Dalpatbhai Manchhubhai Patel vs Special Secretary (Appeal)
2021 Latest Caselaw 4651 Guj

         C/SCA/17459/2005                                          JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17459 of 2005


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1   Whether Reporters of Local Papers may be allowed to No
    see 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               No
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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               DALPATBHAI MANCHHUBHAI PATEL & 3 other(s)
                               Versus
                SPECIAL SECRETARY (APPEAL) & 3 other(s)
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Appearance:
MR DIGANT POPAT FOR MR DILIP L KANOJIYA (3691) for the Petitioners
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1-3
MR VIRAL K SHAH(5210) for the Respondent(s) No. 4.1 to 4.4
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    CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                       Date : 24/03/2021
                       ORAL JUDGMENT

1. In this petition, which is filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 04.07.2005 passed by respondent No.1 - Special Secretary, Revenue Department (SSRD) in Revision Application No.SRD/NA/ST/7/2002.

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2. Heard learned advocate Mr.Digant Popat for the petitioners, learned Assistant Government Pleader for respondent Nos.1 to 3 and learned advocate Mr.Viral K. Shah for respondent Nos.4.1 to 4.4.

3. Learned advocate for the petitioners submitted that respondent No.4 and one Shri Bhalabhai Bhangadbhai Ahir (father of the petitioner Nos.2 to

4) were cousin brothers and petitioner Nos.2 to 4 are the nephews of respondent No.4. It is submitted that father of respondent Nos.2 to 4 executed an Agreement for Sale dated 07.04.1980 in favour of one Shri Dolatray Maganray Desai in respect of land bearing Survey No.37 admeasuring approximately 9 Acres and 15 Gunthas situated at Village Anjana, Sub­District Choryasi, District Surat. It is the case of the petitioners that respondent No.4 as well as the father of petitioner Nos.2 to 4 had received an amount of consideration from the concerned purchaser. Thereafter, respondent No.4 also executed agreement for development on 06.07.1987. Learned advocate thereafter submitted that respondent No.4 as well as father of petitioner Nos.2 to 4 had executed irrevocable Power of Attorney on 21.01.1988 in favour of petitioner No.1. It is submitted that Regular Civil Suit No.1156 of 1995 was filed by respondent No.4. Learned advocate has referred the details of the civil proceedings which are filed between the concerned parties from the memo of the petition. Learned advocate Mr.Popat thereafter submitted that respondent No.2 Collector vide order dated 16.08.2002

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granted permission under Section 65 of the Bombay Land Revenue Code, 1879 ('the Code' for short) for conversion of land from agriculture to non­ agricultural use. Copy of the said order is placed on record at Page­64 of the compilation. It is contended that the private respondent herein - respondent No.4 challenged the said order passed by the Collector by filing Revision Application before respondent No.1 SSRD. Respondent No.1 SSRD allowed the said Revision Application and, thereby, quashed and set aside the order passed by respondent No.2 Collector. The petitioners, therefore, filed the present petition.

3.1 Learned advocate for the petitioners mainly contended that the dispute with regard to the ownership of the land in question is pending before the concerned Civil Court between the parties. However, when respondent No.2 Collector has passed an order granting permission for conversion of land for non­agricultural purpose while exercising powers under Section 65 of the Code, respondent No.1 SSRD ought not to have interfered with the said order. It is further submitted that the said permission shall be subject to the final out come of the civil proceedings i.e. Regular Civil Suit No.1156 of 2015 and Special Civil Suit No.118 of 2003 pending before the learned Civil Judge (SD), Surat and, therefore, this Court may quash and set aside the impugned order passed by respondent No.1 SSRD.

3.2 Learned advocate for the petitioners has placed

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reliance upon the decision rendered by this Court in the case of Bhayabhai Vajshibhai Hathalia & Ors Vs. State of Gujarat & Ors. reported in 2012(2) GLR 1741.

4. On other hand, learned advocate Mr.Viral K. Shah appearing for the private respondents is not in a position to dispute the fact that the civil proceedings are pending before the concerned Civil Court and respondent No.2 Collector has granted permission under Section 65 of the Code for conversion of land and, thereby, respondent No.2 Collector has not decided the ownership of the land in question nor the title of the parties has been decided by respondent No.2 Collector. Learned advocate for the private respondents is also not in a position to dispute the fact that the observations made by this Court in the case of Bhayabhai Vajshibhai Hathalia & Ors Vs. State of Gujarat & Ors. (supra), would be applicable to the facts of the present case.

