Himmatsinh Karansinh Vaghela vs State Of Gujarat
2021 Latest Caselaw 8028 Guj

     C/SCA/6689/2021                                   JUDGMENT DATED: 08/07/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6689 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                      Sd/­

=============================================

1     Whether Reporters of Local Papers may be allowed to see                 NO
      the judgment ?

2     To be referred to the Reporter or not ?                                 NO

3     Whether their Lordships wish to see the fair copy of the                NO
      judgment ?

4     Whether this case involves a substantial question of law as             NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

=============================================
                       HIMMATSINH KARANSINH VAGHELA
                                   Versus
                             STATE OF GUJARAT
=============================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4,5,6
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1,2,3,4,5,6
MR. ROHAN SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
=============================================

    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 08/07/2021

                                ORAL JUDGMENT

1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent­state.

2. This petition is filed under Article­226 of the Constitution of India with

C/SCA/6689/2021 JUDGMENT DATED: 08/07/2021

prayer for setting aside the Communication dated 08­05­2019 informing the petitioners that application for NA permission by the petitioners is rejected.

3. The case of the petitioners is that rejection of the petition is on the ground of pending litigation and as pendency of litigation cannot be impediment in deciding the NA application, the petitioners have filed present petition. The petition pertains to the Revenue Survey No.453 with Survey No.246 of Village­Tharad.

4. Initially, the issue had arisen with regard to the ownership of the land and was decided by the Deputy Collector in the year 1989 to be the land not of the private ownership but the State Government land. The District Collector in the year 1990 upheld the order of the Deputy Collector. The said order of the Collector was challenged before the Gujarat Revenue Tribunal by preferring the Revision Application. The Tribunal by order dated 21­02­1997 allowing an appeal holding the land belong to the private individual and not the State Government land.

5. The partition took place amongst the family members of the original owner which was mutated vide Entry No.1844 in the year 2000 and further family arrangement was also recorded vide Entry No.1863. Name of the petitioners were mutated vide Entry No.2416 being the entry made on the basis of heirship. Therefore, lastly the petitioners were owner occupier of the aforesaid land and therefore, made an application for NA.

6. It appears that while the NA application was pending, the State challenge of the order of GRT before this Court by filing Special Civil Application No.4805 of 2019, which came to be disposed of by order dated 08­03­2019. Thereafter, by the impugned order, the Collector rejected an application on the ground that the decision of the High Court in Special Civil Application No.4805 of 2019 is not accepted by the State and Letters Patent Appeal is to be preferred.

C/SCA/6689/2021 JUDGMENT DATED: 08/07/2021

7. Learned Advocate for the petitioners submitted that the decision of the State Government to challenge the order of the Land Revenue Tribunal cannot be impediment to decide an application for grant of NA permission. Learned Advocate for the petitioners relies upon the decision in identical circumstances in Special Civil Application No.7029 of 2020 wherein also this Court had directed the respondent - Collector to consider the case of the petitioners therein for grant of NA permission.

8. Learned AGP has opposed to grant of petition by submitting that the petitioners have rushed to this Court whereas if they are agreed by the decision of the Collector. They are required to approach the State Government by challenging such decision and therefore, intervention under Article­226 is unwarranted.

9. Having considered the rival submissions of the parties and having perused the documents on record, it appears that as recorded herein above the decision of the GRT dated 21­02­1997 in Revision Application No.TEN/BA/21/1991 has decided the land in question is of private ownership and not the Government land. Challenge to this decision was by the State in Special Civil Application No.4805 of 2019, which came to be disposed of by order dated 08­03­2019 wherein this Court has held that challenge to order dated 21­02­1997 in Revision Application No. TEN/BA/21/1991 by the GRT was hopelessly barred by limitation. There was nothing to justify the inordinate delay. The petition was therefore, treated to be merit­less and dismissed. The impugned Communication dated 08­05­2019 rejected the application for NA permission made by the petitioners on 13­02­2019 was on the ground that after the dismissal of the petition, the State Government is yet to decide as to whether accept the oral order dated 08­03­2019 passed in Special Civil Application No.4805 of 2019, how to challenge the same by preferring the Letters Patent Appeal.

C/SCA/6689/2021 JUDGMENT DATED: 08/07/2021

10.This Court in case of TUSHARBHAI HARJIBHAI GHELANI v/s. STATE OF GUJARAT passed in Special Civil Application No.494 of 2015 dated 07/12/2018, reported in 2019(4)GLR 2578, in Para­39, 40, 43 and 44, held as under:

"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 agriculture­related activities, he is required to make an application to the Collector for permission to do so. It may be noted that the key­word 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 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.

43. This was also a case where the NA Permission under the provisions of Section 65 of the Code was in issue. The above principles of law therefore, squarely apply to the present case.

44. 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 writ applicants 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

C/SCA/6689/2021 JUDGMENT DATED: 08/07/2021

impugned order is, therefore, one without jurisdiction. For such reason also the plea of alternative remedy should fail."

11.Though the arguments of learned AGP regarding alternative remedy available in the facts of this case, the petitioners could be relegated to the appropriate Authority for seeking alternative remedy. However, considering the lapse of time, where the petitioners were litigating before the Revenue Authorities between 1989 to 1997 and thereafter, filed Special Civil Application in 2019 by the State, the Court deems it fit to exercise the jurisdiction despite there being alternative remedy in peculiar facts of the case.

12.In the opinion of the Court that there is conclusive finding by the Revenue Tribunal regarding ownership of land in question and when this Court has dismissed challenge to such order of the Revenue Tribunal merely because the decision is awaited for preferring Letters Patent Appeal against the decision of Single Judge of this Court would not act as impediment to consider the application for non­agricultural permission filed by the petitioners.

13.In view of the aforesaid, the impugned Communication dated 08­05­ 2019 is set aside. It is now open for the petitioners to make afresh application for NA permission in accordance with law and the Collector shall consider the same expeditiously preferably within a period of three months from the date of such application. While considering the application, the Collector shall have due regards to the observations made herein above.

14.With the aforesaid, the petition stands allowed to the aforesaid extent. Rule is made absolute with no order as to costs.

Direct service is permitted.

Sd/­ (A.Y. KOGJE, J) PARESH SOMPURA