Gujarat High Court
Pravinbhai Kacharabhai Patel vs State Of Gujarat on 13 December, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/15654/2021 ORDER DATED: 13/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15654 of 2021
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PRAVINBHAI KACHARABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR ASIM PANDYA, SENIOR ADVOCATE WITH MR.JAY S SHAH(7244) for
the Petitioner(s) No. 1
MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 13/12/2021
ORAL ORDER
1. Rule. Learned AGP Ms.Dhwani Tripathi waives service of rule on behalf of respondent State.
2. Heard learned advocate Mr.Asim Pandya assisted by learned advocate Mr.Jay S. Shah and learned AGP Ms.Dhwani Tripathi for the respondent State.
3. The petitioner has filed this petition under Article 226 of the Constitution of India, for the following reliefs:
"A) This Hon'ble Court may be pleased to admit and allow this petition;
B) This Hon'ble Court may be pleased to issue a writ of Page 1 of 9 Downloaded on : Wed Jan 12 09:23:46 IST 2022 C/SCA/15654/2021 ORDER DATED: 13/12/2021 certiorari or a writ in nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 18.08.2021 passed by the Special Secretary Revenue Department, Ahmedabad and quash and set aside the order Dt. 24/06/2021 passed by the District Collector, Patan and be further pleased to direct the District Collector Patan to grant N.A. permission with respect of the land bearing Revenue Survey No.800/1 situated at village Gungipati, Taluka- Patan, District- Patan in accordance with the law; C) Pending admission, hearing and final disposal of the present petition, the respondent be directed to issue provisional non-agricultural (N.A.) permission to the present petitioner, in the interest of justice; 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."
4. Learned senior advocate Mr.Asim Pandya assisted by learned advocate Mr.Jay S. Shah for the petitioner has vehemently submitted that the ground of rejection for NA permission is that one civil suit is pending and there are some objections received from Rajendrakumar Gordhandas Modi and another. He has submitted that both these grounds are not sustainable in the eyes of lawyers. The pendency of the civil suit and raising Page 2 of 9 Downloaded on : Wed Jan 12 09:23:46 IST 2022 C/SCA/15654/2021 ORDER DATED: 13/12/2021 objection by the other side cannot be ground to reject NA permission and it is contrary to the provisions of Section 65 of the Gujarat Land Revenue Code. He has submitted to pass necessary order in the petition.
5. Learned senior advocate has relied upon the following decisions:
(i) Tusharbhai Harjibhai Ghelani V. State of Gujarat reported in 2019 (4) GLR 2578.
(ii) Patel Bhutaji Ranaji V. State of Gujarat reported in 2019 JX (Gujarat) 1158.
(iii) Aadityakumar Dhruvkumar Patel V. State of Gujarat reported in 2019 JX (Gujarat) 960.
(iv) The order of this Court dated 18.112021, passed in Special Civil Application No.1216 of 2021, in the case of Rajabhai Patabhai Suthar V. State of Gujarat.
6. Per contra learned AGP Ms.Dhwani Tripathi has vehemently supported the order of the learned Collector as well as Special Secretary Revenue Department (hereinafter referred to as "the Page 3 of 9 Downloaded on : Wed Jan 12 09:23:46 IST 2022 C/SCA/15654/2021 ORDER DATED: 13/12/2021 SSRD") and has submitted that both the authorities have not committed any serious error of facts and law in refusing the NA permission.
7. It is well settled that existence of alternative remedy is required to be taken into consideration by the Court while entertaining petition under Article 226 of the Constitution of India. Generally, when there is an alternative efficacious remedy available, petition under Article 226 of the Constitution of India may not be entertained. However, there may be cases wherein the action of the authority is without jurisdiction and it appears to be ab initio void, in such cases, the High Court under Article 226 can exercise powers of granting appropriate relief and there is no need to relegate the petitioners to avail alternative remedy.
8. Having considered the submissions made on behalf of both the sides, it appears that the grounds for refusal of the application for NA permission is that pendency of Civil Suit and objections being raised by other party. Thus, the concerned Page 4 of 9 Downloaded on : Wed Jan 12 09:23:46 IST 2022 C/SCA/15654/2021 ORDER DATED: 13/12/2021 authority has not considered the application for NA permission on its merits. This Court in the case of Tusharbhai Harjibhai Ghelani v. State of Gujarat reported in 2019 (4) GLR 2578 has dealt with the provisions of Section 65 of the Gujarat Land Revenue Code, which pertains to NA permission. The observations made therein are as under:-
"38. Thus, the plain reading of section 65 makes it clear that for the purpose of grant of N.A. Permission, the first thing the Collector should look into is whether the applicant, seeking N.A. Permission, is an occupant of the land which is being assessed or held for the purpose of agriculture. For the purpose of ascertaining this, the Collector is expected to look into the revenue records. The name of the applicant in the revenue records would prima facie go to show or rather indicate that he is the occupant of the land. The second step in the process would be to ascertain whether such land is being assessed or held for the purpose of agriculture.
