Gujarat High Court
Rakshaben Amulakhbhai Thakkar W/O ... vs State Of Gujarat on 26 April, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14712 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN 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 ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 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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RAKSHABEN AMULAKHBHAI THAKKAR W/O SANDIPBHAI DAKSHINI
SIDHVA
Versus
STATE OF GUJARAT
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Appearance:
MR. ANAND V THAKKAR(7091) for the Petitioner(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,5,6,7
UNSERVED REFUSED (N) for the Respondent(s) No. 4
MR BHARAT VYAS, ASSISTANT GOVERNMENT PLEADER
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 26/04/2022
ORAL JUDGMENT
Issue Rule, returnable forthwith. Mr Bharat Vyas, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent State.
2. The petitioners, are aggrieved by the order dated 29.6.2019 Page 1 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 passed by the respondent No.2 i.e. learned Special Secretary, Revenue Department (hereinafter referred to as the "learned Secretary") whereby, the order dated 21.2.2019 passed by the respondent no.3 i.e. Resident Additional Collector, Patan has been quashed and set aside. The Office of the Collector & District Magistrate has passed the aforestated order dated 21.2.2019 granting non agricultural permission (hereinafter referred to as the "N.A. permission") to the petitioners with respect to Survey no.392 paiki 1.
3. Tersely stated are the facts:
3.1 The petition concerns the land bearing Survey no.392 paiki 1 situated at Village Radhanpur, District Patan. Initially, the land bearing Survey no.392 paiki 1 was admeasuring 12 Acres 33 Gunthas and was owned by one Bai Fatma. The entire parcel of land of 12 Acres was partitioned amongst the heirs and out of which, land admeasuring 5 Acres (i.e. 20234 sq. meters), came to the share of Imam Sadiqbhai Ghanchi i.e. respondent no.4.
Consequently, entry no.2980 dated 24.8.1989 was posted in the revenue record. The issue revolves around the said 20234 sq. meters of land (hereinafter referred to as "the land in question").
3.2 The respondent no.4, sold the land in question to Kundanben Prabhuram Thakkar i.e. respondent no.5 vide registered sale deed dated 7.10.1993 and the effect of the said transaction has been posted in the revenue record vide entry no.3639 and was certified on 14.12.1993. As a result of the sale deed dated 7.10.1993, the respondent no.5, became the owner of the land in question. Necessary entries were posted in the revenue record. The respondent no.5 also applied for mutation of the name of respondent no.6 he being the husband. The entry no.3965 was entered in the revenue record somewhere in the year 1995 and was certified. Subsequently, the respondent no.5 also made an Page 2 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 application to add the name of respondent no.7 i.e. brother of the respondent no.6 as a co-owner. As a result whereof, entry no.4968 was posted in the revenue record on 22.5.2000 which also came to be certified.
3.3 It is the case of the petitioners that no proceedings, were initiated for almost 12 years and the land, remained in the joint possession of respondent nos.5, 6 and 7. The respondent nos.5, 6 and 7, on 5.12.2012 executed a sale deed in favour of the present petitioners upon payment of sale consideration of Rs.27,00,000/-. As per the sale deed, the petitioner no.1, has acquired ownership of 40%; petitioner no.2, 25% and petitioner no.3, has acquired ownership for rest of 35% over the land in question. Upon execution of the sale deed, petitioners applied for posting of their names in the revenue record along with proofs of their status as agriculturists and after verifying the documents tendered before the authority concerned, the Mamlatdar, certified the entry no.9836 dated 5.12.2012 vide order dated 16.1.2013. Consequently, the petitioners, became the owners and occupier of the land in question.
3.4 Owning to the development of the adjoining areas, the petitioners also, were desirous of developing the land in question and therefore, started taking steps for the purpose of obtaining N.A. permission wherein, it was noticed that there is a dispute of the status of the agriculturist of the predecessor in title namely respondent nos.6 and 7. Accordingly, on 31.5.2017, an application was made to the competent authority to regularize the breach under section 63AB of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the "Tenancy Act"). It is the case of the petitioners that as per the provisions of section 63AB of the Tenancy Act, which was amended in the year 2015, last transaction, if made to an agriculturist, stands validated even if earlier transaction or transactions may be invalid.
