Rajnibhai Bhogilal Desai vs State Of Gujarat
2021 Latest Caselaw 7939 Guj

C/LPA/280/2016                                                        ORDER DATED: 07/07/2021
                    RAJNIBHAI BHOGILAL DESAI v. STATE OF GUJARAT & 2 OTHERS




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/LETTERS PATENT APPEAL NO. 280 of 2016
                                      In
                   R/SPECIAL CIVIL APPLICATION NO. 41 of 2016

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                           RAJNIBHAI BHOGILAL DESAI
                                     Versus
                          STATE OF GUJARAT & 2 other(s)
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Appearance:
MR MRUGEN K PUROHIT(1224) for the Appellant(s) No. 1
MR KRUTIK PARIKH, Assistant Government Pleader for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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  CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
                                       and
                 HONOURABLE MR. JUSTICE B.N. KARIA

                                     Date : 07/07/2021
                                      ORAL ORDER

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. Mr. Krutik Parikh, learned Assistant Government Pleader

has relied upon the following judgments in support of his

contentions in present case:

(i) Irfan Yakub Bholat vs. State of Gujarat - Special

Civil Application No.16814 of 2018 decided on

03.03.2020 (Coram: A.S. Supehia, J.);

(ii) Chhtrasang Dhulabhai vs. State of Gujarat -

C/LPA/280/2016 ORDER DATED: 07/07/2021 RAJNIBHAI BHOGILAL DESAI v. STATE OF GUJARAT & 2 OTHERS

Special Civil Application No.14416 of 2013

decided on 17.09.2013 (Coram: Anant S. Dave, J.);

(iii) Letters Patent Appeal No.430 of 2014 against the

said order of the learned Single Judge was withdrawn

by the Appellant, vide order dated 22.08.2017.

Copies of these judgments are placed on record.

2. After some arguments by learned counsel, the important

question of law which arises for consideration before us is as to

whether Rule 25C(2) & (3) of the Gujarat Tenancy and

Agricultural Lands Rules, 1956 providing for cancellation of

sanction under Section 43(1) of the Gujarat Tenancy and

Agricultural Lands Act, 1948, could provide for such

cancellation of sanction of Collector even if the N.A. Permission

is applied and not decided by the State, as is the fact in the

present case or even not applied by the persons who obtained

sanction of Collector under Section 43 of the Tenancy Act to

transfer the land.

C/LPA/280/2016 ORDER DATED: 07/07/2021 RAJNIBHAI BHOGILAL DESAI v. STATE OF GUJARAT & 2 OTHERS

3. The two enactments namely Bombay Land Revenue Code

and Gujarat Tenancy and Agricultural Lands Act, 1948 are

independent and therefore Rules under the Gujarat Land

Revenue Code and the Rules framed thereunder, whether it

could provide for cancellation or removal of restriction against

transfer of land under Section 43 of the Tenancy Act is the

question.

4. The present case as it emerged from the facts before us is

that the Predecessor-in-Title had obtained the sanction under

Section 43 of the Tenancy Act which was given by imposing

certain conditions viz. To apply for N.A. permission before the

Competent Authority under the Gujarat Land Revenue Code,

1879 for non-agricultural use of the land within six months and

to construct the houses thereof within one year. This N.A.

Application was never decided by the State Authorities.

However, the said Predecessors-in-Title made transfer of land

and on second transfer to the Appellant; the second and

subsequent purchaser Rajnibhai Bhogilal Desai when he

C/LPA/280/2016 ORDER DATED: 07/07/2021 RAJNIBHAI BHOGILAL DESAI v. STATE OF GUJARAT & 2 OTHERS

applied, the Additional District Collector passed an order on

15.10.2015 requiring the Appellant to again seek a fresh

sanction or removal of restriction on transfer under Section 43

of the Tenancy Act and to pay the additional premium as per the

prevailing Jantri rates, which prima facie could not have been

asked for.

5. Section 65 of the Gujarat land Revenue Code and Rule

25C of the Tenancy Rules read thereunder only talks of change

of land use viz. agricultural to non-agricultural purposes and

therefore prima facie it does not have any bearing on the

removal of restriction against Transfer under Section 43 of the

Tenancy Act. Therefore, whether Rule 25C(2) & (3) could

provide for the cancellation of sanction under Section 43 and

whether he could impose such a condition even while granting

Section 43 permission in favour of predecessor-in-title in 1983,

is another question which arises.

6. Reliance was also placed by the State on the Circular

dated 17.02.2012 (page 112 of the Paper Book) issued by the

C/LPA/280/2016 ORDER DATED: 07/07/2021 RAJNIBHAI BHOGILAL DESAI v. STATE OF GUJARAT & 2 OTHERS

Revenue Department in consonance with the aforesaid

provisions is also questionable because that Circular possibly

could not impose restriction on the transfer of land on the anvil

of Section 65 of the Gujarat Land Revenue Code for change of

user of land either applied and not granted or not even applied.

The event of user of land or change of user is obviously a

subsequent event after the transfer of right, interest or title in the

land, and the Restriction on Transfer of land or its removal

under Section 43 of the Tenancy Act cannot depend upon the

subsequent change of user of land and therefore, such a

provision in the Rules and Circular and the conditions in the

impugned orders passed by the Authorities are open to

challenge. Even though a formal challenge to these provisions

of Rules and Circular has not been made in the present case, but

we are of the opinion that this question arises in the present case

and the Court can give proper and harmonious interpretation of

these two enactments and their provisions and the Rules.

7. Mr. Mrugen Purohit, learned counsel for the Appellant has

C/LPA/280/2016 ORDER DATED: 07/07/2021 RAJNIBHAI BHOGILAL DESAI v. STATE OF GUJARAT & 2 OTHERS

submitted that there is some judgment of the Single Bench

against which Division Bench has decided the Letters Patent

Appeal and against which the SLP is said to be pending before

the Hon'ble Supreme Court. He may place on record the

Compilation of these judgments of the High Court and the

status of the SLP before the Hon'ble Supreme Court along with

stay order, if any.

8. In view of the importance of the aforesaid questions, we

request Mr.Mihir Thakore, learned Senior Counsel; Mr.Mihir

Joshi, learned Senior Counsel and Mr.Kamal Trivedi, learned

Advocate General to assist the Court in the aforesaid matter as

amicus.

A copy of the order shall be sent to the respective Senior

Counsels for their information.

Put up on 20.07.2021.

(DR. VINEET KOTHARI,J)

(B.N. KARIA, J) Bharat