Indumatiben Girjashaner Oza vs The State Of Gujarat
2022 Latest Caselaw 5000 Guj

     C/SCA/23608/2007                              JUDGMENT DATED: 09/06/2022



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 23608 of 2007


FOR APPROVAL AND SIGNATURE:                                  SD/-

HONOURABLE DR. JUSTICE A. P. THAKER

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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 ?                           Yes

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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                         INDUMATIBEN GIRJASHANER OZA
                                     Versus
                        THE STATE OF GUJARAT & 3 other(s)
=============================================
Appearance:
MR ANSHIN H DESAI(1020) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
MR ASHISH M DAGLI(2203) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2,4
=============================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                               Date : 09/06/2022

                                ORAL JUDGMENT

1. By way of preferring this petition under Article 226 of

the Constitution, the petitioner has sought the following

reliefs:

"[A] YOUR LORDSHIPS may be pleased to admit and allow this petition.

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

[B] YOUR LORDSHIPS may be pleased to call for R & P from the Office of the respondent No.2 - Collector, Surendranagar.

[C] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by directing the respondent No.2, Collector, Surendranagar, its officers, employees, agents and servants, to follow. the order dated 6/6/2007 - 14/6/2007 passed by the Joint Secretary, Revenue Department [Appeals] in Revision Application No. MVV/BKP/SNR/4/2007, at Annexure "J" to the petition, in the interest of justice.

[D] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by directing the respondent No.2, Collector, Surendranagar, its officers, employees, agents and servants, to grant application for N.A. Permission filed by the petitioner, dated 7/8/2006, at Annexure "F" to the petition. 7.

[E] Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to direct the respondent No.2, Collector, Surendranagar, its officers, employees, agents and servants, to follow the order dated 6/6/2007 - 14/6/2007 passed by the Joint Secretary, Revenue Department [Appeals] in Revision Application No. MV V/BKP/SNR/4/2007, at Annexure "J" to the petition, in the interest of justice.

[F] YOUR LORDSHIPS may be pleased to pass such other and further relief in favour of the petitioner, as deemed just and proper, in the facts and circumstances of the case."

2. The brief facts giving rise to the present petition are

as under:

2.1 That vide registered sale deed dated 22.04.1974, the

husband of the petitioner, namely late Oza Girjashanker

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

Narottamdas purchased the land bearing old survey No.

2988, admeasuring A 12-30 G, situated at the sim of

Halvad, Dist. Surendranagar. This land was purchased

from the original owners namely, [1] Kumbhar Karsanbhai

Dayabhai, [2] Kumbhar Baldevbhai Dayabhai, [3] Kumbhar

Maganbhai Dayabhai, [4] Kumbhar Bhikhabhai Shamjibhai,

[5] Kumbhar Bai Jiviben Dayabhai, [6] Ben Shanta

Dayabhai.

2.2 That another piece of land bearing old Survey No.

2991, admeasuring A 3-13 G (new Survey No. 2549,

admeasuring A 3-8 G) was purchased by late Oza

Girjashanker Narottamlal by way of registered sale deed

from [1] Dalwadi Shamjibhai Chonda, [2] Dalwadi

Premjibhai Chonda, and [3] Dalwadi Vithalbhai Lakhman.

This land originally belonged to the father of the sellers,

namely, Dalwadi Chonda Moti, who had expired, and his

two sons, namely, Shamjibhai Chonda and Premjibhai

Chonda, and his third son had died at the time of the

register of sale deed, namely Lakhman Chonda, his son

Vithalbhai Lakhman and his deceased wife Baluben

Chonda.

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

2.3 That the necessary revenue entries were mutated

bearing No. 949 dated 30.06.1974 and were also certified.

That name of the petitioner's late husband was also

entered into village form No. 7/12 abstract and after his

death, the name of the petitioner has been entered.

