Anilbhai Rambhai Patel vs The State Of Gujarat
2021 Latest Caselaw 8035 Guj

    C/SCA/16168/2020                                 ORDER DATED: 08/07/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 16168 of 2020

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                       ANILBHAI RAMBHAI PATEL & 1 other(s)
                                    Versus
                        THE STATE OF GUJARAT & 1 other(s)
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Appearance:
A B PATEL(7467) for the Petitioner(s) No. 1,2,3
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 3
MR AYAAN PATEL, AGP (2) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                Date : 08/07/2021

                                  ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed by the petitioners seeking direction to quash and set aside the order dated 21.11.2020 communicating the petitioners through the Additional Chitnish to Collector stating that their application for converting the land for non-agricultural use cannot be entertained, as the Civil Suit is pending in connection with the land in question.

2. Learned advocate for the petitioners submitted that the petition had earlier filed application before the Collector, Dist:Kheda under Section 65 of the Bombay Land Revenue Code pertaining to Survey No.252 of Village:Bilodara, Tal:Nadiad, Dist:Kheda, however, by communication dated 15.04.2019 on the ground that Civil Suit No.155 of 2016 being pending, the application was not entertained and was filed.

3. The petitioner, thereafter, made a detailed representation on 24.07.2020 and drawn attention of the Collector to the decision

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of this Court dated 07.12.2018 passed in the case of Tusharbhai Harjibhai Ghelani Vs. State of Gujarat in Special Civil Application No.494 of 2015 ( reported in 2019 (4) GLR 2578) and submitted that the pendency of the civil case will not come in any way of grant of N.A.Permission still, the impugned order came to be passed on 21.11.2020.

4. Learned AGP submitted that it is not the only aspect that the Civil Suit is pending, but, in fact, in the application made by the petitioner for N.A.Permission, he has not declared true and correct facts regarding the pendency of the civil suit and hence, the application was not entertained.

5. Having considered the rival submissions made by the learned advocates for the parties and having perused the documents on record, the petitioners herein had initially made an application for N.A.Permission in connection with the land of Village:Bilodara bearing Survey No.252 admeasuring 0-88-27 Acre. The application was answered by communication dated 15.04.2019, wherein the Collector has stated that on account of civil suit pending being Civil Suit No.155 of 2016, the application was not entertained. The only reason is the pendency of the civil application. Therefore, it would be fruitful to refer to the decision of this Court passed in case of Tusharbhai Harjibhai Ghelani Vs. State of Gujarat, wherein in Paragraph No.36 to 40, this Court has observed as under:-

"36. In section 65 of the Code, referred to above, two words are of pivotal importance; (i) "occupant" and (ii) "holding". Section 3(12) defines the term "holding". It reads as under;

"3(12):-"holding":-"holding" means a portion of land

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held by a holder"

37. Section 3(16) defines the term "occupant". It reads as under;

"3(16):-"occupant"; "occupant means a holder in actual possession of unalienated land, other than a tenant; provided that where the holder in actual possession is tenant the landlord or superior landlord, as the case may be, shall be deemed to be the occupant."

38. Thus, the plain reading of section 65 makes it clear that for the purpose of grant of N.A. Permission, the first thing the Collector should look into is whether the applicant, seeking N.A. Permission, is an occupant of the land which is being assessed or held for the purpose of agriculture. For the purpose of ascertaining this, the Collector is expected to look into the revenue records. The name of the applicant in the revenue records would prima facie go to show or rather indicate that he is the occupant of the land. The second step in the process would be to ascertain whether such land is being assessed or held for the purpose of agriculture.

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 agriculture-related activities, he is required to make an application to the Collector for permission to do so. It may be noted that the key-word 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

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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."

6. In view of aforesaid, it is evident that the pendency of Civil Suit will not act as an impediment for considering the case of the petitioner for application of N.A.Permission. Despite this position, fresh application made by the petitioners for the same was also rejected by the impugned order dated 21.11.2020. In the impugned order though the Collector appears to have referred to the decision of this Court in case of Tusharbhai Harjibhai Ghelani Vs. State of Gujarat, however, has not indicated any reason as to why the ratio of this judgment is not made applicable to the case of the petitioners.

7. In the opinion of the Court, as only ground cited is of pending Civil Suit in the Civil Court and said pendency would not act as an impediment for considering his application for N.A.Permission as per the ratio of this Court in the aforesaid judgment. The application deserves to be allowed. The communication dated 21.11.2020 and the previous order dated 15.04.2019 in connection with application under Section 65 of the Bombay Land Revenue Code for non-agriculture permission in connection

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with Survey No.252/paiki 1 and 250/2 is set aside. It will be open for the petitioner to make fresh application as per the procedure and the Collector shall consider the same in accordance with law particularly, referring to the observations made herein above. Such exercise to be concluded within a period of 3(three) months from the date of application made by the petitioner.

Withe aforesaid, the present petition stands allowed to the aforesaid extent.

(A.Y. KOGJE, J) GIRISH