Manankumar Chetankumar Shah vs Collector, Kutch
2023 Latest Caselaw 8367 Guj

Gujarat High Court

Manankumar Chetankumar Shah vs Collector, Kutch on 4 December, 2023

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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     C/SCA/661/2023                                 ORDER DATED: 04/12/2023

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO.661 of 2023

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                      MANANKUMAR CHETANKUMAR SHAH
                                 Versus
                            COLLECTOR, KUTCH
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Appearance :
MR AS VAKIL for the Petitioner.
MR JAY TRIVEDI, AGP for the Respondent.
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                            Date : 04/12/2023
                             ORAL ORDER

1. Rule. Learned AGP waives service of rule on behalf of respondent. With the consent of learned advocates for the parties, the matter is taken up for final disposal today itself.

2. By way of this petition, the petitioner has challenged the order dated 4.8.2022 passed by the Collector, Kutch below application dated 12.5.2022 of the petitioner seeking non- agricultural permission and prayed to remand the said application to decide afresh.

3. The case of the petitioner is that the petitioner purchased land bearing Survey No.128 admeasuring 25,192 Sq. Mts. situated at village Bhunjay Moti, Taluka Nakhatrana, District Kutch by way of registered Sale Deed dated 27.1.2002 executed by Sidhik Osman Sumra in favour of Chetanbhai Navnitbhai Shah, Dinaben Chetanbhai Shah and Manankumar Chetanbhai Shah - petitioner herein who was minor at that time through his mother

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Dinaben Chetanbhai Shah.

3.1 Pursuant to the aforesaid Sale Deed, mutation Entry No.164 was recorded in the revenue record and was certified on 11.4.2002. On 18.1.2016, mutation Entry No.287 was made in the revenue record entering the name of the petitioner upon becoming major with respect to various lands including the land in question.

3.2 Thereafter, the petitioner preferred an application for grant of N.A. permission on 12.5.2022. However, the aforesaid application was rejected by the Collector, Kutch by order dated 3.8.2022 only on two grounds :- (i) that the petitioner has become the agriculturist as his father his an agriculturist and the Sale Deed through which father of the petitioner became agriculturist is subject matter of proceedings initiated before the Gujarat Revenue Tribunal and (ii) that the petitioner failed to pay the amount of penalty imposed upon the petitioner in a proceedings under Section 66 of the Gujarat Land Revenue Code.

3.3 Hence the present petition.

4. Mr. Apurva S. Vakil, learned advocate appearing for the petitioner filed additional affidavit of the petitioner dated 30.11.2023 which reads as under :-

"I state that I have already stated in paragraph 2.13

of the SCA that I am ready and willing to pay the

amount of Rs.4,53,480/- in terms of the order dated

25.10.2021 passed in Case No.36 of 2021. I have

also stated that there is no commercial use of the

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land after order dated 25.10.2021. I reiterate the

same. Additionally, I also agree to pay reasonable

simple interest at the present banking rate which

would be approximately 6% to 7% per annum."

5. Learned advocate Mr. Vakil has also appraised this Court about the fact that the proceedings pending before the Gujarat Revenue Tribunal are in respect of altogether a different parcel of land and there also, though the father of the petitioner enjoys the status of an agriculturist, the order confining the status of agriculturist to the father of the petitioner has not been stayed by GRT.

6. Learned advocate Mr. Vakil also relied upon the decision of the coordinate Bench of this Court in the case of Sunil Khimji Shah v. The Collector, dated 18.2.2022 passed in Special Civil Application No.18311 of 2021 and submitted that in almost similar/identical set of facts, the case of the petitioner in that petition was directed to be considered by the Collector, Kutch and to process the N.A. permission application of the petitioner within a period of 3 months. According to Mr. Vakil, the said petition was preferred by the person who purchased the land from the father of the present petitioner and, therefore, the N.A. permission application preferred by the petitioner in that petition came to be rejected by the Collector, Kutch on similar grounds and, therefore, by making suitable observations, the coordinate Bench of this Court allowed the petition. He, therefore, submitted that as the facts of the said case are identical, the ratio laid down by this Court is squarely applicable to the facts of the present case and, therefore, the present petition may be allowed on the same line.

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7. Mr. Jay Trivedi, learned Assistant Government Pleader appearing for the respondent - State could not dispute the aforesaid factual position of the matter. However, he submitted that if this Court by making suitable observations, remands the matter back to the Collector, Kutch to decide the N.A. permission application of the petitioner afresh in view of the judgment relied upon by the petitioner in case of Sunil Khimji Shah, who is similarly situated person in respect of the present petitioner, but having fact that the petitioner happens to be the son of Chetanbhai Shah from whom Sunil Khimji Shah purchased the land.

