Gujarat High Court

Rakesh Rameshchandra Patel vs State Of Gujarat on 5 August, 2021

Bench: A.Y. Kogje

     C/SCA/9899/2021                                ORDER DATED: 05/08/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9899 of 2021

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                       RAKESH RAMESHCHANDRA PATEL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR MB GANDHI, SENIOR ADVOCATE assisted by M/S.CHINMAY M
GANDHI, NIKITA C GANDHI and RUMI M GANDHI for the Petitioner
MR BHARAT VYAS, AGP for the Respondent
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 05/08/2021

                              ORAL ORDER

1. This petition under Article 226 of the Constitution of

India is filed by the petitioner against orders of the Collector,

Ahmedabad dated 18.03.2020 and 21.05.2021 rejecting the NA

permission to the petitioner in connection with land bearing

Survey/ Block No.3881 covered by Sanand-2, Final Plot No.180 of

Village: Sanand, Tal. Sanand, Dist. Ahmedabad.

2. Learned Senior Advocate Mr.M.B.Gandhi for the

petitioner submitted that the reasons for rejecting such application

are that as per entry No.9762, the sale is cancelled and that it is

recorded that at the relevant point of time, the land was in the

name of Market Committee and that by entry No.11784, the land

was returned back to Rasiklal Keshavlal and therefore, it is not

matching. It is further recorded that the revenue title is not clear

and whether the petitioner is an agriculturist or not is also doubtful

C/SCA/9899/2021 ORDER DATED: 05/08/2021

annd therefore, there is breach of Section 63. It is further

recorded that as per the provisions of the Land Revenue Code, the

procedure is required to be proceeded or not, that correction is

sought for, of these entries and on the basis of this unclear title,

application seeking NA permission was rejected. It is submitted

that such reasoning is contrary to the decision of this Court in the

case of Tusharbhai Harjibhai Ghelani v. State of Gujarat,

reported in 2019 (4) GLR 2578.

3. Learned Assistant Government Pleader appearing for

the respondent No.1 submitted that application of N.A. permission

will have to be filed afresh in view of the procedure prescribed. As

and when such application is filed, the case of the petitioner for

N.A. permission has to be considered in light of the decision of this

Court.

4. The Court has heard learned Advocates for the parties

and perused the documents placed on record. It appears that

present petition is filed against orders dated 18.03.2020 and

21.05.2021 passed by the Collector, Ahmedabad, whereby he has

rejected Non Agriculture Permission under Section 65 of the

Bombay Land Revenue Code in respect of land Survey/ Block

No.3881 covered by Sanand-2, Final Plot No.180 of Village:

Sanand, Tal. Sanand, Dist. Ahmedabad.

5. The entry in the revenue record of the subject land

C/SCA/9899/2021 ORDER DATED: 05/08/2021

came to be mutated in favour of the petitioner in the year 2007.

The name of petitioner has already been mutated in the revenue

record of subject land in village form no.7/12. The petitioner

applied for Non-Agriculture permission by application dated

10.12.2019 in the along with all the necessary documents as per

the prescribed check list and paid the process fees as transaction

amounts. The petitioner completed all the formalities from his end

as per the checklist and as per the requirement of Collector Office

for granting N.A permission. However the N.A permission has been

rejected by the Collector, Ahmedabad by his order dated

18.03.2020 on the ground that as per entry No.9762, the sale is

cancelled and that it is recorded that at the relevant point of time,

the land was in the name of Market Committee and that by entry

No.11784, the land was returned back to Rasiklal Keshavlal and

therefore, it is not matching. It is further recorded that the

revenue title is not clear and whether the petitioner is an

agriculturist or not is also doubtful and therefore, there is breach

of Section 63. It is further recorded that as per the provisions of

the Land Revenue Code, the procedure is required to be proceeded

or not, that correction is sought for, of these entries and on the

basis of this unclear title, application seeking NA permission was

rejected.

6. After rejection of the aforesaid application, the

petitioner again made application on 13.02.2021, which too came

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to be rejected by order dated 21.05.2021, inter alia, citing

aforesaid reasons.

7. It appears that the land in question admeasures 1416

sq. mtrs., out of which NA permission is applied for only 850 sq.

mtrs, which is of old tenure and name of the present petitioner is in

revenue records. The petitioner also is in possession of the land in

question. This aspect seems to be missed by the Collector.

8. This Court in case of Tusharbhai Harjibhai Ghelani

(Supra) has held as under:-

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

C/SCA/9899/2021 ORDER DATED: 05/08/2021

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."

9. Considering the aforesaid judgment of this Court

apropos the facts of this case, especially, the impugned

communication, the Collector has travelled beyond jurisdiction and

while considering the application, has taken into consideration the

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facts which are not required to be considered. The revenue record

produced herewith being village form at Annexure-A, information

relevant for considering NA permission is there and the Collector

ought to have proceeded on that.

9.1 Of course, the observations made by the Collector in

the impugned communication regarding entry in the name of

Market Yard is always subject to revenue proceedings under