C/SCA/21363/2022 ORDER DATED: 15/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21363 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 21364 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 21365 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 21366 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 21367 of 2022
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CHANDRAKANT PREMJIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 15/02/2023
COMMON ORAL ORDER
1. Rule. Learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent - State.
2. With the consent of the parties, the matters are taken up for final hearing today.
3. Learned advocate Mr.Maulik M. Soni, appearing for the petitioner has tendered an affidavit in form of undertaking in the captioned writ petitions. The same is ordered to be taken on record.
4. The present writ petitions are filed for quashing and setting aside the impugned order dated 22.09.2022 passed by the District Collector, Arvalli in the respective applications of Page 1 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 the petitioner. A further prayer is made to issue appropriate direction upon the District Collector, Arvalli to accept the charge of the non-agricultural (N.A.) permission for multipurpose (industrial purpose).
5. The matters are governed with the peculiar set of facts. The petitioner purchased old tenure agriculture land bearing new Survey No.652 (old Survey No.184/32), new Survey No.701 (Old Survey No.184/31), new Survey No.698 (old Survey No.184/29), new Survey No.700 (old Survey No.184/30) and new Survey No.697 (old Survey No.184/28), situated at village Shinvad, Taluka Modasa, District Arvalli, by a registered sale deed dated 08.06.2022 and accordingly, Entry No.4951 has been mutated in the revenue records, which has been certified on 12.08.2022. After purchase of the said land, the petitioner wanted to convert the same into N.A. use, hence, he filed an application before District Collector, Arvalli seeking such permission on 13.08.2022, which has been rejected on 22.09.2022 by observing that the title of the land in question is not clear.
6. At the outset, learned advocate Mr.Maulik Soni, appearing for the petitioner has submitted that the petitioner is constrained to challenge the aforesaid order before this Court without availing alternative remedy before the Special Secretary, Revenue Department (SSRD) since the petitioner has purchased the aforesaid land for setting up an industry for Ethanol Blended with Petrol, as per the notification issued by the Central Government dated 06.10.2022. It is submitted that Page 2 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 if the petitioner is unable to avail loan by 31.03.2023, his entire project will be jeopardized and the approval granted for such project would be cancelled.
6.1 Learned advocate Mr.Soni, while placing reliance on the judgment of this Court in the case of Tusharbhai Harjibhai Ghelani vs. State of Gujarat, 2019 (4) G.L.R. 2578 has submitted that while processing an application for NA permission under Section 65 of the Gujarat Land Revenue Code, 1879 (hereafter referred to as "the Code"), the authorities are only required to verify two aspects as mentioned in the said order, and since the petitioner is qualifying the aforesaid aspects, NA permission could not have been rejected on the ground that the title of the land is not clear.
6.2 Learned advocate Mr.Soni, has further submitted that the aforesaid land purchased from Tathith Energies Gujarat Pvt. Ltd., was granted permission under Section 63AA of the Gujarat Tenancy and Agricultural Lands Act, 1948 (for shot "the Tenancy Act") vide order dated 21.08.2012 and accordingly, the aforesaid land was required to be used for industrial purpose within a period of three years, however since Tathith Energies Gujarat Pvt. Ltd., did not commence any industry production or used the land for industrial purpose before period of three years got over, it filed an application before the Collector, Arvalli to allot the land in question to its original owners. Accordingly, on 11.06.2015, the Collector, Arvalli returned the land to its original owner and from them, Page 3 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 the petitioner has purchased the land in question. It is further submitted that before applying for NA permission an amount of Rs.67,00,000/- towards the deficit stamp duty, which was required to be paid by Tathith Energies Gujarat Pvt. Ltd., has already been paid by the petitioner.
6.3 Learned advocate Mr.Soni has further submitted that after clearing the dues and obtaining necessary permission from all the respective authorities, the petitioner is desirous to use the land in question for the purpose of setting up a plant of Ethanol Blended with Petrol, hence, the Collector could not have rejected the application seeking NA permission by doubting the title of the land in question.
6.4 Learned advocate Mr.Soni, has further submitted that today the petitioner has also filed an affidavit in the form of an undertaking stating that the NA permission may be granted subject to further orders passed in any of the proceedings, if any, filed by the State Government.
