Gujarat High Court
Jayantibhai Shamlbhai Patel vs State Of Gujarat on 15 March, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13224 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAYANTIBHAI SHAMLBHAI PATEL & 3 other(s)
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,2,3,4
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4,5
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 15/03/2022
ORAL JUDGMENT
1. The petitioner have preferred this petition under Article 226 of the Constitution of India against the communication/ order dated 11.04.2018 passed by the learned District Collector, Vadodara whereby the Page 1 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 application preferred by the petitioners for availing NA Permission under Section 65 of the Gujarat Land Revenue Code is filed. The petitioner has sought for the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside letters / orders / communications as well as dated 11.04.2018 dated 21.08.2009 communication by the learned District passed Collector, Vadodara; (B) YOUR LORDSHIPS may be pleased to hold and declare that the conduct of the learned District Collector is bad in law and without jurisdiction and amount to misuse / abuse of power vested with him under Section 65 of the BLRC and same is also in contradiction to the view taken by this Hon'ble Court in catena of judgments as well as suffers from of delay Vice and laches, estopple and is without jurisdiction and further be pleased to direct the respondent no.2 grant NA permission as per annexure-J dated 25.05.2009 to the petition; (C) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent authorities to treat the land as old tenure for all purposes:
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;"
2. The brief facts as emerges from the petition are as under:-
2.1. The land bearing survey no.254 and 256 of Village Sayajipura, Taluka & District Vadodara, Town Planning Scheme No.1, Final Plot No.72, Page 2 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 admeasuring 8160 square meters was originally owned and occupied by shri Ramcharandas Gururamdas and revenue entry to that effect is mutated as an entry no.68. From the revenue record, it reveals that Shri Ramcharandas had bequeathedc the property by 'Will' dated 31.12.1946 in the name of one Kishandas Gururamdas as administrator of Tahkor Mandir, this fact is reflected in revenue entry no.68 dated 31.12.1946. As per the mutation entry no.209/100 one Shri Raheman Kalumiya has been shown to be a protected tenant of the land in question. It also reveals that in view of the Section 88-E of the Bombay Tenancy & Agricultural Lands Act, the protected tenant was not eligible to purchase the land. Therefore, some proceedings came to be dropped on 18.10.1962, which is been reflected from the mutation entry no.595. It also reveals that upon coming into force, the Devasthan Inams Abolition Act with effect from 15.09.1964, once again the rights of the tenant came to be revived. The proceedings were initiated by the Mamlatdar and ALT, the said Raheman Kalumiya as a tenant of the land in question upon imposing the condition of deposit of the purchase price to the tune of Rs.1331.79 vide tenancy case no.1170. By virtue of order dated 15.06.1970, the said price came to be paid and right came to be inserted in column 2 nd right in favour of the original land lord i.e. Thakor Page 3 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 Mandir through its Pujari. This fact is reflected by way of entry no.866.
2.2. The protected tenant Raheman Kalumiya preferred an appeal under Section 74 of the Bombay Tenancy & Agricultural Lands Act challenging the legality and validity of the said order of the learned Mamlatdar and ALT dated 15.06.1970 imposing the restriction of Section 43 of the Act over the land in question. It was contended that he being a protected tenant of the land in question and having been entitled to purchase the land as on 01.04.1957 in the capacity of being a tenant, restriction of Section 43 would not be applicable and therefore such restrictions deserves to be lifted. The same was registered as a tenancy appeal no.60 of 1999, the Deputy Collector allowed the appeal partly and restrictions under Section 43 of the Act came to be lifted and he also directed to make necessary changes in the certificate issued under Section 32(M) of the Bombay Tenancy & Agricultural Lands Act and re-issued the same.
2.3. The said order of the Deputy Collector came to be challenged before the Gujarat Revenue Tribunal, Ahmedabad by Revision Application No.TENBA/257/2000 which was filed by the District Collector. The said proceedings came to be Page 4 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 withdrawn due to communication dated 30.06.2001 issued by the competent authority to the learned District Collector and accordingly the same came to be disposed of by the Tribunal by the order dated 09.10.2001 and permission for withdrawal was granted.
