Sipai Firoj Ismailbhai vs Secretary, Revenue Department ...
2021 Latest Caselaw 12357 Guj

    C/SCA/9409/2020                                   ORDER DATED: 25/08/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


            R/SPECIAL CIVIL APPLICATION NO. 9409 of 2020

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                       SIPAI FIROJ ISMAILBHAI
                                Versus
               SECRETARY, REVENUE DEPARTMENT APPEALS
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Appearance:
for the Petitioner(s) No. 2,3,4,5,6
MR SANDEEP N BHATT(190) for the Petitioner(s) No. 1
MR. HARDIK MEHTA, AGP for the Respondent(s) No. 1,4,5
MR P P MAJMUDAR(5284) for the Respondent(s) No. 2,3
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 2,3
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 25/08/2021

                                ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed for quashing and setting aside the order of the respondent No.1 - SSRD dated 05­08­2019 in revision against the NA permission.

2. Learned Advocate for the petitioners submitted that the NA permission granted and lay out plan passed by the Authorities are effectively blocking the way of the petitioners to reach his Ginning mills, which has been in existence since long.

3. Learned Advocate for the petitioners submitted that registered documents in favour of the petitioners by the original owner makes the provision for 25 feet wide road from the state highway leading to Ginning factory of the petitioners. Such recital is also found in the registered document executed in favour of the private respondents from the original owner. Learned Advocate also pointed out the document in the form of Kararkhat executed by the predecessor of the private

C/SCA/9409/2020 ORDER DATED: 25/08/2021

respondents, which acknowledges way of 25 feet passing through Survey No.24/1 of the private respondents to reach Survey No.25/1 belonging to the petitioners. It is submitted that in connection with the right of way, the petitioners have already filed Civil Suit before the Civil Court at Wankaner and initially there were talks with regards to settlement between the parties which ultimately did not fortify and thereafter because of the Covid situation, Civil Suit along with an application could not be proceeded. With the passing of lay out plan, the petitioners apprehend that the right of way or the way connecting the main road to the petitioners factory, will be blocked and there would not be any other way for petitioners to reach his Ginning factory.

4. It is submitted that this Court by order dated 29­09­2020 has granted status quo, had ordered not to disturb the right of way of the petitioners.

5. As against this, learned Advocate for the private respondents ­Mr. P. P. Majmudar states that the petitioners have essentially filed the petition for claiming the right of way and as such the reliefs so prayed for and cause of action is already subject matter of Civil Suit filed. He tried to point out to the Court on the basis of lay out plan and other documents that their exist a way to reach the Ginning factory of the petitioners and the way that is claimed by the petitioners is not the only way to reach the premises. It is submitted that the petitioners who are occupant of adjacent land, has no locus to challenge the NA orders and in fact the petitioners are not even challenging the NA order for entire land, but is only concerned with passage from the land of the petitioners, which issue will be in the realm of Civil right for which the writ cannot be passed.

6. It is submitted that the petitioners have not even challenged the lay out plan and even from the lay out plan, it cannot be said that the petitioners only way is way as claimed by the petitioners in the present petition.

C/SCA/9409/2020 ORDER DATED: 25/08/2021

7. Learned Advocate for the private respondents has relied upon the decision of this Court in case of Bhayabhai Vajshibhai Hathalia versus State of Gujarat reported in 2012 (2) GLR 1741, more particularly Para­20 which pertains to the grant of NA permission vis a vis Civil right. Learned Advocate for the private respondents has relied upon other judgment in case of Tusharbhai Harjibhai Ghelani vs State Of Gujarat reported in 2019(4)GLR 2578, wherein existence of the Civil Suit is not an impediment to consider the case under Section­65 for NA permission.

8. In rejoinder, learned Advocate for the petitioners submitted that though the petitioners are not interested to challenge NA order in its entirety or lay out plan in its entirety, but his only interest to protect the way that has been in existence and which the petitioners have been using since long for ingress and outgress to the premises of the petitioners. It is also submitted that the petitioners while making application for NA permission, the petitioners had not disclosed true and correct facts. In as much as the First application made to the TDO was not entertained and in the application form in the clause meant for any previous application, the private respondents have disclosed incorrectly that there were no previous application.

9. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the petitioners who claims to be in ownership and occupation of Survey no.25/1 as the Ginning factory working and in operation. The case of the petitioners is that NA permission by the private respondents in adjoining plot bearing Survey No.24/1 is to be now constructed as a result of which, the way which the petitioners have been using, would be blocked. In this regard, apparently Civil Suit being Regular Civil Suit No.130 of 2017 is filed and pending before the Court of Principal Civil Judge at Wankaner wherein cause of action is also based on the lay out plan dated 05­05­ 2017 and the order of NA permission in favour of the private

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respondents. The prayer clause in Civil Suit would read as under:

"(1) A twenty five feet wide road from the national highway, i.e. from west to east, situated along non­agricultural land being Survey No.24/2 and northern wall of the property known as Pirzada Estate is used to enter in the land and properties being Survey No.25/1 of Chandrapur of the ownership of the plaintiffs, by entering in the land being Survey No.24/1 of the respondent, situated to the left of Wankaner­Ahmedabad National Highway, from south­west corner and going along southern boundary, by the plaintiff firms, the previous owners and the original owners since old times, i.e. for as many as twenty years with knowledge of everyone, by virtue of right, by way of prescription and without any intervention as there are lands of other persons around Survey No.25/1 and the above mentioned road is the only way to enter in the land of Survey No.25/1 by way of necessity. The previous owners and their ancestors were using the road as per prevailing tradition of roads and sims of the villages and by way of custom since old times. The previous owner, in his written agreement dated 03/07/2001, has declared about the existence and use of the above mentioned road passing through the land of Survey No.24/1 and that the plaintiffs have right to use it by way of grant. Therefore, it is prayed to declare that the partners, servants, family members, relatives and customers of the plaintiff firm and general public have right to drive all the vehicles including cars, trucks, tractors and trolleys and to move on the above mentioned road by virtue of the right of easement."

10. It appears that along with Civil Suit, the application for interim injunction is also filed, wherein Notice has been issued way back on 21­ 08­2017. The panchnama has been drawn which is now part of the record before the Civil Court and hence, in the opinion of the Court, the subject matter that the petitioners have agitated before this Court is already subject matter before the Civil Court. It also appears that in view of the Pandemic situation, no effective orders herein and orders have not been passed in the Civil Suit so far.

11. Considering the issue before this Court pertaining to NA permission as is held by this Court in the judgment as aforementioned, the NA Permission being an administrative order and that the right to agitate with regard to NA permission lying with the occupant of the land, the petitioners may not have locus to challenge the order of NA permission

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as is held by this Court in case of Bhayabhai Vajshibhai Hathalia (supra) and in Para­20, which is as under:

"20. Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the contentions in respect of the order impugned in this petition. Plain reading of section 65 of the Code in my view would persuade the Court to hold that section 65 of the Code does not envisage scope of raising any objection in any party who is not acknowledged right or interest in the land in question. In other words proceedings under section 65 of the Code is not an adversely proceeding at all. If any interested party is apprehending any smart practice on any one in respect of land it can always take recourse to the civil court for obtaining appropriate injunction or prohibitory orders. When the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, atleast in my view, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. Or else it will lead to a situation where on account of showing semblance of some interest in the land in question or for that matter even substantive interest the party who has not been successful in establishing its right and obtain any prohibitory orders would succeed in thwarting and throatling the occupant of the land in question who is legitimately acknowledged occupant by revenue authorities. to be The N.A. Permission under section 65 cannot be said to be in any manner conferring and or abridging title of any one if it exists in the land in question. It is merely an act of granting permission by the authority qua the piece of land in question. In other words it can well be said that the land which was an agricultural land and it was supposed to put up to agricultural purpose, is decided to be freed from restrictions and permitted to be developed. Thus the permission is attached to the land in question and not to the person. Therefore in my view the interpretation of section 65 of the Code cannot be said to be in any manner rendering it to be adversarial proceedings at all."

12. However, to overcome the situation now faced with by the petitioners, it will be appropriate for this Court to dispose of this petition while observing that the order passed by this Court on 29­09­2020, shall continue to operate for the period of six months. In the meantime, it will be open for the petitioners to agitate by way of proper application in the pending Civil Suit.

C/SCA/9409/2020 ORDER DATED: 25/08/2021

13. In view of the aforesaid, the petition stands disposed of with aforesaid observations. The Court has otherwise not entered into the merits with regards to the right of way, which will be exclusively jurisdiction of the Civil Court in the pending Civil Suit. It is open for the petitioners to make separate application for expeditious hearing of the Civil Suit / Application. If such Application is made, same be disposed of in accordance with law and expeditiously.

Direct service is permitted.

(A.Y. KOGJE, J) PARESH SOMPURA