Gujarat High Court
Tusharbhai Harjibhai Ghelani vs State Of Gujarat on 7 December, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/494/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 494 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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TUSHARBHAI HARJIBHAI GHELANI
Versus
STATE OF GUJARAT
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Appearance:
MR MEHULSHARAD SHAH(773) for the PETITIONER(s) No. 1,2
MR. RONAK RAVAL,, ASST. GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1
MR. I.H. SYED, LD. SR. COUNSEL for MR VISHAL K SEVAK(5237) for the
RESPONDENT(s) No. 10,11,12,13,14,15,16,17,3,4,5,6,7,8,9
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/12/2018
ORAL JUDGMENT
1. By this writ application under Article 226 of the Page 1 of 41 C/SCA/494/2015 JUDGMENT Constitution of India, the writ applicants have prayed for the following reliefs;
"(A) to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the order dated 19.11.2014 passed by the District Collector, Surat and be further pleased to declare that NA permission deemed to have been granted in respect of the land bearing Revenue Survey No.29, Final Plot No.93 admeasuring 8060 sq. mtrs.
situated in the sim of vilalge Rundh, Surat.
(B) to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction, directing the Collector to accept the charges for NA permission for residential purpose in respect of the land bearing Revenue Survey No.29, Final Plot No.93 admeasuring 8060 sq. mtrs, situated in the sim of village Rundh, Surat.
(C ) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to direct the District Collector, Surat to reconsider the application of the petitioners dated 25.06.2014 for N.A. Permission in respect of land bearing revenue survey No.29, Final Plot No.93, admeasuring 860 sq. mtrs. situated in the sim of village Rundh, Surat for residential purpose;
(D) to pass such other and further orders as may be expedient and necessary in the circumstances of the case."
2. The case of the writ applicants, in their own words, as pleaded in the writ application, is as under;
"3.1 The present petitioners are owners of the land bearing Revenue Survey No.29 admeasuring Hectare 1- 24-00 (12400 sq mt.) of village Rundh. The said land was included in Town Planning Scheme No.29 and Final Plot No.93 admeasuring 8060 has been allotted and came into the residential zone. The petitioners have purchased the land from erstwhile owner Babubhaj Banwarlal by a sale deed dated 10.6.2005 which was registered on 13.10.2006 and revenue entry No. 1388 was mutated in Page 2 of 41 C/SCA/494/2015 JUDGMENT the revenue record on 21.11.2006 and certified on 18.8.2007. Hereto annexed and marked as ANNEXURE-B is the copy sale deed and ANNEXURE-C copy of the revenue entry No.1388.
3.2 The names of the petitioners were also reflected in the extract of village form No.7/ 12 and 8A. Hereto annexed and marked as ANNEXURE-D (Colly) are the copies of the extract of village form No.7/12 and 8A.
3.3 Petitioners state and submit that by government notification dated 14.2.2006 village Rundh was included in Surat Municipal Corporation and accordingly, revenue entry No.1396 was mutated and certified on 26.12.2006. Hereto annexed and marked as ANNEXURE-E is the copy of revenue entry No. 1396.
3.4 Petitioners state and submit that the land is included in Surat Urban Development Authority and as per the certificate dated 08.02.2013 issued by the authority, land Revenue Survey No.28 and 29 came into the residential zone. Hereto annexed and marked as ANNEXURE-F is the copy of certificate dated 08.02.2013 along with the map. That as per the draft Town Planning Scheme, SUDA No.29 (Rundh-Vesu-Magdalla) for the old plot No.29 the Final Plot No.93 admeasuring 8060 has been allotted. Hereto annexed and marked as ANNEXURE-G is the copy of re distribution statement.
3.5 Petitioners state and submit that the land in question is originally owned by one Bhaniben D/o Somabhai Nimabhai and Mangiben D/o Somabhai Nimabhai. They have purchased the land by Regd. sale deed dated 29.5.1950 thereafter names of their husband have been entered. That it is alleged that the said Bhaniben and Mangiben have executed power of attorney in favour of one Natwarlal B.Patel and not by all four persons. That as such the said power of attorney was cancelled by the original owners. But, subsequently the said power of attorney holder has executed sale deed in favour of Prathmesh Farms Pvt. Ltd. and other 14 companies on 03.06.2000. It is pertinent to note that in Letters Patent Appeal 932/2000 filed by the State of Gujarat against the said company, it was held that the company cannot purchase the land and it was declared that it has no locus Page 3 of 41 C/SCA/494/2015 JUDGMENT to purchase the land as the company cannot be termed as an agriculturist. Hereto annexed and marked as ANNEXURE-H is the copy of the jUdgement reported in 2010(3) GLH 700 in case of the Objector. Petitioners state and submit that the all four original owners have executed a registered sale deed in favour of Babulal Banwarlal and revenue entry was also mutated in the revenue record and the name of Babulal Banwarlal was mutated in the extract of village form No.7/12. Therefore, the petitioners are the bona flde purchasers as at the time of purchasing the land they have examined the revenue record as well as sale deed executed in favour of Babulal Banwarlal by the original owners.
3.6 Petitioners state and submit that one Regular Civil Suit No.326/2002 was filed by the original owners and Babulal against the objector company which is pending since last 12 years wherein the present petitioners are not parties. That another suit was tiled by the objector company being Special Civil Suit No.237/ 2013 praying to quash and set-aside the sale deed executed by the original owners in favour of Babulal Banwarlal and subsequent sale deed in favour of the present petitioners. It is pertinent to note that till date no injunction has been granted by the trial court and appeal is also pending but not injunction is granted. Hereto annexed and marked as ANNEXURE-I is the copy of plaint of Regular Civil Suit 326/2002 and ANNEXURE-J is copy of plaint of Special Civil Suit No.237/2013.
3.7 Petitioners state and submit that with a view to develop this land and to put up construction for the residential purpose, petitioners have applied for Non Agriculture permission to the Collector, Surat. That earlier by order dated 23.01.2014, the Collector has been pleased to file the said application mainly on the ground that layout pIan of residential high-rise building has been produced and permission is sought for commercial purpose. Hereto annexed and marked as ANNEXURE-K is the copy of order dated 23.01.2014. It is respectfully submitted that through mistake it was stated in the application for N.A. that permission is required for commercial purpose instead of residential purpose. But without affording any opportunity of hearing such application has been filed.
