour of petitioner. That thereafter, transaction between the husband of respondent nos. 3 and 4- Amul Synthetic Pvt. Ltd was mutated in the revenue and on the very day by Pencil entry No.3406 the name of the petitioner was mutated in the revenue record in view of the order dated 18.11.2003 and 3.3.2004 i.e. sale certificate and the order passed by respondent no.6 i.e. Recovery Officer of DRT. It appears that for the first time respondent no.3 wife of Harshadbhai Patel objected to mutation entry No.3405 before respondent no.2 i.e. City Mamlatdar, which was numbered as RTS/ Case No. 67 of 2007 on the ground that land in question being an ancestral property could not have been sold /disposed of the by the aforesaid Harshadbhai in favour of Amul Page 5 of 23 HC-NIC Page 5 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER Synthetic Pvt. Ltd without the consent / permission of respondent no. 3 . That the City Mamlatdar set aside the mutation entry No.3405 holding the transaction between the husband of respondent no.3 and respondent no.4-Amul Synthetic Pvt. Ltd in violation of Section 63 of the Bombay Tenancy & Agricultural Lands Act. That thereafter, the petitioner approached this Court by way of Special Civil Application No.8642 of 2008 challenging the inaction on the part of respondent no.2-City Mamlatdar in not certifying the entry in the name of the petitioner. It appears that during the pendency of the aforesaid petition since order dated 19.4.2008 came to be passed by the City Mamlatdar, the aforesaid petition came to be disposed of by this Court by order dated 6.8.2008 requiring respondent no.2 to pass an order on the request of the petitioner for certifying entry no.3406 in his name. That thereafter, Circle Officer, Dani Limada passed an order dated 22.5.2008 rejecting the application of the petitioner for certifying the mutation entry No.3406. Pursuant to the order passed by this Court dated 6.8.2008 passed in Special Civil Application 8642 of 2008, the City Mamlatdar was by an order dated 24.8.2008 rejected the application of the petitioner for certifying the mutation entry No.3406. During the aforesaid proceedings, petitioner also approached respondent no.1-City Deputy Collector against the order dated 19.4.2008 canceling the entry No. 3406, which also came to be rejected by order dated 12.12.2008. Being aggrieved and dissatisfied with the aforesaid proceedings in not certifying the mutation entry no.3406 and in not entering the name of the petitioner in the city survey record, petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India.
It is to be noted that after respondent no.3 raised objection before respondent no.2 objecting the mutation entry No.3405 in favour of Amul Synthetic Pvt. Ltd., respondent no.3 had instituted Civil Suit No. 1992 of 2009 against her husband, Amul Synthetic Pvt. Ltd., State Bank of India and Page 6 of 23 HC-NIC Page 6 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER petitioner for declaration and to quash and set aside the registered sale deed dated 6.4.1987 executed by her husband in favour of Amul Synthetic Pvt. Ltd., on the ground that as the property in question was ancestral property, she has right in the property and her husband and mother in law had sold the said property in favour of the Amul Synthetic Pvt. Ltd., in the year 1987 by playing fraud etc. The said suit is pending before the City Civil Court at Ahmedabad.
It is also required to be noted that even during the pendency of the present proceedings and when the respondents inclusive of respondent no.3 were served with the notice of this Court and she with her husband mala fidely scrupulously and to overreach the process of this Court sold the property in question in favour of newly added respondent nos.7 and 8 by registered sale deed dated 11.6.2010 and though respondent no.3 filed affidavit in reply in the present petition on 22.7.2010 she did not disclose the said facts before this Court and it was brought to the notice of this Court on the affidavit in rejoinder filed on behalf of the petitioner. Hence, petitioner requested to join subsequent purchaser also as party respondents in the present petition, which came to be granted and that is how respondent nos. 7 and 8 were ordered to be joined as party respondents.