Page 3 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 3.5 The Mamlatdar & ALT allowed the application dated 31.5.2017
of the petitioners requiring the petitioners to pay an amount of Rs.6,07,020/- towards the premium. The petitioners also deposited the amount and vide order dated 12.3.2018 passed by the Mamlatdar, the transaction stood validated. It is also the case of the petitioners that at the stage of considering the application seeking regularization, under the provisions of section 63AB, the status of the petitioners was fully verified and it is only thereafter that the order dated 12.3.2018 was passed by the Mamlatdar & ALT, Radhanpur.
3.6 The petitioners, after completing all the formalities, applied for grant of N.A. permission under section 65 of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as the "Code of 1879") so as to utilize the land in question. The application, was accompanied with the layout plan only with a view to substantiate that the petitioners want to use the land for residential purpose by bifurcating the land in question into various subplots. The application of the petitioners seeking N.A. permission, came to be granted by the Collector & District Magistrate vide order dated 21.2.2019. Apropos which, the petitioners executed an agreement to sell in favour of 10 different persons, somewhere in the month of April 2019 and also agreed to sell 116 plots out of total 120 plots to the concerned parties. Sale deeds of 4 plots in favour of 4 different persons were also executed on 25.4.2019; however, the petitioners were shocked to receive the notice issued by the respondent no.2 indicating the factum of institution of proceeding of revision under the provisions of section 211 of the Code of 1879. Upon receipt of the notice, the petitioners filed a detailed reply on 3.6.2019 indicating that the land in question has been put to N.A. use and that there is no breach of any of the provisions of the Code and/or any of the provisions of any Act. It was the case of the petitioners that the proceedings are without jurisdiction.
Page 4 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 3.7 It is the case of the petitioners that disregarding the reply of
the petitioners, learned Secretary has passed the order dated 29.6.2019 cancelling the order dated 21.2.2019 granting N.A. permission. Not only that, learned Secretary, issued instructions to initiate proceedings for breach of the provisions under section 63 as well as section 84 of the Tenancy Act. Furthermore, the order dated 12.3.2018 passed by the Mamlatdar was also directed to be taken into review. Hence the present petition.
4. No reply has been filed by and on behalf of the respondent authorities. So far as, private respondents are concerned, though have been served have chosen not to enter appearance. So far as respondent no.4 is concerned, affidavit of service has been filed indicating the refusal to accept the notice by him.
5. Mr Hriday Buch, learned counsel appearing with Mr Anand V. Thakkar, learned advocate for the petitioners, submitted that the land in question, earlier belonged to the respondent no.4 which fact, is strengthened by entry no.2980 dated 24.8.1989. The respondent no.4, being the original owner, sold the land in question in favour of respondent no.5 vide registered sale deed dated 7.10.1993 and the effect of the said sale deed was posted in the revenue record vide entry no.3639. It is submitted that the respondent no.5, thereafter, applied for mutation of the name of her husband i.e. respondent no.6 in the revenue record, which was allowed and entry no.3965 was posted in the revenue record and was certified. Similarly, the name of brother of respondent no.6 also came to be posted in the revenue record vide entry no.4968 followed by certification. Since then, the names of respondent nos.5, 6 and 7 continued in the revenue record; however, no proceedings were initiated.
5.1 It is submitted that 12 years down the line, the petitioners purchased the land in question from the owners i.e. respondent nos.5, 6 and 7 and as a result of the said transaction, entry no.9836 Page 5 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 was posted in the revenue record on 5.12.2012 followed by certification on 16.1.2013. It is submitted that owing to the breach, proceedings were initiated under section 63AB of the Tenancy Act; however, the petitioners paid the premium amount as per the newly added section 63AB of the Tenancy Act. It is submitted that section 63AB of the Tenancy Act starts with a non-obstante clause, which provides that, notwithstanding anything contained in section 63, where the Mamalatdar suo moto or on the application of any person interested in the land, has reason to believe that, in the breach of the provisions of clauses of sub-section (1) of section 63, transfer of the land had taken place in favour of a person who was not an agriculturist and that certain transaction or transaction have taken place thereafter and the person in whose favour the last transaction was made on or before the 30.6.2015, is an agriculturist, he shall issue a notice to such person and after giving an opportunity of being heard, make an inquiry as he deems fit. As a result of the inquiry, it was open to the Mamlatdar, to pass an order requiring the party to pay to the State Government, for the use of such land only for the agriculture purpose, the amount of 10% of the prevailing jantri and after such payment is done, it will be open to the Mamlatdar to declare by an order, such last transaction to be valid irrespective of the fact that any one or more of such transaction was or were invalid and upon such order, no proceedings under section 84 was required to be initiated.