3. During the interregnum period, the petitioner purchased the land in question by way of a registered sale deed dated 18.07.2000, which was mutated vide entry no.2549 dated 12.01.2001 and the same came to be certifed and thereafter the petitioner filed application under Section 65 of the Land Revenue Code for converting the land from old tenure to new agricultural purpose for residential use vide application dated 25.05.2009. The same came to be disallowed by the Deputy Collector on the ground that opinion of the Deputy Collector (LR) was not submitted with an observation that in case of non-agricultural dues, proceedings under Section 66 of the Code shall be initiated against the petitioners.
4. According to the petitioner, this was not inconsonance with the Government Resolution dated 01.07.2008 and of 08.04.2008, wherein, it was provided that if the opinion is not received within a period of 21 days, it would be treated that there is Page 5 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 no objection sofar as grant of non-agricultural is concerned. Against the said communication, the petitioner preferred representation to the Secretary Revenue Department dated 20.04.2010, the same came to be once again filed on 03.05.2010.
4.1. It is contended that during the aforesaid period, the District Collector has sought for opinion from the revenue department in respect of the land in question, whereupon the government has informed the Collector that in the other identical cases being case nos.59/99, 61/99, 62/99, 63/99 and 64/99 wherein land are already converted into non- agricultural purpose and necessary permission was granted and no such opinion was sought for in relation to those lands, there is no question of any opinion or advice in respect of disputed land and it was directed to take appropriate decision in accordance with law.
4.2. On 04.12.2012, the land came to be transferred by the petitioner nos.1 to 3 to the respondent no.4 by a registered sale deed that transaction is yet not mutated in the revenue record. Thereafter, the Collector sought for opinion from the revenue department for filing of review against the order of Gujarat Revenue Tribunal passed earlier which was denied by the government. Thereafter, the petitioner Page 6 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 has also moved the authority for non-agricultural permission and vide the impugned communication, the same came to be filed. It is submitted that vide communication dated 11.04.2018, the petitioners were informed to deposit amount of premium applicable under the provisions of Section 43 of the Tenancy Act treating the land to be of old tenure and petitioner having not consented to deposit such premium amount, the application for grant of non- agricultural for residential purpose came to be rejected. This communication has been challenged as well as the earlier communication of 2019 came to be challenged by this petition.
5. Heard learned advocate Mr.Vimal Purohit for the petitioner and learned AGP Mr.Nikunj Kanara for the respondent State and perused the material on record.
6. Learned advocate Mr.Purohit for the petitioner has submitted that the petitioner has purchased the land in question and applied for the non-agricultural permission. He has submitted that without any basis, the application came to be filed. He has also submitted that the land in question was earlier declared as without any restrictions of Section 43 of the Act. He has submitted that earlier, the land was of the Devsthanam Trust and tenant was not in the Page 7 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 right of purchasing the land further after abolition of the Devsthanam Inam Abolition Act, the tenant was granted the right to purchase the land and according to him, accordingly, the original tenant has purchased the land without any restrictions as old tenure land. He has submitted that in other cases also the revenue authority has granted non- agricultural permission, whereas only in this parcel of land the authority has declined to grant non- agricultural permission to the petitioner. He has also submitted that the suo motu revision filed by the Collector against the order of the subordinate authority came to be withdrawn as per the direction of the government and while referring to the internal correspondense between the revenue department, Mr.Purohit learned advocate has submitted that this correspondense reflects the facts that there is no question of recovery of any premium as the land in question is without any restriction under Section 53 of the Tenancy Act. He has submitted that the demand raised by the authority for premium has no basis. He has also submitted that in similarly situated other cases, non- agricultural permission has been granted. He has also submitted that the authority is not following its own circulars in respect of granting non-agricultural permission. He has reiterated the facts narrated in the petition and has prayed to allow the present Page 8 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 petition by quashing and setting aside the impugned communication for necessary direction of granting necessary permission on the basis of the application moved by the petitioner in the year 2009.