4. Shri ND Nanavati, learned Senior Advocate has vehemently submitted that petitioner is the bonafide purchaser of the disputed property in question in a Court auction and has paid the full sale consideration and even the bank has also issued no due certificate, name of the petitioner is required to be mutated in the revenue record /property record. It is submitted that as such initiation of proceedings by respondent no.3 is absolutely mala fide and she disputed the transaction between her husband and the predecessor in title-Amul Synthetic Pvt. Ltd., of 1987 for the first time while challenging the mutation entry No.3405 which was in favour of Amul Synthetic Pvt. Ltd and even the Civil Suit came to be filed by her challenging the sale transaction between her husband and Amul Synthetic Pvt. Ltd by filing suit in the Page 7 of 23 HC-NIC Page 7 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER year 2009 i.e. even after the property in question was purchased by the petitioner in Court auction. It is further submitted that even the orders passed by both the authorities below in not certifying the entry no.3405 in favour of Amul Synthetic Pvt. Ltd on the ground that Amul Synthetic Pvt. Ltd was not agriculturist and therefore, there is a breach of Section 63 of the Bombay Tenancy and Agricultural Lands Act is without jurisdiction and authority as held by this Court in the case of Jhaverbhai Savjibhai Patel Through P.A. Holder Ashok J. Patel Vs. Kanchaben Nathubhai Patel & Others reported in 2005(3) GLR 2233. It is submitted that as per aforesaid decision and in catena of decisions of this Court, it is the consistent view taken by this Court that while considering the dispute with respect to mutation entry the revenue authorities are not required to consider the legality and validity of the transaction and / or whether the transaction is in breach of violation of principles of any other law. As per the decision of this Court the revenue authorities are bound to make necessary entry in the revenue record on the basis of the sale deed and if the said authority is of the opinion that by such transaction, there is a breach of any other law, an additional entry can be made in the revenue record with respect to such a prima facie opinion and such a dispute is required to be referred to appropriate authority. It is further submitted that even otherwise, the sale transaction in favour of Amul Synthetic Pvt. Ltd was in the year 1987 and thereafter as an owner the Amul Synthetic Pvt. Ltd constructed the factory and took the loan / advances from the Bank which was never challenged by anybody inclusive of respondent no.3 herein till 2008 and even a substantive suit challenging the transaction between the husband of respondent no.3 and Amul Synthetic Pvt. Ltd came to be challenged by way of Civil Suit in the year 2009 only. It is further submitted that in any case as the petitioner has purchased the property in question by registered sale deed in a Court auction and has paid full sale consideration and the petitioner has also been issued sale certificate by the DRT, the name of the petitioner is required to be mutated in the property card/ record. Therefore, it is requested to quash and set aside the impugned order and certified mutation entry nos. 3405 and 3406.
Page 8 of 23HC-NIC Page 8 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER
5. Shri ND Nanavati, learned Senior Advocate for the petitioner has further submitted that even the subsequent conduct on the part of respondent no.3 and her husband deserve serious consideration. It is submitted that even during the pendency of the present petition, respondent no.3 and her husband (who sold the property in question in favour of Amul Synthetic Pvt. Ltd in 1987) further entered into the sale deed in favour of respondent nos. 7 and 8 and even when thereafter affidavit in reply was filed, they do not disclose the same before this Court. Therefore, it is submitted that it is nothing but an attempt on the part of respondent no.3 and her husband to overreach the Court process and proceedings which is required to be deprecated. By making above submissions and relying upon the above decisions, it is requested to allow the present Special Civil Application.
6. Shri MB Gandhi, learned advocate has appeared on behalf of respondent no.3 and has submitted that as the substantive suit is already filed by respondent no.3 in the City Civil Court, Ahmedabad, respondent no.2 has rightly not certified entry nos. 3406 in favour of petitioner. It is further submitted that as it was found that Amul Synthetic Pvt. Ltd was not an agriculturist at the relevant time and therefore, it could not have purchased the property in question, respondent no.2 has rightly set aside the entry No.3405 which was in favour of Amul Synthetic Pvt. Ltd and has rightly not certified the same by holding that transaction between the original owner- husband of respondent no.3 and Amul Synthetic Pvt. Ltd was hit by Section 63 of the Bombay Tenancy and Agricultural Lands Act and the same is rightly confirmed by the City Deputy Collector. Therefore, it is requested to dismiss the present Special Civil Application .