5. Learned Assistant Government Pleader Mr.Ishan Joshi appearing for respondent Nos.1 to 3 is also not in a position to dispute the fact that the civil proceedings are pending between the petitioners and the private respondents and the Collector has not decided the title of the parties but only granted permission for conversion of the land.

6. I have considered the submissions canvassed by

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the learned advocates appearing for the parties. I have also perused the material placed on record. It emerges from the record that the civil proceedings viz. Regular Civil Suit No.1156 of 2015 and Special Civil Suit No.118 of 2003 are pending before the learned Civil Judge (SD), Surat between the petitioners and the private respondents, in which, title of the concerned parties would be decided. So far as the order passed by respondent No.2 Collector is concerned, he has merely granted permission under Section 65 of the Code for conversion of land from non­agricultural to agricultural use and, thereby, the Collector has not decided the rights, title and interest of any of the parties.

7. In a similar type of case i.e. in the case of Bhayabhai Vajshibhai Hathalia & Ors Vs. State of Gujarat & Ors. (supra), this Court has observed in Paragraphs­20 and 21 as under:

"20. Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the contentions in respect of the order impugned in this petition. Plain reading of section 65 of the Code in my view would persuade the Court to hold that section 65 of the Code does not envisage scope of raising any objection in any party who is not acknowledged right or interest in the land in question. In other words proceedings under section 65 of the Code is not an adversely proceeding at all. If any interested party is apprehending any smart practice on any one in respect of land it can always take recourse to the civil court for obtaining appropriate injunction or prohibitory orders. When the party fails obtaining any

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appropriate order of injunction or prohibitory order from the competent civil court, then that party, atleast in my view, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. Or else it will lead to a situation where on account of showing semblance of some interest in the land in question or for that matter even substantive interest the party who has not been successful in establishing its right and obtain any prohibitory orders would succeed in thwarting and throatling the occupant of the land in question who is legitimately acknowledged to be occupant by revenue authorities. The N.A. Permission under section 65 cannot be said to be in any manner conferring and or abridging title of any one if it exists in the land in question. It is merely an act of granting permission by the authority qua the piece of land in question. In other words it can well be said that the land which was an agricultural land and it was supposed to put up to agricultural purpose, is decided to be freed from restrictions and permitted to be developed. Thus the permission is attached to the land in question and not to the person. Therefore in my view the interpretation of section 65 of the Code cannot be said to be in any manner rendering it to be adversarial proceedings at all.

21. Bearing the aforesaid proposition of law in mind when one examines the aspect of appeal preferred by the contesting respondents, one would find it difficult to accept as to how the right to appeal is said to have been conferred upon a third party who has failed in establishing any right before the civil court so far as the land in question is concerned. When the party has not obtained any order or has not been successful in obtaining any order in any manner from civil court, which is competent, i.e. only court to adjudicate upon and acknowledge their rights and title in the land in question, that party cannot be permitted to

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throw spanner in the wheels of development set in motion by the legitimate competent authority, whose entry is there in the revenue record. Therefore the appeal itself from the point of view of locus was also not obtained."

8. From the aforesaid observations, it is clear that Section 65 of the Code does not envisage scope of raising any objection in any party who has not acknowledged right or interest in the land in question. In other words, proceedings under Section 65 of the Code is not an adversarial proceedings. The N.A. Permission under Section 65 of the Code cannot be said to be in any manner conferring and/or abridging title of any one, if it exists in the land in question. It is merely an act of granting permission by the authority qua the piece of land in question. Thus, the permission is attached to the land in question and not to the person. The rights of the parties will be decided by the Civil Court in the pending civil proceedings.

9. In view of the aforesaid, this Court is of the view that respondent No.1 has committed an error while quashing and setting aside the order passed by respondent No.2 Collector, by which, permission under Section 65 of the Code was granted in favour of the petitioners. Accordingly, the impugned order dated 04.07.2005 passed by respondent No.1 - SSRD in Revision Application No.SRD/NA/ST/7/2002 is quashed and set aside. The order dated 30.10.2002 passed by respondent No.2 Collector is restored subject to the final outcome of the civil proceedings viz. Regular

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Civil Suit No.1156 of 2015 and Special Civil Suit No.118 of 2003 pending before the learned Civil Judge (SD), Surat.

10. The petition is allowed, in the above terms. Rule is made absolute to the aforesaid extent.

(VIPUL M. PANCHOLI, J) piyush