Gujarat High Court
Manharbhai Dahyabhai Patel vs State Of Gujarat on 11 July, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1900 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANHARBHAI DAHYABHAI PATEL & 2 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
S M KIKANI(7596) for the Petitioner(s) No. 1,2,3
MR NIKUNJ KANARA, AGP for the Respondent(s) No.1,2 and 3
NOTICE SERVED for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 11/07/2022
ORAL JUDGMENT
With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.
2. Issue rule, returnable forthwith. Mr Nikunj Kanara, learned Assistant Government Pleader, waives service of notice of rule on behalf of the respondents.
3. By this petition, the petitioners are aggrieved by the order dated 20.2.2019 passed by the Collector, Surat, disposing of the application seeking non agricultural permission (hereinafter referred Page 1 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 to as the 'NA permission').
4. Tersely stated are the facts :-
4.1. The issue revolves around the land bearing survey no.108/p4, block no.292 (new block no.504) (hereinafter referred to as the 'land in question'), situated at mauje Dhoranparadi, taluka Kamrej, district Surat. The land in question was originally owned and occupied by one Maganbhai Keshavbhai. Along with it, Maganbhai was having other survey numbers, consisting of 57 acres. Upon introduction of the Gujarat Agricultural Lands Ceiling Act, 1960 (hereinafter referred to as the 'Act of 1960'), ceiling case no.76 of 1982 was registered.
The land admeasuring 24.32 acres was declared as surplus land, including the land in question by the competent authority, and as a result whereof, entry no.742 was mutated on 13.11.1982.
4.2. According to the petitioners, as a result of the proceedings initiated by the original land owners before the higher authority, including the Gujarat Revenue Tribunal (hereinafter referred to as the 'Tribunal'), the land in question was ordered to be deleted from surplus land by the order dated 29.3.1997 of the Mamlatdar & ALT (Ceiling), Choryasi, which was reviewed by the Deputy Collector, Surat vide order dated 11.6.1998, confirming the order dated 29.3.1997 of the Mamlatdar. It is the case of the petitioners that thereafter, entry no.1759 was posted in the revenue record, recording the factum of deletion of the name of the State Government from block nos.232, 267 and the land in question. Further direction was issued to mutate the name of the original owner - Maganbhai Keshavbhai for the land in question.
4.3. As a result whereof, the land in question was posted in the name of the original owner and after his demise, heirship, entry Page 2 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 nos.1763 and 2154 were recorded. According to the petitioners, in the year 2004, the land came to be sold in favour of one Hasmukhbhai Nanubhai and Induben Hasmukhbhai who in turn, sold it to one Urmilaben Ashwinbhai Patel and Nirav Ashwinbhai Patel. Entry nos.2366 and 3355 respectively were posted in the revenue record, and so far as entry no.3355 is concerned, the same was not certified, which resulted into an appeal before the Deputy Collector, Kamrej and the Deputy Collector passed an order dated 1.4.2016, certifying the entry no.3355. It has been reported to this Court that the order dated 1.4.2016 passed by the Deputy Collector, certifying the entry no.3355 dated 17.7.2014, has not been challenged before the higher forum and has attained finality.
4.4. Subsequent thereto, Urmilaben Ashwinbhai Patel and Nirav Ashwinbhai Patel, sold the land in question to one Vipulbhai Champakbhai Patel on 15.10.2016, followed by entry no.3693 and was certified on 9.12.2016. It is the case of the petitioners that the petitioners, are the fourth purchaser inasmuch as, the petitioners have purchased the land from Vipulbhai Patel executing registered sale deed and entry no.3763 dated 24.5.2017 was posted in the revenue record and was certified on 24.7.2017, after following due process. Since the petitioners were desirous of seeking conversion of the land from agricultural to non agricultural, filed an application under Section 65 of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as 'the Code'), seeking NA permission with respect to the land in question for residential purpose.
4.5. It is the case of the petitioners that without verifying the record of the land in question and without considering the fact that the land in question was not declared as a surplus land and no proceedings under the Act of 1960 were pending, the respondent no.3 issued the communication dated 20.2.2019, disposing of the Page 3 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 application in one line citing the ground that entry no.1759 dated 7.4.1997 in ceiling case no.76 of 1982 dated 4.4.1997, the name of the State Government has been deleted, and whether the said order has been taken in review or not, as the opinion is pending. It is alleged that the order, is vague and also in violation of principles of natural justice inasmuch as, the petitioners, have not been offered any opportunity to explain about the reason and therefore, the order of the Collector, Surat, rejecting the NA application, is illegal, bad and in violation of principles of natural justice. Hence, the present writ petition.