7. Shri Mehul Mehta, learned advocate has appeared on behalf of newly added respondent nos. 7 and 8
-subsequent purchasers of the property in question purchased during the pendency of the present petition. An affidavit in reply has been filed on behalf of respondent nos. 7 and 8 affirmed by one Rajendrabhai Khodidas Patel- respondent no.7 herein. It is declared on oath that the Civil Suit No.1594 of 2010 filed by them i.e. subsequent purchasers, has been withdrawn now having come to know that petitioner has purchased the property Page 9 of 23 HC-NIC Page 9 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER in question in a court auction and had acquired title. It is further submitted on oath that whatever payments are made towards the sale deed dated 11.6.2010, the said is required to be recovered from the husband of respondent no.3 i.e. Harshadbhai Patel and respondent nos. 7 and 8 and / or their power of attorney holder will initiate the proceedings to cancel the said registered sale deed 11.6.2010. It is further declared on oath that respondent nos. 7 and 8 will not claim any right, title or claim in future with respect to the property in question and have waived all their rights, title and claim over the property in question. Thus, respondent nos. 7 and 8 are not claiming any right, title or interest in the property in question on the basis of registered sale deed dated 11.6.2010 executed by respondent no.3 and her husband.
8. Heard the learned advocates for the respective parties at length. From the facts stated herein above what is emerging is that the property in question was in exclusive name of husband of respondent no.3 i.e. Harshadbhai Patel and in the year 1987; he sold the land in question in favour of Amul Synthetic Pvt. Ltd by registered sale deed dated 6.4.1987 for sale consideration of Rs.2,77,025/-. It further appears that thereafter the said Amul Synthetic Pvt. Ltd erected the factory over the said piece of land and started its business. That thereafter, respondent no.4- Amul Synthetic Pvt. Ltd sought financial assistance from respondent no.5 Bank of India and put the property in question as collateral security by way of equitable mortgage. It appears that thereafter as the Amul Synthetic Pvt. Ltd failed to repay the amount borrowed from respondent no.5 Bank of India and therefore, respondent no.5 Bank of India approached the DRT and filed suit for recovery of amount due and payable by Amul Synthetic Pvt. Ltd and obtained recovery certificate and thereafter amount due and payable by respondent no.4- Amul Synthetic Pvt. Ltd as per recovery certificate was sought to be recovered by putting the property in question to auction which was put as collateral security by way of equitable mortgage and thereafter petitioner purchased the said property in question in public auction which took place on 13.11.2003 and the petitioner paid full sale consideration and even respondent no.6 issued no due certificate / no objection certificate and the sale certificate also came to be issued in favour of petitioner.
Page 10 of 23HC-NIC Page 10 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER It also appears that thereafter by pencil entry No.3405 the name of Amul Synthetic Pvt. Ltd was sought to be mutated in the revenue record as per the registered sale deed dated 6.4.1987 and simultaneously the name of the petitioner was also sought to be mutated in the revenue record by entry no.3406 on the basis of sale certificate issued in favour of petitioner and the sale of the disputed land in question in favour of the petitioner purchased in Court auction. For the first time, respondent no.3 wife of original owner Harshadbhai Patel i.e. Minaxiben H. Patel objected to the mutation entry No.3405 which was in favour of Amul Synthetic Pvt. Ltd solely on the ground that the said property in question was an ancestral property and the same could not have been sold by her husband -Harshadbhai land and his mother. That the said mutation entry No.3405 came to be set aside by respondent no.2- City Mamlatdar on the ground that at the relevant time the Amul Synthetic Pvt. Ltd was not agriculturist and therefore, there is a breach of Section 63 of the Bombay Tenancy and Agricultural Lands Act. That thereafter, pursuant to the order passed by this Court passed in Special Civil Application No.8642 of 2008, respondent no.2 City Mamlatdar in not certifying the mutation entry No.3406 which was in favour of the petitioner and respondent no.2 by order dated 24.12.2008 set aside the entry No.3406 and did not certify the same on the ground that mutation entry No.3405 in favour of Amul Synthetic Pvt. Ltd has been set aside and / or is not certified by him and same is confirmed by the City Deputy Collector by an order dated 12.12.2008 passed in RTS Appeal No.82 of 2008.
