C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9588 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO.1 of 2021
In R/SPECIAL CIVIL APPLICATION NO.9588 of 2020
With
R/SPECIAL CIVIL APPLICATION NO.10454 of 2020
With
R/SPECIAL CIVIL APPLICATION NO.12971 of 2020
With
R/SPECIAL CIVIL APPLICATION NO.14072 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-.
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?
================================================================ JASWANTBHAI ISHWARBHAI PATEL LH AND REPS OF DECD ISHWARBHAI AATMARAM Versus PARESH KANTILAL PATEL ================================================================ Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE WITH MR SUNIL S JOSHI(2925) for the Petitioner(s) No. 1 MR ANSHIN DESAI, SENIOR ADVOCATE WITH MR P B KHAMBHOLJA(5730) for the Respondent(s) No. 1,2,3 MR RONAK RAVAL, AGP for the Respondent(s) No. 4,5,6 ================================================================ CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA Date : 24_/02/2023 CAV JUDGMENT Page 1 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 (1) The captioned writ petition, being Special Civil Application No.9588 of 2020, is taken up as a lead matter.
(2) The writ petition emanates from the order
dated 07.03.2020 passed by the Secretary
(Appeals), Revenue Department, State of
Gujarat, Ahmedabad i.e. the respondent No.6
("the SSRD" for short) in Revision
Application No.MVV/ BKP/AMD/38 of 2019. By the said order, the SSRD has rejected the revision application preferred by the petitioners and confirmed the order dated 07.06.2019 passed by the respondent No.5-District Collector, Ahmedabad, for the land bearing Block No.701/D, granting NA permission to the private respondents.
(3) The brief facts leading to the filing of the present petition are as follows:-
3.1) The dispute pertains to the agricultural lands bearing Survey Nos.545 and 546, situated at Village Ghuma, Taluka Daskroi, District Ahmedbad, which were originally owned by one Jiviben d/o Verabhai Shivabhai and the grandfather of the petitioner - Aatmaram Manorbhai, who was registered as a tenant of Page 2 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 the land bearing Survey No.546 and one Khodabhai Galabdas was the tenant of another land bearing Survey No.545.
3.2) The Mamlatdar and ALT, Daskroi, Ahmedabad initiated proceedings under Section 32G of the Gujarat Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act", for short). By order dated 07.05.1963, the land bearing Survey No.545 was returned to the original landowner
- Jiviben d/o Verabhai Shivabhai for self- cultivation. Accordingly, an entry in this regard was mutated being Entry No.3191 in the revenue records on 10.10.1978.
3.3) It is the case of the petitioner that so far as the remaining land of Survey No.546 is concerned, an inquiry under Section 32G of the Tenancy Act, was undertaken and statutory purchase thereof was declared "ineffective" under Section 32G(4) of the Tenancy Act, vide order dated 18.02.1978 on the ground that the tenant is unwilling to purchase the said land. It is asserted by the petitioner that two different orders were passed under Section 32G of the Tenancy Act, as a result thereof, the land bearing Survey No.545 was granted / returned back to the original landowner for Page 3 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 self-cultivation and so far as the land bearing Survey No.546 is concerned, the purchase thereof was declared ineffective and consequently, the right, title and interest of the landowner qua the land bearing Survey No.546 came to an end.
3.4) Both the lands of the aforesaid survey numbers were consolidated and given Block No.701, it appears that, thereafter the original landowner executed a registered sale deed dated 31.03.1982 with respect to the Block No.701 in favour of the father of the respondent Nos.1 to 3 - i.e. Kantibhai Somabhai Patel.
3.5) It appears that the purchasers made an application to the concerned Mamlatdar and ALT of Survey Nos.545 and 546 i.e. Block No.701 for correction of mutation of the entry. The said application was numbered as Tenancy Case No.30 of 1994, which was disposed of by the Mamlatdar and ALT by an order dated 17.04.1995.
