Ashwinsinh Hemendrasinh ... vs State Of Gujarat
2022 Latest Caselaw 4439 Guj

    C/SCA/13136/2017                                JUDGMENT DATED: 27/04/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13136 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                         Sd/-

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

2    To be referred to the Reporter or not ?                             No

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

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

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                       ASHWINSINH HEMENDRASINH SARVAIYA
                                    Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MUKESH N VAIDYA(5197) for the Petitioner(s) No. 1
MR.KISHORE PRAJAPATI(6305) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                                Date : 27/04/2022

                                ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the order dated 17.04.2017 passed by respondent no.1, rejecting the Revision Application No.6/2015 and confirming the order dated 22.07.2015 passed by the respondent no.2 rejecting the application made by the petitioner for grant of NA permission under the

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provisions of Section 65 of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as the Code) for want of Non agricultural permission, the petitioner has preferred this petition under Article 226 of the Constitution of India for the following reliefs:-

"(A) YOUR LORDSHIPS may be pleased to issue issue appropriate writ, order or directions, quashing and setting aside the impugned order dated 17.4.2017 made by respondent no.1 in Revision Application no.6/2015 as well as order dated 22.7.2015 made by respondent no.2 and further be pleased to. order grant of NA permission in respect of consolidated Survey No.58 admeasuring 14,366 sq. meters situate at Bedi, District-Jamnagar . under the provisions of Sec. 65 of the Gujarat Land Revenue Code, 1879, in the interest of justice and equity;

(B) YOUR LORDSHIPS may be pleased to stay the implementation, operation and execution of order dated 17.4.2017 made by respondent no.1 in Revision Application no.6/2015 as well as order dated 22.7.2015 made by respondent no.2, pending the admission, hearing and final disposal of this petition;

(C) YOUR LORDSHIPS may be pleased to pass such other and further order as the nature and circumstances of the case may be required."

2. The brief facts of the petitioners case are that he is a bonafide purchaser of the agricultural land bearing survey no.58 admeasuring 11,331 square meters and revenue survey no.59 admeasuring 11,129 square meters and another parcel of land admeasuring 3035 square meters admeasuring aggregate 14,366 square meters of mouje Bedi, Rajkot from one Shri Ramji Mandir Trust, pursuant to the permission granted by the Charity Commissioner under Section 36 of the Bombay Public Trust Act, 1950 (hereinafter referred to as "the Act").

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2.1. It is contended by the petitioner that having obtained permission under Section 36 of the Act, the Collector has on completely extraneous grounds not germane to the jurisdiction under Section 65 of the Code, denied the non-agricultural permission who otherwise under Section 65 of the Code is under obligation. The petitioner has denied that the land in question is a Barkhali land. It is also contended that Section 15 of the Saurashtra Barkhali Abolition Act, 1951 (hereinafter referred to as "Barkhali Act") does not bar a trust to apply under Section 36 of the Act and eventually to transfer the land in question to the petitioner. It is also contended that reliance placed by the Collector on the Government Circular dated 04.04.2010 is misconceived as it does not bar transfer of land of the trust. It is also alleged that there was a violation of principled of natural justice as no opportunity of hearing was granted to the petitioner before passing the impunged order and the said order is not speaking order. It is also contended that the learned Special Secretary Revenue Department (hereinafter referred to as "the SSRD") has also not taken into consideration various contentions raised by the petitioner in revision application.

2.2. The affidavit in reply has been filed on behalf of the State, wherein they have denied the contentions of the petitioner regarding the facts that the order is non speaking one and the contentions put forward by the State Government is that the dispute pertains to the non grant of NA permission in respect of consolidated survey no.58 admeasuring 14,366 square meters of mouje Bedi, Rajkot land. It is contended that the land in question was originally having old survey no.124 admeasuring acres 5-14 gunthas. That as per the revenue entry no.45 of the year 1955 shows that the land was entered in the name of Thakar Mandir through its pujari Bava Keshavdas Narbhay Rams heirs, Hariram Keshavdas

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and Dayaram Keshavdas has shown as 'Barkhlidar'. It is also contended that thereafter in the year 1967, due to survey of the lands being introduced by the State Government, the land in question was given new survey nos.58 and 59 admeasuring acres-2.32 gunthas and acres-2.30 guntahs respectively. The same is reflected from the mutation entry no.216 dated 01.07.1967.