5.2 It is next submitted that as a result of the proceedings under section 63AB of the Tenancy Act, the petitioners had paid the requisite amount of premium and therefore, the order dated 12.3.2018, has been passed by the Mamlatdar accepting 10% of the premium amount to the tune of Rs.6,07,020/- and the transaction was regularized under the said provision. It is submitted that while passing the order, the Mamlatdar, has verified the documents and on the basis whereof, the order dated 12.3.2018 was passed. The Page 6 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 said order, has attained finality inasmuch as, the same has not been taken in review or any proceedings have been initiated.
5.3 It is next submitted that Collector, passed an order dated 21.2.2019 granting N.A. permission and the said order, was passed after due application of mind. Though the Collector himself, has passed the order, surprisingly, made a proposal for cancelling its own order dated 21.2.2019 to the respondent no.2, inter alia, pointing out that it had come to the notice that the petitioners though, have filed affidavits that they are the agriculturists, but are not agriculturists by birth. It is submitted that the Collector himself having granted N.A. permission, it is strange to note that he had made a proposal to the respondent no.2 seeking to cancel the order dated 21.2.2019 granting N.A. permission. It is submitted that the status of agriculturists of the petitioners, was sufficiently determined and examined by both the authorities and having done so, there was no reason available to the authorities concerned, to have doubted the status only on the ground that the petitioners, are not agriculturists by birth.
5.4 It is submitted that so far as the aspect of the status of the petitioners being an agriculturists is concerned, the same is also misplaced. While inviting the attention of this Court to the entry no.9836 dated 5.12.2012, it is submitted that the endorsement in the 5th column of Village Form no.6, clearly records that the petitioners are the khedut khatedar which factum, was determined on the basis of the revenue record. The endorsement in the said column, further reflects that the certificates are being examined which have been issued by the Mamlatdar of the petitioners being khedut khatedar. The certificates issued by the Mamlatdars of Rapar, Bhachau and Bhabhar were also examined and only on the basis of the certificates issued by the Mamlatdars, substantiating that the petitioners are khedut khatedar, that entry no.9836 was posted in the revenue record on 5.12.2012. It is submitted that the Page 7 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 said entry no.9836 dated 5.12.2012 have not been called in question and still is in currency. It is submitted that reference is also made to the entries in the revenue record on the basis whereof, the entry no.9836 dated 5.12.2012 was posted in the revenue record. It is submitted that no proceedings have been initiated by the revenue authorities with respect to the lands possessed by the petitioners in Villages of Bhachau, Rapar and Chichodra, Taluka of Bhabhar. It is submitted that the status of agriculturist of the petitioner has been recognized for those lands.
5.5 While inviting attention of this Court to the entries, it is submitted that the petitioners, have the status of agriculturist. So far as the petitioner no.1 is concerned, she was agriculturist of village Karmariya, Taluka Bhachau, District Kachchh and said land, is inherited through her maternal grandfather Mayaram Maluram. Similarly, the petitioner no.2, has produced the documents about her status of an agriculturist of Village Chichodra, Taluka Bhabhar and she had derived the status through her husband. Reliance is placed on the entry no.1317 dated 14.6.2011, and the said entry has not been called in question. Further reliance is placed on entry no.876 dated 31.12.2008 wherein, the name of the petitioner no.2, has been posted in the revenue record. So far as the petitioner no.3 is concerned, it is submitted that she had derived the status of an agriculturist of a land situated at Village Nilpar, Taluka Rapar through her husband Arvindbhai, who has been an agriculturist all throughout. In proof of such statement, reliance is placed on entry no.1379 dated 17.8.2010 wherein, the name of petitioner no.3 has been entered as heir of Arvindbhai Merumal Thakkar. It is next submitted that all the entries posted in the revenue record with respect to the status of the petitioners, have never been called in question by any of the authorities till date. Considering all these documents, the Mamlatdar Radhanpur certified the entry no.9836 dated 5.12.2012 which aspect is substantiated by the endorsement in the column no.5 of Village Form no.6. It is therefore submitted Page 8 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 that so far as the status of the petitioners as an agriculturists is concerned, the same has been recognized qua, the lands which have been mentioned in the various entries produced on the record (Annexure-'G' Colly.).