5. Mr S.M. Kikani, learned advocate appearing for the petitioners submitted that the order dated 20.2.2019, has been passed without offering any opportunity to the petitioners and in violation of principles of natural justice and therefore, on this ground alone, the order dated 20.2.2019, deserves to be quashed and set aside.
5.1. On merits, it is submitted that the reason which has been assigned, is also ill-founded inasmuch as, the entry no.1759 dated 9.4.1997, has been mutated in the revenue record wherein, the contents of the order dated 29.3.1997/4.4.1997 of the Mamlatdar & ALT, has been recorded in detail. As is discernible from the entry no.1759 dated 9.4.1997, the land which was declared as surplus land, was of survey nos.519 paiki, 592, 144 paiki, block nos.258/A and 258/B. So far as block nos.232, 267 and the land in question are concerned, the name of the original owner was to be entered in the revenue record.
5.2. It is further submitted that it is not in dispute that the order dated 29.3.1997/4.4.1997, was taken in review and was sent to the State Government vide communication dated 17.3.1998. The Deputy Collector thereafter, vide communication dated 11.6.1998, Page 4 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 reviewed the order and confirmed the same. It is therefore, submitted that the order dated 29.3.1997/4.4.1997 of the Mamlatdar & ALT was reviewed by the Deputy Collector (Land Reforms) and he, having reviewed, has confirmed the order. It is submitted that some lands were declared surplus; however, two block numbers along with the land in question were not declared surplus, that the name of the original owner was posted in the revenue record and after his death, somewhere in the year 1997, heirship entry no.1763 was posted on 19.5.1997. It is submitted that the said entry was also certified.
5.3. It is submitted that thereafter, somewhere in the year 2004, the land in question came to be sold in favour of Hasmukhbhai Nanubhai and Induben Hasmukhbhai by registered sale deed and entry no.2366 dated 17.1.2017 was posted in the revenue record, followed by certification. It is submitted that thereafter, the land came to be further sold executing registered sale deed in favour Urmilaben Ashwin Patel and Nirav Ashwin Patel; however, entry no.3355 was not certified on the ground that vide order dated 4.1.2008, passed by the Mamlatdar & ALT (Ceiling), Choryasi, the land has been declared as surplus land. It is submitted that the refusal of certification of the entry no.3355, was challenged before the Deputy Collector, who, after hearing all the parties, has passed an order dated 1.4.2016, whereby the order of the Deputy Mamlatdar dated 16.9.2014, have been quashed and set aside, with a further direction to certify the entry no.3355. It is submitted that the said order of the Deputy Collector, has attained finality, it having not been challenged before higher forum.
5.4. It is submitted that subsequently, Nirav Ashwin Patel and Urmilaben Ashwin Patel sold the land in favour of Vipulbhai Champakbhai Patel somewhere in the year 2016. Entry no.3693 Page 5 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 dated 15.10.2016 was posted in the revenue record, followed by certification dated 9.12.2016. It is submitted that the said entry, has also been certified and not challenged before any forum. It is submitted that thereafter, the petitioners, after verifying the revenue record, purchased the land from Vipulbhai Champakbhai Patel executing registered sale deed dated 24.5.2017. Entry no.3763 dated 24.5.2017 was posted in the revenue record, the same was also certified on 24.7.2017. It is therefore, submitted that the petitioners, are the owners and occupiers of the land by virtue of the registered sale deed, so also the entry no.3763 posted in the revenue record in favour of the petitioners and not challenged before the higher forum.
5.5. It is submitted that when the petitioners are the registered owners of the property, there was no reason available to the Collector to have rejected the application on the ground that the entry no.1759, whether has been taken in review or not? Even otherwise, the entry, so also the order, declaring the land surplus, was very much taken in review by the Deputy Collector and was forwarded to the State Government, and the Deputy Collector, in turn, has confirmed the order dated 29.3.1997/4.4.1997 of the Mamlatdar & ALT (Ceiling). It is submitted that the Collector, ought to have verified the record, the aspect would have been clarified that the order of the Mamlatdar & ALT (Ceiling) dated 29.3.1997/4.4.1997, was reviewed and was confirmed. Therefore, the land in question, was not declared surplus and had come to the original owner in the year 1997. It is therefore, submitted that the reason which weighed with the Collector, is ill-founded and the disposal of the application by the Collector, is unjust, illegal and bad in law.