Page 4 of 41C/SCA/494/2015 JUDGMENT 3.8 Petitioners state and submit that thereafter the petitioners have applied for the non-agricultural permission of Survey No.29 Final Plot No.93 but again application has been filed on some flimsy ground. Hereto annexed and marked as ANNEXURE-L is the copy of order dated 06.05.2014. Thereafter by a detailed application dated 25.06.2014, petitioners have provided all the relevant documents to the Collector and also tendered explanation for each issue raised by the Collector while rejecting/filing earlier application. The petitioners have produced all the documents as per the check list provided for submitting an application under Section 65 of the Bombay Land Revenue Code and requested the Collector to reconsider their application for grant of N.A. Hereto annexed and marked as ANNEXU'RE-M is the copy of application dated 25.06.2014.
3.9 Petitioners state and submit that as per the provisions of Section 65 of the Bombay Land Revenue Code, it is incumbent upon the Collector to decide such application within a period of three months. That as such, by application dated 25.06.2014 petitioners have furnished their explanation sought by the Collector along with all relevant documents. However, the Collector has not decided the application within a period of three months. Therefore, as such as per the settled legal position the N.A. permission is deemed to have been granted.
3.10 Petitioners state and submit that again by order dated 19.11.2014 the Collector has been pleased to reject the application on the ground that two civil suits are pending in the Civil Court and, therefore, application is rejected. It is pertinent to note that earlier on two occasions the N.A. applications have been ordered to have been filed on some technical objections. At that point of time though the present two civil suits were pending, no reference in regard thereto has been made. When petitioners have furnished all relevant documents and explanation to the Collector, then, on untenable reasons again the application has been rejected."
3. Thus, it appears from the pleadings and the materials on record that the subject matter of challenge in this writ Page 5 of 41 C/SCA/494/2015 JUDGMENT application is an order passed by the Collector, Surat dated 19th November, 2014, declining to grant N.A. Permission as prayed for by the writ applicants with respect to the land in question.
4. The grounds of challenge raised in this petition are as under;
(3) It is respectfully submitted that as per the provisions of Section 65 of the Code, it is incumbent upon the District Collector to decide the application for N .A. permission within a period of three months and if the authority fails to inform the petitioners of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted. This Hon'ble High Court in a decision reported in 2005(1) GLH UJ 5, has held that once an application is made under section 65 and no decision is taken within three months, it is deemed to have been granted. Similar view was also taken in decision rendered in SCA 5057 of 1998 and LPA 392/ 1999.
(4) It is respectfully submitted that the State of Gujarat, Revenue Department, issued a Resolution dated 1.7.2008 specifying Modality to be followed by the concerned authorities while considering the applications for N.A. Permission under Section 65 of the Code. It is specifically stipulated therein that the Collector Office has to obtain opinion from various authorities within a period of 21 days and to consider the application within a period of 90 days. ANNEXURE-N is a copy of the Govt. Circular dated 1.7.2008.
Pursuant to the aforesaid Government Resolution dated 1.7.2008, a further Resolution was passed by the Revenue Department of State of Gujarat in February, 2010, informing all the concerned authorities to maintain the time limit prescribed in the Code while considering the application for N.A. permission, and special attention of the Collector and D.D.O. had been drawn.
(5) Pursuant to the above-referred to guidelines issued
Page 6 of 41
C/SCA/494/2015 JUDGMENT
by the State Government, it is incumbent upon the Collector to decide the NA. Permission applications as expeditiously as possible. To the best knowledge of the petitioners, no authority had given any negative opinion. As such, the Regular Civil Suit No.326/2002 has no nexus with the sale deed executed in favour of the petitioners and so far as the Special Civil Suit No.237/ 2013 is concerned, it was filed by one Prathmesh Farms Private Limited. As stated hereinabove, the Hon'ble Division Bench has been pleased to hold in case of said company that it cannot hold agriculture land. Therefore, when such objector is not an agriculturist and sale deed, if any, executed in favour of the Private Limited Company by the so called power of attorney holder of the original owner, then also it has no value in the eye of law. Therefore, objection raised by such a company, which has no legal right, ought to have been rejected by the Collector.
(6) It is respectfully submitted that along with N.A. permission application, the petitioners have submitted all the documents as per the checklist annexed with the petition regarding his ownership and title of the land. The names of the petitioners are also reflected in the revenue record, as the petitioners are bona tide purchasers of the land by registered sale deed. The petitioners crave leave to produce all the relevant documents at the time of hearing, if it so required.
(7) It is respectfully submitted that if the Collector was of the opinion that some further compliance or clarification is required at the hands of the petitioners, then the petitioners could have been called upon for necessary compliance. However, without issuing any notice and without affording any opportunity of hearing, the Collector refused to consider the application of the petitioners for N.A. permission in gross violation of the principles of natural justice. It is respectfully submitted that in view of the decision reported in 26 BLR 371, after three months any order passed is defective and beyond his power.
(8) It is respectfully submitted that the order passed by the District Collector is ex facie illegal, unjust, nonspeaking order, therefore, this Hon'ble High Court may be pleased to quash and set aside the same declare Page 7 of 41 C/SCA/494/2015 JUDGMENT that NA permission is deemed to have been granted.
(9) The petitioners respectfully state and submit that they want to develop the land. They are the owner of the land by virtue of a registered sale deed and if they are not permitted to develop the land as per their choice by granting N.A. permission, then their fundamental rights guaranteed under the Constitution of India would be violated. Therefore, this Hon'ble High Court may be pleased to exercise its extraordinary jurisdiction declaring that of NA. permission deemed to have been granted.
(10) It is respectfully submitted that pendency of civil suit or pendency of some case before any authority has no nexus with the consideration of NA. permission. The Hon'ble Division Bench of this Hon'ble High Court in a decision reported in 2011 (O) GLHEL- High Court 225787 rendered in Letters Patent Appeal No. 960/2011 in Special Civil Application No. 4746/2011 in the case of Alkaben H. Dave v. State of Gujarat has observed that the Taluka Development Officer cannot say that since civil suit is pending and objections have been raised, no order would be passed on the application preferred by the appellant. T.D.O. could not have ordered to file the application for N.A. permission preferred by the appellant without passing any order. The Hon'ble Division Bench thereafter directed the T.D.O. in that case to decide the application in accordance with law.