9. Thus, it appears that respondent no.2 City Mamlatdar did not certify the entry no.3405 in favour of Amul Synthetic Pvt. Ltd on the objection being raised by respondent no.3 on the ground that transaction between husband of respondent no.3 and Amul Synthetic Pvt. Ltd by way of registered sale deed dated 6.4.1987 was hit by Section 63 of the Bombay Tenancy and Agricultural Lands Act. It is required to be noted that the City Mamlatdar was exercising the powers under Rule 108 of the Gujarat Land Revenue Rules and / or was considering the dispute with regard to the mutation entry only. As held by learned Single Judge in the case of Jhaverbhai Savjibhai Patel Through P.A. Holder Ashok J. Patel (Supra, revenue authorities are required to make Page 11 of 23 HC-NIC Page 11 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER necessary entry in the revenue record on the basis of registered sale deed, however if prima facie it is found that such a transaction is in breach of other enactment, said entry can be made, which such an additional entry having prima facie opinion and the revenue authority who is considering the dispute with regard to mutation entry is required to refer the matter to the appropriate authority .
10. Under the circumstances, the order passed by the City Mamlatdar in not certifying the entry no.3405 and canceling the same and subsequent order passed by the City Deputy Collector in confirming the said order deserves to be quashed and set aside. Similarly even the order passed by respondent no.2 dated 24.12.2008 in not certifying the mutation entry no.3406 in favour of petitioner on the basis of the property in question purchased in Court auction also deserves to be quashed and set aside. It is to be noted that respondent no.3 herein even challenged the sale transaction in favour of Amul Synthetic Pvt. Ltd after period of almost 22 years and therefore, also the dispute has been raised belatedly and after unreasonable period, respondent no.2 ought not to have entertained such a dispute after a period of 22 years of the sale transaction. As held by this Court revenue authorities are bound to make necessary entry in the revenue record on the basis of the sale deed and have no authority to go into the legality and validity of the transaction and if the authorities are of the opinion that the transaction is in breach of particular act an additional entry can be made and such a dispute is required to be referred to competent authority. It is required to be noted at this stage that respondent no.2 City Mamlatdar has no jurisdiction to consider the alleged breach of Section 63 of the Bombay Tenancy and Agricultural Lands Act while entering into the transaction between the original land owner-Harshadbhai Patel and respondent no. 4- Amul Synthetic Pvt. Ltd . In view of the aforesaid facts and circumstances, the impugned order passed by the authorities below in not certifying the entry nos.3405 and 3406 deserves to be quashed and set aside and direction is to be issued to appropriate authority to certify the entry nos.3405 and 3406.
