Gujarat High Court
Gosai Manipuri Shivpuri vs Gujarat Industrial Development ... on 28 October, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16124 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 16124 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
================================================================
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 ?
================================================================
GOSAI MANIPURI SHIVPURI & 1 other(s)
Versus
GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION & 1 other(s)
================================================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1,2
MR NIKUNJ KANARA, AGP (1) for the Respondent(s) No. 3
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 1
MR MB GANDHI(326) for the Respondent(s) No. 1
MR PRANAV V SHAH(2516) for the Respondent(s) No. 2
================================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 28/10/2021
ORAL JUDGMENT
1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs:-
Page 1 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021 "(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned communication dated 21.07.2018 issued by the respondent no.1 herein (Annexure-D);
(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions by directing the respondent no.2 herein to consider and grant N.A. permission in favour of the petitioners herein for the land situated at Revenue Survey No.714 (Old Block No.993) admeasuring about 13826 Sq. Mt. of Village:-Vitthalpura, Taluka-Mandal, Dist:-Ahmadabad;
(B-1) YOUR LORDSHIP may be pleased to direct Opponent No.3-District Collector to consider and grant N.A. Permission for the land in question.
(C) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to direct respondent no.2 herein to consider and grant N.A. permission in favour of the petitioners herein for the land situated at Revenue Survey No.714 (Old Block No.993) admeasuring about 13826 Sq. Mt. of Village:-Vitthalpura, Taluka-Mandal, Dist:-Ahmadabad;
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;"
2. Heard Mr.S.P.Majmudar, learned advocate for the petitioners, Mr.Chinmay Gandhi, learned advocate for respondent no.1 and Mr.Nikunj Kanara, learned AGP for respondent nos.2 and 3.
3. The brief facts of the case are that the suit land bearing Revenue Survey No.714 (Old Block No.993) admeasuring about 13826 sq.mtrs. of Village-Vitthalpura, Taluka-Mandal, District-
Page 2 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021 Ahmedabad, and other lands of the adjoining villages were sought to be acquired in the year 1992 for the purpose of establishing industrial unit for Gujarat Industrial Development Corporation (GIDC). It is contended that the acquisition proceedings have lapsed in view of coming into force of the New Act in the year 2013 and, therefore, at present there is no acquisition proceeding pending for the land in question. According to the petitioner, it has purchased the said land by registered Sale Deed dated 3.1.2018 and has applied for NA permission before respondent no.2 and sought permission, partially for commercial construction and partially for residential construction. It is contended that upon that application, respondent no.2 has sought opinion from all the concerned authorities. According to the petitioner, except respondent no.1, all other authorities have given positive opinion for grant of NA permission to the petitioners. It is alleged that respondent no.1, by way of communication dated 21.7.2018, raised objections against grant of NA permission in favour of the petitioners on the ground that the Corporation has not dropped the purpose of establishing industrial unit and requested respondent no.2 not to grant NA permission in favour of the petitioners. It is contended that, due to that communication, the revenue authority is not proceeding with the application of the petitioners for NA permission. It is contended that respondent no.1 has no right or jurisdiction to raise any objections since acquisition proceeding has already lapsed and a communication made by respondent no.1 is contrary to the provisions of the Gujarat Land Revenue Code.
3.1 Mr.Majmudar, learned advocate for the petitioners has also submitted that since earlier acquisition proceeding has Page 3 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021 C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021 lapsed and no further proceedings have been initiated under the New Act, respondent no.1 has no right or authority to object to grant of NA permission to the petitioner. While referring to Section 65 of the Gujarat Land Revenue Code, he has submitted that any occupier of the land can apply for NA permission and there is no need to show any title of the land. While referring to the documentary evidence produced on record, he has submitted that as per the communication dated 5.11.2018 by SOD, GIDC, addressed to the Under Secretary, Revenue Department, Gandhinagar, earlier acquisition proceeding has lapsed and no compensation has been paid to the owners as no acquisition proceeding has been initiated by GIDC.
3.2 Mr.Majmudar, learned advocate for the petitioners also contended that it is between the petitioners and the revenue authority as to the grant of NA permission to the petitioners and GIDC being a third party has no authority or right whatsoever to raise any objection. He has submitted that as per the stand taken by GIDC they are contemplating to acquire the land. However, according to him, such contemplation cannot come in the way of the petitioners to get NA permission. He has submitted that even if acquisition proceeding is started then GIDC can always acquire the land under the provisions of the New Act and if NA permission is granted, it will not have any adverse effect upon the rights of GIDC. He has prayed to allow the petition by directing the competent authority to consider the application for NA within specified period. He has relied upon following decisions:-
Page 4 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021
(i) Khimjibhai Pragjibhai Koshiya v. State of Gujarat reported in 2020 JX Gujarat 24.