5.6 It is submitted that since the year 2013, the petitioners were the occupants and therefore, applied for the N.A. permission. The Collector granted it vide order dated 21.2.2019. The Collector, while exercising the powers under section 65 of the Code, could not have gone into the aspect of status as of the petitioners. It is submitted that the proposal was made to learned Secretary who, while allowing the revision application, exceeded its jurisdiction. The learned Secretary, while cancelling the N.A. permission, has concurred with the findings of the Collector which, came to his notice after the N.A. permission was granted. The learned Secretary, while accepting the stand of the Collector, has directed initiation of the proceedings for breach of the provisions of section 63 and section 84 of the Tenancy Act. Moreover, even the order dated 12.3.2018 of the Mamlatdar & ALT was directed to be taken in review. It is submitted that the learned Secretary, has not been conferred with blanket powers to issue such direction and therefore, he has exceeded its jurisdiction, while passing the order dated 29.6.2019.
5.7 It is submitted that while deciding the N.A. application, what the authority is required to see is whether the applicant is an occupant or not? It is also submitted that while processing the application, objections were invited; however, no objections were raised. Furthermore, the opinions were called for, from various authorities of the State Government and it is only after receiving the opinions, that the order has been passed, granting N.A. permission. It is submitted that it is well settled proposition of law that grant of N.A. permission is an administrative exercise which is to be undertaken at the instance of the occupier of the land. In the Page 9 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 present case, the petitioners are undoubtedly the occupiers of the land in question and after completing all the formalities under the provisions of the Code of 1879 as well as the rules framed thereunder that the N.A. permission has been granted in the present case and therefore, there was no reason available to the learned Secretary, to exercise its revisional powers under section 211 of the Code of 1879 after actual conversion of the land and the use thereof for non agricultural purpose.
5.8 For the proposition that there is no concept of person being agriculturist by birth, reliance is placed on the judgment in the case of Chaital Rashmikant Bhatt v. State of Gujarat reported in 2017 (0) AIJEL-HC 237718: 2017 JX(Guj) 490, it is submitted that this Court, has while referring to the provisions of the Tenancy Act has held and observed that there is no concept of "original" agriculturist in the Tenancy Act. The provisions of sub-section (2) of section 2 of the Tenancy Act defines the term "agriculturist" to mean "a person who cultivates land personally". Reference is also made to provisions of sub-section (6) of section 2 which defines the terms "to cultivate personally" which means to cultivate land on one's own account (i) by one's own labour, or (ii) by the labour of any member of one's family, or (iii) under the personal supervision of oneself or any member of one's family, by hired labour or by servants on wages payable in cash or kind but not in crop share. It is therefore submitted that the stand of the Collector and accepted by the learned Secretary that the petitioner nos.1 and 2 are not agriculturists by birth is erroneous and deserves to be quashed. Further reliance is placed on the judgment of this Court in the case of Devrajbhai Valjibhai Gada and Others v. State of Gujarat passed in Special Civil Application No.10489 of 1999.