39. Section 65 of the Code provides for the uses to which an occupant of land for the purpose of agriculture may put his land to. If the occupant of the land wishes to use the land for purposes other than the agriculture or agriculture-related activities, he is required to make an application to the Collector for permission to do so. It Page 5 of 9 Downloaded on : Wed Jan 12 09:23:46 IST 2022 C/SCA/15654/2021 ORDER DATED: 13/12/2021 may be noted that the key-word in Section 65 is the occupant of the land. It is sufficient for the purposes of Section 65, that the person applying for NA Permission is an occupant of the land. It is nowhere stated in the said provision that the applicant should have title or ownership over the land for which NA Permission is sought. The legislature, in its wisdom, has thought it fit that it should suffice if an occupant of the land applies for NA Permission. It is not necessary that such person has to prove his title to the land before he makes an application. The present case is on a far better footing. Not only are the petitioners occupants of the land, they are also the owners thereof, by a legal and valid registered Sale Deed. The said sale deed may be a subject matter of challenge before the Civil Court but the fact remains that the Civil Court has not yet passed any decree cancelling the same or declaring it to be illegal or obtained by fraud.
40. Thus, it transpires that, no power is available to the Collector under Section 65 of the Code to examine or conclude regarding the title of the writ applicants over the land in question. A bare reading of the said provision makes it clear that it only provides for the uses to which an occupant of land for agricultural purposes, may put his land to. The provision further lays down the procedure to be followed for making an application for Page 6 of 9 Downloaded on : Wed Jan 12 09:23:46 IST 2022 C/SCA/15654/2021 ORDER DATED: 13/12/2021 NA Permission by the occupier and the manner in which it is to be processed by the Competent Authority. Nowhere is it contemplated in Section 65 that the Collector is empowered to undertake an inquiry into the title of the occupier."
9. In the case of Aadityakumar Dhruvkumar Patel (supra), the coordinate Bench of this Court (Honourable Mr.Justice Vipul Pancholi) has referred to the decisions of this Court in the case of Shaileshbhai Dahyabhai Patel, wherein it is observed as under in paragraph 9:-
"[9] It is required to note that nobody including trust and the Panchayat has objected to grant of N.A. Permission to the petitioner on the ground that their right survive on the land for which N. A. permission is asked for. In such circumstances and in absence of prohibitory order from any competent Court against grant of N.A. Permission or development of land by the petitioner, the Collector was required to decide the application under section 65 of the Code. It is now settled that the Collector is not to go into question of title of the land and is expected to decide the application within reasonable time period available to him under the provisions of section 65 and it is not open to him to pass unreasonable long time on the grounds not Page 7 of 9 Downloaded on : Wed Jan 12 09:23:46 IST 2022 C/SCA/15654/2021 ORDER DATED: 13/12/2021 available in law. To keep application pending for long time just to ascertain from Mamlatdar whether any appeal or revision is filed against decree passed by the Civil Court where State was not party is certainly no ground available in law for not deciding the application."
10. Admittedly, in this case, the authority has refused the application only on the ground that there is a civil suit pending and he has received the objection from the private parties. Now, in catena of decisions, as observed hereinabove, the limitation of powers in the matters pertaining to NA permission under Section 65 of the Gujarat Land Revenue Code is well defined to the effect that the Collector cannot decide the question of title of land and mere pendency of the civil suit for raising of objection are no ground for rejection of the NA permission. The grounds mentioned in the impugned communication is not in consonance with the law.
11. Under these circumstances, in light of the aforesaid decisions of this Court, the present petition is partly allowed. The impugned order dated 18.08.2021 passed by the Special Page 8 of 9 Downloaded on : Wed Jan 12 09:23:46 IST 2022 C/SCA/15654/2021 ORDER DATED: 13/12/2021 Secretary Revenue Department, Ahmedabad and order dated 24.06.2021 passed by the District Collector, Patan are set aside and the matter is remanded back to the respondent Collector for deciding the same afresh in accordance with law. The Collector shall decide the application of the petitioner filed under Section 65 of the Gujarat Land Revenue Code within a period of three months from the date of receipt of copy of this order and keeping in mind the provision of Section 65 of the Code.
12. With the aforesaid observation and directions, the petition is partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
(DR. A. P. THAKER, J) URIL RANA Page 9 of 9 Downloaded on : Wed Jan 12 09:23:46 IST 2022