2.3. According to the respondent as per another mutation entry no.286 recorded in village form no.6, it is mentioned that the land is belonging to Thakar Mandir being actually occupied by the pujari Prabhudas Hariram. According to the respondents, all through out, the name of Thakar Mandir has appeared in the village form no.7 -12 and name of Prbhudas Hariram has been shown as administrator of the said temple. Further, in the year 2011, an application was preferred on behalf of the Ramji Mandir Trust before the Charity Commissioner, Rajkot, seeking permission under Section 36 of the Act to sold the land in dispute. Permission was granted by the Charity Commissioner. It is contended that in view of the permission under Section 36 of the Act, a sale deed came to be registered by Pujari Prabhudas Hariram in favour of the present petitioner on 23.12.2011, the same has been reflected in the revenue record vide mutation entry no.1992 dated 23.12.2011. It is further contended that the said mutation entry came to be cancelled.

2.4. It is contended that once again, the petitioner applied for mutation of his name in the revenue record on the basis of the order of the Charity Commissioner and sale deed, mutation entry no.2064 dated 14.08.2012 came to be mutated in the revenue record and the same was certified. According to the respondent, thereafter pursuant to the consolidation of the revenue survey nos., the

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land in question was given new survey no.58 admeasuring 14,366 square meters which is reflected from the mutation entry no.2112 dated 30.04.2013. According to the respondents thus, from its inception land belongs to Thakar Mandir and it was given as Barkhalidar land in terms of Section 15 of the Barkhali Act, as well as Rules 60, 61 and Form 10, whereby Barkhalidars are handed over the possession of such lands. It is stated that the land in question is of the ownership of Thakar Mandir and therefore, it cannot be transferred in any manner without prior permission of the competent authority. It is also contended that the State is intending to take appropriate proceedings against the order of the Charity Commissioner granting permission to sale the trust property.

2.5. It is also contended that, while rejecting the application of the NA permission by the Collector under Section 65 of the Code, which is administrative nature, it does not provide for an opportunity of being heard to be provided. It is also contended that the impugned orders are proper and therefore the petition may be dismissed.

3. Heard, learned senior advocate Mr.Mehul Sharad Shah assisted by learned advocate Mr.Kishore Prajapati for the petitioner and learned AGP Mr.Nikunj Kanara for the State at length. Perused the material placed on record and the decisions cited at bar.

3.1. Learned senior advocate Mr.Shah for the petitioner has vehemently submitted that the land has been purchased by the petitioner from the trust. He has submitted that the trust has obtained the necessary permission from the Charity Commissioner for selling the trust property. He has submitted that, when the Charity Commissioner has already granted the permission to the trustee to sell the property for the betterment of the trust, learned Collector can not set at naught the said transaction and cannot

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question the same. He has submitted that if anyone is aggrieved by the order of the Charity Commission, then necessary recourse available to such person is to take appropriate legal proceedings under the provisions of the Act. He has submitted that the Collector has the without considering these basic principles of law has merely rejected the application on the ground that the property belongs to the Thakar Mandir. He has submitted that even according to the circular, property is to be considered as of the trust and not of Pujari. He has submitted that now accordingly, in this case, the trustee has sold the property after obtaining necessary permission from the Charity Commissioner and therefore the action of the Collector is not in consonance with the law. It is also submitted that even under the 'Barkhalli Act', there is no embargo in transferring of land by the Barkhallidar. He has submitted that only prior permission needs to be obtained for transferring such land. He has submitted that in the present case, when the trust has obtained appropriate permission from the Charity Commissioner, there is no question of breach of any provisions of any law.

3.2. He has also submitted that the Collector has considered the letter of Prant Officer behind the back of the petitioner and no opportunity of being heard was provided to him. He has submitted that even under Section 65 of the Code the Collector cannot look into the title of the property and he has to grant necessary permission. He has submitted that the impugned order passed by the Collector is beyond the scope of the power under Section 65 of the Code. He has also submitted that even learned SSRD has also not considered the submissions made by the petitioner and therefore both the orders being not sustainable in the eyes of law, the same are set aside and the petition may be allowed. He has relied upon the following decisions:-

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(i) This Court in case of Tusharbhai Harjibhai Ghelani V. State of Gujarat reported in 2019 (4) GLR 2578 in para nos. 35, 38, 39 and 40 has observed as under:-

"35. Section 65 of the Code, referred to above, on its plain reading, do not provide for any scope of raising objection by any party who is yet to establish its right in his favour over the land in question. In other words, the proceedings under section 65 of the Code is not an adversary proceeding at all.