(11) The Hon'ble High Court in a case reported in 2012(2) GLR 1741 has observed that the proceedings under section 65 of the Code cannot be used to prove right contrary to one shown as occupant. The Court has observed that the permission is attached to the land in question and not to the person. Therefore, permission to use the land for N.A. use granted in favour of the petitioner revoked and cancelled by the District Collector, as litigation in the form of civil suit is pending in Civil Court has been set aside by this Hon'ble High Court in the aforesaid judgment. Therefore, pendency of any proceeding is no ground to refuse N.A. permission. The petitioners crave leave to annex the aforesaid two judgments along with the petitioner for ready perusal of the Hon'ble Court. "
Page 8 of 41C/SCA/494/2015 JUDGMENT
5. By way of an additional affidavit, the following facts have been brought on record by the writ applicants;
2. Petitioners state and submit that during the pendency of the petition, one important event took place in favour of the petitioners. That during the pendency of the petition, the present petitioners have moved an application under Section 63(AB) of the Tenancy Act, wherein the learned Mamlatdar & ALT, Choryasi registered the case as Ganot Case No.7/2017 and after considering the provisions of law held that since the petitioners who are the last bona fide purchasers are agriculturists, there is no breach of Section 63 of the Tenancy Act and notice issued under Section 7O(A) is withdrawn and it was further directed that since the present petitioners have paid 10% amount of the Jantri i.e. Rs.2,57,30,000/(Rupees Two Crores Fifty Seven Lakhs and Thirty Thousand only) in the Government, the transfer is held to be valid in favour of the petitioners. Hereto annexed and marked as ANNEXURE-Al is copy of the order dated 13.09.2017.
3. It is respectfully submitted that the present petitioners have deposited Rs.2,57,30,000/to regularize their transaction and while accepting the said amount, the revenue authorities have not raised any objection regarding the pendency of the civil suits.
4. That application for temporary injunction preferred by the Respondent Nos. 3 to 17 herein below Exh.5 in Special Civil Suit No. 237 of 2013, came to be allowed by 9th Additional Senior Civil Judge, Surat vide order dated 06.01.2018. Being aggrieved by the said order, Petitioners have preferred Appeal from Order No. 16 of 2018 along with Civil Application No. 848 of 2018 and this Hon'ble Court has been pleased to stay said order till further orders vide order dated 22.01.2018. Hereto annexed and marked as ANNEXURE-A2 is a copy of said order dated 22.01.2018."
6. The picture that emerges from the materials on record is that Mangiben and Bhaniben were the joint owners of the land Page 9 of 41 C/SCA/494/2015 JUDGMENT in question. The record reveals that the original owners sold the parcels of land in favour of the respondents Nos.3 to 17 by way of a registered sale deed dated 3 rd June, 2000. The registered sale deed was executed in favour of the respondents Nos.3 to 17 by the power of attorney of the original owners. The record further reveals that the very same parcel of land came to be sold by the original owners to one Babulal Bhanvarlal by way of a registered sale deed dated 19 th May, 2001. They, in turn, sold the land by a registered sale deed dated 13th October, 2006 executed in favour of the writ applicants.
7. The above led to filing of two civil suits. The Regular Civil Suit No.326 of 2002 came to be filed by Babulal against the respondents Nos.3 to 17. The another suit, being the Special Civil Suit No.237 of 2013 came to be filed by the respondents Nos.3 to 17 against the original owners of the land and Babulal as well as the writ applicants herein, questioning the sale deeds dated 19th May, 2001 and 13th October, 2006 respectively, referred to above.
8. It appears that although the respondents Nos.3 to 17 claim to have purchased the subject land by way of a sale deed dated 3rd June, 2000, at no point of time, they got their names mutated in the record of rights. On the other hand, as on date, the names of the writ applicants figure in the record of rights as the owners of the subject land.
9. The writ applicants, claiming to be the true and lawful owners of the subject land, preferred an application before the Collector, Surat, seeking permission to put the land for non-
Page 10 of 41C/SCA/494/2015 JUDGMENT agricultural use. The Collector, thought fit to decline such permission having regard to the litigation between the parties. The impugned order passed by the Collector reads thus;
"No. A/BKhP/Re.S.R. no.370/14/ID NO.10946 B-5, Fifth Floor, Chitnis Branch, Collector Office, Jilla Seva Sadan - 2, Athwalines, Surat.
Dt. 19/11/2014 To, Mr. Tusharbhai Harjibhai Ghelani and others, Resident of 401, Madhav Palace, Ghod-dod Road, Surat.
Subject:- To get NA permission under section - 65 of the Land Ceiling Act for residential purpose for the land located at Moje Rundh, Ta. Surat City (Majura Area), Dist. Surat bearing survey no. 29 having area of 1-24-00 square meter, draft T.P. Scheme no. 29(Rundh-Vesu-Magdalla) Final Plot no. 93 having area of 8060-00 square meter.