Even subsequent conduct on the part of respondent no.3 and her husband entering into one another sale deed in Page 12 of 23 HC-NIC Page 12 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER favour of respondent nos. 7 and 8 on 11.6.2010 and that too during the pendency of the present petition deserve serious consideration. It is to be noted that this Court issued first notice upon respondents as far as back on 29.7.2009 and the respondents inclusive of respondent no.3 had appeared in the present petition and thereafter respondent no.3 and her husband -Harshadbhai Patel with mala fide intention executed registered sale deed dated 11.6.2010 in favour of respondent nos. 7 and 8 and tried to overreach the court proceedings. It is to be noted that even respondent no/3 filed an affidavit in reply in the present petition on 22.7.2010, however, despite the fact that she along with her husband executed sale deed dated 11.6.2010 in favor of respondent nos. 7 and 8, she did not disclose the same in the said affidavit in reply dated 22.7.2010 and has deliberately suppressed the same which is highly deprecated. It is also required to be noted that even the subsequent purchasers-respondent nos.7 and 8 also instituted Civil Suit No.1594 of 2010 before the City Civil Court, Ahmedabad which is now withdrawn by respondent no.7 and 8 as disclosed in the affidavit in reply filed by them. Thus, it appears that respondent no.3 has acted male fide and has not come with clean hands and because of aforesaid conduct on the part of respondent no.3 and her husband of this Court has entertained the present petition against the order passed by respondent no.2 -City Mamlatdar dated 24.12.2008 in not certifying the entry no.3406, despite the fact that remedy of alternative statutory appeal before the City Deputy Collector is available to the petitioner. This Court is conscious of the fact that against the order passed by the City Mamlatdar dated 24.12.2008 in not certifying the entry no.3406 and against the order passed by the Mamlatdar in not certifying the entry no.3405 confirmed by the City Deputy Collector a further appeal before the Collector is maintainable. However, in the facts and circumstances of the case, this Court has exercised the power under Article 226 of the Constitution of India, more particularly in not certifying the entry no.3405 and 3406 are wholly without jurisdiction.
11. For the reasons stated above, petition succeeds. The order passed by the City Mamlatdar in not certifying the entry no. 3405 and further confirmed by City Deputy Collector are hereby quashed and set aside. The order Page 13 of 23 HC-NIC Page 13 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER passed by the Mamlatdar dated 24.12.2008 in not certifying the entry No.3406 in favour of petitioner is hereby quashed and set aside and appropriate authority
-City Mamlatdar is hereby directed to certify the entry nos. 3405 and 3406 in favour of Amul Synthetic Pvt. Ltd and petitioner respectively on the basis of the sale deed dated 6.4.1987 in favour of Amul Synthetic Pvt. Ltd and on the basis of the sale in favour of petitioner in court auction. As declared by respondent nos. 7 and 8 in the affidavit in reply dated 14.8.2010 affirmed by one Rajendrabhai Khodidas Patel- respondent no.7 to the effect that respondent nos.7 and 8 shall not claim any right, title and interest in the property in question on the basis of the registered sale deed dated 11.6.2010 executed by respondent no.3 and her husband and that they may initiate appropriate proceedings against the respondent no.3 and her husband for recovery of amount already paid and for cancellation of sale deed and thus respondent nos. 7 and 8 shall not claim any right, title or interest in the disputed property in question on the basis of the registered sale deed executed by respondent no.3 and her husband as declared by them that they do not claim any right, title or interest in the property in question on the basis of the aforesaid registered sale deed. Rule is made absolute to the aforesaid extent. No costs."
The order referred to above attained finality. Pursuant to the directions issued by this Court, the revenue authorities mutated the necessary entry bearing no.4215 showing the tenure of the land as agricultural land. As the land was shown as agricultural in nature, the petitioner had to come once again before this Court by filing the Special Civil Application No.3935 of 2011. This petition came to be rejected by order dated 28 th March 2011. The writ-applicant, being dissatisfied, filed the Letters Patent Appeal No.697 of 2011. Before the appeal court, twofold submissions were canvassed. First, that the land is included in the Urban Agglomeration as being part of the Town Planning Scheme No.56 (Narol-Shahwadi) and, therefore, the Page 14 of 23 HC-NIC Page 14 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER land is deemed to be non-agricultural land and it was not necessary for the writ-applicant to seek N.A. permission. Secondly, the Ahmedabad Municipal Corporation had been levying and collecting the property tax for the said property and, therefore, the land is deemed to be an agricultural land. The appeal came to be disposed of by a Division Bench of this Court vide judgment and order dated 4th April 2014. The order reads thus :
"
1. The appeal is directed against the judgement of the Learned Single Judge dated 28.3.2011 passed in Special Civil Application No.3935/2011.