5.6. Mr Kikani, learned advocate drew the attention of this Court to Page 6 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 the order dated 15.9.2020 of the Deputy Collector (Land Reforms) passed in the ceiling proceedings. It is next submitted that what is now finally declared surplus, details whereof has been set out in the said order in last paragraph. It is submitted that so far as block no.292 is concerned, is not finding place in the tabular form in the operative portion of the order dated 15.9.2020. It is submitted that thereafter, the Collector, has taken in revision the order dated 15.9.2020 of the Deputy Collector. While reproducing the proceedings, the Collector has also taken note of the lands, which have been declared surplus, namely, survey no.592 (old block no.353 - new block no.375); survey no.519 (old block no.268/1 - new block no.286) of village Naviparadi. Similarly, the lands of village Dhoranparadi, which were declared surplus are, namely, survey no.144 (old block no.258 paiki 2 - new block no.451); survey nos.93 + 94 (old block no.12 - new block no.522); and survey no.488/1 (old block no.498 - new block no.24).
5.7. It is submitted that clearly, block no.292 is not forming part of the order of the Deputy Collector (Land Reforms) dated 15.9.2020 as well as of the Collector dated 2.10/11.2022. Therefore, there was no reason available to the Collector, to have rejected the application on the vague ground, that is whether the order of the Mamlatdar & ALT (Ceiling) passed in the year 1997, i.e. 29.3.1997/4.4.1997, has been taken in review by the State Government or not?. It is therefore, submitted that the order deserves to be quashed and set aside and the application of the petitioners be directed to be decided in accordance with law.
6. Mr Nikunj Kanara, learned Assistant Government Pleader has placed on record the timeline of the proceedings initiated under the Act of 1960. It is submitted that the Collector, has rightly disposed of the application of the petitioners. If at all the petitioners, have Page 7 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 any grievance against the disposal of the application, the petitioners, with all the facts, can very well approach the Collector, and the Collector will consider the same.
6.1. It has been fairly conceded before this Court that so far, the land in question is concerned, it has not been declared as a surplus land, but the proceedings under the Act of 1960 with respect to other parcels of land, since is sub judice before the appropriate authorities, the order has been passed. No other and further submissions are made on behalf of the respondents.
7. Heard the learned advocates appearing for the respective parties and perused and considered the documents available on record.
8. Pertinently, the facts which are not in dispute are that the land in question, together with other lands, were of the ownership of one Maganbhai Keshavbhai. As a result of the implementation of the provisions of the Act of 1960, ceiling case no.76 of 1982 was registered and initially, land admeasuring 24.32 acres was declared as a surplus land, including the land in question.
9. The order dated 22.10.1981 of the Mamlatdar & ALT (Ceiling) was assailed before the Deputy Collector unsuccessfully; against which, the original owner had preferred a revision application before the Tribunal which, vide order dated 21.9.1982, remanded the matter, as it was of the opinion that the certificate categorising the land, is not done properly. As a result of the remand, Mamlatdar & ALT (Ceiling), passed the order dated 21.9.1987, declaring the land surplus and by which, the land in question was also declared as a surplus land. The occupier, preferred an appeal before the Deputy Collector who, did not accept it, which led to revision before the Tribunal and once again, the Tribunal passed an order dated Page 8 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 20.11.1992, remanding the matter with a direction to obtain the canal certificate and take a decision afresh. After procuring the certificate, the Mamlatdar & ALT (Ceiling), passed an order dated 18.6.1993, declaring land of survey no.273/2 (block no.253) as a surplus land.
10. An appeal, was preferred under Section 42(A) of the Act of 1960 which was accepted by the Deputy Collector and the matter was remanded to the Mamlatdar & ALT (Ceiling) to decide it afresh by quashing the order dated 18.6.1993 . The said remand, led to the passing of the order dated 29.3.1997 whereby, the lands bearing block nos.519 paiki, 592 and 144 paiki were declared as surplus; however, the land bearing block no.292, that is, the land in question and as is discernible from the entry no.1759, block nos.232, 267, were directed to be retained by the original owner.
