Nitinbhai Ambalal Patel vs State Of Gujarat
2023 Latest Caselaw 905 Guj

      C/SCA/19144/2022                                   ORDER DATED: 06/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 19144 of 2022
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                            NITINBHAI AMBALAL PATEL
                                      Versus
                               STATE OF GUJARAT
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Appearance:
MR SWETANG H KHARADI(12062) for the Petitioner(s) No. 1,2
PRATEEK S BHATIA(8629) for the Petitioner(s) No. 1,2
MR JAYNEEL S PARIKH, AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                  Date : 06/02/2023
                                   ORAL ORDER

1. Rule. Learned AGP waives service of notice of rule for and on behalf of the respondent-State.

2. At the outset, learned advocate Mr.Bhatia appearing for the petitioners has submitted that the issue raised in the present writ petition is squarely covered by various judgements of this Court. He has placed reliance on the judgement in the case of Tusharbhai Harjibhai Ghelani and Anr. Vs. State of Gujarat and Ors., 2019 (4) G.L.R. 2578 as well as the judgement in the case of Bhupatbhai Ranabhai Lathiya and Ors. Vs. State of Gujarat and Ors. dated 27.12.2016 passed by this Court in Special Civil Application No.21219 of 2015. By inviting the attention of this Court to the impugned orders dated 17.03.2022 and 28.05.2022 passed by the Resident Additional Collector, Vadodara, it is submitted by the learned advocate that while rejecting the

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application filed by the petitioners under Section 65 of the Gujarat Land Revenue Code, 1879 (for short "the Code"), the authority has examined the title of the land that too on the entries, which are mutated in the year 1955 and 1963. It is submitted that it is not open for the respondent authorities to examine the title of the land, while processing the application seeking non-agricultral (NA) permission. Thus, he has submitted that the impugned orders may be set aside.

3. Per contra, learned AGP, while pointing out the impugned orders, has submitted that in fact the revenue records reveal that the entries, which are mutated being Entry Nos.236 dated 11.03.1955 and Entry No.520 dated 07.02.1963, would show that there is no mention of any heirs in the revenue records hence, the application has been appropriately rejected. It is submitted that the Residential Additional Collector has, after verification of the title of the land in question, precisely concluded and rejected the application of the petitioners seeking NA permission.

4. This Court has perused the impugned orders. The impugned orders, which have been passed by the Resident Additional Collector, while rejecting the application filed by the

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petitioners seeking NA permissions has in fact, ventured into the examination of the title of the land in question by examining the revenue records, which have been mutated in the year 1955 and 1963. The petitioners have filed the application seeking NA permission on 25.03.2022, which has been rejected by assigning the aforesaid reasons.

5. It is well settled proposition of law by now that while examining the application seeking NA permission, the respondent authorities are not required to examine the title of the land. The respondent authorities are only required to see whether the petitioners fulfill criteria, as prescribed under the Code, more particularly under Section 65 thereof.

6. At this stage, it would be apposite to refer to the observations made by this Court in the case of Tusharbhai Harjibhai Ghelani and Anr. (supra), the Court has held as under:

"44. Considering the provisions of Section 65 of the Code as well as the above pronouncement of law by the Supreme Court, this Court cannot but arrive at the inevitable conclusion that the denial of NA Permission to the writ applicants under the garb of a purportedly defective title over the land in question amounts to a transgression of the limits of jurisdiction vested in the second respondent under the Code. The impugned order is, therefore, one without jurisdiction. For such reason also the plea of alternative remedy should fail.

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45. In the aforesaid context, let me look into a decision of this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat, 2012 (2) GLR 1741. I may quote the relevant observations;

"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 C/SCA/494/2015 JUDGMENT 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 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

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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 succeeful in obtaining any order in any manner from civil court, which is competent, i.e. only court to adjudicate upon and acknwoeldge their rights and title in the land in question, that party cannot be permitted to throw spanner in the wheels of developemnt set in motion by the legitimate competent authroty, C/SCA/494/2015 JUDGMENT whose entery is there in the reveue record. Therefore the appeal itself from the point of view of locus was also not obtained."

46. Thus, the above referred decision makes the legal position abundantly clear. The position, as on date, is that the order of status quo passed by the Civil Court in the suit filed by the respondents Nos.3 to 17 has been stayed by this Court in an Appeal From Order No.16 of 2018. As on date, there is no prohibitory order operating against the writ applicants or in favour of the respondents Nos. 3 to

17. In such circumstances, what is the Collector expected to do while deciding an application seeking N.A. Permission. Indisputably, the names of the writ applicants figure in the record of rights as the owners of the subject land. The entry, mutating their names in the record of rights, is on the basis of the sale deed executed in their favour in the year 2006. The respondents Nos.3 to 7 are yet to obtain appropriate declaration as regards the legality and

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validity of the sale deed of the year 2006 executed in favour of the writ applicants. The only proceeding pending as on date is the civil suit filed by them."

7. In the case of Bhupatbhai Ranabhai Lathiya and Ors. (supra), this Court has observed thus:

"15. Section 65 provident fund 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 agriculture or agriculture-related activities, he is require to make an application to the Collector for permission to do so. It may be noticed 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 though it fit that it should suffice if an occupant of the land applies for NA Permission. It 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 petitioners occupants of the land, they are also the owners thereof, by a legal and valid registered Sale Deed.

16. Thus, it transpires that, no power is available to the second respondent under Section 65 of the Code to examine or conclude regarding the title of the petitioner over the land in question. A bare reading of the said provision makes it clear that it only provides for the ises 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 (in the present case, respondent No.2). Nowhere is it contemplated in Section 65 that the Collector is empowered to undertake an inquiry into the title of the occupier. A perusal of the impugned order dated 07.12.2015, passed by the second respondent makes it clear that the reason for the rejection of the application of

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the petitioners is that, according to the second respondent, their title to the land in question is defective on the ground that initially, the land had been sold by the land in question is defective on the ground that initially, the land had been sold by the Administrator of "Gram Samast" to the predecessor-in- title of the petitioners. The same stand emerges from the affidavit-in-reply filed on behalf of the second respondent, as well."

8. Thus, the only requirement, which was required to be examined by the Resident Additional Collector, was that whether the petitioners were the occupiers of the land in question or not and could not have examined the entries, which are mutated in the year 1955 and 1963, while examining the application of the petitioner.

9. Hence, the impugned orders dated 17.03.2020 and 28.05.2022 passed by the Resident Additional Collector, Vadodara are hereby quashed and set aside. The respondent authority is directed to accordingly process the application of the petitioners seeking NA permissions.

10. At this stage, learned advocate Mr.Bhatia has submitted that the petitioners will file a fresh application seeking NA permissions. If such application is filed, the respondent authority shall decide the same in light of the observations made by this Court, within a period of 12 weeks from the date of receipt of writ of the order of this Court.

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11. The present writ petition stands allowed. Rule made absolute.

Direct service is permitted.

                                                               Sd/-         .
                                                   (A. S. SUPEHIA, J)
NVMEWADA