Gujarat High Court

Nitinbhai Gordhanbhai Patel vs Collector, Panchmahals on 9 August, 2021

Bench: A.Y. Kogje

     C/SCA/9595/2021                             ORDER DATED: 09/08/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9595 of 2021

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                       NITINBHAI GORDHANBHAI PATEL
                                   Versus
                         COLLECTOR, PANCHMAHALS
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Appearance:
MR MA KHARADI (1032) for the Petitioner(s) No. 1
MR HARDIK MEHTA, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 09/08/2021

                              ORAL ORDER

1. This petition under Article 226 of the Constitution of

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

Kutch dated 25.02.2021 rejecting the NA permission to the

petitioner in connection with land bearing survey No.202 paiki 2 of

Village Jafrabad, Tal. Godhara, Dist. Panchmahals.

2. Learned advocate Mr.M.A.Kharadi appearing for the

petitioner submitted that the only reason for rejecting such

application is the pendency of civil case in the Court of Principal

Senior Civil Judge, Godhara. Such view is contrary to the decision

of this Court in the case of Tusharbhai Harjibhai Ghelani Vs.

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

C/SCA/9595/2021 ORDER DATED: 09/08/2021

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 order dated 25.02.2021 passed by

the Collector, Panchmahals, whereby he has rejected Non

Agriculture Permission under Section 65 of the Bombay Land

Revenue Code in land bearing survey No.202 paiki 2 of Village

Jafrabad, Tal. Godhara, Dist. Panchmahals.

5. It appears that entry No.6651 in the revenue record of

the subject land came to be mutated in favour of the petitioner and

the same is certified by on 03.02.2010. The name of petitioner has

already been mutated in the revenue record of subject land in

village form No.6. The petitioner applied for Non-Agriculture

permission by online application dated 23.12.2020 in the

Integrated Online Revenue Applications 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 N.A permission has been rejected by the Collector,

Panchmahals by his order dated 25.02.2021 on the ground that the

Civil Suit is pending in respect of the subject land before the court

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of Principal Senior Civil Judge, Godhara being regular civil suit

No.365 of 2012, which remains undecided.

6. One Dhartiben Tusharbhai Patel, daughter of babubhai

Gordhanbhai Patel filled regular civil suit No.365 of 2012 before

the Court of Principal Senior Civil Judge, Panchmahals for

injunction against the respondents therein, including the petitioner

herein, who is defendant No.3 therein, which is pending for

adjudication. The said suit is filled for injunction against the

defendants therein in respect of the subject land. The said suit is

file after 24 years in 2012 for injunction, as father of the present

petitioner was original owner of the land in question and as per

oral distributional of the land, entry No.1728 was entered in the

revenue record on 16.05.1988, which also included name of the

present petitioner. The plaintiff filed interim injunction application

in the suit on which Civil Court has passed order on 10.03.2014

and dispose of the application stating that nor the plaintiff or his

Advocate is present and the plaintiff is not interested in the

application and no stay is granted.

7. 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

C/SCA/9595/2021 ORDER DATED: 09/08/2021

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

C/SCA/9595/2021 ORDER DATED: 09/08/2021

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."

8. In view of aforesaid, it is evident that the pendency of

Civil Suit will not act as an impediment for considering the case of

the petitioner for application of N.A.Permission. Despite this

position, application made by the petitioner was rejected.

9. In the opinion of the Court, as only ground cited is of

pending Civil Suit in the Civil Court and said pendency would not

act as an impediment for considering his application for

N.A.Permission as per the ratio of this Court in the aforesaid

judgment, the petition deserves to be allowed.

10. In view of the aforesaid, communication dated

25.02.2021 in connection with application under Section 65 of the

Bombay Land Revenue Code for non-agriculture permission in