11. As is coming out from the report dated 15.9.2020, the order dated 29.3.1997, which was communicated to the original owner on 4.4.1997, was taken in review and thereafter, was forwarded to the State Government vide communication dated 17.3.1998. As a result whereof, the Deputy Collector (Land Reforms), Gandhinagar, vide its order dated 11.6.1998, reviewed the order of the Mamlatdar & ALT (Ceiling) dated 29.3.1997 and confirmed the same. Subsequently, vide communication dated 13.7.1998, the Additional Mamlatdar & ALT was directed to take possession, which he did. Possession of the lands, which were declared surplus, as it was handed over by the power of attorney of the land owners, on 22.10.1999, was taken.
12. Despite the order was confirmed by the State Government and possession was handed over of the surplus land, the land owners, preferred an appeal before the Deputy Collector who, once again remanded the matter to the Mamlatdar & ALT (Ceiling) with a Page 9 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 direction to obtain the canal certificate and to pass the order, afresh. Thereafter, the Mamlatdar & ALT (Ceiling) passed an order dated 27.9.2002 whereby, lands of five block numbers, excluding the land in question, were declared as surplus lands. The said order was again subject matter of an appeal. In appeal, the Deputy Collector, has issued a direction, quashing and setting aside the order dated 27.9.2002 once again, with a direction to procure the canal certificate from the canal officer and then pass the order afresh. What came, was order dated 4.1.2008, declaring the six parcels of land of the original owner as surplus, including the land bearing survey no.108 and block no.292, that is, land in question.
13. The said order was taken in review by the Deputy Collector, which culminated into passing of the order dated 25.7.2013, remanding the matter to the Mamlatdar & ALT (Ceiling), which led to passing of the order dated 12.1.2016. In the said order dated 12.1.2016, passed by the Mamlatdar & ALT (Ceiling), the lands which were declared as surplus lands, are survey nos.519 (block no.268/1), 592 (block no.353) of village Naviparadi and survey no.144 (block no.258/paiki/2) of village Dhoranparadi. But the land in question is not forming part of surplus land.
14. It is required to be noted that the land in question, was directed to be retained by the original owner vide order dated 29.3.1997, which was taken in review by the State Government and the order dated 29.3.1997, was confirmed; however, the original owner being aggrieved, had preferred proceedings and few orders were passed. The order dated 12.1.2016, which appears to be last in line, has been passed whereby, the land in question, is not forming part of the surplus land. The said fact, has been confirmed and substantiated by the order dated 15.9.2020 passed by the Deputy Collector (Land Reforms) and further report of the Collector dated Page 10 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 2.10/11.2020. Therefore, there is not an iota of doubt that so far as the land in question is concerned, the same was and is not forming part and parcel of the lands declared as surplus initially vide order dated 29.3.1997 and thereafter, vide order date 12.1.2016 of the Mamlatdar & ALT (Ceiling). Clearly, from the observations of the Deputy Collector in its order dated 15.9.2020, the said aspect is not in dispute. Upon instructions, Mr Kanara, learned Assistant Government Pleader has fairly stated before this Court that the land in question, i.e. block no.292 (new block no.504) admeasuring 2 acre and 34 gunthas, is not declared as a surplus land, but since the proceedings relatable to other parcels of lands of the original owners, under the Act of 1960, is pending, perhaps the said fact, has weighed with the Collector in passing the order.