3.6) Thereafter, the respondent Nos.1 to 3 made an application before the District Development Officer (DDO), Ahmedabad seeking permission Page 4 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 for change of user for the entire Block No.701 from agricultural to non-agricultural purpose. Pursuant to the negative opinions expressed by the Mamlatdar and ALT as well as the Deputy Collector to the DDO, further directions were issued to the Mamlatdar and ALT by the Deputy Collector to undertake further procedure for the disposal of the land bearing Survey No.546 of Block No.701 under Section 32P of the Tenancy Act and Tenancy Case No.91 of 2006, is still pending before the Mamlatdar and ALT, Daskroi. Thereafter, the respondent Nos.1 to 3 again moved the District Collector, Ahmedabad requesting for conversion of the land bearing Block No.701 for non-agricultural use. Based on the negative opinions of the authorities, the District Collector, Ahmedabad vide order dated 11.03.2016 rejected the application for NA. Once again, on 06.05.2016, the respondent Nos.1 to 3 sought similar permission from the District Collector, Ahmedabad, however the same was also rejected by the order dated 25.07.2016.
3.7) It appears that thereafter, the respondent Nos.1 to 3 filed an application before the concerned Mamlatdar and ALT, Daskroi for reviewing or deleting the words "purchase Page 5 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 ineffective" from the second rights column of Village Form No.7/12 of the disputed land and by the order dated 31.07.2018, the Mamlatdar and ALT removed the words "purchase ineffective" and inserted Entry No.3191 in the revenue record.
3.8) The respondent Nos.1 to 3 preferred Revision Application No.MVV/BAKHAP/AMAD/3 of 2019 before the SSRD challenging the order dated 11.03.2016 passed by the District Collector, Ahmedabad rejecting their application for NA. The SSRD vide order dated 16.03.2019 disposed of the revision application by directing the District Collector to decide the application for NA on merits.
3.9) Pursuant to the aforesaid order, the respondent Nos.1 to 3 filed application dated 20.03.2019 with regard to the land in question i.e. the Block No.701/D, which was divided from Block No.701. The Mamlatdar and ALT, Daskroi and the Deputy Collector, Ahmedabad gave their positive opinions dated 09.05.2019 and 20.05.2019 and as a consequence thereof, the NA permission was granted vide order dated 07.06.2019 to the respondent Nos.1 to 3 by the District Collector, Ahmedabad.
Page 6 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 3.10)Being aggrieved, the petitioner assailed the said order dated 07.06.2019 passed by the District Collector granting NA permission before the SSRD by filing Revision Application No.MVV/BKP/AMD/38 of 2019, which has been rejected by the impugned order dated 07.03.2020.
SUBMISSIONS OF THE PETITIONER:
(4) Learned Senior Advocate Mr.Mihir Thakore, appearing with learned advocate Mr.Sunil S. Joshi, for the petitioner has contended that the impugned order is required to be quashed and set aside since the authorities below have failed to notice that the registered sale deed dated 31.03.1982 with regard to the land in question having purchased by the father of the respondent Nos.1 to 3 and for which, Entry No.3639 is also posted in Village Form No.6 itself is illegal, non est and void ab inito.
4.1) Learned Senior Advocate Mr.Thakore, has submitted that as on the tiller's day i.e. on 01.04.1957, as stipulated in Section 32 of the Tenancy Act, every tenant of an agricultural land is deemed to have purchased such land and Page 7 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 hence, the said land could not have been sold to the father of the respondent Nos.1 to 3.
4.2) While inviting the attention of this Court to the provisions of Section 32 read with Section 32P(1) of the Tenancy Act, it is submitted that the land bearing Survey No.546 of which the statutory purchase of the land was declared ineffective, the right, title and interest of the landowner qua the said land came to an end and the same had become available to the State Government for its disposal, after following the provisions of Section 32P of the Tenancy Act.
4.3) Learned Senior Advocate Mr.Thakore, has further submitted that by the order dated 18.02.1978 passed by the Mamlatdar and ALT in Ganot Case/Ghuma/3552/78, the statutory purchase of the disputed land i.e. Survey No.546 was declared ineffective and the said order was mutated in the revenue record vide Entry No.3190 dated 10.10.1978.
4.4) It is submitted that for the land bearing Survey No.546, an inquiry under Section 32G of the Tenancy Act, was undertaken, wherein it Page 8 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 was recorded that the tenant is not willing to purchase the said land vide order dated 18.02.1978, hence the Mamlatdar and ALT, Daskroi declared the statutory purchase as ineffective and the said order was mutated in the revenue record vide Entry No.3190 dated 10.10.1978.
