Gujarat High Court
Rajendra Mulchand Verma vs State Of Gujarat on 27 April, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/11833/2021 ORDER DATED: 27/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11833 of 2021
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RAJENDRA MULCHAND VERMA
Versus
STATE OF GUJARAT
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,2,3,4
SHRENIK R JASANI(9486) for the Petitioner(s) No. 1,2,3,4
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 27/04/2022
ORAL ORDER
1. By way of present petition, the petitioners herein seek to challenge order/communication dated 20.05.2021 whereby ld. District Collector denied to pass any order inspite of there being specific directions by this Hon'ble court vide order dated 03.09.2020 in Special Civil Application No.10496 of 2020 to hear and decide the N.A.application in accordance of law after hearing the petitioner.
2. The brief facts giving rise to the present petition are as under:-
2.1 That as per the revenue records Patashiben Mulchand Verma i.e mother of the' petitioners was carrying agriculture activities on land bearing survey no. 1319 (old survey no. 252/ paiki 1) of Village - Zaroli, Taluka - Umargam, District - Valsad and land bearing Survey no. 673 (old survey no. 141/1), 674 (old survey no. 141/2) and 1219 (old survey no. 205/2) of Page 1 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022 C/SCA/11833/2021 ORDER DATED: 27/04/2022 Village - Tumb, Taluka - Umargam, District - Valsad. That, Patashiben Mulchand Verma desirous of doing more agriculture activities, has purchased land bearing survey no. 659 (old survey no. 140/2/paiki 1) by way of Registered Sale Deed no.
3497 dated 20.05.2006 from one Meharnos Jahagir, pursuant to which entry no. 3784 dated 12.10.2006 came to be mutated and certified.
2.2 That, upon demise of Patashiben Mulchand Verma on 30.07.2011, names of her legal heirs i.e (1) Rajendra Mulchand Verma i.e Petitioner no.1, (2) Tarachand Mulchand Verma i.e petitioner no.2, (3) Bajrangbali Mulchand Verma Petitioner no.3, (4) Babulal Mulchand Verma Petitioner no.4, came to be mutated in revenue records of land bearing survey no. 659 (old survey no. 140/2/paiki 1) i.e land in question, 673 (old survey no. 141/1), 674 (old survey no. 141/2), 1219 (old survey no. 205/2) vide Succession entry no. 4081 dated 29.08.2012. That, petitioners preferred application on 13.06.2020 before District Collector under section 65 of Bombay Land Revenue Code for conversion of land bearing Survey No. 659 (old survey no. 140/2/paiki 1) i.e land in question from agriculture use to Non- agriculture use, which came to be numbered as Application no. 32505202061014. That, to the shock and surprise District Collector vide order dated 04.07.2020 has rejected/ "filed" the application on untenable ground that a petitioners are not holding status of '"agriculturist" by way of Succession (varsai), therefore, petitioners cannot be termed as holding status of "agriculturist". That, the impugned order seems to be passed without application of mind and without even perusing the revenue records, since the petitioners have acquired rights in the Land in question by way of Succession Entry No. 4081 Page 2 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022 C/SCA/11833/2021 ORDER DATED: 27/04/2022 dated 29.08.2012 after the demise of there mother i.e Patashiben Mulchand Verma. That, District Collector is expected to discharge his duty with great care and caution, as one error on judgment may severely affect the rights of the citizens. Moreover, Mamlatdar and ALT who has powers to verify status of agriculturist under Tenancy Act has never declared the petitioners as non-agriculturist, even no such proceedings under Tenancy Act were ever initiated against the petitioners. Therefore, District Collector unlawfully and without application of mind has rejected the application preferred by the applicant to grant of N.A permission considering the petitioners as Non-Agriculturist. That, the said order being ex facie without jurisdiction came to be challenged before this Hon'ble Court by Special Civil Application, wherein this Hon'ble Court vide order dated 03.09.2020 was pleased to relegate the petitioners before the District Collector, to comply with the query raised by the District Collector. It was further observed that opportunity of hearing shall be given to the petitioners. Thereafter, the petitioner was called upon for hearing on 23.09.2020 by the District Collector, wherein it was submitted that "a. It is respectfully stated and submitted that the petitioners had acquired Status of agriculturist by way of Succession Entry no.4081 dated 29.08.2012, mutated in the land in question. That, said entry was mutated pursuant to demise of their mother Patashiben Mulchand Verma on 30.07.2011.
b. It is respectfully stated and submitted that the mother of the petitioner was holding several other Page 3 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022 C/SCA/11833/2021 ORDER DATED: 27/04/2022 parcels of land being land bearing survey no.1319 (old 252/1) situated at Village: Jaroli, Taluka: Umargam Dist.:
Valsad and land being land bearing Survey no.673 (old 145/1) and 674 (old 141/2) situated at Village : Tumb, Taluka : Umargam Dist. : Valsad.
