Gujarat High Court
Siraj Yakub Bhaiyat vs State Of Gujarat on 9 June, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18825 of 2019
FOR APPROVAL AND SIGNATURE: SD/-
HONOURABLE DR. JUSTICE A. P. THAKER
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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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SIRAJ YAKUB BHAIYAT
Versus
STATE OF GUJARAT
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Petitioner(s) No. 1,2,3,4,5
NAJMUDDIN R MEGHANI(7834) for the Petitioner(s) No. 1,2,3,4,5
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP
MR. NIKUNJ KANARA, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 09/06/2022
ORAL JUDGMENT
1. By way of the present petition under Article 226 of the Constitution, the petitioners have challenged the order dated 29.07.2019 passed by learned Special Secretary, Page 1 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 Revenue Department ("Ld. SSRD" for short) in Revision Application No. 01 of 2019, confirming the order dated 30.07.2018 passed by the Ld. District Collector, Bharuch in refusing the non-agriculture permission to the petitioner.
2. The facts, in nutshell are as under:
2.1 The petitioners are the owners of the land bearing survey No. 79 (old survey No. 286) admeasuring 8152 sq. mtrs. of village Sanjali, Taluka: Ankleshwar, Dist: Bharuch which they have received in succession and the succession entry No. 2606 was mutated in revenue record on 07.01.2011.
2.2 That since the land was restricted tenure land and petitioners inclined to use it for residential purpose, they made an application dated 02.06.2011 to the District Collector, Bharuch to convert the said land into old tenure for non-agriculture use. The petitioner deposited an amount of Rs. 27,91,960/- towards the premium as demanded by the District Collector, Bharuch. The District Collector, Bharuch vide his order dated 08.11.2011 granted permission to convert the land into old tenure for Page 2 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 non-agriculture purpose. Pursuant to which revenue entry No.2629 was mutated in the revenue record on 29.11.2011.
2.3 That on 20.12.2011, an Application was made to the Town Planner, Bharuch for sanction of layout plan for construction of residential unit, which was came to be granted on 03.11.2012 by the Town Planner, Bharuch.
Thereafter, petitioners have applied for N.A. permission for residential use qua the land bearing Survey No. 286 admeasuring 8094 sq. mtrs. to District Panchayat, Bharuch as the land was situated in village Sanjali. To that DDO acknowledged the same vide his letter dated 11.01.2012. However, the DDO did not decided the said application within 90 days. It is contended that even as per the government resolutions, N.A. permission was deemed to be granted, if no action is taken in respect of application of N.A. within the specified period. 2.4 That during the pendency of such application, the District Collector, Bharuch vide his letter dated 02.09.2013 informed the petitioner that village Sanjali is included in Page 3 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 Bharuch-Ankleshwar Area Development Authority ("BAUDA" for short) and the Collector has authority to grant N.A. permission. That DDO has referred the file to the Collector. It was informed that since time limit to obtain N.A. permission has expired, an application may be filed for extension for time. Upon such instructions, petitioners moved an application for extension of time which came to be extended up to 07.11.2013. That the petitioner received information from the Collector that there is negative opinion of GIDC, N.A. permission can not be granted to him and the N.A. application came to be rejected.
2.5 It is contended that from RTI inquiry, it was found that GIDC has given positive opinion and yet false facts has been narrated. That vide order dated 24.01.2014 the Collector extended the time limit up to 07.11.2014 to obtain the necessary permission. It is the say of the petitioner that application for consideration of N.A. permission remained pending before the District Collector without any cogent reasons, and therefore, once again petitioner applied for extension of time before the Page 4 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 Collector. However, it was informed that there is no need for an extension and if there is change in Jantri rate, then, the difference of premium needs to be paid. It is also contended that ultimately the Collector rejected the N.A. application on totally new ground that now the land is included in the Industrial Zone, and therefore, N.A. permission for residential use cannot be granted. Petitioner preferred Revision Appeal before Ld. SSRD against that said order, who has ultimately dismissed the same. Thus, the petitioner has challenged both these orders by filing this petition.
3. Heard learned advocate Mr. Mehul S. Shah for the petitioner and learned Asst. Government Pleader Mr. Nikunj Kanara for the State at length. Perused the material placed on record and the decision cited by Mr. Shah for the petitioner.
4. Learned advocate Mr. Shah for the petitioner has submitted the same facts which are narrated in the Memo of petition and referred to hereinabove. He has submitted that while dealing with the application under Section 65 of Page 5 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 the Gujarat Land Revenue Code, the Collector cannot presume breach of another law and cannot be cross utilise the power on the different law. He has submitted that the application was pending due to the inaction on the part of the Authorities. He has submitted that there was no fault on the part of the petitioner. He has further submitted that huge amount was received by the Authority way back in the year 2011 and there are certificate of the Panchayat that the land is of Gamtal and there are residential premises in the vicinity and therefore, the stand taken by the Collector that this land is in Industrial Zone is without any basis. He has produced two photographs showing that in the vicinity there are residential houses constructed and there is open plot pertaining to the petitioner herein in respect of which N.A. permission is sought for. He has prayed to allow the present petition.