4.5) Learned Senior Advocate Mr.Thakore, while placing reliance on the order dated 17.04.1995 passed in Tenancy Case No.30 of 1994 by the Mamlatdar and ALT has submitted that in fact, the land pertains to Survey No.545 only and not from Survey No.546, since the order refers to the Entry No.3191 with respect to the land bearing Survey No.545 and not Survey No.546. It is submitted that the order dated 17.04.1995 is completely misinterpreted by the SSRD. It is submitted that though the respondent Nos.1 to 3 were very well aware that the seller of the landowner had no title, so far as the land bearing Survey No.546 is concerned, however the father of respondent Nos.1 to 3 has chosen to purchase the said land, which was under the control of the administration of the State Government for its disposal.
Page 9 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 4.6) Learned Senior Advocate Mr.Thakore, has submitted that despite the earlier negative opinions given by the very same authorities, finally the NA permission is granted to the respondent Nos.1 to 3 on the positive opinions of the Mamlatdar and ALT and the Deputy Collector by stating that there is no breach of Section 63 of the Tenancy Act and the applicants are the agriculturists. It is submitted that in the instant case, apart from Section 63 of the Tenancy Act, the proceedings under Section 32P of the Tenancy Act is still pending with regard to the disputed land and hence, no such permission could have been granted by the District Collector.
4.7) Learned Senior Advocate in support of his submissions, have placed reliance on the judgment of the Division Bench of the Bombay High Court in the case of Subhash Govind Bhanushali Vs. State of Maharashtra, 1998 (1) MhLJ 595. It is submitted that as per the decision of the Division Bench of the High Court of Bombay, as per the provisions of Section 32 of the Tenancy Act, the land is deemed to have been vested in the Government, after the title is divested from the tenant and hence, the land can only be disposed of in Page 10 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 the manner prescribed under Section 32P of the Tenancy Act. Reliance is also placed by the learned Senior Advocate Mr.Thakore, on the decision of the Supreme Court in the case of Jagdishchandra Girjashanker vs. Mohanbhai Hathibhai (deceased), (2002) 10 S.C.C. 540 in this regard.
4.8) Reliance is also placed on the decision of the Coordinate Bench of this Court in the case of Kalpeshbhai Natwarlal Patel Vs. State of Gujarat and Anr., 2009 (3) G.L.H. 372. Similarly, reliance is placed on the decision of the Supreme Court in the case of Amrit Bhikaji Kale and Ors. vs. Kashinath Janardhan Trade and Anr., (1983) 3 S.C.C. 437. By placing reliance on the aforesaid judgments, the learned Senior Advocate has submitted that the impugned order may be set aside.
SUBMISSIONS OF RESPONDENT NOS.1 to 3:
(5) In response to the aforesaid submissions, learned Senior Advocate Mr.Anshin Desai, appearing with learned advocate Mr.Khambholja, for the private respondents has submitted that the writ petitions are required to be rejected at the threshold, since the petitioner, in Page 11 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 order to extort the money from the respondents, have raised objections against the sale deed, which was registered in the year 1982. It is submitted that as on the tiller's day i.e. on 01.04.1957, admittedly the grandfather of the petitioner was a tenant of the said land and, therefore, he had become the deemed purchaser of the land bearing Survey No.546 and hence, the right, title or interest of the landowner qua the same land were extinguished. It is submitted that the petitioner has no locus to file the writ petitions challenging the aforesaid orders since the tenant at the relevant time, had shown his unwillingness to purchase such land and by the operation of law, the ownership of the landowner, get extinguished under the provisions of Section 32 of the Tenancy Act. Thus, it is submitted that since the right and title of the petitioner got extinguished by the operation of the provisions of Section 32 of the Tenancy Act, the petitioner cannot question the sale deed or the purchase of the land as well as the grant of NA permission.
5.1) Learned Senior Advocate Mr.Desai has placed reliance on the orders dated 18.02.1978 and 10.10.1978 and has submitted that the said Page 12 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 orders categorically record that the grandfather of the petitioner - Aatmaram Manorbhai was cultivating the land as a tenant and, therefore, father of the petitioner is entitled to purchase the land, as he is the deemed purchaser but he was not willing to purchase the said land and hence, the same does not result in a situation, where a tenant ceases to be the tenant of the land.