6.5 Thus, it is urged that looking to the urgency in the matter, appropriate orders may be passed.
7. Per contra, learned AGP Mr.Kanara, has submitted that in fact, initial order dated 11.06.2015 passed by the Collector, Arvalli directing the land to be re-granted to the original owners itself is illegal and against the provisions of Section 63AA, sub-section (5) of the Tenancy Act. It is submitted that sub-section (5) of the Tenancy Act, was amended vide Page 4 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 Notification dated 05.12.2015 and prior to that the only difference between newly added section and old section is that after the land in question, which is allotted for industrial use and such use, for which, the land is granted and no production is commenced or no services are provided within a stipulated time period of three years, the land is required to be vested in the State Government and thereafter, it has to be disposed of in the manner as determined by the State Government. It is submitted that in the present case, since the petitioner is a beneficiary of the land, which was required to be allotted or vested in the State Government by order of the Collector dated 11.06.2015, the NA permission cannot be granted.
7.1 Learned Assistant Government Pleader Mr.Kanara, has further submitted that admittedly Tathith Energies Gujarat Pvt. Ltd., to whom the land was granted under the provisions of Section 63AA of the Tenancy Act for using the land for industrial purpose, did not commence any production and hence, the land was required to be vested in the State Government instead of being allotted or re-granted to the original owner. It is thus submitted that the original land owner also has no right, title or interest over the land in question, as it was required to be vested in the State Government. Finally, learned Assistant Government Pleader Mr.Kanara, has submitted that the order dated 11.06.2015 passed by the Collector, Arvalli ordering re-grant of land to the original owner. The State Government has filed a revision application before the SSRD. The petitioner can also approach the SSRD against the impugned order and both the respective parties Page 5 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 may be heard on the issues, which are raised in the present petition. Thus, it is submitted that the writ petition may not be entertained and if any order is passed in favour of the petitioner for granting NA permission, the same may be made subject to further proceedings initiated by the petitioner as well as the respondent State authorities.
8. I have heard the learned advocates appearing for the respective parties.
9. As mentioned hereinabove, there are peculiar facts in the present case. The petitioner, in order to setup a plant of Ethanol Blended with Petrol, pursuant to the scheme of the Central Government, purchased the land in question vide sale deed dated 08.06.2022. It is also not in dispute that in the Notification dated 06.10.2022, in order to implement the scheme of Ethanol Blended with Petrol production is concerned, the industry has to obtain the loan from the Bank by 31.03.2023. The petitioner has completed all the formalities for the project of production of Ethanol and after purchase of the land and also obtaining No Objection Certificate (NOC) from the department when he approached the respondent authorities for granting NA permission, the same is refused for the reason that the title of the land is unclear vide order dated 22.09.2022.
10. The facts which emerge from the pleadings are that the land in question was allotted to Tathith Energies Gujarat Pvt. Ltd., vide order dated 21.08.2012 containing some terms and Page 6 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 conditions. One of the conditions was that Tathith Energies Gujarat Pvt. Ltd. has to commence the production or use the land for industrial use within a period of three years, failing which, such allotment would stand cancelled. Before completion of three years, Tathith Energies Gujarat Pvt. Ltd., filed an application before the Collector, Arvalli requesting to grant the land in question to the original owner and accordingly, on the application filed by Tathith Energies Gujarat Pvt. Ltd., on 09.04.2015 i.e. before the completion of three years, the Collector by the order dated 11.06.2015 ordered that the land to be again vested to the original owner with condition that it shall pay the requisite stamp duty. Thus, Tathith Energies Gujarat Pvt. Ltd., was ordered to be paid the requisite stamp duty since he has not utilized the land for the purpose, it was granted. Pursuant to the aforesaid order, which was passed by the Collector ordering the land in question to be restored to its original owners, who in turn sold the land in question to the petitioners. It is not in dispute that the order dated 11.06.2015 passed by the Collector Arvalli directing the land in question to be restored to its original status to the original land owners, is not set aside by any forum. It is pertinent to note that during the course of hearing of this petition, the State Government has thought it fit to challenge the order dated 11.06.2015 before the SSRD by filing an Application No.Ganot/SU/ARV/1/2023. Thus, the petitioner, who sought NA permission for the land in question would be facing another litigation, which has been filed by the State Government, during the pendency of this petition, challenging the order dated 11.06.2015. Be that as it may, the petitioner Page 7 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 cannot be made to suffer for approach of the Collector, Arvalli who passed the order dated 11.06.2015. It is alleged that the said order is against the provisions of the Gujarat Tenancy and Agricultural Lands Act, 1968, more particularly, sub-section (5) of section 63AA the Tenancy Act, which reads as under : -
"63AA (5) Where the Collector after making such inquiry deems fit and giving the purchaser an opportunity of being heard comes to the conclusion that the purchaser has failed to commence production of goods or providing of services within the period as specified in clause (b) of sub-section (4), or the period extended under the provisos to the clause, the land shall vest in the State Government free from all encumbrances on payment to the purchaser of such compensation as the State Government may determine and such land shall be disposed of by the State Government in the manner as may be prescribed.] "
11. Sub-section (5) of Section 63AA of the Tenancy Act has been introduced by Notification dated 05.12.2015, the only difference between the former sub-section (5) and new sub- section is with regard to non-use the land or failing to commence production in the land so allotted. In the old section the power was vested to the Collector, however in the newly introduced section the powers have been vested to the State Government. It is the case of the State Government that the Collector has wrongly exercised his powers by allotting the land to the original owners, instead of vesting the land to the State Government as per the aforesaid provision of Section 63AA of the Tenancy Act. At this stage, I am not inclined to opine anything with regard to any violation of the provision of sub-section (5) of Section 63AA of the Tenancy Act, since the State authority has already decided to challenge the same by filing Revision Application.