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 C/SCA/494/2015 JUDGMENT 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

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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."

(ii) This Court by an Oral judgment dated 08.01.2020 in Special Civil Application no.7709 of 2006 in case of Heir And Legal Representative Deceased Premjibhai Nagjibhai & Other(s) V. State of Gujarat & 3 Other(s) in para nos.15 and 21 has observed as under:-

"15. At the outset, suffice it to say that the Apex Court as well as this court in catena of decisions, have time and again held that if the statute does not prescribe any time limit for initiation of proceeding and wherever the power is vested in the authority without prescribing any time limit, such power should be exercised within reasonable time. In the celebrated judgment of the Apex Court in case of Patel Raghav Natha (supra), the Apex Court, while dealing with the provisions of Sections 65 and 211 of the Gujarat Land Revenue Code, 1879 has held that although there is no period of limitation prescribed under Section 211, the power of the Commissioner to revise order under Section 65 must be exercised in a reasonable time, of course,

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considering the nature of the order which is being revised.

21. Adverting to the third contention raised by learned advocate for the petitioners that the order dated 17.4.1996 is in violation of principles of natural justice, deserves acceptance. Pertinently, the order of the Deputy Collector, Palitana was passed on the basis of the report dated 31.7.1995 of the Mamlatdar, Gariyadhar, which report was neither disclosed nor offered to the petitioners. The learned Assistant Government Pleader is not in a position to controvert the said aspect that the report of the Mamlatdar, Gariyadhar dated 31.7.1995 was ever furnished to the petitioners or that the petitioners have been served with all the documents prior to the passing of the order dated 17.4.1996 by Deputy Collector, Palitana. Thus, the order dated 17.4.1996 passed by the Deputy Collector, Palitana is in clear breach of the principles of natural justice. On this count as well, the order of the Deputy Collector, Palitana and confirmed by the Collector, Bhavnagar as well as the Joint Secretary (Appeals) deserve to be quashed and set aside."

4. Per contra, learned AGP Mr.Nikunj Kanara for the respondent State has vehemently submitted that from the very inception, the land in question belongs to Thakar Mandir and therefore, the pujari has no authority to sell the property to anybody else. He has also submitted that the land given to the Thakar Mandir and therefore without prior permission of the competent authority under the 'Barkhalli Act', no sale or any transactions can be made on the property. He has submitted that the learned Collector and the SSRD has properly appreciated the facts and the legal provisions and has properly passed the impugned orders. He has submitted that the present petition is devoid of merits and the same may be dismissed.

5. Having considered the submissions made on behalf of both the sides, coupled with the material placed on record and the decisions referred to hereinabove, it emerges that there is no dispute

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regarding the facts that the suit land was given to the Thakar Mandir. It also reveals that Bavaji Prabhudas Harirambhai was a pujari and as per the provisions of 'Barkhalli Act', trust is said to be occupant of the property and accordingly, Thakar Mandir would be the occupant of the land in question.

6. It reveals from the record that the applicant Bavaji Prabhudas Harirambhai had moved an application before the Joint Charity Commissioner, Rajkot by filing application no.36/66/08 under Section 36 of the Act for permission to sell the trust property in question. The order of the Joint Charity Commissioner has been filed with the affidavit in reply by the respondent, which is from page no.152 to 160. On perusal of it, it appears that necessary public notice was issued on 14.12.2010 in daily newspapers Sandesh and Akila. It appears from the order that in response to that notice some objections were raised by the Panchayat Committee of the Bedi Gram Panchayat. It also appears that the order of the Joint Charity Commissioner granting permission that those objections have been rejected by the learned Joint Charity Commissioner and after due procedure permission has been granted and sale was confirmed by the Charity Commissioner. It also reveals from the order dated 18.11.2011 that there was a time extended for fulfillment of the conditions of the sale transactions. Thus, it clearly appears that the Pujari himself has not sold the property of the trust, but in pursuance of the appropriate permission granted by the Joint Charity Commissioner under the provisions of Section 36 of the Act, the trust property has been sold to the petitioner herein. Thus, the very basis of the observation of the Collector that pujari has sold the property is devoid of any merits.