15. Moreover, the fact of the order dated 29.3.1997 of the Mamlatdar & ALT (Ceiling) has been posted in the revenue record vide entry no.1759 whereby, it clearly records the fact of the land to be retained by the original owner, i.e. block nos.232, 267 and the land in question. It clearly states that the name State Government to be deleted from the said block numbers and the name of the original owner - Maganbhai Keshavbhai be posted. Also, after mutation of the entry; entry no.1763 dated 19.5.1997 was posted recording the heirship, after the death of Maganbhai Keshavbhai wherein, the land in question is forming part of the lands possessed and in the ownership of the original owner. Since some of the heirs were left out, entry no.2154 came to be posted in the revenue record and was also certified. During the pendency of the proceedings under the Act of 1960, various entries were mutated in the revenue record, namely, entry no.2366 dated 11.2.2004, recording the sale transaction in favour of Hasmukhbhai Nanubhai and Induben Hasmukhbhai Patel. Thereafter, what followed was entry no.3355, dated 16.9.2014. Though, in the first Page 11 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 instance, the same was not certified vide order dated 17.7.2014, but in appeal, the Deputy Collector passed an order dated 1.4.2016, directing mutation of the entry no.3355, recording the transaction in favour of Urmilaben Ashwin Patel and Nirav Ashwin Patel. The said order of the Deputy Collector, has attained finality. The Deputy Collector, in order dated 12.1.2016, in its findings, while allowing the appeal, has categorically recorded about the passing of the order dated 12.1.2013 (sic 12.1.2016) of the Mamlatdar & ALT (Ceiling) and has observed that the order has been passed, declaring the lands surplus, which includes survey nos.592 (old block no.353), 519 (block no.268/1) of village Naviparadi, survey nos.144 (block no.258 paiki 2) of village Dhoranparadi; however, the land of talula Kamrej, village Dhoranparadi, i.e. survey no.108/p4 (block no.292), does not appear to have been declared as a surplus land.
17. Therefore, the said observations of the Deputy Collector, is in sync with the observations in the order dated 15.9.2020 of the Deputy Collector wherein, detailed proceedings under the Act of 1960, have been set out. On the basis of the said orders and the revenue entry, another sale transaction took place in favour of Vipulbhai Champakbhai Patel vide registered sale deed and entry no.3693 dated 15.10.2016 was posted and certified on 9.12.2016. The said entry, has also attained finality inasmuch as, no challenge has been laid to the said entry. It is thereafter, that in the year 2017, the petitioners purchased the land in question and entry no.3763 was certified on 24.7.2017. No objection was taken and the entry has been certified and exist in the revenue record.
18. Under the circumstances and the fact that the land in question, has not been declared surplus by the authorities, and was Page 12 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 directed to be retained as of the ownership of the land owner, and it having already been taken in review by the Deputy Collector and by the State Government, the reason assigned by the Collector in its order dated 20.2.2019, is not in sync and consonance with the documents available on record. Nothing has been placed on record to substantiate the reasoning assigned by the Collector. In the opinion of this Court, the order is unjust, illegal and against the documents available on record and hence, deserves to be quashed and set aside.
19. Apart from the merits of the matter, even if one is to go by the language contained in Section 65 of the Code, it leans in favour of the petitioners inasmuch as, requirement for an NA permission, application has to be by an occupant. In the present case, the petitioners being the fourth purchaser in succession, have acquired the ownership by way of a registered sale deed and therefore, stands on a better footing. Section 65 of the Code, reads thus:-
"65. (1) Any occupant, of land 12[assessed or held for the purpose of agriculture] is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm- buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient [use for the purpose aforesaid].
But, if any occupant [wishes to use his holding or any part thereof for any other purpose [or for other different purposes] the Collector's permission shall in the first place be applied for by the [* *] occupant.
The Collector, on receipt of such application,
(a) shall send to the applicant a written acknowledgement of its receipt, and
(b) may, after due inquiry, either grant or refuse the permission applied for:
Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the Collector sends a written Page 13 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 acknowledgement within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application.] Unless the Collector shall in particular instances otherwise direct, no such application shall be recognized except it be made by the 4[* *] occupant.
6[* * * * * *] (2)Notwithstanding anything contained in sub-section (1) but subject to any terms and conditions laid down by the State Government in this behalf, where an occupant has his holding in an area comprising a gram and such area is not within an urban agglomeration or within a radius of five kilometres from the limits of a municipal borough or notified area or industrial estate and such occupant wishes to use his holding or a part thereof only for a residential purpose, it shall not be necessary for him to obtain permission of the Collector under sub-section (1)."
The language contained in Section 65 of the Code has been interpreted by this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat reported in 2012 (2) GLR 1741 and thereafter, in the case of Tusharbhai Harjibhai Ghelani vs. State of Gujarat reported in 2019 (4) GLR 2578 wherein, in paragraphs 38 to 46, this Court has 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 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 Page 14 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 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.
41. A perusal of the impugned order dated 19th November, 2014 passed by the Collector makes it clear that the reason for the rejection of the application of the writ applicants is that their title to the land in question is defective on the ground that two civil suits are pending.