With reference to subject cited above, it is informed that vide the original application dated 13/02/2014, you had demanded NA permission under section - 65 of the Land Ceiling Act for residential purpose for the land owned by you which is located at Moje Rundh, Ta. Surat City (Majura Area), Dist. Surat bearing survey no. 29 having area of 1-24-00 square meter, draft T.P. Scheme no. 29(Rundh-Vesu-Magdalla) Final Plot no. 93 having area of 8060-00 square meter. This application was filed vide the letter of this office dated 06/05/2014 and the same was intimated to you. In this connection, you had submitted revision application dated 25/06/2014 for reconsideration and sought NA permission for this land owned by you. However, upon verifying the record it is found that, In case of granting NA permission under section - 65 of the Land Ceiling Act for residential purpose for the land located at Moje Rundh, Ta. Surat City (Majura Area), Dist. Surat bearing survey no. 29 having area of 1-24-00 square meter, draft T.P. Scheme no. 29(Rundh-Vesu-Page 11 of 41
C/SCA/494/2015 JUDGMENT Magdalla) Final Plot no. 93 having area of 8060-00 square meter, Mr. Dashrathbhai Bholidas Patel, authorized person on behalf of Prathmesh Farms Pvt. Ltd, a registered company and all the other companies, submitted objection vide the application dated 04/08/2014. He has stated in his objection application that the land in question has been sold to them by original owner Bhaniben d/o Somabhai Nemabhai and Mangiben d/o Somabhai Nemabhai vide registered sale deed no. 3011, dated 03/06/2000. After this land was sold to them, when the original owners died, their successors sold this land to Babulal Bhanvarlal and others and Mr. Babulal Bhanvarlal and others have sold this land to you - the applicants through sale deed. However, despite having knowledge that sale deed of the objectors was executed first, you purchased the property by fabricating bogus sale deeds. Therefore, as false transactions of this property were done, suit of Civil Suit no. 326/2002 has been filed in the Ld. Civil Court by the successors of the original owners of this land and Babulal Bhanvarlal and others who became farmers on the basis of bogus sale deed. Though this suit is pending at present, Babulal Bhanvarlal and others sold this land to you - the applicant. As the objectors came to know about the same, they filed Special Civil Suit no. 237/2013 in the Ld. Civil Court and prayed to cancel all the bogus sale deeds and this suit is pending in the Ld. Court at present. It is also stated that one appeal pertaining to this land is also pending in District Court. Therefore, it is submitted not to grant NA permission for this land till the final disposal of the appeal and the suits filed in the Ld. Civil Court.
Thus, in respect of the objection application of the objector, it appeared that, the decision should be taken after hearing the objector and the applicant. Therefore,the hearing was fixed on 08/09/2014 and thereafter further adjourned on 15/09/2014 and the final hearing was fixed on 16/10/2014. On the date of this hearing, the objector and the applicant remained present. After hearing both the parties, the procedure of hearing was declared as completed.
Thus, considering the facts stated by the objector in his objection application and the reply thereof submitted by the applicant, it appears that, in respect of the land Page 12 of 41 C/SCA/494/2015 JUDGMENT possessed by the applicant, R.C.S.No.326/2002 and Spl.C.S.No.237/2013 have been instituted before Hon'ble Civil Court, Surat which are pending at present. It has been prayed in the aforesaid suits to cancel the registered sale deeds of the land in question. Therefore, as the title of the said land is not clear, the application made by you seeking permission for non-agriculture use of the land possessed by the applicant under section-65 of the Land Revenue Code is rejected at this stage which may be noted.
(If you are aggrieved by the aforesaid decision, you can prefer revision application before Hon'ble Secretary, Revenue Department,(Dispute), Ahmedabad and get relief thereof) (As per order of Hon'ble Collector of Surat) Sd/-
For Collector, Surat "
10. Being dissatisfied with the decision of the Collector, declining to grant N.A. Permission, the writ applicants are here before this Court with this writ application.
11. The principal argument of Mr. Mehul S. Shah, the learned counsel appearing for the writ applicants is that in view of the decision of a Division Bench of this Court in the case of State of Gujarat & Ors. vs. Prathmesh Farms Pvt. Ltd. & Anr., 2010 (3) GLH 700, the respondents Nos.3 to 17 have no case worth the name. The argument proceeds on the footing that the respondents Nos. 3 to 7, in their capacity as Companies, registered under the Companies Act, could not have purchased the agricultural land. As they could not have purchased the agricultural land, the sale deed in their favour by the original owners will not save the situation. According to Mr. Shah, the Collector could not have declined to grant N.A. Permission only Page 13 of 41 C/SCA/494/2015 JUDGMENT on the ground of pendency of the two civil suits, referred to above. Mr. Shah further pointed out that the suit came to be filed by the respondents Nos.3 to 17 after almost a period of 12 years. The suit is otherwise also time barred according to Mr. Shah. Mr. Shah further pointed out that in the Special Civil Suit No.237 of 2013 filed by the respondents Nos.3 to 17, an order came to be passed by the Civil Court below Exh.5, granting injunction. To be precise, the Civil Court directed the parties to maintain status quo. Mr. Shah pointed out that the said order passed by the Civil Court is a subject matter of challenge before this Court in an Appeal From Order No.16 of 2018 filed by the writ applicants and in the said appeal from order, the order passed by the Civil Court below Exh.5, granting injunction, has been stayed by this Court. Therefore, according to Mr. Shah, as on date, there is no injunction in operation in favour of the respondents Nos.3 to 17. In such circumstances, as there is no injunction, the Collector, Surat could not have declined the grant of N.A. Permission only on the ground of the pendency of the two civil suits. Mr. Shah would submit that the Collector should have kept in mind the ratio of the decision of this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat, 2012 (2) GLR 1741. In the said decision, this Court has taken the view that the N.A. Permission under section 65 does not confer, in any manner, or abridge title of any one if it exists in the land in question. It is merely an act of granting permission by the authority with respect to the piece of land in question.
12. In such circumstances, referred to above, Mr. Shah prays that there being merit in this writ application, the same be allowed and the impugned order be quashed and the Collector, Page 14 of 41 C/SCA/494/2015 JUDGMENT Surat further be directed to grant the necessary N..A. Permission in accordance with law.
