Gujarat High Court
Ashwinsinh S/O. Hemendrasinh Sarvaiya vs State Of Gujarat on 2 January, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/26801/2022 JUDGMENT DATED: 02/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26801 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
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ASHWINSINH S/O. HEMENDRASINH SARVAIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR.KISHORE PRAJAPATI(6305) for the Petitioner(s) No. 1
MR. JAYNIL PARIKH ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 02/01/2025
ORAL JUDGMENT
Heard learned Advocate Mr. Kishore Prajapati on behalf of the petitioner and learned AGP Mr. Jaynil Parikh on behalf of the respondent State.
2. By way of this petition, the petitioner challenges an order dated 4.8.2022 passed by the District Collector, Rajkot, rejecting the application preferred by the present petitioner under Section 65 (b) of the Land Revenue Code for grant of N.A permission. It would appear that the present petition is the second round of litigation with regard to the very self same purpose inasmuch as the petitioner who had purchased the land in Page 1 of 10 Uploaded by MARY VADAKKAN(HC00204) on Wed Jan 08 2025 Downloaded on : Fri Jan 17 22:21:37 IST 2025 NEUTRAL CITATION C/SCA/26801/2022 JUDGMENT DATED: 02/01/2025 undefined question i.e land bearing survey no. 58, admeasuring 11,331 sq. mts and land bearing revenue survey no. 59 admeasuring 11,129 sq mts and land admeasuring 3035 sq. mts in aggregate admeasuring 14, 366 sq mts was purchased by the petitioner from one Shri Ramji Mandir Trust in consonance with the permission granted by the Charity Commissioner under Section 36 of the Bombay Public Trust Act, 1950, vide registered sale deed dated 23.12.2011. It appears that the petitioner had thereafter moved an application for grant of N.A permission to the District Collector, Rajkot and whereas vide an order dated 22.7.2015, the District Collector, Rajkot had rejected the said application. It would appear that the petitioner had thereupon, approached the SSRD by preferring Revision Application No. 6 of 2015 and whereas vide order dated 17. 4.2017, the SSRD had confirmed the order passed by the District Collector, Rajkot. It would appear that the petitioner had thereafter, challenged the said decisions before this Court by preferring writ petition being SCA No. 13136 of 2017 and whereas judgment dated 27.4.2022, a learned Co-ordinate Bench of this Court, had set aside the orders passed by the Collector as well as the SSRD and had directed the Collector to decide the application preferred by the petitioner under Section 65 of the Land Revenue Code in consonance with the observations made by this Court in case of Tusharbhai Harjibhai Ghelani Vs. State of Gujarat reported in 2019(4) GLR 2578. It appears that the order impugned has been passed by the Collector, Rajkot, pursuant to the judgment in the writ petition referred to hereinabove. The rejection order, prompting the petitioner to approach this Court by way of the present writ petition.
3. Learned Advocate Mr. Kishore Prajapati on behalf of the petitioner would take this Court through the impugned order in detail and would submit that the Collector, Rajkot has virtually reiterated the very same objections that had led to the rejections of the N.A applications in the first Page 2 of 10 Uploaded by MARY VADAKKAN(HC00204) on Wed Jan 08 2025 Downloaded on : Fri Jan 17 22:21:37 IST 2025 NEUTRAL CITATION C/SCA/26801/2022 JUDGMENT DATED: 02/01/2025 undefined round and which had been set aside by this Court. Learned Advocate Mr. Prajapati would submit that the Collector, Rajkot had tried to adjudicate on the validity of the sale transactions entered into by the present petitioner more particularly from the anvil of the Barkhalidar and whereas it is submitted by learned advocate that the very self same objection had been raised by the Collector, Rajkot vide order dated 22.7.2015 which had been set aside by this Court. Learned Advocate would further submit that though the vendor of the present petitioner i.e the Ramji Mandir Trust through its pujari, had taken all steps in accordance with law including approaching the Joint Charity Commissioner and having been granted a permission to sell by the Joint Charity Commissioner and the said order having been confirmed by the Charity Commissioner, it was not open for the Collector to have gone into validity of the transaction of sale whereby the present petitioner had purchased the property in question. Learned Advocate would reiterate that in any case once the High Court had set aside the orders where the very self same objection had been raised, it was not open for the Collector to have reiterated the very same objections to reject the application for N.A permission by the present petitioner.
4. On the other hand, learned AGP Mr. Parikh, would vehemently object the present petition. It is submitted by learned AGP Mr. Parikh that the reasons which had found favour with the Collector to reject the application preferred by the present petitioner, were just and valid. Learned AGP would submit that in essence, the Collector has come to a prima facie conclusion that the decision of the Joint Charity Commissioner as confirmed by the Commissioner to grant permission to the predecessor of the petitioner to transact the property of the trust, was not in accordance with the provisions of the relevant enactment. Learned AGP would submit that the Collector having acted bonafidely and in the interest of the State, no interference is required in the present petition.