2. Shortly stated the issues pertain to revenue entries in a certain land bearing survey no.7 paikee, admeasuring 9249 sq. mtrs. of village Narol. The petitioner had purchased such land through an auction held by DRT for the original owners being unable to repay the debt to the financial institutions. In the earlier round of litigation, this Court had in order dated 16.8.2010 declared that action of City Mamlatdar, in not certifying entry no.3405, was illegal. He was directed to certify entry nos. 3405 and 3406 in favour of M/s. Amul Synthetics Pvt. Ltd. original owner an thereafter on the basis of sale in favour of the petitioner.
3. When such entries were made pursuant to the decision of this Court, the City Mamlatdar added a description that the land is an agricultural land. The petitioner desired that same should be shown as non agricultural land. On such basis, the petitioner approached the Learned Single Judge who by impugned judgement dismissed the petition.
4. Case of the petitioner is two folds. Firstly, that the land was purchased in public auction, It contained at that time open plot with an industrial shed and further that since the land is part of the town planning scheme, provisions of Bombay Tenancy and Agricultural Land Act, would not apply.
Page 15 of 23HC-NIC Page 15 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER Petitioner relied on decision of Division Bench of ths Court in case of Jyotsanaben C Patel v State of Gujarat & Anr 53(2) GLR 1214.
5. In our opinion merely because the land was purchased in auction would not automatically decide its category. Further at which point of time, the land became part of town planning scheme and what is the stage of such scheme are some of the issues which are germane to decide whether the same would retain its character as an agricultural land or not. These issues cannot be gone into in a direct writ petition. If such conclusions would not flow from the previous judgement of the Learned Single Judge dated 16.8.2010, the petitioner must satisfy the revenue authority about the true nature and character of the land on the date of its sale. For such purpose, it would be open for the petitioner to approach the Collector. If he does so, the Collector may take expeditious step to decide his application.
6. Letters Patent Appeal is disposed of."
Pursuant to the order passed in appeal referred to above, the writ-applicant filed an application addressed to the Collector, Ahmedabad, to take an appropriate decision as regards the nature of the land. The application is at page-45 Annexure-H to this petition. As no decision was taken on the application filed by the writ-applicant, he had to come again before this Court by filing the Special Civil Application No.11823 of 2015, which came to be disposed of by a learned Single Judge vide order dated 29th August 2016 in the following terms :
"
1. Pursuant to the notice issued by this Court, Mr. Hardik S. Soni, learned Assistant Government Pleader appears for the State Government authorities. On instructions from respondent no.2, Mr. Soni, learned AGP states that in case if the petitioner files an appropriate application in the requisite format for conversion, the same shall be Page 16 of 23 HC-NIC Page 16 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER dealt with by respondent no.2 in accordance with law as expeditiously as possible, subject to petitioner complying with all requisites.
2. In light of the aforesaid, if any such application is filed, subject to fulfillment of all requisites, the same shall be dealt with by respondent no.2 as expeditiously as possible, preferably within a period of 90 days from the date of fulfilling of the conditions.
3. With these observations, this petition is disposed of at this stage. Direct service is permitted. Notice discharged."
Pursuant to the order passed by this Court dated 29th August 2016 referred to above, the writ-applicant filed an application in a proper format. The Collector, Ahmedabad, by order dated 7th March 2017, rejected the application filed by the writ-applicant assigning the following reasons :
"The Mamlatdar has vide Item-3 given the following negative opinion for the land in question :
1. The name of the applicant is entered with respect to the land admeasuring 11062 sq.meters.
However, in the 7/12, the land is shown as 9249 sq.meters. Thus, there is discrepancy.
2. The applicant has sought the N.A. permission with respect to the Final Plot No.51/2. However, in F- form, there is no mention of the Final Plot No.51/2.