13. On the other hand, this writ application has been vehemently opposed by Mr. I.H. Syed, the learned counsel appearing for the respondents Nos.3 to 17. Mr. Syed would submit that no error, not to speak of any error of law, could be said to have been committed by the Collector in declining to grant the N.A. Permission. Mr. Syed would submit that if N.A. Permission is granted at this stage, more particularly, when the litigation is pending between the parties before the Civil Court, the writ applicants would start developing the subject land and that may lead to multiplicity of the proceedings and would also cause serious prejudice to the rights of his clients which are yet to be determined by the Civil Court. Mr. Syed pointed out that the Division Bench decision of this Court in the case of Prathmesh Farms Pvt. Ltd.(supra) has no applicability as it was pronounced after the sale deed came to be executed by the original owners in favour of his clients. Mr. Syed pointed out that the date on which the sale deed came to be executed in favour of his clients, there was no restriction in the State of Gujarat by which a Company was restricted from purchasing agricultural land. Mr. Syed has placed reliance on the following averments made in the affidavit-in-reply filed on behalf of his clients;
"5.1 Deceased Bhaniben D/o Somabhai Nemabhai and deceased Mangiben D/o Somabhai Nemabhai (hereinafter referred as "the deceased") were the owner of the land in question. The deceased decided to sale the land in question to one Unn Rohit Sahakari Ghar Badhnari Mandli Ltd.Page 15 of 41
C/SCA/494/2015 JUDGMENT 5.2 Thereafter, on 15.04.1991, deceased executed one Irrevocable General Power of Attorney in favour of Kishor Krushnagiri Goswami & Natubhai B Patel. As per the said Power of Attorney, Power of Attorney holders were given powers to execute Agreement to Sale, Sale Deed etc. in favour of Unn Rohit Sahakari Ghar Badhnari Mandli Ltd. (Hereto annexed and marked as "Annexure R1" is the copy of the Power of Attorney dated 15-4-1991) 5.3 Thereafter, on 22.04.1991, through Power of Attorney one Agreement to Sale of the land in question came to be executed in favour of Unn Rohit Sahakari Ghar Badhnari Mandli Ltd. & part payment of Rs. 18,600/- was made by cheque to the deceased. The said Agreement to sale dated 22.04.1991 is registered at Sr. No. 4448 at Sub Registrar's Office, Surat.
Thereafter, on 18.12.1991, one supplementary Agreement to sale for the land in question came to be executed.
5.4 Thereafter, the work to develop the land in question was given to one Krishna Corporation & to give the effect to the same one development agreement dated 18.10.1992, was executed between the deceased, Unn Rohit Sahakari Ghar Badhnari Mandli Ltd. and Krishna Corporation. Work to develop the land in question was started. Dispute between the parties of the development agreement had taken place and therefore, Krishna Corporation filed Special Civil Suit no. 519 of 1997 (for the implementation of the Development Agreement and for the recovery of damages) against the deceased and Unn Rohit Sahakari Ghar Badhnari Mandli Ltd.
5.5 That, during the pendency of the Special Civil Suit 519 of 1997 the deceased decided to sell the land in question to the applicants herein. The applicants paid the total amount of the sale consideration to the deceased and therefore, on 03.06.2000 the deceased through their Power of Attorney holder executed a Sale deed of land in question In favour of the applicants. In the said sale deed Unn Rohlt Sahakarl Ghar Badhnarl Mandll Ltd. was joined as confirming party. The said sale deed ls registered at Sr. No. 3011 at Sub Registrar's Office, Surat. (hereto annexed and marked as "Annexure R2" is the copy of the sale deed dated 3-6-2000) Page 16 of 41 C/SCA/494/2015 JUDGMENT 5.6 Thereafter, the dispute between the parties in Special Civil Suit no. 519 of 1997 was settled and the suit was withdrawn and a decree was drawn accordingly.
5.7 Thereafter, on 18.05.2001, the deceased in collusion with one Maganbhai Chhimabhai executed a sale deed of the land in question in favour of Babulal Bhanwarlal & Mohanlal Kuberbhai Joshl. The said sale deed is registered at Sr. no. 3391 at Sub Registrar's Office. Thereafter, Sohan Bhanwarlal & Khyali Bhanwarlal's names were illegally/wrongfully entered Into the revenue records of the land In question.
5.8 Thereafter, on 10.06.2005, said Babulal Bhanwarlal & others executed a sale deed of the land In question In favour of the present petitioner Tusharbhai Harjibhai Ghelani. The said sale deed is registered at Sr. No. 7233 (new no. 12820, dated 13.06.2006) at Sub Registrar's Office, Surat.
5.9 Thereafter, for declaration, setting aside the sale deeds dated 18.05.2001, registered at Sr. No. 3391 and dated 10.06.2005, registered at Sr.No. 7233 (new no. 12820, dated 13.06.2006) registered at Sub Registrar's Office, and for the possession of the land in question the applicants herein filed one Spl Civil Suit no. 237 of 2013 before the Ld. Civil Judge (Sr. Division), Surat. The same is pending for its adjudication. A copy of the memo of plaint of Special Civil Suit No. 237 of 2013 is produced at page No. 81-99 with the memo of petition.
5.10 To put up construction for the residential purpose on the land in question, on 13-2-2014, the petitioners herein applied for Non Agriculture Permission before the Collector, Surat. By an order dated 6-5-2014 the Collector, Surat rejected the petitioner's application. Thereafter, on 25.06.2014 the petitioners filed review application for the Non Agriculture permission. By an application dated 4-8-2014, the applicants filed their objections. (Hereto annexed and marked as "Annexure R3" Is the copy of the objections filed by the respondent/s) Thereafter, considering the objections Filed by the applicants, the collector, Surat by an order dated 19-11-2014, rejected the application filed by the petitioners.Page 17 of 41
C/SCA/494/2015 JUDGMENT 5.11 Being aggrieved by the order dated 19.11.2014 passed by the Collector the petitioner/s herein have filed the present petition.
6. I say that, as mentioned herein above Res. Nos. 3 to 17 purchased the land in question and since then the Res. Nos. 3 to 17 have become the owner of the land in question. I further say that, after the death of the original owners their legal heirs sold the land in question to one Bansilal Bhavarlal and thereafter, Babulal sold the land in question to the present petitioners. Thereafter, the petitioner and Babulal in collusion with each other entered petitioner's name in revenue records.
7. I say that, in Special Civil Suit No. 519 of 1997 Ld. Civil Judge Sr. Division, Surat passed an order and decree in favour of the Res. Nos. 3 to 17 by virtue of the said order and decree the Res. Nos. 3 to 17 have become the owners of the land in question. (Hereto annexed and marked as "Annexure R4 is the copy of the decree passed in Special Civil Suit No. 519 of 1997")
8. I say that, it is in the knowledge of Babulal Bhavarlal and petitioners that, the Res. Nos. 3 to 17 are the owners of the in question though Babulal Bhavarlal filed Special Civil Suit No. 326 of 2002 against the Res. Nos. 3 to 17. I say that, during the pendency of the Civil Suit mentioned herein above said Babulal Bhavarlal to steal a march over the land in question of which the Res. Nos. 3 to 17 are the owners executed a sale deed in favour of the present petitioner.