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12. At this stage, it would be apposite to refer to the observations made by this Court in the case of Tusharbhai Harjibhai Ghelani ((supra)). The Coordinate Bench of this Court has specifically held thus : -
"36. In section 65 of the Code, referred to above, two words are of pivotal importance; (i) "occupant" and (ii) "holding". Section 3(12) defines the term "holding". It reads as under; "3(12):-"holding":-"holding" means a portion of land held by a holder"
37. Section 3(16) defines the term "occupant". It reads as under; "3(16):-"occupant"; "occupant means a holder in actual possession of unalienated land, other than a tenant; provided that where the holder in actual possession is tenant the landlord or superior landlord, as the case may be, shall be deemed to be the occupant."
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 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 Page 9 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 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."
13. The Coordinate Bench, after examining the provisions of Section 65 of the Code, has specifically enunciated that while examining the application for NA permission, the Collector has only to see that the land in question is held or occupied by the Page 10 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 occupants and the revenue record shows his / her name. It is also not in dispute that the sale deed, through which the petitioner has purchased the land in question, is not yet challenged by anyone or is declared void. The Coordinate Bench has also placed reliance on the judgment of the Supreme Court in the case of State of Gujarat v. Patel Raghav Natha, (1969) 2 S.C.C. 187, where it is held that the issue of question of title could not have been examined while examining the application for NA permission.
14. The petitioner today has filed an undertaking before this Court that he will not utilize the fund, which he would be procuring by way of loan and also he would not be making any construction on the land in question till the revision application filed by the State is decided by the SSRD. It is also mentioned in the undertaking that NA permission may accordingly be conditionally granted.
15. Thus, in view of the settled proposition of law and the undertaking filed by the petitioner in wake of the fact that the State authorities has challenged the order dated 11.06.2015 by filing the revision application before the SSRD, the State authority is directed to grant NA permission to the petitioner subject to the result of the Revision Application No.Ganot/SU/ARV/1/2023 as expeditiously as possible but not later than 01.03.2023.
16. It goes without saying that the Court has not expressed any opinion with regard to validity of the order dated 11.06.2015 and it will be open for the respective parties to Page 11 of 12 Downloaded on : Fri Feb 17 20:48:11 IST 2023 C/SCA/21363/2022 ORDER DATED: 15/02/2023 take all available contentions before the SSRD. It is also directed that since there is urgency shown by the petitioner with regard to the cancellation of the project by 31.03.2003, in case, they are unable to obtain the loan, the present order is passed in peculiar set of facts, and the present order shall not be treated as precedent. The petitioner is directed that in case the loan is availed by him, he shall not use the same for any purpose and it is further directed that the petitioner shall not also carry out any construction without getting approval of the SSRD.
17. As noticed hereinabove, the revision application requires urgent hearing as the entire project of the petitioner is installed. Hence, the SSRD shall decide the Revision Application filed by the State authorities being Revision Application No.Ganot/SU/ARV/1/2023 within a period of 12 weeks.
18. In view of the above, the present petition is allowed. The impugned order dated 22.09.2022 passed by the District Collector, Arvalli is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
Sd/- .
(A. S. SUPEHIA, J)
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