3. The proposed plan of the land in question is not produced.
Further, vide Item-4, the Deputy Collector (Land Reforms and Appeal), Ahmedabad, vide letter dated 7.2.2017 has given negative opinion and as per the same, Jalabhai Darasa is possessing the land in question by inheritance (Entry No.668). In the said land, the name of the Bombay High Court is shown as the Court Receiver (Entry No.701). In the secondary right, the name of Keshavlal Chaturbhai is shown as the tenant (Entry No.654).
Page 17 of 23HC-NIC Page 17 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER Thereafter, in the secondary right, the name of Dahyabhai Chaturbhai is shown as the co-owner of Keshavlal Chaturbhai (Entry No.940). That, during the course of the inquiry under Section 32(G) of the Tenancy Act, it was found that the Bombay High Court is in possession of the land as the Receiver and, therefore, the provisions of Section 32(G) of the Tenancy Act are not applicable and, therefore, an order was passed dated 16.6.1959 in the Tribunal Case No.50 (Narol) to cancel the notice under Section 32(G) of the Tenancy Act (Entry No.965, 21.7.1959). Thereafter, they have purchased the land on 13.5.1959. Their names are entered as possessors of the land (Entry No.958). That, in disposal of the said entry, an order is passed on 1.10.56 on the application of the Court Receiver under Section 64 of the Tenancy Act and thereon entry is certified on the basis of the order dated 30.4.1957 of the City Deputy Collector in appeal.
It appears that out of the land in question, land admeasuring 9265 sq.meters is sold to one Gopi Synthetics Pvt. Ltd. as per Entry No.3198. That, in the said entry, it has been observed to initiate the proceedings under Section 63 of the Tenancy Act.
That, taking into consideration the above fact, as the Receiver has sold the land to the tenants on 13.5.1959, the provisions of the Tenancy Act are made applicable.
That, on the basis of the above fact, the request of the applicant seeking N.A. permission is not acceptable. Therefore, the application of the applicant is rejected by the following order:
ORDER Application of the applicant dated 29.12.2016 seeking N.A. permission is hereby rejected.
That, if the applicant is aggrieved by this order, he may prefer appeal before the Principal Secretary (Appeals), Revenue, Ahmedabad, within a period of 60 days from the receipt of this order."Page 18 of 23
HC-NIC Page 18 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER Being dissatisfied with the order passed by the Collector dated 7th March 2017, the writ-applicant is here before this Court by way of this petition under Article 226 of the Constitution of India.
Mr.Kapadia, the learned counsel appearing for the petitioner, would submit that the reasons which have been assigned by the Collector while passing the order dated 7th March 2017 are not at all germane with the issue, whether the land is an agricultural land or a non-agricultural land.
Without giving any opportunity to clarify the aspects discussed in the impugned order, the Collector proceeded to pass the order dated 7th March 2017. Mr.Kapadia reiterates his submissions that the land has been included in the TPS and, therefore, by any stretch of imagination it would be termed as an agricultural land. Mr.Kapadia points out that if the land is to be treated as an agricultural land, then how come on the same there is an industrial shed and how come that the land was permitted to be used for non-agricultural purpose. His submission is that if it is to be treated as an agricultural land, then how come the Ahmedabad Municipal Corporation is levying the taxes on the same.
In such circumstances referred to above, Mr.Kapadia prays that there being merits in this writ-application, the same be allowed and the reliefs as prayed for be granted.