9. I say that, when the Res. Nos. 3 to 17 herein came to know about the transaction taken place by and between the petitioner and Babulal Bhavarlal the Res. Nos. 3 to 17 (to set aside the sale deed of the land in question executed by Babulal Bhavarlal in favour of the present petitioner) filed Special Civil Suit No. 237 of 2013.
10, The respondents herein would like to place certain documents on the record of this Hon'ble Court the same are marked as "Annexure R-5".
11. I say that, as mentioned herein above Civil Page 18 of 41 C/SCA/494/2015 JUDGMENT litigations are pending and the question of ownership of the land in question if pending for it's adjudication any order passed by this Hon'ble Court in favour of the present petitioner would seriously affect the proceedings pending before the lower court and would further result into multiplicity of proceedings."
14. Mr. Syed has also filed an additional affidavit dated 7 th December, 2018 highlighting the following;
"I, Dashratbhai s/o. Bholidas Patel, adult, having address 81, New York Tower-A, S.G. Highway, Near Thaltej Cross Roads, Ahmedabad, do hereby solemnly affirm and state on oath as follows;
1. I say that the respondent Nos.3-17 had appeared before the Collector, Surat and opposed the petitioners' application whereby the impugned order dated 19.11.2014 was passed by the Collector, Surat. Though the petitioners were aware of this fact, still, however the petitioners did not join the respondent nos.3-17 as party- respondents in the present petition.
2. I say that following are the additional documents which are necessary for the purpose of deciding the present petition.
Sr. No. Particulars
1 Copy of order dated 3.08.2015 passed by the
Mamlatdar and ALT, Surat City (Majura).
2 Copy of notice of Tenancy Revision Case No.8/2016
3 Copy of order dated 13.09.2017 passed by Mamlatdar
and ALT, Choryasi, Surat in Remand Case
No.217/2017.
4 Copy of memo of Miscellaneous Application No.7/2017
filed before Mamlatdar and ALT.
5 Copy of affidavit filed in Miscellaneous Application
No.7/2017.
6 Copy of order dated 13.09.2017 passed by Mamlatdar
and ALT, Choryasi, Surat in Miscellaneous Application Page 19 of 41 C/SCA/494/2015 JUDGMENT No.7/2017 7 Copy of memo of Tenancy Revision Case No.4/2018 8 Copy of registered sale deed dated 19.05.2001 bearing registration no.3391/2001 in favour of Babulal Bhanwarlal and Mohan Kuber Joshi (predecessor in title of petitioners) 9 Copy of Form No.7/12 of Babulal Bhanwarlal for the year 1997-98 for land bearing block no.57 of village Borsad, Taluka Mangrol, District; Surat. 10 Copy of Form No.8A of Babulal Bhanwarlal for the year 1997-98 for land bearing block no.57 of village Borsad, Taluka: Mangrol, District; Surat. 11 Copy of Mutation Entry No.2594 dated 4.02.1998 of Village Siyalaj, Taluka: Mangrol, District: Surat. 12 Copy of Mutation Entry No.863 dated 7.07.2001 and Mutation Entry No.902 dated 10.02.2002 of Village Rundh, Taluka: Choryasi, District: Surat. (current disputed land) 13 Copy of Form Nos.7/12 of Balusing Ramlal and his successors for the year 1988-89 to 2011 for land bearing block no.57 of Village Borsad, Taluka:
Mangrol, District: Surat.
14 Copy of application for injunction (exh.5) filed in Regular Civil Suit No.326/2002 filed by Bhaniben and others (predecessors of petitioners) against the present respondent nos.3-17.
15 Copy of order dated 9.09.2005 passed below application (exh.5) in RCS No.326/2002. 16 Copy of memo of Miscellaneous Civil Appeal No.75/2005 filed Bhaniben and others (predecessor s of petitioners) against the present respondent nos.3-
17. 17 Copy of order dated 6.01.2018 passed in Special Civil Suit No.237/2013 filed by respondent nos.3-17 against present petitioners as well as his predecessors in title.
15. Mr. Syed also vehemently submitted that this Court may not entertain this writ application as the writ applicants have an alternative efficacious remedy to file a revision application Page 20 of 41 C/SCA/494/2015 JUDGMENT before the S.S.R.D.
16. In such circumstances, referred to above, Mr. Syed prays that there being no merit in this writ application, the same be rejected.
17. Mr. Ronak Raval, the learned AGP appearing for the State also submitted that this writ application may not be entertained as the writ applicants have an alternative efficacious remedy to go before the SSRD. Mr. Raval further submitted that having regard to the dispute of title over the subject land between the parties, the Collector rightly declined the N.A. Permission as prayed for by the writ applicants.
ANALYSIS
18. 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 declining the grant of N.A. Permission.
19. Let me first deal with the preliminary objection raised by Mr. Syed, the learned counsel appearing for the respondents Nos.3 to 17 and the learned AGP appearing for the State- respondents as regards the alternative remedy.
20. As regards the objection of an alternative remedy being available to the writ applicants, the law is very clearly laid down by the Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai And Page 21 of 41 C/SCA/494/2015 JUDGMENT Others (1998)8 SCC 1. the relevant extracts of the above judgment are reproduced hereinbelow:
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by an other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose.
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
... ... ...
20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. "Page 22 of 41
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21. It is thus clear from the above exposition of law that the power available to the High Courts under Article 226 of the Constitution of India cannot be curtailed, except when it is consciously restricted by the Court itself, in cases where an alternative, efficacious, statutory remedy is available. This is more of a self-imposed restriction than a bar. Even this restriction need not be imposed in certain contingencies, such as the violation of the principles of natural justice, where the vires of an Act have been challenged and where the proceedings are wholly without jurisdiction. In the present case, the last contingency has been pressed into service by the learned counsel for the writ applicants, by asserting that the Collector could not have delved into the question of title in the proceedings under Section 65 of the Code, which are essentially regarding the user of the land.
22. There can be no cavil with the proposition that it is only a civil Court of competent jurisdiction that can decide a question regarding the title of the land in question. This Court, in exercise of power under Article 226 of the Constitution of India, would not do so. In such circumstances, can it be said that the Collector is right in declining NA Permission to the writ applicants on the ground that the title of the land is defective? The answer is definitely in the negative. The following are the reasons for the above conclusion.