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5. Having heard the learned counsels for the parties and having perused the documents on record, this Court does not have any hesitation in observing that the order passed by the Collector, has not taken into account, the judgement passed by this Court dated 27.4.2022 in the first round of litigation. A perusal of the judgment dated 27.4.2022, clearly reveals that the aspect of the transaction not being as per the provisions of the Saurashtra Barkhali Abolition Act, 1951 had not been accepted by the learned Co-ordinate Bench and whereas it would appear that the objections in the original order passed by the Collector rejecting application for N.A, had been declared as being invalid by this Court. This Court at this stage seeks to rely upon paras no. 5, 6, 6.1, 9 and 10 of the judgment dated 27.4.2022 which is reproduced herein below for benefit :
5. Having considered the submissions made on behalf of both the sides, coupled with the material placed on record and the decisions referred to hereinabove, it emerges that there is no dispute regarding the facts that the suit land was given to the Thakar Mandir. It also reveals that Bavaji Prabhudas Harirambhai was a pujari and as per the provisions of 'Barkhalli Act', trust is said to be occupant of the property and accordingly, Thakar Mandir would be the occupant of the land in question. 6. It reveals from the record that the applicant Bavaji Prabhudas Harirambhai had moved an application before the Joint Charity Commissioner, Rajkot by filing application no.36/66/08 under Section 36 of the Act for permission to sell the trust property in question. The order of the Joint Charity Commissioner has been filed with the affidavit in reply by the respondent, which is from page no.152 to 160. On perusal of it, it appears that necessary public notice was issued on 14.12.2010 in daily newspapers Sandesh and Akila. It appears from the order that in response to that notice some objections were raised by the Panchayat Committee of the Bedi Gram Panchayat. It also appears that the order of the Joint Charity Commissioner granting permission that those objections have Page 4 of 10 Uploaded by MARY VADAKKAN(HC00204) on Wed Jan 08 2025 Downloaded on : Fri Jan 17 22:21:37 IST 2025 NEUTRAL CITATION C/SCA/26801/2022 JUDGMENT DATED: 02/01/2025 undefined been rejected by the learned Joint Charity Commissioner and after due procedure permission has been granted and sale was confirmed by the Charity Commissioner.
6. It also reveals from the order dated 18.11.2011 that there was a time extended for fulfillment of the conditions of the sale transactions. Thus, it clearly appears that the Pujari himself has not sold the property of the trust, but in pursuance of the appropriate permission granted by the Joint Charity Commissioner under the provisions of Section 36 of the Act, the trust property has been sold to the petitioner herein. Thus, the very basis of the observation of the Collector that pujari has sold the property is devoid of any merits.
6.1. It also reveals that the sale transaction has been already entered into their revenue records and entry in the name of the petitioner has already been mutated.
It is admitted facts that the order of learned Joint Charity Commissioner is not set aside by any competent Court or by the Appellate Forum. Further, the petitioner has purchased the property from the trust on the basis of the permission granted by the Charity Commissioner.
9. In view of the provisions of Sub-section 2(a) of Section 8 of the 'Barkhalidar Act' it clearly transpires that the law has recognized the mutual right of preemption for 10 years for lease or sale at a price to be determined by the mamlatdar. Thus, the right of sale is recognized in the act itself, ofcourse for a price to be determined by the mamlatdar.
10. Now, in this case, admittedly, when the Charity Commissioner has already granted permission for sale of land in question to the trustee of the trust and the petitioner has purchased the land accordingly, the exercise of power by the Collector rejecting the application under Section 65 of the Code is not in consonance with the well recognized principles of law as held by this Court in various decisions. As has been held by this Court in case of Tusharbhai Supra, observed hereinabove the Page 5 of 10 Uploaded by MARY VADAKKAN(HC00204) on Wed Jan 08 2025 Downloaded on : Fri Jan 17 22:21:37 IST 2025 NEUTRAL CITATION C/SCA/26801/2022 JUDGMENT DATED: 02/01/2025 undefined Collector has to decide the application in accordance with law.
6. It would appear that the learned Co-ordinate Bench had interalia come to a conclusion that the transaction between the petitioner and its vendor was as per the permission granted by the Joint Charity Commissioner as confirmed by the Charity Commissioner. It also appears that the learned Co-ordinate Bench had taken into consideration the fact that the aspect of the sale transaction had been mutated in the revenue record. Learned Co- ordinate Bench had also taken note of the fact that the order passed by the Joint Charity Commissioner is not set aside by any competent Court or Appellate forum. It also appears that the learned Co- ordinate Bench had clearly come to a conclusion that when the Charity Commissioner had granted permission for sale of land to the trustee of the trust and the petitioner purchased the land, the exercise of power by the Collector rejecting Application under Section 65 of the Code is not in consonance with the well-recognised principles of law, as held by the various decisions of this Court more particularly in case of Tusharbhai Harjibhai Ghelani (supra).