7. Per contra, learned AGP Mr.Nikunj Kanara for the State has vehemently submitted that the original application preferred by the petitioner in the year 2009 came to be rejected. He has submitted that thereafter the petitioner has kept silence for all these years and now has challenged that action of the year 2009 in the present petition. He has submitted that there is a clear cut bar of delay and latches to the present petition. He has also submitted that the petitioner has not made any averments as to what has happened during the interregnum period in the year 2018. He has submitted that the authority has not passed any order in the year 2018. He has also submitted that the petitioner has refused to pay premium, which needs to be paid by him for non-agricultural permission, therefore, the action on the part of the revenue authority is proper. He has submitted that even by communicating to the 11.04.2018, learned Collector has informed regarding the earlier decision of the year 2009 and the facts that the petitioner is not willing to pay necessary amount of premium and therefore there is no question of any Page 9 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 reconsideration of the matter. Learned AGP has submitted that this communication of the Collector cannot be said to be an illegal one. He has submitted that considering the facts and circumstances of the case, the petition may be dismissed.
8. Having considered the submissions made on behalf of both the sides and the material placed on record, it reveals that initially the land in question was the land of Devasthanam and it was mutated in the name of Thakore Mandir with endorsement of Muktabhai Kosandas Gururamcharandas. It was also reflected therein that one Raheman Kalumiya was held to be protected tenant thereof. It also appears from the record that in the year 1965 an entry was made in the revenue record, village form no.6 that protected tenant has no right to purchase the land. In the year 1970, an entry was made that due to abolition of Devasthanam Inam Act a restriction was removed and protected tenant was held to be entitled to purchase the land in question and thereafter the amount was alleged to be paid by the protected tenant and necessary purchase certificate was issued in his name. It appear from the record that an appeal no.60/1999 came to be preferred by the Rahean Kalumiya through his power of attorney Devrambhai Karjanbhai Prajapati under Section 74 of the Bombay Tenancy Act, 1948, for removal of Page 10 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 restrictions imposed on that and it appears from the page no.51 of the paper book that the Deputy Collector, Vododara has passed an order in favour of the protected tenant and has removed restriction under Section 43 of the Act on the ground that in view of the Abolition of the Devasthanam Inam Act and the Tenancy Act, the provisions of Section 88(4) of the Tenancy Act is not applicable and therefore there cannot be any restriction under Section 43 of the Act, this order is dated 27.07.1991. It appears that this order came to be challenged before the Gujarat Revenue Tribunal by way of revision application no.TEN.BA/257 of 2000 by the State of Gujarat through the Collector. However the same came to be withdrawn unconditionally. Thus, the order of the Deputy Collector removing the restrictions of Section 43 stand as it is. Thus, in view of this order of the Deputy Collector there cannot be any restrictions under Section 43 of the Tenancy Act.
9. It also reveals from the record that Raheman Kalumiya has sold the land in question to Jayantibhai Patel, Rohitbhai Jivrambhai Patel and Atulbhai Ghanshyambhai Patel by a registered sale deed dated 17.08.2000 and an entry was mutated vide 2549 dated 12.11.2001 and the same came to be certified on the basis of the facts that the transaction Page 11 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 is between the agriculturists. It is undisputed facts that the petitioner Jayantibhai etc. have filed application for non-agricultural permission under Section 65 of the Gujarat Land Revenue Code vide application dated 25.05.2009. The said application is at page no.84 to 86 of the paper book. In column no.25 thereof, it has been specifically mentioned that the land in question falls within the residential zone and it also falls in the Town Planning Scheme of Sayajipura. The Mamlatdar Vadodara has also opined for granting non-agricultural permission. It appears that however vide communication dated 21.08.2009, the Collector has declined such permission on the ground that the opinion has not been offered by the Deputy Collector, Land Reforms, Vadodara. At this juncture it needs to be referred to the Government Resolution dated 01.07.2008 regarding non-agricultural permission procedure under Section 65 of the Gujarat Land Revenue Code, Government Resolution no. NAP/1006/425/K which is at page no.106 of the paper book, wherein it is provided that if the land falls in a Town Planning Scheme area and the scheme has been finalized under the Town Planning Act Scheme and final plots have been notified, the Collector need not to seek opinions of the office. Under the said resolutions, the time limit has been prescribed for granting such non-agricultural permission. Now admittedly in this Page 12 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 case, no such time limit has been followed. It also appears in view of the facts that the land falls under the residential zone and falls under a town planning scheme, the Collector ought not to have insisted for the opinion of the concerned Deputy Collector of the Land Reforms.