6.1. It also reveals that the sale transaction has been already entered into their revenue records and entry in the name of the petitioner has already been

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mutated. It is admitted facts that the order of learned Joint Charity Commissioner is not set aside by any competent Court or by the Appellate Forum. Further, the petitioner has purchased the property from the trust on the basis of the permission granted by the Charity Commissioner.

7. At this juncture, it is worthwhile to refer the provisions of Section 15 of the 'Barkhalli Act', which reads as under:-

"15. Barkhalidar to be occupant:-

(1) A Barkhalidar shall become an occupant in respect of his Gharkhed and in respect of land allotted to him under Section 7 subject to any conditions that may be imposed in the occupancy certificate in accordance with the provisions of clause (a) of sub-section (8) where applicable.

Explanation.- For the purposes of this section Gharkhed cultivated personally by a holder of religious and charitable institutions shall be deemed to be "land" and the religious or charitable institution shall be deemed to be an occupant of such land."

8. Thus in view of the Section 15 of the 'Barkhalidar Act', so far as the trust property is concerned the trust will be the occupant. At this stage, it is also worthwhile to refer Section 8 of 'Barkhalidar Act', which reads as under:-

"8. Allotment of land for personal cultivation:-

[(1) A Barkhalidar in whose estate the agricultural land is equal to two economic holdings or less and who is not a Chakariyat, Dharmada institution, or Jivaidar for life, shall be allotted land for personal cultivation in the following manner:

(a) each of his tenants shall first be given half an economic holding, including any khalsa land in possession of such tenant;

(b) if there remains any Barkhali land, the Barkhalidar shall be given land to make up half an

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economic holding, including Gharkhed and khalsa land in his possession, if any;

(c) if there still remains any Barkhali land, it shall be divided haf and half between the Barkhalidar and the tenant: Provided that the maximum land so allotted shall not exceed one economic holding.]

(a)The Barkhalidar in respect of land allotted to him for personal cultivation under sub-section (1), and the tenant in respect of land allowed to remain in his possession under the said sub-section, shall have a mutual right of pre-emption for ten years for lease or sale at a price to be determined by the Mamlatdar under the rules made under this Act.

(b) The Barkhalidar and the tenant shall contribute to each other the expenses of the well sunk after 1st January, 1948, in proportion to the land allotted to the Barkhalidar or allowed to remain in possession of the tenant, if the well sunk by the Barkhalidar or the tenant goes to the tenant or the Barkhalidar res pectively, as the case may be.

(3) Nothing contained in this section shall apply-

(a) to a Barkhalidar if any member of his family is an evacuee within the meaning of the term "Evacuee" as defined in the Administration of Evacuee Property Act, 1959 (No. XXXI of 1950) or

(b) to any land in respect of which a tenant has acquired chav or buta hak.] Explanation. For the purposes of this section, agricultural land shall not include sites of farm building or of dwelings, or wadas

1. This sub-section was substituted for the original by Saurashtra Act No. II of 1952.

2. This sub-section was substituted for the original by Saurashtra Act No. II of 1952."

9. In view of the provisions of Sub-section 2(a) of Section 8 of the 'Barkhalidar Act' it clearly transpires that the law has recognized the mutual

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right of preemption for 10 years for lease or sale at a price to be determined by the mamlatdar. Thus, the right of sale is recognized in the act itself, of- course for a price to be determined by the mamlatdar.

10. Now, in this case, admittedly, when the Charity Commissioner has already granted permission for sale of land in question to the trustee of the trust and the petitioner has purchased the land accordingly, the exercise of power by the Collector rejecting the application under Section 65 of the Code is not in consonance with the well recognized principles of law as held by this Court in various decisions. As has been held by this Court in case of Tusharbhai Supra, observed hereinabove the Collector has to decide the application in accordance with law.

11. In view of the above, the present petition is liable to be allowed accordingly it is allowed. The impugned orders dated 17.4.2017 made by respondent no.1 in Revision Application no.6/2015 as well as order dated 22.7.2015 made by respondent no.2 are hereby quashed and set aside. Learned Collector is hereby directed to hear afresh the application of the petitioner under Section 65 of the Code in consonance with the observations of this Court made in the case of Tusharbhai Supra. Such exercise to be completed by the concerned authority within a period of three months from the date of receipt of this order. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

Sd/-

(DR. A. P. THAKER, J) URIL RANA