2.4 That vide order dated 09.12.2006, the Mamlatdar,

Halvad passed an order of consolidating six survey

numbers being revenue survey Nos. 2548, 2549, 2550,

2552, 2553, 2554, and the new number was given for all

the consolidated pieces of land being survey No. 2548 of

Halvad, Taluka: Halvad, Dist: Surendranagar. The

petitioner applied for conversion of land from agriculture

purpose to non-agriculture purpose of survey No.2548

vide application dated 07.08.2006. All the authorities have

given No Objection Certificates for consideration of the

said application for grant of non-agriculture permission.

That vide certificate dated 13.02.2007, the Mamlatdar -

Halvad also gave a certificate, under Rule 111 and 112 of

the Code, stating that, from the revenue record village

form No.7/12, promulgation has been made on the

respective dates which were mentioned in the certificate.

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

That the requisite procedure of the amount through

challan, fulfilling all the formalities which are required to

be fulfilled when conversion is prayed for, have been

fulfilled by the petitioner. However, respondent No.2

Collector-Surendranagar vide his order dated 12.02.2007,

rejected the same mainly on the ground that both the

survey numbers were sold by heirs of the original owner

and that the entries of the heirs were not made at that

point of time i.e., way back in the year 1974 and on that

basis it was observed that the title of the land is not clear.

2.5 The order of the Collector came to be challenged by

the petitioner by way of Revision Application before the

Learned Special Secretary, Revenue Department (for short

"SSRD") being Revision Application No.

MVV/BKP/SNR/4/2007. The said revision was allowed by

the Joint Secretary [Appeals] vide his order dated

06.06.2007 and the matter was remanded to the

respondent No.2 Collector, Surendranagar. It was

observed by the Ld. SSRD that registered sale deeds have

been made way back in the year 1974; that the heirs have

never raised objections; that the entries of sale have not

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

been challenged; and that the petitioner is entitled to pray

for the conversion of land.

2.6 After the remand, the Collector did not pass any

order in the matter for granting conversion of land from

agriculture purpose to non-agriculture purpose. No action

was taken by the Collector in the aforestated matter.

2.7 Being aggrieved by the inaction on the part of the

respondent No.2 Collector, Surendranagar, the petitioner

has approached this Court by way of this petition.

3. It appears from the records that Indumatiben

Girjashanker Oza moved an application for permitting her

to contest the petition as an individual as the power of

attorney executed in favour of Shri Himanshu Chandulal

Thakkar has been canceled by her. Initially this prayer was

granted with the direction that Himanshu Thakkar to be

made as a party - respondent. However, it appears from

the record that thereafter Indumatiben Oza died and

Himanshu Thakkar filed an application for transposing him

as a petitioner, which application being Civil Application

No. 6601 of 2009 came to be allowed vide order dated

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

07.07.2015. Thus, now the said Himanshu Chandulal

Thakkar is treated as a petitioner, therefore, objections

filed by Hasmukhbhai as a party - respondent does not

require to be considered.

4. Further, it also appears from the record that during

the pendency of the petition other private respondents

have been joined as a party - respondents, who have not

filed any affidavit-in-reply contesting the petition.

5. It appears from the record that one Mr. P.D. Palsana,

Resident Deputy Collector, Surendranagar has filed one

affidavit, inter-alia, supporting the initial order of the

Collector rejecting the application on the ground of non-

clearance of the titles.

6. Heard learned Senior Counsel Mr. Anshin H. Desai for

the petitioner and Mr. Nikunj Kanara, learned Assistant

Government Pleader for the State. Initially, none remained

present for the private respondent No.3. However, written

submissions have been filed on behalf of the petitioner as

well as respondent No.3 which are taken on records.

7. Learned Senior Counsel Mr. Desai has vehemently

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

submitted the same facts which are narrated in the Memo

of petition which are already referred to herein-above. He

has vehemently submitted that it is not the jurisdiction of

the Collector to deal with the title of the land while dealing

with the application for non-agriculture permission. He has

submitted that when the order of the Ld. Collector was set

aside by the Ld. SSRD and matter was remanded back for

granting necessary non-agriculture permission, the Ld.