(ii) Surat Municipal Corporation v. Bhikhabhai Morarbhai Patel reported in 1994 (2) GLR 947.
(iii) Tusharbhai Harjibhai Ghelani v. State of Gujarat reported in 2019 (4) GLR 2578.
4. Learned advocate Mr.Gandhi for respondent no.1 has vehemently submitted that the land in question is part of GIDC, which is shown in blue colour in the map at page 83. According to him, said portion of land is left out from acquisition. While referring to the affidavit filed on behalf of GIDC, Mr.Gandhi has vehemently submitted that the land in question is in Village- Vitthalpura, wherein Japanese Industrial Estate has been developed and it is allotted to a Japanese Company. He has also submitted that the land in question was not acquired due to coming into force of the New Acquisition Act. According to him, GIDC has not dropped the project of acquisition for developing industrial estate at Vitthalpura Village, however, only a parcel of land is not acquired, which is forming part of the fully developed estate, therefore, a decision needs to be taken by the higher officials and authorities together with the Government as to whether to continue with acquisition of the remaining part of the land, which is forming part of Japanese Estate. He submitted that therefore the GIDC has requested DDO not to grant NA permission to the petitioners. He also submitted that if the petition is allowed then there will be multiplicity of proceedings. He has also submitted that recently he has received instruction on 12.10.2021 that GIDC is still in contemplation of acquiring the land in question, and the acquisition may start in near future. He has prayed to dismiss the petition.
Page 5 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021
5. Learned AGP Mr.Nikunj Kanara for respondent nos.2 and 3 submitted that due to the objections raised by GIDC, the revenue authority has, at present, declined NA permission.
6. Having considered the submissions made on behalf of both sides, coupled with the material placed on record and the decisions cited at bar, it clearly transpires that the provisions contained in Section 65 of the Gujarat Land Revenue Code deals with the issue regarding entitlement and granting of NA permission to a person in occupation of the land. Section 65 of the Gujarat Land Revenue Code reads as under:-
"65. Uses to which occupant of land for purposes of agriculture may put his land.- (1) Any occupant, of land [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.
Procedure if occupant wishes to apply his land to any other purpose.- But, if any occupant wishes to use his holding or any part thereof for any other purpose 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 acknowledgment 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 acknowledgment within seven days from the date of Page 6 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021 C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021 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 occupant.
(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 C/SCA/494/2015 JUDGMENT 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)."
7. At this juncture, it is worthwhile to refer to the decision of this Court in the case of Tusharbhai Harjibhai Ghelani (supra), wherein it is observed as under:-
"25. The power to grant permission for use of land for non- agricultural purpose is an executive power or a power of an administrative character. What is the scope of interference with an administrative order in a writ petition under Article 226 of the Constitution is also an issue which deserves consideration.
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 Page 7 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021 C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021 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 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.
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 Page 8 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021 C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021 Gujarat, 2012 (2) GLR 1741. I may quote the relevant 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, at least 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, Page 9 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021 C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021 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."
7.1 Thus, so far as NA permission under Section 65 is concerned, it is not necessary that the person has to prove his title to the land for which he makes an application. Admittedly, in this case, acquisition proceedings started earlier have lapsed due to coming into existence of the New Act. It is also undisputed fact that till today no acquisition proceeding has been initiated under the New Act, however, the stand taken by GIDC is regarding contemplation to acquire the land in future. However, no time limit is pleaded or put-forth for initiating the acquisition proceedings under New Act. There is no legal provision providing for time limit within which the authority concerned commences acquisition proceedings. Under these circumstances, if on the basis of contemplation of acquisition proceedings NA permission is denied, its effect would be that the petitioners being owners of the subject land, they would be deprived of its use, as the contemplation may continue till approval of the orders. Further, even if the proposed acquisition of the subject land is initiated in future, it would have no adverse effect and it will not create any impediment in such acquisition.
8. In view of aforesaid facts and circumstances of the case, this Court is of the considered view that this petition deserves to be allowed. Accordingly, this petition is allowed with a direction to the revenue authority to consider the application Page 10 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021 C/SCA/16124/2018 JUDGMENT DATED: 28/10/2021 of the petitioners for grant of NA permission in relation to the land bearing Revenue Survey No.714 (Old Block No.993) admeasuring about 13826 sq.mtrs. of Village-Vitthalpura, Taluka-Mandal, District-Ahmedabad, and decide the same within a period of three months from the date of receipt of order of this Court, keeping in mind the observations made herein above. This exercise be undertaken ignoring the objections raised by GIDC. Rule is made absolute to the above extent. No order as to costs.
ORDER IN CIVIL APPLICATION In view of above order in main petition, Civil Application does not survive for any order. Accordingly, Civil Application is disposed of.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 11 of 11 Downloaded on : Fri Oct 29 08:55:17 IST 2021