5.9 While adverting to the scope and nature of powers under Section 65 of the Code of 1879 of the Collector granting N.A. permission, reliance is placed on the judgment in the case of Page 10 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 Bhayabhai Vajshibhai Hathalia v. State of Gujarat reported in 2011 SCC OnLine Guj 6578 : (2012) 53 (2) GLR 1741. It is submitted that this Court, has held and observed that section 65 of the Code of 1879 on its plain reading does not provide for any scope of raising objection in the party who is yet to establish or acknowledge any right or interest in the land in question. In other words proceedings under section 65 of the Code of 1879 is not an adversary proceeding at all. This Court, has held that the N.A. Permission under section 65 of the Code of 1879, 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. It is therefore submitted that in view of the judgment of this Court in the case of Bhayabhai Vajshibhai Hathalia v. State of Gujarat (supra) it would be permissible to the Collector and to the learned learned Secretary only to see that the applicant is an occupant or not and they could not have gone into and determined the aspect of the status of the petitioners being agriculturists. It is also submitted that even otherwise, the land in question has been used for residential purpose by sub-plotting the same. Not only that, agreement to sell has been executed by the petitioners in favour of the third parties for sale of sub-plots of the land in question and therefore, the initiation and continuation of the proceeding would deprive the petitioners to use the land in question. It is therefore urged that the order dated 29.6.2019 passed by the learned Secretary deserves to be quashed and set aside.
6. Mr Bharat Vyas, learned Assistant Government Pleader appearing for the respondent has invited attention of this Court to the order dated 12.3.2018 passed by the Mamlatdar. It is fairly conceded that the Mamlatdar after accepting the premium has regularized the sale under the provisions of section 63AB of the Tenancy Act. It is only after accepting the premium, the same has been regularized. So far as the observations made by the learned Page 11 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 Secretary in its operative portion, Mr Bharat Vyas, learned Assistant Government Pleader has conceded to the fact that the stand of the Collector as accepted by the learned Secretary, would be beyond its jurisdiction. It is submitted that after the N.A. permission was granted vide order dated 21.2.2019 by the Collector, it came to his notice that the petitioner nos.1 and 2 have though declared on oath that they are agriculturists; they are not agriculturists by birth which fact, has led to filing of the proposal with the learned Secretary who, then took out the proceedings, by issuing the notice.
6.1 It is submitted that so far as the sale deed which was executed in the year 1993, by the respondent no.5 is concerned, the same was in her favour as an agriculturist; however, surreptitiously in the year 1995, respondent no.5 got the name of her husband i.e. respondent no.6 mutated in the revenue record as a co-owner and in the year 2000, the name of her brother-in-law of the respondent no.5 i.e. respondent no.7 was posted in the revenue record. It is submitted that the respondent nos.6 and 7 were not agriculturists and their names were posted in the revenue record projecting them as agriculturists and thereafter, the respondent nos.5, 6 and 7 have executed the sale deed in favour of the petitioner nos.1, 2 and 3.
6.2 It is also submitted that on application by the petitioners, the Mamlatdar has passed the order dated 12.3.2018, regularized the sale under section 63AB of the Tenancy Act; however considering the status of the petitioners that they are not agriculturists, the learned Secretary, is well within its powers to direct initiation of the proceedings for breach of provisions under section 63 and section 84 of the Tenancy Act. It is therefore urged that no error has been committed by the learned Secretary and the order does not deserve to be interfered with.
7. Heard the learned advocates appearing for the respective parties, considered the documents available on record and have Page 12 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 accorded the thoughtful consideration.
8. As aforesaid, by this petition, the petitioners are aggrieved by the order dated 29.6.2019 passed by the learned Secretary whereby, the learned Secretary, accepting the stand of the Collector about the status of the petitioners, cancelled the N.A. permission, granted vide order dated 21.2.2019. The land in question came to the share of respondent no.4 which fact was recorded vide entry no.2980 dated 24.8.1989 in the revenue record. The area of 5 Acres would be around 20234 sq. meters. The respondent no.4, sold the land in question to respondent no.5 vide registered sale deed dated 7.10.1993 and entry no.3639 was posted in the revenue record followed by certification. The respondent no.5 consequently got inducted respondent nos. 6 and 7 which aspect, has been recorded in the village form no.6 vide entry no.3965 as well as entry no.4968. The entries, were certified by the revenue authorities. Somewhere in the year 2012, a sale deed came to be executed in favour of the petitioners upon payment of Rs.27,00,000/-. As per the sale deed, the petitioner no.1 has become the owner of 40% and petitioner nos.2 and 3 have become owners of 25% and 35% of the land in question respectively.
