M/S. Ravija Associates, 18, ... vs The State Of Gujarat, Notice To Be ...
2021 Latest Caselaw 11 Guj

        C/SCA/8657/2017                                   ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 8657 of 2017
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        M/S. RAVIJA ASSOCIATES, 18, HERITAGE HOMES,
                           Versus
THE STATE OF GUJARAT, NOTICE TO BE SERVED ON THE & 4 other(s)
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Appearance:
MR.D K.PUJ(3836) for the Petitioner(s) No. 1
D N DHOLAKIYA(7605) for the Respondent(s) No. 4
MR KANVA ANTANI, AGP
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3
NOTICE UNSERVED(8) for the Respondent(s) No. 5
RISHI O MALIK(7727) for the Respondent(s) No. 4
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                          Date : 04/01/2021
                           ORAL ORDER

1. Heard learned advocate Mr. D.K.Puj for the petitioner, learned Assistant Government Pleader Mr.Antani for respondent Nos.- 1 to3 and learned advocate Mr. Rishi Malik for respondent No.4 through video conference.

2. This Court [Coram: Hon'ble Mr. Justice N.V.Anjaria] passed the following order on 26.04.2018:

"Heard learned advocate Mr.D.K.Puj for the petitioner and learned Assistant Government Pleader Ms.Divyangna Jhala for the respondent State and its authorities.

2. Even in the second call, learned advocates for the private respondents have not chosen to appear. The matter was considered by the Court by going through the impugned orders and the facts involved with the assistance of learned advocates appearing for the parties.

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It transpires that while issuing notice on 27.04.2017, this Court passed a detailed order highlighting the issues in the controversy. This order dated 27.04.2017 reads as under :

"It is submitted that the petitioner is the fourth subsequent purchaser of the land in question. Nonagricultural Use Permission was granted to the petitioner on 19.06.2006. Thereafter, the petitioner obtained Development Permission from the Competent Authority on 18.09.2006 and started construction upon the land. It is submitted that in proceedings initiated by the heir of the second purchaser who had purchased the land in the year 1981, a challenge was made to the Nonagricultural Use Permission granted in the year 2006.

It is further submitted that the Special Secretary (Appeals), Revenue Department (SSRD), by passing impugned order dated 23.12.2016, has rejected the revision application filed by respondent No.4. However, while doing so, the SSRD has issued directions of a general nature directing an inquiry to be made under the provisions of the Gujarat Tenancy and Agricultural Lands Act, 1948, regarding the status of the land in question to find out whether any premium was payable for the land. While doing so, the SSRD has directed status quo to be maintained.

Learned counsel for the petitioner further submits that while exercising power under Section 211 of the Gujarat Land Revenue Code, 1879, the SSRD has no jurisdiction to issue directions under another enactment such as Gujarat Tenancy and Agricultural Lands Act, 1948, and the Bombay Personal Inams Abolition Act, 1952, as has been done in the impugned order, which is contrary to the principles of law enunciated by this Court in several judgments.

It is further submitted that pursuant to the Development Permission and the Building Use Permission granted by

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the competent authorities in favour of the petitioner, which are still intact, construction has been put up. Due to the order of status quo, the petitioner is unable to proceed any further.

It is contended that once the land has been converted for Nonagricultural Use, it ceases to be agricultural land and the Tenancy Act would not apply to such land. In support of this contention, reliance has been placed upon a judgment of this Court in the case of Adambhai Sulemanbhai Desai Vs. State of Gujarat reported in 2004(1) GLR 906, wherein it is held as below:

"24. The last contention regarding n on applicability of provisions of the Act to a land which is permitted to be converted into n on agricultural land by a competent Court also merits acceptance in light of settled legal position enunciated by the aforesaid two decisions of the Court. It is apparent that once the land is declared to be non agricultural one on the basis of N.A. Permission granted by t he competent authority the said land loses its characteristic of agricultural land and would not be a 'land' within the meaning of Sec.2( 8) of the Act. If this be the position, the provisions of the Act would not apply to the land in question and the Deputy Collector could not have entertained the statutory power under the Act including entertaining of appeal under Sec. 74 of the Act."

3. The aforesaid reasons constitute a prima facie case. The petition is liable to be considered finally, however, in absence of learned advocates for the respondents, the Court persuaded itself not to issue Rule.