23. Even otherwise, as I am inclined to remand the matter to the Collector for fresh consideration for the reasons I shall record herein after, I do not find appropriate to throw away this petition on the ground of availability of alternative remedy and that too after four years from the date of admission.Page 23 of 41
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24. Section 65 of the Bombay Land Revenue Code is relevant for our purpose. The same 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.- But, if any occupant wishes to use his holding or any part thereof for any other purpose the Collector's permission shall in the first place be applied for by the occupant.
[The Collector, on receipt of such application,
(a) shall send to the applicant a written acknowledgment of its receipt, and
(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 acknowledgment 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 application.
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 Page 24 of 41 C/SCA/494/2015 JUDGMENT 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)."
25. The power to grant permission for use of land for non- agricultural purpose is an executive power or a power of an administrative character. What is the scope of interference with an administrative order in a writ petition under Article 226 of the Constitution is also an issue which deserves consideration.
26. Article 226 of the Constitution is designed to ensure that each and every authority in the State, including the State, acts bonafide and within the limits of its power. However, the scope of judicial review in administrative matters has always been a subject matter of debate despite catena of case law on the issue. We may now refer to a few decisions, wherein some broad principles of judicial review in the field of administrative law have been evolved.
27. In Council of Civil Service Unions Vs. Minister for the Civil Service, (1984) 3 All ER 935 Lord Diplock enunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality (ii) irrationality and
(iii) procedural impropriety. While opining that "further development on a case by case basis may not in course of time add further grounds" he added that principle of "proportionality" may be a possible ground for judicial review for adoption in future. Explaining the said three grounds, Lord Diplock said:
"By "illegality" he means that the decision-maker must Page 25 of 41 C/SCA/494/2015 JUDGMENT understand correctly the law that regulates his decision- making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality"
he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety"
he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal's jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
28. The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn., (1948) 1 KB 223 = (1947) 2 All ER 680 as follows:
"...the court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."
29. In State of U.P. & Anr. Vs. Johri Mal, (2004) 4 SCC 714, the Hon'ble Supreme Court has observed thus:
"The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the Page 26 of 41 C/SCA/494/2015 JUDGMENT nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court."
30. In Rameshwar Prasad & Ors. (VI) Vs. Union of India & Anr., (2006) SCC 1, wherein a proclamation issued under Article 356 was under challenge, Arijit Pasayat, J. observed thus:
"A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote."
31. In the case of Jayrajbhai Jayantibhai Patel Vs. Anilbhai Jayanitbhai Patel and Ors., 2006 (3) GLH 226, the Hon'ble Supreme Court in Para 18 observed as under:-
"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the Page 27 of 41 C/SCA/494/2015 JUDGMENT administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision- making process and not the decision."
32. The following passage from Professor Bernard Schwartz's book Administrative Law (Third Edition) aptly echo's our thoughts on the scope of judicial review:
"Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber-stamping of agency action : [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further."
Quoting Judge Leventhal from Greater Boston Television Corp. Vs. FCC, 444 F. 2d 841 (D.C.Cir. 1970), he further says:
"...the reviewing court must intervene if it "becomes aware...that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making..."Page 28 of 41
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33. In the case of Ganesh Bank of Kurundwad Ltd. and others Vs. Union of India and others, (2006) 10 SCC 645, the Hon'ble Supreme Court in Paras 50 and 51 observed as under:-
"50. There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference. The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:
(i) Illegality.- This means the decision-maker must understand correctly the law that regulates his decision-
making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
51. "13. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (See State of U.P. and Ors. v. Renusagar Power Co., (1988) 4 SCC 59 : AIR 1988 SC 1737. At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the Page 29 of 41 C/SCA/494/2015 JUDGMENT exercise of prerogative power. Professor De Smith in his classical work "Judicial Review of Administrative Action"
4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (I) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
14. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is 'illegality' the second 'irrationality', and the third 'procedural impropriety'. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1984 (3) All ER 935 : 1985 AC 374 :
(1984) 3 WLR 1174 (HL)], (commonly known as CCSU Case). If the power has been exercised on a non-
consideration or non-application of mind to relevant Page 30 of 41 C/SCA/494/2015 JUDGMENT factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See CIT v. Mahindra and Mahindra Ltd. [(1983) 4 SCC 392 : 1983 SCC (Tax) 336 :
AIR 1984 SC 1182]. The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book "Applications for Judicial Review, Law and Practice" thus:
'There is a general presumption against ousting the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government's claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service (supra) this is doubtful. Lords Diplock, Scarman and Roskill appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security. May prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney General's prerogative to decide whether to institute legal proceedings on behalf of the public interest.' (Also see Padfield v. Minister of Agriculture, Fisheries and Food, [1968 AC 997 : (1968) 1 All ER 694 : (1968) 2 WLR 924 (HL)].
15. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like Page 31 of 41 C/SCA/494/2015 JUDGMENT illegality, irrationality and procedural impropriety.
Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
16. The famous case commonly known as "Wednesbury's case" is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction.
17. Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (KB at p. 229 : All ER pp. 682 H-683 A). It reads as follows:
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers the authority. ... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
Lord Greene also observed (KB p.230 : All ER p.683 F-G) '...it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. ... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.' Page 32 of 41 C/SCA/494/2015 JUDGMENT
18. Therefore, to arrive at a decision on 'reasonableness' the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.
19. The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in CCSU case, [Council of Civil Service Unions v. Minister for the Civil Service, (1984) 3 All ER 935 : 1985 AC 374 :
(1984) 3 WLR 1174 (HL)] as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows: [CCSU case (supra)] 'Judicial review has, I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community.' Lord Diplock explained 'irrationality' as follows: (All ER p.951 a-b) 'By "irrationality" I mean what can by now be succinctly referred to as Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (supra)] unreasonableness". It applies to a decision which is to Page 33 of 41 C/SCA/494/2015 JUDGMENT outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.'
20. In other words, to characterize a decision of the administrator as 'irrational' the Court has to hold, on material, that it is a decision 'so outrageous' as to be in total defiance of logic or moral standards. Adoption of 'proportionality' into administrative law was left for the future.
