Manubhai Kurjibhai Malaviya vs State Of Gujarat
2021 Latest Caselaw 6201 Guj

     C/SCA/13037/2020                                 JUDGMENT DATED: 17/06/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13037 of 2020


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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                        MANUBHAI KURJIBHAI MALAVIYA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. PERCY KAVINA, SR. ADVOCATE for MR VIRAL K SALOT(3500) for the
Petitioner(s) No. 1
MR. ROHAN SHAH, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
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    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                                Date : 17/06/2021

                                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

C/SCA/13037/2020 JUDGMENT DATED: 17/06/2021

seeking direction for quashing and setting aside the decision of the Collector, Surat communicated vide letter dated 29­07­2020, by which an application for NA permission has been filed in view of the pending litigation pertaining to the land in question was filed.

3. At the outset, learned Senior Advocate for the petitioner submitted that the petition can be disposed of on the short ground that the decision of this Court in case of Dhansukhbhai Somabhai Ahir vs State Of Gujarat passed in Special Civil Application No.5924 of 2019 dated 20­01­2020, wherein almost identical situation, the Court had directed the Collector to reconsider the prayer of the petitioner for granting NA permission keeping in mind various pronouncement of this Court that the pendancy of Civil cases, cannot act as bar for grant of NA permission application.

4. Learned Advocate draws attention of this Court to Para­8 of the decision in case of Dhansukhbhai Somabhai Ahir vs State Of Gujarat(supra), which reads as under:

"8. Keeping the above position in mind and taking into consideration that the order of the Collector is without jurisdiction, the same is quashed and set aside without relegating the Petitioner to avail an alternative remedy. The Collector Surat is directed to once again reconsider the prayer of the Petitioner for grant of N.A Permission bearing in mind the observations of this Court more particularly the decision in the case of Bhayabhai (supra) and keeping in mind that while deciding the Application under Section 65 of the Code, the title of the parties should not be looked into. The fresh exercise should be undertaken by the Collector at the earliest and the same shall be completed with an appropriate order within a period of eight weeks from the date of receipt of the certified copy of this Order. It is clarified that the impugned order is quashed only for reconsideration of the prayers of the petitioner considering the fresh development in light of the withdrawal of the petitions which were referred to in the impugned order. The Petition is partly allowed as aforesaid with no order as to costs".

5. Learned Advocate also, draws attention of this Court to the decision of this Court in case of Tusharbhai Harjibhai Ghelani v/s. State of Gujarat passed in Special Civil Application No.494 of 2015 dated 07­ 12­2018, wherein Para­47, 48 and 49, which reads as under:

C/SCA/13037/2020 JUDGMENT DATED: 17/06/2021

"47. It would have been in the fitness of things if the appeal from order pending before this Court would have been decided by now one way or the other. However, the question is whether this appeal from order has any bearing over the issue in question. Let me assume for the moment that the appeal from order is ordered to be dismissed and the order of status quo passed by the Civil Court is affirmed. Will this be a legal impediment in the way of the Collector in considering the prayer for grant of N.A. Permission. In my view, the answer is in the negative. The order of status quo would mean that the C/SCA/494/2015 JUDGMENT writ applicants shall not change or alter the nature, character and possession of the property in question. The order of status quo cannot be a legal impediment so far as the grant of N.A. Permission is concerned. In future, if any further injunction is granted by the Civil Court in the suit filed by the respondents Nos.3 to 17, or as noted above, if the order of status quo passed by the Civil Court is affirmed by this Court in the appeal from order, then the writ applicants will not be in a position to develop the land. However, that does not mean that they cannot pray for permission to put the land for nonagricultural use.

48. I am of the view that the Collector should reconsider its decision in the light of the decision of this Court in the case of Bhayabhai (supra) and also keeping in mind the order passed by this Court in an Appeal from Order No.16 of 2018 with Civil Application No.1 of 2018 with Civil Application No.3 of 2018.

49. In the result, this petition succeeds in part. The impugned order passed by the Collector, Surat dated 19 th November, 2014, Annexure­A to this petition is hereby quashed and set aside. The Collector, Surat is directed to once again reconsider the prayer of the writ applicants for grant of N.A. Permission bearing in mind the observations of this Court, more particularly, the decision of this Court in the case of Bhayabhai (supra) and also keeping in mind that while deciding an application under section 65 of the Code, the title of the parties should not be looked into. Let this exercise be undertaken afresh at the earliest and the same shall be completed with an appropriate order within a period of two months from the date of the receipt of the writ of this order. The application shall be decided afresh only on the basis of the materials on record and the observations of this Court without giving any further hearing to either of the parties."

6. In view of the aforesaid, the petition is partly allowed. Rule is made absolute to aforesaid extent only with no order as to costs. The matter is relegated back to the Collector to take a decision on the application of the petitioner for the NA permission in connection with the land bearing

C/SCA/13037/2020 JUDGMENT DATED: 17/06/2021

Survey/Block No.4/1, Final Plot No.12 admeasuring 3893 square meters in T.P. Scheme No.1 of Village­Vesu, District­Surat. Therefore, without being influenced by the impugned order of the Collector, the aforesaid exercise to be concluded preferably within the period of eight weeks from the date of the receipt of the writ of this judgment.

7. To overcome the technical issue, learned Advocate for the petitioner undertakes to make an application afresh for the same purpose before the Collector. This application be decided as directed in preceding para­6.

Direct service is permitted.

Sd/­ (A.Y. KOGJE, J) PARESH SOMPURA