Collector ought to have passed appropriate order of

granting non-agriculture permission to the petitioner. He

has submitted that however, in the present case, the

Collector has not taken any action and kept silent. He has

also submitted that now it is a well-settled principle of law

that non-agriculture permission is given to the land and

not to the holder, therefore, the title is not to be looked

into. He has submitted that the original transaction was of

the year 1974, and therefore, at the time of rejection of

the application for non-agriculture permission almost 33

years was passed and the heirs of the original owners

have never challenged the sale deed nor challenged the

revenue entries, and therefore, there was no ground for

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

rejection of the non-agriculture application preferred by

the petitioner. He has also submitted that since the

original petitioner, who has granted power of attorney to

the present petitioner has died and there was a further

special power of attorney, coupled with the interest,

executed in favour of the present petitioner, the present

petitioner has the right and authority to continue with the

matter and seek appropriate relief. He has submitted that

considering the facts and circumstances of the case the

Collector may be directed to pass appropriate order

granting non-agriculture permission to the petitioner. He

has relied upon the following decisions in support of his

submission:

I. Bhayabhai Vajshibhai Hathalia & Ors. Vs. State

of Gujarat & Ors. reported in 2012 (2) GLR 1741;

II. Manjibhai Nagjibhai Mangukia Vs. Special

Secretary (Appeals), Revenue Department &

Ors. reported in 2015 (3) GLR 2660;

III. State of Gujarat Vs. Patel Raghav Natha & Ors.

reported in AIR 1969 SC 1297;

8. Per contra, learned Assistant Government Pleader Mr.

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Kanara has supported the order of the Collector and

submitted that since there was a defective title of the

petitioner, the Collector has rightly rejected the non-

agriculture permission. He has prayed to dismiss this

petition.

9. In the written submissions made on behalf of the

respondent No.3, wherein it has been contended that

since the grantor of the power of attorney i.e., deceased

Indumatiben Oza has already died and she has already

canceled that power of attorney given to the present

petitioner, the petition itself is not maintainable in

absence of the legal heirs of deceased Indumatiben Oza. It

is also contended that Hasmukhbhai has already filed

Special Civil Suit for specific performance of the contract

against the deceased Indumatiben Oza and in that matter

heirs of Indumatiben Oza have been joined. It is also

contended that as the petitioner is relying upon the

agreement to sale, no right or title has been vested in

him, and therefore, till the decision of the Civil Suit, the

present petitioner Himanshubhai has no locus standi. It is

also contended that since there was a defect in the title,

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

the Collector has properly passed the order. It is also

contended that permission of non-agriculture is an

administrative action and not a quasi-judicial order and

therefore, even the Ld. SSRD has no jurisdiction to quash

the order of the Collector and this Court has no

jurisdiction. The reliance has been placed on the decision

in the case of Yashkamal Builders, Baroda Vs. State

of Gujarat reported in 1989 (1) GLR 382 as well as the

decision of this Court dated 04.01.2016 passed in Special

Civil Application No. 12375 of 2015 in the case of

Virendra Shivshankar Adhvaryu Vs. State of Gujarat

and 14 Ors. for the proposition that in respect of the

execution of an agreement to sale if the civil case is

pending, the agreement holder cannot be said to have any

right or interest into the land in question till he gets any

order from the Civil Court recognizing his right in the land

for which agreement to sale is executed. On this ground,

prayer is made to dismiss the present petition.