21. These principles have been noted in aforesaid terms in Union of India v. G. Ganayutham [(1997) 7 SCC 463 :
1997 SCC (L&S) 1806]. In essence, the test is to see whether there is any infirmity in the decision making process and not in the decision itself. (See Indian Rly. Construction Co. Ltd. v. Ajay Kumar, [(2003) 4 SCC 579:
2003 SCC (L&S) 528] (SCC pp.588-91, paras 13-21.)"
34. Tested on the touchstone of the above principles, the impugned order passed by the Collector, in my view, is not sustainable.
35. Section 65 of the Code, referred to above, on its plain reading, do not provide for any scope of raising objection by any party who is yet to establish its right in his favour over the land in question. In other words, the proceedings under section 65 of the Code is not an adversary proceeding at all.
36. In section 65 of the Code, referred to above, two words are of pivotal importance; (i) "occupant" and (ii) "holding".
Section 3(12) defines the term "holding". It reads as under;
"3(12):-"holding":-"holding" means a portion of land held by a holder"
37. Section 3(16) defines the term "occupant". It reads as Page 34 of 41 C/SCA/494/2015 JUDGMENT under;
"3(16):-"occupant"; "occupant means a holder in actual possession of unalienated land, other than a tenant; provided that where the holder in actual possession is tenant the landlord or superior landlord, as the case may be, shall be deemed to be the occupant."
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 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 Page 35 of 41 C/SCA/494/2015 JUDGMENT 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.
41. A perusal of the impugned order dated 19th November, 2014 passed by the Collector makes it clear that the reason for the rejection of the application of the writ applicants is that their title to the land in question is defective on the ground that two civil suits are pending.
42. In State of Gujarat v. Patel Raghav Natha,(1969)2 SCC 187, the Supreme Court has clearly held as below:
Page 36 of 41C/SCA/494/2015 JUDGMENT "14. We are also of the opinion that the Commissioner should not have gone into question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent Court and not decide the question of title himself against the occupant."
43. This was also a case where the NA Permission under the provisions of Section 65 of the Code was in issue. The above principles of law therefore, squarely apply to the present case.
44. Considering the provisions of Section 65 of the Code as well as the above pronouncement of law by the Supreme Court, this Court cannot but arrive at the inevitable conclusion that the denial of NA Permission to the writ applicants under the garb of a purportedly defective title over the land in question amounts to a transgression of the limits of jurisdiction vested in the second respondent under the Code. The impugned order is, therefore, one without jurisdiction. For such reason also the plea of alternative remedy should fail.
45. In the aforesaid context, let me look into a decision of this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat, 2012 (2) GLR 1741. I may quote the relevant observations;
"20. Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the 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 Page 37 of 41 C/SCA/494/2015 JUDGMENT 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 of 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 occupant. 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.
21. Bearing the aforesaid proposition of law in mind when one examines the aspect of appeal preferred by the contesting respondents, one would find it difficult to accept as to how the right to appeal is said to have been conferred upon a third party who has failed in establishing any right before the civil court so far as the land in question is concerned. When the party has not obtained any order or has not been succeeful in obtaining any order in any manner from civil court, which is competent, i.e. only court to adjudicate upon and acknwoeldge their rights and title in the land in question, that party cannot be permitted to throw spanner in the wheels of developemnt set in motion by the legitimate competent authroty, Page 38 of 41 C/SCA/494/2015 JUDGMENT whose entery is there in the reveue record. Therefore the appeal itself from the point of view of locus was also not obtained."
46. Thus, the above referred decision makes the legal position abundantly clear. The position, as on date, is that the order of status quo passed by the Civil Court in the suit filed by the respondents Nos.3 to 17 has been stayed by this Court in an Appeal From Order No.16 of 2018. As on date, there is no prohibitory order operating against the writ applicants or in favour of the respondents Nos. 3 to 17. In such circumstances, what is the Collector expected to do while deciding an application seeking N.A. Permission. Indisputably, the names of the writ applicants figure in the record of rights as the owners of the subject land. The entry, mutating their names in the record of rights, is on the basis of the sale deed executed in their favour in the year 2006. The respondents Nos.3 to 7 are yet to obtain appropriate declaration as regards the legality and validity of the sale deed of the year 2006 executed in favour of the writ applicants. The only proceeding pending as on date is the civil suit filed by them.
47. It would have been in the fitness of things if the appeal from order pending before this Court would have been decided by now one way or the other. However, the question is whether this appeal from order has any bearing over the issue in question. Let me assume for the moment that the appeal from order is ordered to be dismissed and the order of status quo passed by the Civil Court is affirmed. Will this be a legal impediment in the way of the Collector in considering the prayer for grant of N.A. Permission. In my view, the answer is in the negative. The order of status quo would mean that the Page 39 of 41 C/SCA/494/2015 JUDGMENT writ applicants shall not change or alter the nature, character and possession of the property in question. The order of status quo cannot be a legal impediment so far as the grant of N.A. Permission is concerned. In future, if any further injunction is granted by the Civil Court in the suit filed by the respondents Nos.3 to 17, or as noted above, if the order of status quo passed by the Civil Court is affirmed by this Court in the appeal from order, then the writ applicants will not be in a position to develop the land. However, that does not mean that they cannot pray for permission to put the land for nonagricultural use.
48. I am of the view that the Collector should reconsider its decision in the light of the decision of this Court in the case of Bhayabhai (supra) and also keeping in mind the order passed by this Court in an Appeal from Order No.16 of 2018 with Civil Application No.1 of 2018 with Civil Application No.3 of 2018.
49. In the result, this petition succeeds in part. The impugned order passed by the Collector, Surat dated 19 th November, 2014, Annexure-A to this petition is hereby quashed and set aside. The Collector, Surat is directed to once again reconsider the prayer of the writ applicants for grant of N.A. Permission bearing in mind the observations of this Court, more particularly, the decision of this Court in the case of Bhayabhai (supra) and also keeping in mind that while deciding an application under section 65 of the Code, the title of the parties should not be looked into. Let this exercise be undertaken afresh at the earliest and the same shall be completed with an appropriate order within a period of two months from the date of the receipt of the writ of this order.
Page 40 of 41C/SCA/494/2015 JUDGMENT The application shall be decided afresh only on the basis of the materials on record and the observations of this Court without giving any further hearing to either of the parties.
(J.B.PARDIWALA, J) Vahid Page 41 of 41