9. On the basis of the sale deed, entry no.9836 dated 5.12.2012 was registered and as per the endorsement in the 5 th column, necessary inquiry was made by the Mamlatdar and on the basis whereof, has certified the entry and since then, the petitioners, are in possession of the land in question. The petitioners, submitted an application under the provisions of section 63AB of the Tenancy Act before the Mamlatdar for regularizing the sale by paying the amount of premium. The Mamlatdar, undertook the inquiry and passed the order dated 12.3.2018 accepting the premium amount of Rs.6,07,020/- and upon payment, the transaction was regularised, subject to the provisions of sub-section (1) of section 63AB of the Tenancy Act inasmuch as, the petitioners were found to be Page 13 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 agriculturists. Since the petitioners were desirous of developing the land have submitted an application for grant of N.A. permission. Collector, called for the opinions from the respective offices and on the basis of the documents available on record, passed the order dated 21.2.2019 granting N.A. permission on certain terms and conditions. It appears that after the grant of N.A. permission, it came to the notice of the Collector that the petitioner nos.1 and 2 are not agriculturists by birth and therefore, he sent the proposal to the learned Secretary for initiating proceedings for cancelling the N.A. permission. As a result whereof, the order dated 29.6.2019 was passed allowing the revision application and the order dated 21.2.2019 of the Collector granting N.A. permission, was cancelled. The learned Secretary, also directed initiation of the proceedings for breach of the provisions of section 63 and section 84 of the Tenancy Act, with a further direction to take the order dated 12.3.2018 of the Mamlatdar in review.
10. Pertinently, in the present case, the petitioners purchased the land in question from respondent nos.5, 6 and 7 jointly by way of registered sale deed and entry no.9836 also came to be posted in the revenue record on 5.12.2012 and it was certified on 16.1.2013. It is not in dispute that after requisite inquiry by the Mamlatdar, entry no.9836 dated 5.12.2012 was posted in the revenue record. Notice, was issued under section 135D of the Code and on the basis of the revenue record namely 7/12 form, 8-A form, village form no.6, entry was certified on 16.1.2013. The entry still exists and has not been disputed by any of the revenue authorities. As aforesaid, the petitioners have applied for the regularization of the transaction to the Mamlatdar and a detailed order dated 12.3.2018 has been passed regularizing the transaction by directing the petitioners to pay the premium amount of Rs.6,07,020/- which was paid and that is how the transaction was regularized under the provisions of section 63AB of the Tenancy Act on certain terms and conditions. The said order till the order was passed by the Collector granting Page 14 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 N.A. permission has not been taken in any suo motu revision.
11. The petitioners to substantiate that they are agriculturists have placed reliance on various documents. Entry no.1317 dated 14.6.2011, certified on 24.8.2011 concerns petitioner no.1. Vide entry no.876 dated 31.12.2008, the name of the petitioner no.2 has been posted in the revenue record as a heir. Furthermore, entry no.1379 dated 17.8.2010 has been placed on the record to suggest that petitioner no.3 has acquired the status of an agriculturist through her husband. All the three entries substantiating the status of the agriculturists of the petitioners have so far not been called in question and are in currency. The said factum, neither is disputed by the learned Assistant Government Pleader nor any documents have been placed on record contradicting the said aspect.
12. The petitioners thereafter, somewhere in the year 2012 have purchased the land in question and entry no.9836 dated 5.12.2012 came to be posted in the revenue record, recording the transaction of the sale in their favour and entry as aforesaid was certified on 16.1.2013 by the Mamlatdar. The said entry is in currency. The petitioners since were desirous of developing the land, applied for N.A. permission and the Collector, granted the same vide order dated 21.2.2019. Therefore, the record as it suggests, the petitioners have acquired the ownership through the registered sale deed, executed in the year 2012 and consequent entry in the revenue record. Therefore, the petitioners can be said to be the occupants of the land in question. Apt would be the judgment of this Court in the case of Bhayabhai Vajshibhai Hathalia v. State of Gujarat (supra). This Court, while considering the language of section 65 of the Code of 1879, has held and observed that it does not envisages scope of raising any objection in any party who is not acknowledged right or interest in the land in question. It has been further observed that proceedings under section 65 of the Code of 1879 is not an adversary proceeding at all. It has also been Page 15 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 observed that 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. This Court, has further observed and held that the land which was agricultural land and was supposed to be put up to non agricultural purpose and is decided to be freed from restrictions and permitted to be developed, the permission is attached to the land in question and not to the person and therefore, the interpretation of section 65 of the Code of 1879, cannot be said to be in any manner rendering it to be adversary proceeding at all.
