Vishnubhai Vitthalbhai Patel vs State Of Gujarat
2021 Latest Caselaw 6002 Guj

     C/SCA/4911/2019                                     JUDGMENT DATED: 15/06/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4911 of 2019
                                   With
               CIVIL APPLICATION (DIRECTION) NO. 1 of 2020
              In R/SPECIAL CIVIL APPLICATION NO. 4911 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                 Sd/­

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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 ?

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                       VISHNUBHAI VITTHALBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. ARCHIT P JANI(7304) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR. ISHAN JOSHI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4
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    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 15/06/2021

                               ORAL JUDGMENT

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

C/SCA/4911/2019 JUDGMENT DATED: 15/06/2021

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

"(A) Your Lordships may be pleased to issue an appropriate writ, order or direction quashing and setting aside the order dated 15­10­2018 passed by the Collector, Ahmedabad and direct the Collector/ respondent authorities to process the application for grant of non­agriculture permission considering the subject matter of the land to be an old tenure, on terms and conditions that this Hon'ble Court may deems appropriate, just and proper;

(B) Pending the admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the operation, execution and implementation of the order dated 15­10­2018 passed by the Collector, Ahmedabad and direct the Collector / respondent authorities to process the application for grant of non­agriculture permission considering the subject matter of the land to be an old tenure, on terms and conditions that this Hon'ble Court may deems appropriate, just and proper;"

3. At the outset, learned Advocate for the petitioner submitted that the petition is filed on very narrow compass for not providing an opportunity of hearing so that the petitioner could point out the record of the Revenue itself as what is held by the Collector in the impugned order is contrary to its own records. It is submitted that the impugned order dated 15­10­2018 is one line of giving findings that the land in question is new tenure land and therefore, the petitioner will have to make fresh application after paying the premium to convert the land into old tenure land.

4. Learned Advocate for the petitioner has straightway approached this Court on the ground that the land in question is not new tenure land as held by order of the Commissioner's Officer dated 24­04­1961, which is the order equivalent the present post of Secretary, Revenue and hence, the Collector will have to take cognizance of this, will have to give due regard to the order of his Superior Authority. Despite aforesaid position

C/SCA/4911/2019 JUDGMENT DATED: 15/06/2021

the impugned order has been passed and hence, the petitioner has approached directly this Court under Article­226 of the Constitution of India, claiming for an opportunity of hearing to deal with all the necessary facts concerned the land in question on record.

5. Learned Advocate for the petitioner draws attention of this Court to the order passed by the Division Bench of this Court in Special Civil Application No.270 of 1960 dated 23 rd August, 1960, which is pertaining to the very land in question and the order of remand made to the Commissioner to examine the issue and while doing so, the Commissioner while passing the order dated 24­04­1961, has categorically held that the land in question is not the new tenure land and that there does not appear to be any restriction even as per Section­ 73A of the Bombay Land Revenue Code.

6. Learned Advocate for the petitioner thereafter draws attention to the Village Form No.6, wherein also the Entry No.594 of the year 1973 indicates the land in question to be of the old tenure land. It is submitted that the petitioner is the last purchaser of the land in question and after the order passed by the Collector, has also paid premium to the tune of Rs.7,13,53,425/­. The petitioner has filed separate Civil Application for refund of this amount.

7. As against this, learned AGP submitted that the order is passed by the Collector and therefore, the alternative remedy is available to the petitioner. Moreover, the history of the land in question dates back to the year 1961 and therefore, the factual matrix will be relevant for deciding the issue and therefore, the Court may not entertain the petition straightway under Article­226 of the Constitution of India.

8. Learned AGP has also submitted that the order is one line order of straightway holding the land to be new tenure land and directed the petitioner to act in accordance with by treating the land as the new tenure land and by paying the premium.

9. Having considered the rival submissions of the learned Advocates for

C/SCA/4911/2019 JUDGMENT DATED: 15/06/2021

parties and having perused the documents on record, it appears that the issue pertains to the land bearing Block No.208 of Final Plot No.29, Town Planning Scheme No.35 of Ghatlodia, which had old Survey No.182. The order passed in Special Civil Application No.270 of 1960 was against the decision of the Commissioner, which reversed the decision of the Prant Officer, Viramgam and Collector, Ahmedabad, which was passed without affording an opportunity of hearing and presenting the case. Accordingly, the matter was remanded back to the Commissioner.

10. Upon remand, the Commissioner's Office, Baroda, vide order dated 24­ 04­1961, upon giving an opportunity of hearing, allowed the Appeal and set aside the order of the Prant Officer and Collector, which has granted and directed the restoration of the status quo. While doing so, there appears to be categoric findings with regard to the tenure conditions and holding that the land in question namely Survey No.52, 167, 194 of Village­ Jagatpur, Taluka­ Daskroi, District­Ahmedabad, are not the land with new tenure conditions.

11. Considering the aforesaid, Entry No.594 is made in the Village Form No.6 pertaining to Survey No.182, Block No.208 of Village­ Jagatpur and the entry made indicates that the land is of the old tenure. With this history in the background, passing of the impugned order holding straightway land is of new tenure, in the opinion of the Court would require further probe at the hands of the Collector on this issue agitated before the Court and while doing so, the petitioner who is in the legal occupation of the land in question, are entitled to an opportunity of hearing.

12. With regard to the contention of refund, obviously as the order dated 15­10­2018, will have to be re­looked by the Collector after giving an opportunity of hearing to the petitioner, the issue of refund will have to depend upon outcome of the decision at the hands of the Collector. The Collector is directed to take the decision as expeditiously as possible

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preferably within the period of four weeks from the date of receipt of this judgment. The Collector is required to take into consideration the contentions of petitioner about land being old tenure, for which the relevant evidence is produced by the petitioner and ascertain the facts whether previous proceeding including High Court order pertaining to the very same land and cross verify with Revenue records.

13. In view of the aforesaid, the petition stands partly allowed to the aforesaid extent. The order dated 15­10­2018 passed by the Collector, Ahmedabad is set aside and the matter is remanded back to the Collector to examine the status of the land in question bearing Block No.208 of Final Plot No.29, Town Planning Scheme No.35 of Ghatlodia. Rule is made absolute with no order as to costs.

14. In view of the order passed in the main matter, no separate order in Civil Application No.1 of 2020 in Special Civil Application No. 4911 of 2019 is required to be passed.

Direct service is permitted.

(A.Y. KOGJE, J) PARESH SOMPURA