Gujarat High Court
Hiralal Narsinhbhai Hadakiya vs State Of Gujarat on 1 February, 2023
Bench: A.S. Supehia
C/SCA/1400/2022 ORDER DATED: 01/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1400 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 1400 of 2022
================================================================
HIRALAL NARSINHBHAI HADAKIYA
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1,2,3
YAGNESHKUMAR S JOSHI(8074) for the Petitioner(s) No. 1,2,3
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1,2
================================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 01/02/2023
ORAL ORDER
1. Rule. Learned AGP waives service of notice of rule for the
respondent-State.
2. By way of the present petition, the petitioners have invoked the
extraordinary jurisdiction vested in this Court under Articles 226 and 227
of the Constitution of India and thereby seek to challenge the order dated
29.10.2021 passed by the Collector, Surat. By the impugned order, the
Collector, Surat has passed a fresh order on 29.10.2021 and modified the
condition No.14 and has imposed a fresh condition No.14 directing to
maintain status quo qua the revenue record.
3. Learned advocate Mr.Nishit Gandhi appearing for the petitioners
has submitted that the dispute pertains to land bearing old Revenue
Survey No.490 paiki (New Survey No.299/3) of Final Town Planning
Scheme No.6 (Vesu), having Final Plot No.40, situated at Village Vesu,
Taluka Majura, District Surat. It is submitted that the condition no.14,
which is incorporated by the Collector while granting NA permission
C/SCA/1400/2022 ORDER DATED: 01/02/2023
vide order dated 03.02.2016 modified vide order dated 29.10.2021 since
the Collector has no authority to incorporate such observations while
granting NA permission exercising his powers under the Gujarat Land
Revenue Code, 1879 (for short "the Code"). In support of his
submissions, he has placed reliance on the judgment of this Court in the
case of Tusharbhai Harjibhai Ghelani vs. State of Gujarat and Ors., 2019
(4) GLR 2578.
4. Learned AGP Mr.Parikh, while opposing the present writ petition,
has submitted that the impugned order does not require any interference
since Civil Suit No.301 of 2006 is pending before Principal Civil Judge,
Surat and hence, the Collector has modified the condition no.14 of the
original order dated 03.02.2016 by the order dated 29.10.2021 and instead
of maintaining status quo, he has observed that the parties shall maintain
status quo with regard to the revenue entries.
5. The petitioners applied for NA permission before the District
Collector, who, while granting NA permission vide order dated
03.02.2016, has incorporated various conditions and the relevant
condition nos.13 and 14 of the said order. The condition no.13
incorporates that the order dated 03.02.2016 would be subject to the
result of Civil Suit No.301 of 2006, which is pending before the Civil
Court, Surat as well as Civil Revision Appeal No.278 of 2013 pending
before this Court. The condition No.14, of which the petitioner is
aggrieved mentions that the parties shall maintain status quo with regard
to land in question for which the NA permission is granted till the Civil
Court decides the Civil Suit.
C/SCA/1400/2022 ORDER DATED: 01/02/2023
6. Being aggrieved, the petitioners challenged the aforesaid condition
before the SSRD. By the order dated 10.02.2021, the SSRD remanded the
matter to the District Collector. On remand the matter, by the impugned
order dated 29.10.2021, the District Collector, Surat modified the
aforesaid condition no.14 and instead has recorded that the parties shall
maintain status quo with regard to the revenue record till the final
decision of the civil suit.
7. It is also not in dispute that Exh.5 application moved in the
concerned civil suit was allowed by the order dated 31.08.2010 by the
Principal Civil Judge, Surat, which has been set aside by this Court in
Appeal from Order No.315 of 2010, which has been confirmed by the
Apex Court vide its order dated 13.10.2014. Thus, as on today there is no
injuction operating for the land in question.
8. In the case of State of Gujarat v. Patel Raghav Natha,(1969) 2 SCC 187,
the Supreme Court has held that:-
" When the party fails obtaining any 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 throttling 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."
Thus, it was not open for the Collector to incorporate the condition
of maintaining status quo apropos revenue entry while granting NA
permission in wake of the condition no.13 in the order dated 03.02.2016,
C/SCA/1400/2022 ORDER DATED: 01/02/2023
which would have taken care of any eventuality. Hence, the impugned
order dated 29.10.2021 is hereby quashed and set aside.
9. It is needless to say that the parties will be governed by the
condition no.13 incorporated in the order dated 03.02.2016.
10. With this direction, the present petition stands disposed of. Rule is
made absolute. Direct service is permitted.
11. As a sequel, the civil application does not survive and the same is
disposed of accordingly.
(A. S. SUPEHIA, J)
ABHISHEK/2