13. Apt would also be the judgment in the case of Tusharbhai Harjibhai Ghelani & another v. State of Gujarat & Ors. reported in 2019 (4) GLR 2578 wherein, this Court has held and observed the key word in section 65 of the Code of 1879 is the occupant of the land and it is sufficient for the purposes of section 65 of the Code of 1879, that the person applying for N.A. Permission, is an occupant of the land. Therefore, all what the Collector, was required to examine was whether the petitioner is an occupant or not. This Court, in paragraphs 38, 39 and 40 has held and observed thus:
"38. Thus, the plain reading of section 65 makes it clear that for the purpose of grant of N.A. Permission, the first thing the Collector should look into is whether the applicant, seeking N.A. Permission, is an occupant of the land which is being assessed or held for the purpose of agriculture. For the purpose of ascertaining this, the Collector is expected to look into the revenue records. The name of the applicant in the revenue records would prima facie go to show or rather indicate that he is the occupant of the land. The second step in the process would be to ascertain whether such land is being assessed or held for the purpose of agriculture.
39. Section 65 of the Code provides for the uses to which an occupant of land for the purpose of agriculture may put his land to. If the occupant of the land wishes to use the land for purposes other than the agriculture or agriculture-related activities, he is required to make an application to the Collector for permission to do so. It 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 Page 16 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 applying for NA Permission is an occupant of the land. It is nowhere stated in the said provision that the applicant should have title or ownership over the land for which NA Permission is sought. The legislature, in its wisdom, has thought it fit that it should suffice if an occupant of the land applies for NA Permission. It is not necessary that such person has to prove his title to the land before he makes an application. The present case is on a far better footing. Not only are the petitioners occupants of the land, they are also the owners thereof, by a legal and valid registered Sale Deed. The said sale deed may be a subject matter of challenge before the Civil Court but the fact remains that the Civil Court has not yet passed any decree cancelling the same or declaring it to be illegal or obtained by fraud.
40. Thus, it transpires that, no power is available to the Collector under Section 65 of the Code to examine or conclude regarding the title of the writ applicants over the land in question. A bare reading of the said provision makes it clear that it only provides for the uses to which an occupant of land for agricultural purposes, may put his land to. The provision further lays down the procedure to be followed for making an application for NA Permission by the occupier and the manner in which it is to be processed by the Competent Authority. Nowhere is it contemplated in Section 65 that the Collector is empowered to undertake an inquiry into the title of the occupier."
14. Therefore, it is well settled that while deciding the N.A. application, what is required to been seen is whether the applicant is an occupant or not? In the present case, by virtue of the registered sale deed executed in the year 2012, the petitioners are very much the occupants and owners of the land in question and therefore, with the limited inquiry which was available to the Collector and the learned Secretary, the order dated 29.6.2019 passed, in the opinion of this Court, is erroneous and therefore, insofar as it cancels the N.A. permission dated 21.2.2019 is illegal and bad in law. Moreover, the directions issued by the learned Secretary for initiation of proceeding for breach of section 63 and section 84 of the Tenancy Act are concerned, apt would be the judgment in the case of Devrajbhai Valjibhai Gada Since Deceased by his Heirs & Others v. State of Gujarat (supra). In the said case, this Court, in paragraphs 10, 11 and 12 has held and observed thus:
Page 17 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 "10. Though it has been sought to be submitted by the learned Counsel Mr.Mehta for the petitioners that the Collector while exercising suo motu powers under RTS proceedings could not have observed that there was violation of the provisions contained in the Tenancy Act, the Court does not find any substance in the said submission also. In this regard a pertinent observations made by this Court in case of Jayantilal Jethalal Soni Vs. State of Gujarat & Ors., reported in 2005(4) GLR 3354 are required to be reproduced as under:-
"8. Therefore, keeping in view of the aforesaid observations made by this Court in the above referred judgment, it appears that it would not be proper to hold that even if there are breaches under other enactment or such transfer is barred under the other enactment, the revenue authorities exercising power under Code could have ignored the same for the purpose of recording the mutation. At the same time, the authorities exercising power under the Code will have to exercise the jurisdiction within the limits of the statutory provisions of the Code.
