Gujarat High Court
Karan Ambadan Gadhavi vs State Of Gujarat on 2 July, 2021
Bench: A.Y. Kogje
C/SCA/6872/2021 ORDER DATED: 02/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6872 of 2021
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KARAN AMBADAN GADHAVI
Versus
STATE OF GUJARAT
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Appearance:
MR AR THACKER(888) for the Petitioner(s) No. 1
SHIVANG A THACKER(7424) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR ROHAN SHAH, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 02/07/2021
ORAL ORDER
1. This petition under Article 226 is filed with the prayer
as under:-
"(A) To issue a writ of mandamus or a writ in the
nature of mandamus or any other appropriate
writ, order or direction, quashing and setting
aside the order/communication dated 07.12.2020
issued by the respondent no.2 Collector
rejecting /filing application of the petitioners for
N.A. on the ground of pendency of litigation and
further be pleased to direct the Collector to re-
consider the application of the petitioner for N.A.
permission in respect of land bearing survey
No.479 of village Bhuj, Taluka Bhuj, District
Kutch and decide the premium payable by the
petitioner."
2. At the outset, there is an alternative remedy available
to the petitioner before the State Government. However, there
various judgments pointed out by learned Advocate for the
petitioner, wherein this Court can entertain petition directly
C/SCA/6872/2021 ORDER DATED: 02/07/2021
against the impugned order in the given facts and circumstances of
the case.
3. At this stage, learned Advocate for the petitioner seeks
permission to file a fresh application for NA permission before the
Collector, Kutch with details regarding land in question, including
judgments of this Court in case of Tusharbhai Harjibhai Ghelani
Vs. State of Gujarat, reported in 2019 (4) GLR, 2578 and in
case of Bhupatbhai Ranabhai Lathiya Vs. State of Gujarat,
reported in 2016 JX(Guj) 1839. In case of Tusharbhai
Harjibhai Ghelani (supra), this Court has categorically observed
as under:-
"(22) There can be no cavil with the proposition that it
is only a civil Court of competent jurisdiction that can
decide a question regarding the title of the land in
question. This Court, in exercise of power under Article
226 of the Constitution of India, would not do so. In
such circumstances, can it be said that the Collector is
right in declining NA Permission to the writ applicants
on the ground that the title of the land is defective? The
answer is definitely in the negative. The following are
the reasons for the above conclusion."
3.1 In case of Bhupatbhai Ranabhai Lathiya (supra),
this Court has observed as under:-
"19. Considering the provisions of Section 65 of the
Code as well as the above pronouncement of law by the
Supreme Court, this Court cannot but arrive at the
inevitable conclusion that the denial of NA Permission
to the petitioners under the garb of a purportedly
defective title over the land in question amounts to a
transgression of the limits of jurisdiction vested in the
second respondent under the Code. The impugned
C/SCA/6872/2021 ORDER DATED: 02/07/2021
order is, therefore, one without jurisdiction.
20. Having arrived at the conclusion that the order
under challenge has been passed in exercise of
jurisdiction not vested in the second respondent, it
follows that the said order can be challenged before
this Court directly and this Court, in light of the
principles of law enunciated by the Supreme Court in
Whirlpool Corporation v. Registrar of Trade Marks,
Mumbai And Others (supra), can entertain the petition
without relegating the petitioners to avail of the
alternative remedy. An order passed without
jurisdiction is no order in the eyes of law. Such an
order can, and ought to be, struck down in exercise of
power under Article 226 of the Constitution of India.
21. Another aspect of the matter deserves mention.
As has already been stated above, the petitioners had
earlier filed Special Civil Application No.8259 of 2015,
against the show cause notice and the order dated
08.04.2015, rejecting their application for the grant of
NA Permission on the same ground that the title is not
clear. This Court has noted in the order dated
21.08.2015, while disposing of the said petition, that
the Collector, Surat, has himself issued a Title
Clearance Certificate on 10.10.2005, in respect of other
parcels of land in the same area, to similarly situated
persons. This Court after quashing and setting aside
the orders impugned in that petition, directed the
Collector to consider the case of the petitioners on the
same lines as the cases of identically situated persons
whose cases are akin to the case of the petitioners,
keeping in mind his decision dated 10.10.2005. In spite
of the above directions, the Collector has, once again,
arrived at the same conclusion that was quashed by this
Court. He has not considered his own order dated
10.10.2005 passed in the case of similarly situated
persons whose lands are in the same area as the
petitioners. The Court is informed that a contempt
application has been filed by the petitioners, which is
pending. Be that as it may, even on merits, this Court
is unable to uphold the stand of the second respondent,
for reasons already discussed.
4. In view of the aforesaid, the Collector is directed to
consider the fresh application made by the petitioner and grant
C/SCA/6872/2021 ORDER DATED: 02/07/2021
opportunity of hearing to the petitioner to point out all the relevant
facts and the case laws. The Collector shall take decision as
expeditiously as possible, but not later than two months from the
date of fresh application, without being influenced by the impugned
order dated 07.12.2020 (Annexure-P to the petition). In case, an
adverse order is passed against the petitioner, it will be open for
the petitioner to approach this Court again.
5. With the aforesaid direction, the petition stands
disposed of.
Direct service is permitted.
(A.Y. KOGJE, J)
SHITOLE