8. The petition was considered in view of aforesaid rival submissions advanced by learned counsels for the respective parties and on perusal of the record, this Court finds that the petitioner was a minor at the time when the land in question was purchased. It is also not in dispute about the fact that the decision relied upon by learned advocate Mr. Vakil in the case of Sunil Khimji Shah is in respect of land purchased by Sunil Khimji Shah from the father of the petitioner and while rejecting his N.A. permission application, one of the ground was pendency of proceedings before the GRT. In light of the aforesaid aspects, the observations made by the Coordinate Bench in the case of Sunil Khimji Shah v. The Collector, dated 18.2.2022 passed in Special Civil Application No.18311 of 2021 (Supra), more particularly, paragraphs 12 and 13 reads as under :-

"12. Further, averments are made to the effect

that against the legal heirs of Navnitlal Ratanshi

Shah, with respect to the land at mauje Gangapar,

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taluka Mandvi, district Kutch, proceedings are

initiated. It is discernible from the record that the

Mamlatdar, after initiating the proceedings under

section 122 of the Act of 1958, and verifying the

status of the agriculturist of Chetankumar Navnitlal

Shah, has dropped the proceedings. The appeal

against the said order has been rejected and the

order of the Mamlatdar has been confirmed.

Similarly, Collector has also rejected the appeal and

has confirmed the order of the Mamlatdar and the

Deputy Collector. Though the proceedings are

pending before the Tribunal; the stay application

filed by the State Government has been rejected by

a detailed order dated 6.5.2021.

13. Therefore, in the aforesaid background, not

to consider the application only on the basis that the

purchaser Chetankumar Navnitlal Shah, is not an

agriculturist, would be unjust and improper. Except

these, nothing has been brought to the notice of this

Court as to why the order of the Collector, not

considering the application, is proper and in

conformity with the provisions of Section 65 of the

Code."

The aforesaid observations made by the coordinate Bench would indicate that the case of the petitioner is almost similar to the above referred case. While allowing the said petition, the coordinate Bench of this Court in paragraph 16 and 17 observed as under :-

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"16. The grounds mentioned in the communication

dated 9.8.2021, not considering the application, in

the opinion of this Court is not available in view of

the fact that the entry no.108, is in currency since

last more than 43 years and entry no.270, since last

more than seven years. Therefore, the order dated

9.8.2021, cannot be said to be just and proper and

deserves to be quashed and set aside and is hereby

quashed and set aside. The Collector, is directed to

process the application of the petitioner for grant of

NA permission in terms of the present judgment.

The Collector, is directed to pass appropriate orders

on the NA application of the petitioner, imposing

conditions as per Section 65 of the Code within a

period of three months from the date of receipt of

the copy of this order.

17. The petition succeeds and is accordingly

allowed. Rule is made absolute to the aforesaid

extent. Needless to clarify that observations made

are confined and restricted only for the purpose of

deciding Section 65 application, and the application

pending before the Tribunal, reference whereof is

made in the affidavit-in-reply, be decided on its

merits and without being influenced by the

observations made in the present judgment."

9. It is also pertinent to note that the aforesaid decision was carried in appeal by the State of Gujarat in Letters Patent

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Appeal (F) No.23460 of 2023. However, as the appeal was preferred after delay of 506 days, the same was dismissed on the ground of delay as well as by observing in paragraph 2 of the order dated 29.8.2023 that the Division Bench of this Court did not find any infirmity in the order passed by learned Single Judge.

10. Considering the above referred observations of the coordinate Bench coupled with the additional affidavit dated 30.11.2023 of the petitioner, I am of the opinion that the present petition succeeds and the same stands allowed. The impugned order dated 4.8.2022 passed by the respondent - Collector, Kutch is quashed and set aside. Accordingly, the Collector, Kutch is directed to process the application of the petitioner seeking Non- agricultural permission and decide the same afresh within a period of three months from today in light of the observations made by the coordinate Bench of this Court in the case of Sunil Khimji Shah v. The Collector, dated 18.2.2022 passed in Special Civil Application No.18311 of 2021 as well as consider the additional affidavit dated 30.11.2023 filed by the petitioner befoer this Court, as in the opinion of this Court, the facts of the present case and the facts of the case of Sunil Khimji Shah are similar.

Rule is made absolute to the above extent. There shall be no order as to costs. Direct service is permitted.

(NIRZAR S. DESAI,J)

SAVARIYA