c. It is respectfully stated and submitted that no proceedings under Section 84 (C) of the tenancy of the act was ever initiated for breach of Section 63 of the tenancy Act.
d. It is respectfully stated and submitted that even otherwise while deciding application under Section 65 of Bombay Land Revenue Code this Hon'ble Court has no powers to presume breach of Tenancy Act. That Hon'ble High Court in case of Laxmi Associate Vs. Collector, Vadodara reported in 2006 (3) GLR 1982 has laid down the said ratio. That recently Hon'ble High Court in Special Civil Application No. 19455 of 2018 once again reiterated that "it was not open for the respondent Collector to consider as to whether petitioner was an agriculturist or not and more particularly competent authority under Bombay Tenancy and Agricultural Land Act has till date not passed any adverse order against the petitioner by holding that the petitioner is not an agriculturist".
2.3 That, though heavy reliance was placed on the judgment rendered by this Hon'ble Court holding that while deciding N.A permission the authority has no jurisdiction to verify status of agriculturist of the applicant, the District Collector has called for opinion of Mamlatdar and ALT on aspect that whether the Page 4 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022 C/SCA/11833/2021 ORDER DATED: 27/04/2022 petitioners are holding status of agriculturist or not. Pursuant to which, the Mamlatdar and ALT on 07.11.2020 has called upon the petitioners to explain how their deceased mother has gained the status of agriculturist. To this detailed reply was submitted to the Mamlatdar and alt once again reiterated the legal and factual arguments before the Mamlatdar and ALT.
That, for considerable time the District Collector did not pass any orders, therefore, the petitioners inquired about the status of the application, wherein it was orally informed that since the N.A permission can only be considered if filed online, therefore it Was informed to the petitioners to file New online Application. Therefore, the petitioner preferred application on 09.03.2021 for grant of N.A permission. Thereafter, District Collector though observed that the names of the petitioners are entered into revenue records by way of succession entry, but the District Collector did not pass any orders, and directed the petitioners to once again file application for grant of N.A permission. That, this Hon'ble Court has specifically observed that after grant of hearing appropriate order may be passed, though by communication dated 20.05.2021 no orders were passed. Thereafter, the petitioners has already preferred application for grant of N.A permission upon oral instructions, which was numbered as application 32505202100706. That, to utter shock and surprise without any grant of opportunity of hearing the N.A permission came to be rejected by District Collector vide order dated 27.05.2021 on the non-germen ground that "mother of the petitioner is declared non agriculturist under Section 70 (b) of the Tenancy Act".
2.4 That, for the first time N.A application came to be rejected on the assumption that the petitioners are not holding Page 5 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022 C/SCA/11833/2021 ORDER DATED: 27/04/2022 status of agriculturist, thereafter heavy reliance was placed on the judgment rendered by this Hon'ble Court holding that while deciding N.A permission the authority has no jurisdiction to verify status of agriculturist of the applicant. Though, the District Collector once again rejected N.A application on more absurd ground that the mother of the petitioner who has expired way back in the 2011 is not agriculturist. Hence, the petitioners have preferred present petition.
3. Heard Mr.Vimal Purohit, learned advocate for the petitioners and Mr.Kanara, learned AGP for the respondent- State.
4. Mr.Purohit, learned advocate for the petitioners submitted that, impugned order is violating the order/directions passed by this Honourable Court in Special Civil Application No.10496 of 2020, in asmuchas no orders were passed in the previous application. He also submitted that impugned order is violating the order passed by this Hon'ble Court in Special Civil Application No.19455 of 2018 confirmed by Hon'ble Divisional Bench in Letters Patent Appeal No.937 of 2020, whereby this Hon'ble Court as observed in express terms that while considering the application for grant of N.A permission, the authority has no jurisdiction to verify the agriculturist status of any person. He further submitted that, District Collector being subordinate to Court was duty bound to follow the judgment passed by this Hon'ble Court. He further submitted that this Hon'ble has laid down in matter reported in 1996 (2) GLR 448, that the order passed this Hon'ble Court are binding upon the subordinate Courts. He also submitted that the order is under violation of the GR dated 01.07.2008, Page 6 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022 C/SCA/11833/2021 ORDER DATED: 27/04/2022 whereby it is clearly held that all the objections/queries shall be raised at a time only. That, in the present case both time the application is rejected on different grounds.