5.2) Learned Senior Advocate Mr.Desai, has submitted that after passing of the aforesaid order under Section 32G(3) of the Tenancy Act declaring statutory purchase ineffective, the proceedings under Section 32P(2)(b) of the Tenancy Act have been initiated and are still pending before the Mamlatdar and ALT, Daskroi. It is submitted that the aforesaid order dated 18.02.1978 has become final and no appeal is preferred against the same. While referring to the order dated 17.04.1995 passed in Tenancy Case No.30 of 1994, learned Senior Advocate Mr.Desai has submitted that it has been categorically recorded in the said order that the rights of the tenant have been determined pursuant to the cases conducting under the Tenancy Act i.e. the order dated 18.02.1978 passed in passed in Ganot Case/Ghuma/3552/78, Page 13 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 which relates to Survey No.545 and not from Survey No.546.
5.3) Learned Senior Advocate Mr.Desai has further submitted that the order dated 17.04.1995 refers to Survey No.546 also, which is not challenged by the petitioner and the same refers to the proceedings of 32G as well as Section 32P of the Tenancy Act. It is submitted that the aforesaid orders have been confirmed in the revision by the order dated 16.09.1997 (at page 153A), which is also not challenged by the petitioners.
5.4) Learned Senior Advocate has also referred to the deposition of one Jasubhai Chhabdabhai Patel recorded in Tenancy Case No.384 of 1995 and has submitted that the aforesaid deposition refers that the land in question i.e. Block No.701 was in possession of Kantibhai Somabhai.
5.5) Learned Senior Advocate, while placing reliance on the judgment of this Court in the case of Tusharbhai Harjibhai Gelani Vs. State of Gujarat, 2019 (4) GLR 2478 has submitted that while granting NA permission under the Page 14 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 provisions of Section 65 of the Gujarat Land Revenue Code, 1879, the respondent authority has to only examine one aspect i.e. the occupant of the land for which NA is sought. It is submitted that indisputably since 1982, father of the the respondent and present respondent nos.1 to 3 are the occupants of the land in question and hence, the NA permission granted by the respondent authorities to them is in consonance with the law enunciated by this Court. It is thus submitted that the petitioner cannot question or raise any objection to the NA permission granted to the respondent Nos.1 to 3, pursuant to the sale deed executed in the year 1982 in favour of father of the petitioner by the original landowner. Thus, it is submitted that the writ petitions may not be entertained.
SUBMISSIONS OF THE AGP:
(6) Learned AGP Mr.Raval, appearing on behalf of the respondent authorities have submitted that the writ petitions do not require to be entertained and the same are required to be summarily dismissed as the petitioner does not have any locus standi by filing the present petition.
Page 15 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 6.1) It is submitted by the learned AGP that with respect to the land bearing Survey No.545, the name of the tenants were deleted vide Entry No.2325 and 2689 and by order dated 18.02.1978, Ganot Case/Ghuma/3550/77, the land was given back to the owner for self- cultivation. Learned AGP has further submitted that similarly for the land bearing Survey No.546, Entry No.2326 was recorded in the name of the tenant and thereafter, vide order dated 18.02.1978 passed in Ganot Case/Ghuma/ No.3552/78, the purchase was made ineffective as the tenant did not show their willingness to purchase the land.
6.2) Learned AGP has submitted that the Mamlatdar and ALT has passed order dated 17.04.1995 deleting the names of the tenant as per the proceedings under Sections 32G and 32P of the Tenancy Act. It is submitted that the said order dated 17.04.1995 was taken in suo motu revision under Section 76(9) of the Deputy Collector (Land Reforms), which was confirmed by the order dated 16.10.1997 in Revision Case No.384 of 1995 and hence, the petitioner does not have any right, title or interest over the subject land as on date.