Therefore, on reconciling of both the aspects, it appears that in a case where the transfer of a land is made by registered sale deed and if the revenue authority prima facie is of the view that such transfer is either barred under the other enactment or is resulting into a breach of other enactment or is to result into adversely affecting the rights under the other enactment and consequently sale is prohibited, then in that case, the appropriate course for the revenue authority would be to record the entry for registered sale deed with the express observations that the registered sale deed is prima facie in breach of the other enactment and simultaneously refer the matter to the competent authority under the other concerned enactment of which breach is committed and the entry should be made subject to the final decision which may be taken by the competent authority under the other concerned enactment. This Court is inclined to take such view, because the one, who may be a bonafide purchaser or one who is interested to purchase the property would normally rely upon the revenue entry for enquiring into the title and the possession of the property. If the entry is certified on the basis of registered sale deed as it is, without recording for aforesaid qualification or clarification, the resultant effect would be that it will not be made known to the either person interested or to the other party who may act upon the revenue entry that the present Page 18 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 transaction may be in breach of the other enactment and consequently it may result into not giving correct picture of the title or possession of the property in question in accordance with law. If the entry, on the basis of the sale deed is not at all effected, with the aforesaid qualification or without aforesaid qualification, it may also conversely mislead the public at large and also to those persons who act upon the revenue record, because there will be no recording of such transactions of registered sale deed which has the effect of conferring the right on property unless it is prohibited by the relevant statute under the other enactment or unless such sale deed is declared as null and void by the competent authority or through the process known to law. Therefore, it cannot be said that the authority exercising power under the Land Revenue Code has absolutely no jurisdiction to even prima facie consider the matter as to whether the breach of the other enactment is committed or not. At the most, it can be said that the authority exercising power under the code has no power to conclude as to whether the breach of the other enactment by the impugned transfer or registered sale deed is made or not."
11. In the instant case, vide the impugned order the Collector has set aside the entries made in the revenue record, which were prima facie found to be in violation of the Section 63 of the Tenancy Act and therefore, directed the Mamlatdar and ALT to initiate proceedings under Section 84C of the said Act. The Collector himself has not exercised the powers under Section 84C of the said Act as sought to be submitted by Mr.Mehta. In the inquiry before the Mamlatdar under Section 84C, the petitioners would have the opportunity of hearing and to produce the material. It is needless to say that the revenue entries are made only for the fiscal purpose and they themselves do not create any right, title or interest in favour of any party.
12. In that view of the matter, and there being concurrent findings of facts records by the respondent authorities, the Court is not inclined to interfere with the same. The petition, therefore, is dismissed."
15. As discussed hereinabove, the directions contained in the order dated 29.6.2019 insofar as it cancels the N.A. permission, is hereby quashed and set aside and the order dated 21.2.2019 Page 19 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022 C/SCA/14712/2019 JUDGMENT DATED: 26/04/2022 passed by the Resident Additional Collector, Patan, stands restored. It is clarified that this Court, has not expressed any opinion so far as the status of the petitioners being agriculturist is concerned and any discussions made in that behalf in the present judgment are limited and restricted qua the validity of the order passed by the Secretary cancelling the N.A. permission granted under section 65 of the Code of 1879 and may not be construed as validating the status of the petitioners being an agriculturist. Also, for the alleged breach of any provisions of other enactments, it is clarified that this Court has not expressed any opinion.
16. In view of the aforementioned discussion, the petition stands partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
Sd/-
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 20 of 20 Downloaded on : Sat Dec 24 15:41:51 IST 2022