4. Stand over to 29.06.2018. The ad interim relief granted earlier to continue till further orders."

3. Now learned advocate Mr. D.K.Puj seeks permission to delete respondent No.5 who is predecessor-in-title of the petitioner

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and is a formal party.

4. Permission is granted. Respondent no.5 is ordered to be deleted.

5. Hence, issue Rule returnable forthwith. Learned Assistant Government Pleader Mr. Antani waives service of notice of rule for respondent Nos.1 to 3. Learned advocate Mr. Rishi Malik waives service of notice of rule for respondent No.4.

6. By this petition, the petitioner has challenged only the operative portion of the impugned order passed by the Secretary, Revenue Department (Appeals), whereby, the status- quo order is passed with regard to the revenue record till the Collector passed the order for deciding the premium for conversion of the land into non-agricultural land and passed appropriate order as per the observations made in para 4.5 of the impugned order.

7. The brief facts of the case are as under:

7.1 It is the case of the petitioner that from the records being maintained by the Mamlatdar Daskroi, Taluka at Ahmedabad and that of the Circle Inspector / Talati, Mouje Thaltej as also from the records being maintained by the District Registrar and Sub Registrar, Ahmedabad concerned and also from certain deeds, documents, permissions, papers etc, it appears that much prior to 1945, the bigger

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plot of the agricultural land bearing survey no.393 admeasuring about A-0, G-37, i.e. 3743 sq. mtrs. or there about originally belonged to Shri Manilal Ishwarlal.

Thereafter, the said Shri Manilal Ishwarlal sold and conveyed his rights, title and interest in said land in favour of Shri Haribhai Shankarbhai. The deed of conveyance was duly executed on 5-7-1945 and registered with the concerned Sub Registrar, Ahmedabad. The entry to that effect was also entered in the revenue records i.e. in village form no.6 on 12-12-1960 and 31-08-1966 under serial no.2858 and 3432 respectively, followed by village form no.7 and 12 and since then the said Shri Haribhai Shankarbhai was holding the said land as absolute owner and possessor thereof.

7.2 It is the case of the petitioner that Shri Haribhai Shankarbhai, thereafter, sold and conveyed his right title and interest in said land in favour of Shri Mukundbhai Amrutlal Sayani , the respondent no.5 herein. The deed of conveyance in respect thereof was duly executed on 14-07- 1981 and registered with Sub Registrar, Ahmedabad on the same day under Serial No.8703. The entry to that effect was entered into revenue records i.e. village form no.6 on 10- 08-1981 under serial no.5742 duly certified by the Mamlatdar Dascroi on 16-10-1981, followed by village form no.7 and 12 and since then the respondent no.5 was holding the said land as absolute owner and possessor

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thereof.

7.3 It is the case of the petitioner that since the respondent no.5 was not an agriculturist, the proceedings were initiated u/s. 84 (C) of the Bombay Tenancy and Agricultural Lands Act, 1948. The Mamlatdar and Agricultural Land Tribunal had passed an order u/s. 84 (C) of the Tenancy Act, on 27.07.1990, vesting the land in question into the State Government. Being aggrieved by the said order, the respondent no.5 had filed an appeal being Tenancy Appeal No.156/1991 before the Deputy Collector (Land Reforms), Appeal, Ahmedabad, who vide his order dated 30.04.1992 had allowed the said appeal and quashed and set aside the order passed by the Mamlatdar and ALT in Tenancy Case No.94/1987 dated 27.7.1990.

7.4 The petitioner states and submits that being aggrieved by the order passed by the learned Deputy Collector (Land Reforms) on 30.04.1992, the legal heir of late Shri Natvarbhai Haribhai Patel, namely Smt. Meetaben, the respondent no.4 herein has filed Revision Application No.TEN(BA)/260/06 before the Gujarat Revenue Tribunal, Ahmedabad and the Tribunal vide its order dated 7.1.2008, has rejected the said Revision Application and confirmed the order passed by the Deputy Collector (Land Reforms) Appeal, Ahmedabad in Tenancy Case No.156/1991 dated 30.04.1992.

 C/SCA/8657/2017                                               ORDER




7.5         It is the case of the petitioner that since the land in

question was originally sold to the respondent no.5, an entry was made in the revenue record being Entry No.5742 dated 10.08.1981. The said entry was also certified by the Mamlatdar, Dascroi on 6.12.1981. Being aggrieved by the said entry, Shri Natvarbhai Haribhai Patel, the predecessor of the respondent no.4 had filed an RTS Appeal No.28/2001 before the learned Deputy Collector, Viramgam Prant, Ahmedabad and the said appeal was dismissed by the Deputy Collector vide his order dated 20.04.2002.