Page 16 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 6.3) Learned AGP has submitted that the aforesaid order dated 17.04.1995 is not challenged by the petitioners and similarly, the order dated 16.10.1997 confirming the said order is not challenged by the petitioner before the competent authority. It is submitted that Entry No.5413, which was certified in view of the order dated 16.10.1997 has become final and hence, the petitioners do not have any right, title and interest over the land in question. It is further submitted that the predecessor of the petitioner never showed willingness to purchase the land under Section 32PP or Section 32PPP of the Tenancy Act, upto the cut-off date of 31.12.1986, since they have not initiated proceedings challenging Entry No.3639 recording the sale deed dated 31.03.1982. Thus, it is submitted that in absence of challenge of any order to the sale deed, the petitioner cannot raise any objection to grant NA permission. Finally, it is submitted that the proceedings under Section 32P of the Tenancy Act are still pending, however the same are independent and that has nothing to do with the adjudication of NA application.
Page 17 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 6.4) It is submitted by the learned AGP that the NA application does not determine the title of land hence, grant would not affect the pendency of Ganot Case No.91 of 2006. Reliance is placed by the learned AGP on the decision of this Court in the case of Bhayaji Vajshibhai Hathalia vs. State of Gujarat, 2012 (2) G.L.R. 1741. It is finally submitted that after considering the positive opinions of the Mamlatdar and ALT and Deputy Collector, the application seeking NA under Section 65 of the Code has been precisely processed and such permission has been granted and hence, the writ petitions do not merit acceptance.
CONCLUSION:
(7) Before taking the writ petitions for final hearing this Court has intimated the respective counsels about the effect of the present order passed by this Court on the proceedings under the provision of section 32P of the Tenancy Act being Ganot Case No.91 of 2006, which are still pending, however, since the petitioner is insisting for interim stay, and the respondents are objecting; the matter has been finally heard and was reserved for the judgment.
Page 18 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 (8) Though, various submissions are advanced by both the respective parties with regard to the right and title of the land in question, I do not incline to deal with the same as it would have bearing on the proceedings pending under section 32P of the Tenancy Act.
(9) Primarily, the petitioner has premised his case on the following provisions of the Act. Only relevant portion is incorporated:
"SECTION 32 : Tenants deemed to have purchased land on tillers' day. - (1) On the first day of April 1957 (hereinafter referred to as "the tillers' day") every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon, on the said day, the land held by him as tenant, if SECTION 32G : Tribunal to issue notices and determine price of land to be paid by tenants.- (1) xxx xxx xxx (2) xxx xxx xxx (3) Where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective;
Provided that if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same.
SECTION 32P : Power of Collector to resume and dispose of land not purchased by tenant and appeal against Page 19 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 Collector's Order. - (1) Where the purchase of any land by tenant under section 32 becomes ineffective under the foregoing provisions of this sub-chapter or where the tenant fails to exercise the right to purchase land under section 43-ID within the period specified in that section the Collector may suo motu or on an application made in this behalf and after holding a formal inquiry direct that the land shall be disposed of in the manner provided in sub-section (2).
(2) Such direction shall, subject to the provisions of sub- sections (2AA) and (2A), Provide (a) that the tenancy in respect of the land shall be terminated and the tenant be summarily evicted;
(b)
(c) that , the entire land of such portion thereof, as the case may be, notwithstanding that it is a fragment, shall, subject to the terms and conditions as may be specified in the direction be disposed of by sale to person in the following order of priority (hereinafter called "the priority list"):
(a-i) the tenant whose tenancy in respect of that land is terminated if such tenant is willing to accept the offer of sale, provided the occasion for the issue of such directions has not arisen by reason of an act of collusion between such tenant and the landlord;"
(10) The petitioner is aggrieved by the NA permission granted to the private respondents under section 65 of the Code. In nutshell, the case of the petitioner is that the entire land stood vested in the State Government under the provisions of section 32G of the Tenancy Act, after the tenant-predecessors of the petitioners refused to purchase the land and the only procedure, which was required to be adopted for disposing of the land in question of Survey No.546 was under section 32P of the Page 20 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 Tenancy Act. As noted hereinabove, the proceedings under section 32P of the Tenancy Act are still pending.