4.1 In case of Noorbibi Maganlal Mansuri Vs. State of Gujarat reported in 2005 (1) GLH (UJ) 5, this Court has observed as under:
"That once an application is made under Section 65 of the Land Revenue Code and no decision is taken within three Page 6 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 months, the permission applied for shall be deemed to have been granted."
4.2 Prahladbhai Patel Vs. State of Gujarat reported in 2018 JX (Guj.) 140 is also on the similar line. 4.3 In the case of Laxmi Associates Vs. Collector and Anr. reported in 2006 (3) GLR 1982, this Court has observed as under:
"7. Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, in my view, the order dated 21st November, 2005 issued by Collector, Vadodara as well as order dated 7th March, 2006 passed by the Collector, Vadodara, - which is taken on the record of the case, upon tendering the same by the petitioner, deserve to be quashed and set aside for the following facts and reasons:
(i) It is not appreciated by the Collector, Vadodara that while exercising powers under Bombay Land Revenue Code, 1879, he has also exercised the powers under the provisions of the Act, 1947 for the alleged breach of the provisions of the Act, 1947.
(ii) Looking to the aforesaid two orders passed by the the Collector, Vadodara it seems that though, never any doubt raised by any concerned authority as to the validity of the sale deed and the transaction entered into between the petitioner and predecessor-in-title under the Act, 1947, and therefore, Collector, Vadodara while exercising the powers Page 7 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 under Section 65 of the Code, 1879 ought not to have presumed alleged breach of the Act, 1947.
(iii) Unless and until adequate opportunity of hearing is given to the petitioner under Act, 1947 by issuing necessary notice, the breach as per Section 9 of the Act, 1947 cannot be considered while exercising powers under Section 65 of the Code, 1879. Both Acts namely Bombay Land Revenue Code, 1879 and the Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947 are distinct and separate the provisions for making them applicable. The authority before passing the order under one Act (in the present case the Code, 1879) some times goes into depth and tries to search out breach of another Act (in present case, breach of provisions of Act, 1947), and thereafter, they all are presuming the breach of another Act (which is generally without giving any notice under another Act and is generally without giving any opportunity of being heard to the applicant), and thereafter, they are refusing to exercise their power (which is generally coupled with duty) under the Act under which the application is preferred.
Here in this case, the application was under Section 65 of Bombay Land Revenue Code, 1879 for getting N.A. use permission and while deciding that application, Collector, Vadodara, firstly found out breach of the Act, 1947, and thereafter, without giving any opportunity, presumed such and refused to grant N.A. use permission under Section 65 of the Code, 1879. This action of the Collector, Vadodara is not permissible under the rule of law. He cannot presume the breach of another law (i.e. The Act, 1947), without giving notice and without hearing the applicant (of application under Section 65 of the Code, 1879). Page 8 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 It is possible that the same officer (here, he is Collector) can be an authority under several revenue laws. But that permits not, the usage of powers, in combination of any revenue laws. Cross-utilisation of power by revenue officer, under different laws is not permitted. When the application under Bombay Land Revenue Code is given by the applicant, the revenue officer, has to decide it after applying provisions of that very Code, 1879, but while deciding the application under B.L.R. Code, the officer, cannot exercise powers under the Act, 1947, without giving notice under the Act, 1947 and without giving opportunity of being heard to the applicant. While exercising the powers under one Act (in the present case, provisions of Code, 1879), exercise of powers conferred under another Act (i.e. The Act, 1947) is not permitted.
(iv) It has been held by this Court in the case of Evergreen Apartment Co-operative Housing Society Ltd. v. Special Secretary (Appeals), Revenue Department reported in 1991 (1) GLR 113 : 1991 (1) GLH 155 especially in Para 12 thereof, as under:
12. There is much substance in the second submission of Mr. Hawa also. Ordinarily when a transfer of property takes place by a registered account, an entry is effected in the revenue record and it is certified by the Mamalatdar after making necessary inquiries. If there is any dispute regarding mutation, the dispute has to be entered in the register of the disputed cases, and then such disputes are to be disposed of by the Mamlatdar. Under Sub-rule (5) of Rule 108 of the Rules, the aggrieved party can prefer an appeal within 60 days from the date of the service of the order. The State Government has power to call for and Page 9 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 examine the record of any enquiry or the proceedings of any subordinate revenue officer and to review the same under Sub-rule (6) of the rules. It is to be noted in the present case that no appeal had been presented within 60 days from the date of Mamlatdar's order certifying the initial entry. The Assistant Collector, Surat took the said entry in suo motu revision, even though, he had no such power under the provisions of Rule 108. It, therefore, appears that the additional Chief Secretary, Revenue Department remanded the proceeding to the Collector for treating the same as an appeal. This was done after a period of 4 years after the certification of the entry. It was only the State Government which had the power to call for a record of inquiry of proceeding under Sub-rule (6) of Rule
108. Even the State Government was empowered to satisfy itself "as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings." So, the entire inquiry and revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Under Land (Ceiling And Regulations) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceeding under Rule 108 of the Rules, popularly known as R.T.S. proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the order passed by competent authority under special enactments. Independently, the Page 10 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 Revenue authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein, and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus, on this second ground also the orders of the Collector and the additional Chief Secretary appear to be beyond their jurisdiction. The additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from legal position that Section 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also.