7.6 Being aggrieved by the said order of the learned Deputy Collector, the said Shri Natvarbhai Haribhai Patel has filed a Revision Application being No.L.B./Revision Application No.132/2002 before the District Collector, Ahmedabad who has rejected the said Revision Application. However, subject to the observations made in the said order, the learned District Collector vide her order dated 23.8.2005, has set aside the order passed by the learned Deputy Collector and remanded the matter back to the learned Deputy Collector, Viramgam to take fresh decision in the matter.

7.7 Pursuant to the order passed by the District Collector on 23.8.2005, the Deputy Collector, Viramgam has passed the fresh order in remand case being

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no.Remand/RTS/Appeal/Case No.74/2005 on 4.5.2006 and again rejected the application filed by the said Shri Natvarbhai Haribhai Patel.

7.8 Being aggrieved by the said order, of the Deputy Collector, respondent no.4 had filed a revision application being No.LB/Revision Application No.90/2006 before the District Collector, Ahmedabad and the District Collector vide her order dated 26.7.2007 has rejected the said revision application.

7.9 It is the case of the petitioner that since the proceedings initiated by late Shri Natvarbhai Haribhai Patel and the respondent no.4 did not meet with any success at any level, the owner and possessor of the land in question, the respondent no.5 has filed an application for converting the land in question into non agricultural land and the District Collector vide her order dated 19.6.2006 has granted such permission and converted the same into N.A. Land.

7.10 It is the case of the petitioner that after the land in question was converted into the N.A. Land, the respondent no.5 sold the same to the petitioner by a Registered Sale Deed executed on 10.07.2006.

7.11 Pursuant to the sale deed executed in favour of the petitioner on 10.7.2006, an Entry was made being Entry

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No.10045 dated 26.7.2006 in the Village Form No.6 mutating the name of the petitioner. The said entry was also certified by the Mamlatdar, Daskroi on 1.9.2006. Being aggrieved by the said Entry, the respondent no.4 has filed an appeal being RTS/Appeal/Case No.171/2006 before the Deputy Collector, Viramgam Prant, Ahmedabad and the said appeal also came to be dismissed by an order dated 29.03.2007 passed by the Dy. Collector, Viramgam Prant, Ahmedabad.

7.12 It is the case of the petitioner that after execution of the sale deed in favour of the petitioner, the partner of the petitioner firm, namely Mr.Shaival A. Patel as a power of attorney holder of the respondent no.5 has made an application to the Ahmedabad Urban Development Authority for development permission and the said development permission was granted to the petitioner on 18.9.2006.

7.13 The petitioner again applied for the N.A. Permission for commercial use of the land in question and the same was granted to the petitioner vide order dated 22.10.2008 passed by the Dy. Collector (N.A.), Ahmedabad. After completing the construction on the land in question as per the approved plan, B.U. Permission from the Ahmedabad Urban Development Authority was obtained on 7.11.2008.

      C/SCA/8657/2017                                       ORDER




     7.14         It is the case of the petitioner that despite the fact

that the District Collector has passed an order on 29.06.2006 granting N.A. Permission converting the land in question into N.A. Land, despite the fact that after getting converted the land in question into N.A. land and after getting executed the sale deed in favour of the petitioner on 21.7.2006, despite the fact that the Revenue Entry No.10045 was made in Village Form No.6 on 26.7.2006 and was certified the same by Mamlatdar, Dascroi on 1.9.2006 and despite the fact that while challenging the said entry before the Deputy Collector, Viramgam in RTS Appeal Case No.171/2006, the petitioner was joined as a party by the respondent no.4 in the said RTS proceedings, she has not joined the petitioner as party in Revision Application No.15/2006 filed on or about 26.12.2006 before the Additional Chief Secretary Revenue Department, (Appeal). Being aggrieved by the above action of the respondent authorities, the petitioner has preferred this petition.

8. As observed by this Court in order dated 27.04.2017, the main contention of the petitioner is with regard to the order of maintaining status quo of revenue records on the ground that the Collector to find out whether the premium was payable for the land while granting permission for non-agricultural use.