(11) It is well settled proposition of law that while examining an application seeking permission for NA under Section 65 of the Code, the scope of the authority is very limited. The grant or non-grant of the NA permission does not determine the right and title over the land. In the case of Tusharbhai Haribhai Ghelani (supra), this Court has reiterated thus:
"35 Section 65 of the Code, referred to above, on its plain reading, do not provide for any scope of raising objection by any party who is yet to establish its right in his favour over the land in question. In other words, the proceedings under section 65 of the Code is not an adversary proceeding at all.
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 Page 21 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 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 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."
Page 22 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 As enunciated by this Court, the District Collector has to only examine the preceding parameters set by this Court while deciding the NA application. He has only to see that the person, who is applying for NA is the occupant of the land for which NA is applied, and the Collector cannot venture into the right or title of the land. Thus, the District Collector has precisely exercised his powers while granting permission of NA to the private respondents. The power of the Collector, while examining an application for NA permission is not dependent on the proceedings under section 32P of the Tenancy Act. The private respondents are the occupants of the land in question. The revenue record shows their name, more importunately the registered sale deed dated 31.03.1982, by which the land in question has been purchased by the private respondents is not questioned by anyone yet. Thus, as on today, in wake of the aforesaid fact and proposition of law the petitioner has no locus to question the NA permission. The locus lies with the respondent authority to dispose of the land in the manner provided under section 32P of the Tenancy Act after the purchase under section 32 of the Tenancy Page 23 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 Act becomes ineffective in the manner or order of priority provided under section 32(P)(c) of the Tenancy Act. It is only after such proceedings are initiated, the tenant will have the say under Section 32(P)(a-1) of the Tenancy Act.
(12) In the present case, the petitioner has premised his entire case on the aforesaid provision of section 32 of the Tenancy Act. Vide orders passed on 18.02.1978, with respect to Survey No.545, the names of tenant was deleted vide Entry No.2324 and No.2689, and for land bearing survey no.536, while mutating Entry no.2326, the name of the tenant was recorded in Ganot Case/Ghuma/3552/78, the purchase was made ineffective as the tenant did not show his willingness to purchase the land in question. The petitioner, who is the legal heir of the tenant, wants to take benefit of the provision of section 32 of the Tenancy Act on the basis of the order passed in the year 1978 by contending that after the purchase of the land in question was recorded ineffective, the further procedure under section 32P of the Tenancy Act was required to be followed, hence the NA permission should not have been granted to the private Page 24 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 respondents. It is pertinent to note that thereafter the Mamlatdar and ALT had passed an order dated 17.04.1995 deleting the names of the tenants, as proceedings under sections 32G and 32P of the Tenancy Act, were closed. The petitioner has disputed that the said order only pertains to land bearing survey no.545 and not 546. The same was taken under suo motu revision under section 76A of the Tenancy Act by the Deputy Collector and vide order dated 16.10.1997 the said order was confirmed in Ganot Revision Case No.4784/95. It is not in dispute that the aforesaid orders passed in 1978, 1995 and 1997 are not challenged either by the petitioner or by his predecessors. As noticed hereinabove, the sale deed dated 31.03.1982 in favour of the private respondents with regard to the land in question is also subsisting and remains unquestioned. Thus, the petitioner, in these circumstances, cannot question the NA permission granted to the private respondents as both the proceedings under section 32 of the Tenancy Act and the section 65 of the Code are independent proceedings. There cannot be any cavil on the proposition of law as enunciated by the decisions on which the petitioners have placed reliance, but the same Page 25 of 26 Downloaded on : Mon Feb 27 20:42:24 IST 2023 C/SCA/9588/2020 CAV JUDGMENT DATED: 24/02/2023 confine to the provisions of section 32 of the Tenancy Act and are not related to the provision of section 65 of the Code. None of the decisions declare that the application under section 65 of the Code seeking NA permission can be denied in view of the proceedings of Section 32 of the Tenancy Act. Thus, the petitioner wants to derive benefit by conflicting two different provisions of the Act and Code and that too on an action of refusal of his predecessor of purchasing the land in the year 1978.
(13) On the substratum of the preceding observations, the writ petitions fails legal scrutiny. The same stand dismissed. Rule discharged. However, it is clarified that the observations made by this Court is only confined to the grant of NA permission, and shall have no bearing on the pending proceedings under section 32P of the Tenancy Act.
Sd/ -
(A. S. SUPEHIA, J)
Bhavesh-[PPS]*
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