10. It also appears from the record that, the Collector of District Vadodara has also seek some guidance from the revenue department in respect of granting non-agricultural permission sofar as the land in question are concerned. As per page no.126 of the paper book, the Section Officer of the Revenue Department has informed the Collector that no such guidance was sought for in relation to the other cases being 59/99, 61/99, 62/99, 63/99 and 64/99 and non-agricultural permission was granted in respect thereof and therefore in view of that the matter relating to this case i.e. 60/99 of Revenue Survey No.254, 256 of Moje Sayajipura, there is no question of issuing any guidelines in the similarly situated lands, the Collector has already granted non-agricultural permission. Thus it clearly reflects that when there is no restrictions under Section 43 of the Tenancy Act pertaining to the lands in question, the Revenue Authority ought to have considered the application of the present petitioner for granting non-agricultural permission on the Page 13 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 similar line on which the decisions have been taken in respect of the other lands as referred to hereinabove. The last communication dated 26.12.2017 as issued by the Deputy Collector (Land Reforms) Vadodara to the Collector NA Branch, Vadodara, it appears that on the basis of the restrictions under Section 43 of the Tenancy Act the premium was sought to be recovered from the petitioner. However, as observed hereinabove, the order of the Deputy Collector removing the restrictions of Section 43 of the Tenancy Act pertaining to the land in questions have become final. Therefore, when there was no restrictions of Section 43 of the Tenancy Act no deviation ought to have been adopted by the revenue authority in respect of application of non-agricultural permission moved by the petitioner in the year 2009. However, at this juncture, it is pertinent to note that though the application of non-agricultural permission filed in the year 2009 came to be rejected by the revenue authority way back in the same year, the petitioners have not taken any action or filed any further appeal or revision before the appropriate authority. The petitioner have only made a representation in the year 2017 for reconsideration, which came to be filed in view of the facts that earlier the same was rejected.
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11. Now, the petitioner is praying that his application of the year 2009 to be considered. But considering the facts that from the year 2009 to 2017, he has kept silent and has accepted the order of rejection of 2009 by the revenue authority, therefore his prayer to direct the petitioner and to direct the revenue authority to grant him non- agricultural permission on the basis of his application of 2009 cannot be accepted. Of-course, since he has further moved the authority in the year 2017, his prayer can be considered on that basis of 2017 representation and he has to follow the procedure as applicable in the year 2017 and of- course with observation that there is no restriction of Section 43 of the Tenancy Act is applicable to the lands in question.
12. In view of the aforesaid facts, the impugned communication of the year 2018 of the respondent needs to be set aside and the authority needs to be directed to consider the representation of the petitioner as having filed in 2017 and pass appropriate order on the line of observations made as above.
13. In view of the aforesaid, the present petition is partly allowed. The impugned communication dated 11.04.2018 and 21.08.2009 are hereby quashed and Page 15 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022 C/SCA/13224/2018 JUDGMENT DATED: 15/03/2022 set aside. The District Collector, Vadodara is hereby directed to consider the representation made by the petitioner in the year 2017 for granting non- agricultural permission in respect of the land, considering the fact that there is no restriction of Section 43 of the Tenancy Act upon lands in question. The petitioner shall abide by the provisions as was applicable in the year 2017 for granting of non-agricultural permission. The aforesaid exercise to be completed within a period of three months from the date of receipt of this order.
14. With the aforesaid observation, the petition stands disposed of accordingly. No order as to costs. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) URIL RANA Page 16 of 16 Downloaded on : Thu Mar 17 00:35:49 IST 2022