10. Having considered the submissions made on behalf

of both the sides coupled with the material placed on the

record and the decision cited at the bar, it emerges that

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

there is no dispute regarding the facts that deceased

Girjashanker Oza has purchased various parcels of land in

the year 1974 from the heirs of the original owners. It is

also admitted facts that on the basis of the sale deeds

appropriate revenue entries have been mutated in the

revenue records which were certified way back in the year

1974 itself. It is also an undisputed fact that deceased

Indumatiben Oza through the present petitioner has

applied for non-agriculture permission in the year 2007. It

also reveals from the record that as per the procedure

required to be carried out for issuance of N.A., necessary

No Objection Certificates were obtained from the

respective concerned authorities. It also reveals that all

the authorities have granted No Objection in favour of the

petitioner for grant of non-agriculture permission. It

appears that the Ld. Collector has rejected the said

application mainly on the ground that while promulgation

exercise and after the death of the original owner, name

of heirs were not mutated in the revenue records, and

therefore, the title of the land is not clear in favour of the

purchaser.

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

11. At this juncture, it is pertinent to note that the

Collector was dealing with the RTS proceedings and he

was to decide as to whether N.A. permission under Section

65 of the Gujarat Land Revenue Code be granted or not?

He was not dealing with the question of title of the land.

Now it is a well-settled by catena of the decision by this

Court that proceedings under Section 65 of the Code is not

an adversaid value proceeding at all. It is merely an act of

granting permission by the authority qua the piece of land

in question. The permission is attached to the land in

question and not to the person. The N.A. permission under

Section 65 cannot be said to be in any manner confirming

and/or abridging the title of anyone if it exists on the land

in question. Therefore, the question of title cannot be

decided by the Collector. If any person has a grievance

against the title of the land, then such person has to

approach the Civil Court for adjudication of his right.

However, in no case, the Collector can decide the question

of title under the proceedings under Section 65 of the

Code.

12. Now considering the facts of this case, it is crystal

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

clear that the sale deeds are of the year 1974 and the

owners of the land or heirs thereof have never challenged

the same before any Civil Court even none of them have

challenged the mutation entry made in the year 1974 on

the basis of the registered sale deed. Further, when the

non-agriculture permission is attached with the land, the

question as to whether the petitioner is a power of

attorney holder or owner, or himself does not need to be

decided in such application. Therefore, the contention

raised by respondent No.3 in the written submissions

regarding the non-maintainability of the petition is not

acceptable. Even if the present petitioner Himanshubhai

has filed a suit for specific performance of agreement to

sale against the original owner deceased Indumatiben Oza

or her heirs, does not take away the right of a person, who

has applied for the non-agriculture permission, which is

attached to the land and not to the person concerned.

13. Therefore, considering the facts and circumstances of

the present case, it clearly reveals that the Ld. Collector

has exceeded his jurisdiction and he ought to have

followed the direction of the Ld. SSRD wherein regarding

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

factual aspects, it has already been observed in favour of

the petitioner for grant of non-agriculture permission.

When the higher authority has directed the subordinate

authority to act and decide the matter, then it is an

incumbent duty on the part of the subordinate authority to

decide the matter which has been remanded by the higher

authority in a prompt manner and in accordance with the

observations made by the higher authority. In the present

case, it appears that Ld. Collector, Surendranagar, for

reasons best known to him, has adopted adamant attitude

in taking the decision in the matter of appreciation for N.A.

permission as preferred by the petitioner. Under these

circumstances, the present petition deserves to be partly

allowed directing the Ld. Collector to decide the

application of non-agriculture permission filed by the

petitioner in the year 2007 in accordance with law and in

consonance with the observations made by this Court.

14. In view of the above discussion, the present petition

deserves to be partly allowed. Hence, the present petition

is partly allowed. The Ld. Collector, Surendranagar is

hereby directed to decide the application of the non-

C/SCA/23608/2007 JUDGMENT DATED: 09/06/2022

agriculture permission of the petitioner pending before

him, which were remanded back by the Ld. SSRD to him

afresh, after affording an appropriate opportunity of being

heard to the petitioner and keeping in mind observations

made by this Court as aforesaid. Such exercise be

completed by the Ld. Collector within a period of three

months from the date of receipt of this order.

15. There shall be no order as to costs. Rule is made

absolute to the aforesaid extent. Direct service is

permitted.

SD/-

(DR. A. P. THAKER, J) T. J. Bharwad