42. In State of Gujarat v. Patel Raghav Natha,(1969)2 SCC 187, the Supreme Court has clearly held as below:
"14. We are also of the opinion that the Commissioner should not have gone into question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent Court and not decide the question of title himself against the occupant."
43. This was also a case where the NA Permission under the provisions of Section 65 of the Code was in issue. The above principles of law therefore, squarely apply to the present case.
44. Considering the provisions of Section 65 of the Code as well as the above pronouncement of law by the Supreme Court, this Court cannot but arrive at the inevitable conclusion that the denial of NA Permission to the writ applicants under the garb of a purportedly defective title over the land in question amounts to a transgression of the limits of jurisdiction vested in the second respondent under the Code. The impugned order is, therefore, one without jurisdiction. For such reason also the plea of alternative remedy should fail.
45. In the aforesaid context, let me look into a decision of this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat, 2012 (2) GLR 1741. I may quote the relevant Page 15 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 observations;
"20. Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the contentions in respect of the order impugned in this petition. Plain reading of section 65 of the Code in my view would persuade the Court to hold that section 65 of the Code does not envisage scope of raising any objection in any party who is not acknowledged right or interest in the land in question. In other words proceedings under section 65 of the Code is not an adversely proceeding at all. If any interested party is apprehending any smart practice on any one in respect of land it can always take recourse to the civil court for obtaining appropriate injunction or prohibitory orders. When the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, atleast in my view, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. Or else it will lead to a situation where on account of showing semblance of some interest in the land in question or for that matter even substantive interest the party who has not been successful in establishing its right and obtain any prohibitory orders would succeed in thwarting and throttling the occupant of the land in question who is legitimately acknowledged to be occupant by revenue authorities. The N.A. Permission under section 65 cannot be said to be in any manner conferring and or abridging title of any one if it exists in the land in question. It is merely an act of granting permission by the authority qua the piece of land in question. In other words it can well be said that the land which was an agricultural land and it was supposed to put up to agricultural purpose, is decided to be freed from restrictions and permitted to be developed. Thus the permission is attached to the land in question and not to the person. Therefore in my view the interpretation of section 65 of the Code cannot be said to be in any manner rendering it to be adversarial proceedings at all.
21. Bearing the aforesaid proposition of law in mind when one examines the aspect of appeal preferred by the contesting respondents, one would find it difficult to accept as to how the right to appeal is said to have been conferred upon a third party who has failed in establishing any right before the civil court so far as the land in question is concerned. When the party has not obtained any order or has not been successful in obtaining any order in any manner from civil court, which is competent, i.e. only court to adjudicate upon and acknowledge their rights and title in the land in question, that party cannot be permitted to throw spanner in the wheels of development set in motion by the legitimate competent authority, whose entry is there in the revenue record. Therefore the appeal itself from the point of view of locus was also not obtained."
46. Thus, the above referred decision makes the legal position abundantly clear. The position, as on date, is that the order of Page 16 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022 C/SCA/1900/2022 JUDGMENT DATED: 11/07/2022 status quo passed by the Civil Court in the suit filed by the respondents Nos.3 to 17 has been stayed by this Court in an Appeal From Order No.16 of 2018. As on date, there is no prohibitory order operating against the writ applicants or in favour of the respondents Nos. 3 to 17. In such circumstances, what is the Collector expected to do while deciding an application seeking N.A. Permission. Indisputably, the names of the writ applicants figure in the record of rights as the owners of the subject land. The entry, mutating their names in the record of rights, is on the basis of the sale deed executed in their favour in the year 2006. The respondents Nos.3 to 7 are yet to obtain appropriate declaration as regards the legality and validity of the sale deed of the year 2006 executed in favour of the writ applicants. The only proceeding pending as on date is the civil suit filed by them."
Therefore, on both the counts, namely, on merits as well as considering the language of Section 65 of the Code, the order dated 20.2.2019 passed by the Collector, is erroneous and illegal, and is quashed and set aside.
20. In view of the aforementioned discussion, the Collector, is hereby directed to grant the NA permission in terms of the present judgment, within a period of two months.
21. The petition, is accordingly allowed. Rule is made absolute. No order as to costs.
22. Direct service is permitted.
(SANGEETA K. VISHEN,J) BINOY B PILLAI Page 17 of 17 Downloaded on : Mon Jul 25 00:00:31 IST 2022