In support of his submissions, he has placed reliance on a few judgments of this Court which have been annexed with the petition. He also seeks to rely on a Division Bench decision of Page 19 of 23 HC-NIC Page 19 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER this Court in the case of Sachin Udhyognagar Sahakari Mandali Limited v. State of Gujarat, (2013)1 GLH 83. The dictum of law explained in the decision in the case of Sachin Udhyognagar Sahakari Mandali (supra) is that, whether a particular land is agricultural land or not must depend on the general nature or character of the land and in order to ascertain the general nature or character of the land, various factors would have to be taken into account. The development and use of the land in the adjoining area and the surroundings and the situation of the land would be an important factor which would have a bearing on the question, whether the land is an agricultural land or not. This factor may affect the land and its capacity of being used for agriculture and would also indicate the purpose for which the land would ordinarily be likely to be used. The physical characteristics of the land would be another factor to be taken into account. The physical characteristics may show the general nature and character of the land, particularly in regard to its adaptability for being used for agricultural purpose.
On the other hand, this petition has been vehemently opposed by Mr.Utkarsh Sharma, the learned AGP appearing for the State. The learned AGP would submit that the Division Bench, while disposing of the Letters Patent Appeal No.697 of 2011, clarified in para-5 of its order that merely because the land was purchased in an auction conducted by the Debts Recovery Tribunal, the same would not automatically decides its category. The appeal court further observed in para-5 that at which point of time the land became part of the Town Planning Scheme and what is the stage of such scheme are also issues germane to decide, whether the same would retain Page 20 of 23 HC-NIC Page 20 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER its character as an agricultural land. He would submit that the reliance placed by the writ-applicant on Section 117(a) of the Town Planning Act is thoroughly misconceived because the said scheme came to be deleted in the year 1999. He would submit that the reasons assigned by the Collector are quite cogent and convincing and, therefore, no interference is warranted in exercise of the writ-jurisdiction of this Court under Article 226 of the Constitution of India.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Collector committed any error in passing the impugned order.
I have already reproduced the free English translation of a part of the order passed by the Collector above.
It appears that on account of some discrepancies in the area of the land etc., the Collector has also gone into the history of some litigation pertaining to tenancy proceedings.
The writ-applicant herein, in the hit of exasperation, although not directly but sophisticatedly put before the Court that he is a fool to participate in the auction conducted by the Debts Recovery Tribunal and purchased the property. When he purchased the property, he knew that there was an industrial shed on the same. Even a layman would understand that if there is an industrial shed, the land is being used for N.A. purpose. How this shed came to be constructed and who granted the permission is not known. Nobody has disputed that even as on date there is an industrial shed. It is also not in Page 21 of 23 HC-NIC Page 21 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER dispute that the land is included in the Town Planning Scheme. The Corporation is levying taxes on the same. However, the Collector is still very firm to treat the land as an agricultural land.
I am not convinced with the reasons assigned by the Collector as contained in the order dated 7th March 2017. The reasons assigned by the Collector has really taken the writ- applicant by surprise. He says that he could have explained what has been stated in the order.
I am of the view that the Collector should be directed to reconsider the entire issue after giving an opportunity of personal hearing to the petitioner and bearing in mind the observations made by this Court in this order.
In the result, this application succeeds in part. The order passed by the Collector, Ahmedabad, dated 7th March 2017 is quashed and set-aside. The matter is remitted to the Collector, Ahmedabad, for fresh consideration of the entire issue. The Collector shall give an opportunity of personal hearing to the petitioner and consider the matter threadbare, more particularly, the observations of this Court. The Collector shall thereafter take a fresh decision in writing and communicate the same to the petitioner.
Let this exercise be undertaken at the earliest and be completed within a period of six weeks from the date of receipt of this order.
I take notice of the fact that after the order dated 7 th Page 22 of 23 HC-NIC Page 22 of 23 Created On Sat Aug 19 23:53:23 IST 2017 C/SCA/11351/2017 ORDER March 2017 came to be passed, the writ-applicant filed an application dated 25th April 2017 to reconsider the matter and such application came to be rejected by a very brief order dated 19th May 2017. This order of 19th May 2017 is also quashed and set-aside.
With the above, this petition is disposed of.
(J.B.PARDIWALA, J.) MOIN Page 23 of 23 HC-NIC Page 23 of 23 Created On Sat Aug 19 23:53:23 IST 2017