Gujarat High Court

State Of Gujarat vs Ajay Surendrabhai Patel on 23 January, 2023

Bench: Ashutosh Shastri

     C/LPA/856/2015                                     JUDGMENT DATED: 23/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 856 of 2015
                                    In
               R/SPECIAL CIVIL APPLICATION NO. 9045 of 2012

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                       STATE OF GUJARAT & 1 other(s)
                                 Versus
                        AJAY SURENDRABHAI PATEL
==========================================================
Appearance:
MR SAHIL TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2
MR DHAVAL DAVE, LD. SENIOR COUNSEL WITH MR JIGAR M
PATEL(3841) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                              Date : 23/01/2023
                              ORAL JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. The appeal is of the year 2015. The same was

admitted on 27.4.2015, hence, it is taken up for final

disposal.

2. We have heard the arguments of Shri Sahil Trivedi,

learned Assistant Government Pleader appearing for the

State and Shri Dhaval Dave, learned senior counsel

assisted by Shri Jigar M. Patel, learned advocate

C/LPA/856/2015 JUDGMENT DATED: 23/01/2023

appearing for the respondent and perused the records.

3. The land bearing Revenue Survey nos. 250/1 to

250/6 admeasuring 13891 sq. mtrs., Mauje: Makarba,

Taluka: Daskroi, District: Ahmedabad (hereinafter

referred to as "the subject land") was allotted initially, in

favour of one Lavar Chhaganlal Gangaram with a

condition that same could not be subdivided vide order

dated 15.6.1943. On the death of the original allottee on

5.3.1997, his legal heir namely Shri Purshottambhai,

sought for mutating the revenue records and accordingly,

it was mutated. On his demise, the legal heirs of

Purshottambhai, sought for mutation of the revenue

records and accordingly, the mutation was carried out in

their names. The legal heirs of Purshottambhai, sold the

land bearing Survey no.250 to eight persons. Pursuant to

which, the revenue records were mutated on 2.8.1996 as

per entry no.8065.

3.1 In 2002, at the instance of the State, the District

Inspector of Land Records made six divisions of the land

each admeasuring 2411/2412 sq. mtrs. resulting in

C/LPA/856/2015 JUDGMENT DATED: 23/01/2023

mutation entry no.9000 being effected in the revenue

records on 20.6.2002 which, came to be certified on

30.10.2002.

3.2 The writ applicant, purchased all the divided pieces

of land. Pursuant to which, the revenue records came to

be mutated and was duly certified. The land bearing

survey nos.250/1 to 250/4, was purchased by petitioner

12.5.2005 and entry to the said effect was also made in

the revenue records bearing entry no.9736. The land

bearing survey no.250/5, was purchased by the petitioner

on 1.8.2005, resulting in mutation of the revenue records

in entry no.9822. Likewise, the petitioner, purchased the

land bearing survey no.250/6 on 7.11.2005 and mutation

entry no.9878 was carried out accordingly.

3.3 On account of entire land, not being possible to be

cultivated; not being able to maintain the land by fighting

against the powerful Bharwads who are said to have

ravaged the crops through their cattle and the entire

surrounding area having been constructed, resulted in

petitioner seeking for conversion of the land for non-

C/LPA/856/2015 JUDGMENT DATED: 23/01/2023

agricultural purposes. The Town Planning Scheme was

also introduced in the adjacent area, which resulted in

petitioner submitting an application under section 65 of

the Gujarat Land Revenue Code, 1879 (hereinafter

referred to as "the Code") seeking conversion of the

subject land into non-agricultural purposes (hereinafter

referred to as "N.A. permission") vide application dated

6.1.2010 (at Annexure 'G'). Said application came to be

rejected on 23.3.2010 and being aggrieved by the same,

petitioner approached the learned Single Judge in Special

Civil Application no.9045 of 2012 who, by impugned

order allowed the petition and has directed the

respondent to reconsider the case of the petitioner for

grant of N.A. permission within a period of four weeks.

Hence, the appeal.

4. This Court, while admitting the petition on

27.4.2015, had granted interim relief, staying the

implementation, operation and execution of the order of

the learned Single Judge dated 21.8.2014.

5. The thrust of the arguments of the learned Assistant

C/LPA/856/2015 JUDGMENT DATED: 23/01/2023

Government Pleader appearing for the State, is to the

effect that learned Single Judge, committed an error in

directing the grant of N.A. permission in respect of the

subject land by completely ignoring the fact that revenue

authorities who are empowered to pass an order either

granting or refusing the N.A. permission and as such, the

impugned order directing grant of N.A. permission is

liable to be set aside. It is also the contention of the

learned Assistant Government Pleader that powers which

are exercisable by the revenue authorities have been

usurped by the learned Single Judge by directing the

revenue authorities to grant N.A. permission and this, is

contrary to the mandate of section 65 of the Code.

5.1 To contend that the State is required to act bona fide

within the limits of the powers conferred under the Act

and as such, the instrumentalities of the State are alone

empowered to examine the claim of an applicant and

hence, the power of judicial review is to be limited to that

extent only and exercising the power of the executive by

the judiciary, is impermissible, he prays for allowing the

C/LPA/856/2015 JUDGMENT DATED: 23/01/2023

appeal.

5.2 The learned Assistant Government Pleader, would

also contend that issue of title being of paramount

consideration, while deciding an application for grant of

N.A. permission, is required to be looked into or

examined by the revenue authorities alone and without

scrutiny of the same, the N.A. permission, cannot be

ordered to be granted in favour of the applicant as has

been done by the learned Single Judge.

6. Per contra, Shri Dhaval Dave, learned senior counsel

appearing for the respondent, would support the

impugned order.

7. Having heard the learned advocates appearing for

the parties and after bestowing our careful attention to

the rival contentions raised at the Bar, we are of the

considered view that arguments canvassed by the learned

Assistant Government Pleader, is fallacious. We say so,

for the simple reason, that learned Single Judge, has only

issued a writ of mandamus directing the respondents to

C/LPA/856/2015 JUDGMENT DATED: 23/01/2023

consider the case of the petitioner for grant of N.A.

permission and has not directed the authorities

straightaway to grant the N.A. permission. For precise

understanding of the writ issued by the learned Single

Judge, it would be apt and appropriate to extract the very

writ issued by the learned Single Judge which, is to the

following effect:

"7. The background of the facts xxx xxx quashed and set aside. The respondents are directed to consider the case of the petitioner for grant of NA permission within a period of 4 weeks. The memo of petition itself may be treated as a representation which may be considered. In case of any difficulty it will be open for the petitioner to take appropriate steps including filing of the fresh proceedings. Rule is made absolute. No order as to costs.