9. Respondent No.4 has filed the revision petition before the

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Secretary (Appeals) being aggrieved by the granting of non- agricultural permission to the petitioner by the Collector with regard to the land in question. The Secretary (Appeals) dismissed the revision application. However, by dismissing revision application, Secretary (Appeals) has also ordered to maintain status quo with regard to the revenue records. In view of the observations made by the Secretary (Appeals) in para No. 4.5 of the impugned order with regard to the application of the government resolution dated 26.05.2016, the Collector, vide order dated 19.06.2006, permitted the petitioner to use the land in question for non-agricultural use on various conditions. Therefore, while considering the challenge to such order, the Secretary (Appeals) could not have made observations with regard to the charging of premium on the ground of pendency of tenancy proceedings and, in the final order, while rejecting the revision application of respondent No. 4 directing the authorities to maintain status quo with regard to the revenue records till the Collector decides the issue of levy of premium.

10. Learned advocate Mr. Puj relied upon the decision of this Court in case of Adambhai Sulemanbhai Desai vs. State of Gujarat reported in 2004 (1) GLR 906 in support of his contention, wherein, it is held by the Court that once the land is displayed to be non-agricultural one on the basis of N.A. permission granted by the competent Court, then such land loses its characteristic of agriculture land and therefore, the provisions of the Tenancy Act would not apply to the land

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in question. It was therefore, submitted that the Secretary (Appeals) could not have passed an order to maintain status quo with regard to the revenue records in a revision proceedings and arising out of challenge to the N.A. order passed by the Collector.

11. On the other hand, learned advocate Mr. Malik submitted that respondent No.4 has not challenged the impugned order passed by the Secretary (Appeals) whereby, the revision application filed by respondent no.4 is dismissed. It was submitted that it is for the Secretary (Appeals) to pass appropriate order and accordingly, no interference is required to be made while exercising powers under Article 227 of the Constitution of India.

12. Learned Assistant Government Pleader Mr. Antani submitted that the Secretary (Appeals) has passed the impugned order considering the Government Resolution dated 26.05.2016 and has therefore, rightly passed the order of status quo till the Collector decides the levy of premium in view of the tenancy proceedings which were pending at the time of passing of the impugned order.

13. Having heard learned advocates for the respective parties and having gone through the materials on record, it is not in dispute that respondent No.4 filed revision application being aggrieved by the order passed by the Collector

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confirming the order passed by the Mamlatdar, Dascroi and Deputy Collector in the tenancy proceedings against one Mukund Amrutlal Sathani for breach of section 63 of the Gujarat Tenancy and Agricultural Lands Act, 1948.

14. The Secretary (Appeals), after considering the facts of the case, dismissed the revision application filed by the respondent No.4. However, at the same time, passed an order to maintain status quo with regard to revenue records to ascertain whether any premium is required to be charged on the land in question by the Collector and till the Collector decides levy of premium with regard to the land in question.

15. The issue of levy of premium was not in existence before the Secretary(Appeals). In spite of that, the Secretary (Appeals) has passed the order of maintaining status quo with regard to revenue records of the land in question. The Secretary (Appeals) has no power or jurisdiction to pass such order while considering the veracity of the order passed by the Collector in the tenancy proceedings. More particularly, when the land in question is already ordered to be converted to non- agricultural land by the Collector in the year 2006.

16. This Court in case of Adambhai Sulemanbhai (supra), while considering the issue as to whether the land which is permitted to be converted to non-agricultural land by competent Court and subjected to provisions of the

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Bombay Tenancy and Agricultural Lands Act 1948 or not and it is held that once the land ceases to be non-agricultural land, it loses its characteristic of agricultural land and would not be a 'land' within the meaning of section 2(8) of the Act of 1948. In such circumstances, the Secretary (Appeals) could not have passed the order to maintain status quo with regard to the revenue records of the land in question till the Collector considers and decides the applicability of levy of premium.

17. In such circumstances, the petition is allowed by modifying the impugned order passed by the Secretary (Appeals) by quashing and setting aside to the extent that all direction to the District Collector to make fresh inquiry and to direct the Revenue Authorities to maintain status quo with regard to the revenue records till the Collector makes a fresh inquiry and comes to the conclusion with regard to the premium to be charged as observed in para 4.5 of the impugned order. The Secretary (Appeals) could not have passed the order of granting status quo with regard to the revenue records while dismissing the revision application preferred by the respondent No.4. Accordingly, the granting of status quo with regard to the revenue records of the land in question is ordered to be quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.

(BHARGAV D. KARIA, J) JYOTI V. JANI