4.1 Mr.Purohit further submitted that if the District Collector was of the opinion that some further compliance or clarification is required at the hands of the petitioners, then the petitioners could have been called upon for necessary compliance. However, without issuing any notice and without affording any opportunity of hearing, the Collector refused to consider the application of the petitioners for N.A. permission in gross violation of the principles of natural justice. He also submitted that the legal aspect which goes to the root of the matter is that, while deciding application under Section 65 of Bombay Land Revenue Code revenue authority has no powers to verify status of agriculturist of the applicant. In this regard, he has relied upon decision of this Hon'ble High Court in the case of Laxmi Associate Vs. Collector, Vadodara reported in 2006 (3) GLR 1982. He further submitted that recently Hon'ble High Court in Special Civil Application No. 19455 of 2018 once again held that it is not open for the Collector to consider as to whether the petitioner is an agriculturist or not and more particularly competent authority under Bombay Tenancy and Agricultural Land Act has till date not passed any adverse order against the petitioner by holding that the petitioners are not "agriculturists", That, aforesaid order is upheld by Hon'ble Divisional Bench in Letters Patent Appeal No. 937 of 2020. That, the said order was not implemented by the District Collector, therefore, MCA for Contempt of the orders passed by this Hon'ble High Court came to preferred by the petitioners which was numbered MCA No.586 of 2020, wherein District Page 7 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022 C/SCA/11833/2021 ORDER DATED: 27/04/2022 Collector denied to implement the orders passed by this Hon'ble Court, therefore, this Hon'ble Court was constrained to implead the Additional Chief Secretary as party to the contempt proceedings, and thereafter the order was implemented and the N.A permission came to be granted without going into the aspect whether the person who has applied is agriculturist or not. That, though such orders were produced before the District Collector, though the application came to be rejected on the very same ground, even more absurd ground is given that the mother of the petitioner who already has expired is not having status of agriculturist. It is noteworthy to mention at this stage that the orders passed by this Hon'ble Court in identical matter is very much binding to subordinate Court. He further submitted that the District Collector ought to have appreciated that as per Government Circular dated 15-11-2001 only three aspects are to be verified for grant of N.A Permission.
4.2 In view of above submissions, he has prayed to allow present petition.
5. Per contra, learned AGP has supported the impugned order of the Collector and prayed to dismiss present petition.
6. Having considered the submissions made on behalf of both sides coupled with the material placed on record, it appears that the petitioners are claiming heir-ship as the land was belonging to their mother. It is undisputed fact that revenue entries have been mutated in the name of the petitioners on the basis of the heir-ship of deceased mother of the petitioners and, thereafter, they have applied for NA Page 8 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022 C/SCA/11833/2021 ORDER DATED: 27/04/2022 permission. It also emerges that, earlier also, the petitioners had approached this Court for grant of NA permission, wherein this Court had directed the Collector to decide the application of the petitioners afresh after affording an opportunity of being heard. It emerges that ultimately the Collector has rejected the application, which was preferred as per oral instructions to file it "online". Now, the application came to be filed on the ground that the mother of the petitioners was not an "agriculturist", however, it appears that no proceedings under the Tenancy Act were ever initiated against the mother of the petitioners during her life time.
7. A reference can be made to the decision of this Court in the case of Laxmi Associates (supra), wherein it was held that while exercising powers under one revenue law, the Collector cannot concurrently exercise powers vested in him under another revenue law. It is also observed therein that while dealing with an application under Section 65 of the Bombay Land Revenue Code, the Collector cannot exercise powers vested in him under any other revenue law.
8. It is well settled principle of law that the Collector is not entitled to go into the title of the land and is expected to decide the application within reasonable period of time as per the provisions of Section 65 of the Bombay Land Revenue Code. Now, admittedly in the present case, the Collector has not followed the law settled by this Court in various decisions and has passed the impugned order, which is not sustainable in the eyes of law. The Collector ought to have followed the Government Circulars, wherein detailed procedure is prescribed for dealing with an application under Section 65 of Page 9 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022 C/SCA/11833/2021 ORDER DATED: 27/04/2022 the Bombay Land Revenue Code for granting NA permission. It appears that the Collector has not followed that procedure and has rejected the application on another ground. When no inquiry under Tenancy Act during the lifetime of the mother of the petitioners was made, the Collector ought not to have exercised powers under another Act while dealing with an application for NA permission under Section 65 of the Bombay Land Revenue Code. Under these circumstances, the impugned order of the Collector deserves to be quashed and set aside and direction is required to be issued to him to consider application dated 9.3.2021 for grant of NA permission in accordance with settled legal principles within reasonable time.
9. In view of above, present petition is allowed. The impugned order/communication dated 27.05.2021 passed by District Collector, Valsad, in Application No.32505202100706 is quashed and set aside. Learned Collector, Valsad is hereby directed to decide the application dated 9.3.2021 preferred by the petitioners in accordance with settled legal principles, as laid down in various decisions of this Court. The Collector shall complete such exercise within a period of three months from the date of receipt of copy of this order. No order as to costs. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 10 of 10 Downloaded on : Wed Apr 27 21:23:05 IST 2022