In view of the aforesaid decision, powers exercised by the Collector, Vadodara in the communication dated 21st November, 2005 read with the order dated 7th March, 2006 passed by Collector, Vadodara deserve to be quashed and set aside.
(v) It is an admitted fact that the Collector has not issued notice till today under the provision of Act, 1947, and therefore, the impugned order deserves to be quashed and set aside, mainly and chiefly for the reason that while Page 11 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 passing the order under B.L.R. Code, 1879, the Collector has interwoven the breach of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Before throwing the petitioner at the speculation of breach of the Act, 1947, the rule of law requires, notice for alleged breach under another Act (be it U.L.C. Act or the Act, 1947 or the Bombay Tenancy and Agricultural Lands Act, 1948 or the like) and hearing under that Act. In the facts of the present case, there is no notice, no hearing for the alleged breach of Section 9 of the Act, 1947 therefore, it cannot be a reason, as given by the Collector, for refusal of N.A. use permission under Section 65 of the Code, 1879."
5. Ld. AGP Mr. Kanara for the State has submitted that the order of the Ld. Revenue Authorities are proper and there is no need for any interference by this Court. He has prayed to dismiss the present petition.
6. Having considered the submissions made by both the sides coupled with the material placed on the record and the decision cited at Bar, it is crystal clear that there is no dispute regarding the facts that the application for N.A. permission has been kept pending by the authority concerned for years together. It also reveals from the record that the petitioner has paid Rs. 27,91,960/- towards the amount of premium way back on 20.11.2011. It is also an admitted fact that the land has been converted to old Page 12 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 tenure land for non-agriculture purpose and revenue entry to that effect has already been mutated. It also appears that the petitioners have applied for layout plan for construction of residential housing way back in December, 2011 and same came to be technically sanctioned by the Town Planner, Vadodara vide communication dated 03.01.2012. It also reveals that the District Development Officer has received the application for N.A. permission for residential use qua the land in question on 11.01.2012. Now as per Section 65 of the N.A. Code and the government resolutions, N.A. permission needs to be granted within a stipulated period and if it is not granted within the period of 90 days it could be deemed to have been granted. However, in this case, no such permission was refused or granted by the competent authority. It also reveals that the District Panchayat, at the relevant point of time, sought for opinion of the various authorities and it has got a positive opinion for granting N.A. permission. However, during the pendency of the decision pertaining to the application of petitioner for N.A., the village Sanjali came to be included in the BAUDA as informed by the Page 13 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 Collector, and the Collector was having authority to grant N.A. permission thereof. It also reveals from the record that at the instance of the revenue authorities, the applicant was directed to file an application for extension of time for N.A. permission; which they have followed. Thus, the delay in granting N.A. permission is clearly attributable to the authority concerned and not to the petitioner.
7. Now, it is a well-settled principle of law that the procedures of grant of N.A. permission under Section 65 of the Land Revenue Code is that of administrative action on the part of the Collector and while deciding such application, he is not authorized to decide the title of the land in question. Further in the present case, it appears that by one pretext or another pretext, the authorities have kept the application pending and ultimately on new grounds rejected the application. From the photographs, it clearly appears that there are residential premises constructed near the land in question. Thus, the say of the revenue authority that it is an Industrial Zone is devoid of any legal documents. Moreover, from the documentary Page 14 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 evidence produced in this matter, which includes the certificate from the Village Panchayat, Sanjali, that on the surrounding lands of the land in question, all the lands are of non-agriculture and there are residential constructions made thereon. Thus, the stand taken by the revenue authority for rejection of the application is devoid of the merits. Therefore, considering the facts and circumstance of this case, the impugned orders of the authorities need to be quashed and set aside with the direction to the Ld. Collector to decide the application afresh after affording the appropriate opportunity of being heard to the petitioner and keeping in mind the observations made hereinabove.
8. In view of the above, the present petition is partly allowed. The impugned order dated 29.07.2019 passed by Ld. SSRD in Revision Application No. 1 of 2019 and also the order dated 30.07.2018 passed by the District Collector, Bharuch are hereby quashed and set aside. The Ld. Collector is hereby directed to decide the application for N.A. afresh after affording appropriate opportunity of being heard to the petitioner and keeping in mind the Page 15 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022 C/SCA/18825/2019 JUDGMENT DATED: 09/06/2022 observations made hereinabove. Such exercise shall be carried out by the Collector within a period of three months from the date of receipt of this order.
10. There shall be no order as to costs. Direct service is permitted.
SD/-
(DR. A. P. THAKER, J) T. J. Bharwad Page 16 of 16 Downloaded on : Fri Jun 10 21:02:46 IST 2022