7. It would appear to this Court that learned Co-ordinate Bench having decided that the objections raised by the Collector in order dated 22.7.2015, were not germane to the application under Section 65
(b) by the applicant, then, it was no more open for the Collector to have reiterated the very same objection, which he has done vide order dated 4.8.2022 impugned in the present writ petition. It would also appear that essentially, the Collector was questioning the validity of the transaction whereby the present petitioner had purchased the land in question and whereas, to this Court it would very clearly appear that till the order of the Joint Charity Commissioner, whereby the Page 6 of 10 Uploaded by MARY VADAKKAN(HC00204) on Wed Jan 08 2025 Downloaded on : Fri Jan 17 22:21:37 IST 2025 NEUTRAL CITATION C/SCA/26801/2022 JUDGMENT DATED: 02/01/2025 undefined permission to sell the property was accorded to the vendor of the present petitioner, more particularly as per the provisions of the Bombay Public Trusts Act was in existence, an authority, exercising jurisdiction under Section 65 of the Gujarat Land Revenue Code, for grant of N.A permission could not have examined the validity of the said order and come to a conclusion as to whether the order was correct or not.
8. To this Court it would appear that the Collector had gravely erred, in over-estimating the powers which were available to the revenue authorities, by going into the validity of the transactions which was even otherwise not open for him and more particularly very self same objections, had not been countenanced by a Co-ordinate Bench in case of the very petitioner.
9. At this stage, learned AGP Mr. Parikh would draw the attention of this Court to the fact that the State has already challenged the order of the Joint Charity Commissioner and whereas while the delay in preferring the appeal has been condoned, the same has been challenged by the present petitioner by preferring writ petition being SCA No. 15012 of 2023 and whereas vide order dated 11.6.2024 the learned Co-ordinate Bench while issuing rule, has stayed the order condoning the delay in preferring the application concerned.
10. Be that as it may, to this Court it would appear, as has been observed by learned Co-ordinate Bench that till the order of the Joint Charity Commissioner as confirmed by the Charity Commissioner is not interfered Page 7 of 10 Uploaded by MARY VADAKKAN(HC00204) on Wed Jan 08 2025 Downloaded on : Fri Jan 17 22:21:37 IST 2025 NEUTRAL CITATION C/SCA/26801/2022 JUDGMENT DATED: 02/01/2025 undefined with by a competent Court, the transaction between the vendor and the present petitioner, could not be said to be invalid and whereas to this Court it would appear that the revenue authorities, more particularly the Collector while considering an application under Section 65 of the Land Revenue Code, was not at all empowered to have gone into the validity of the transaction while considering such an application. At this stage, for benefit paras no. 35, 38, 39 and 40 of the decision of the learned Co- ordinate Bench in the case of Tusharbhai Harjibhai Ghelani (supra), is reproduced hereinbelow for benefit.
"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.
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.
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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 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 9 of 10 Uploaded by MARY VADAKKAN(HC00204) on Wed Jan 08 2025 Downloaded on : Fri Jan 17 22:21:37 IST 2025
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11. Having regard to the discussion, observations and conclusions hereinabove, to this Court it would appear that the order dated 4.8.2022, being completely beyond the jurisdiction of the Collector, on grounds which were not germane to the powers being exercised, and clearly in contravention of the observations of this Court in vide judgment dated 27.4.2022 in SCA No. 13136 of 2017 and in contravention of the observations of this Court in case of Tusharbhai Gehlani, the said order is required to be interfered and is hereby quashed and set aside.
12. The petitioner shall move an application for revival of his earlier application and whereas the Collector, Rajkot is directed to once again consider the application of the petitioner for grant of N.A permission within a period of 60 days from the date of receipt of this order, more particularly the Collector, Rajkot shall while considering the application strictly abide by the observations of this Court in case of Tusharbhai Gehlani (supra) and whereas it is further directed that the objections which have been raised in order dated 4.8.2022 preceded by order dated 22.7.2015, shall not be relied upon by the Collector while considering the application.
13. With the observations and directions the present petition stands disposed of as allowed.
(NIKHIL S. KARIEL,J) MARY VADAKKAN Page 10 of 10 Uploaded by MARY VADAKKAN(HC00204) on Wed Jan 08 2025 Downloaded on : Fri Jan 17 22:21:37 IST 2025