Rabari Narsinhbhai Hathibhai vs State Of Gujarat
2023 Latest Caselaw 683 Guj

      C/SCA/16010/2021                            ORDER DATED: 25/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16010 of 2021
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                         RABARI NARSINHBHAI HATHIBHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR RAKESH R PATEL(3239) for the Petitioner(s) No. 1,2
MR JAYNEEL S. PARIKH, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 25/01/2023
                   ORAL ORDER

1. Rule. Learned AGP waives service of notice of rule on behalf of the respondent No.1 -State.

2. In the present writ petition, the petitioners have prayed for quashing and setting aside the order dated 13.08.2021 passed by the respondent No.2 - Collector, Banaskantha and a further direction is sought to consider their application dated 31.05.2021 a fresh within a stipulated time.

3. The brief facts leading to filing of the present petition are as under : -

3.1 It is the case of the petitioners that their father Shri Rabari Hathibhai Valabhai purchased the land bearing Survey No.243, ad-measuring 0-71-83 sq.mtr., situated at village Rajpur, Tal : Deesa, District Banaskantha, (hereinafter referred as "subject land") through a registered sale deed dated 15.09.2011 from Mahanat Tejpuriji Guru Jamnapuri and Entry No.9918 to that effect was recorded in the village Hak Patrak No.6 on 17.09.2011, which was accordingly certified by the Circle Officer on 12.12.2011.

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3.2 Further the case of the petitioners is that their father passed away on 03.11.2014 and hence, succession Entry No.10414 came to be recorded in the revenue records and thereby the names of legal heirs of the deceased Rabari Hathibhai Valabha came to be recorded. Accordingly, the names of the present petitioners came to be entered with other legal heirs. In view of the sale deed dated 15.09.2011, the competent authority has made the succession entry No.10414 in the name of the legal heirs of the deceased Rabari Hathibhai Valabhai, therefore the present petitioners became the owners and occupants of the subject land and are doing their agricultural activities. Thereafter, the petitioners had made an online application dated 27.05.2021 /31.05.2021 to the respondent No.2 - Collector, Banaskantha seeking permission for conversion of the subject land from agricultural to non-agricultural use under Section 65 of the Gujarat Land Revenue Code, 1879 (for short, "the Code") along with all necessary documents and the same was rejected by the respondent No.2 vide order date 13.08.2021, on the following grounds : -

(a) As per the entry No.10243 and entry No.10299, it has been stated therein that the decision of Regular Civil Suit No.88/2011 will be binding to the parties and on verification, it appears to the respondent No.2 that the above referred civil suit is not finally disposed of.

(b) As per the 7/12 abstract of year 1956-57, the land is shown as Padtar in the holders account.

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(c) Khed rit -3 is shown in the revenue record.

(d) As per 7/12 abstract of the year 1969, Rajpur Math is shown as occupier and after Mahant Chandrapuri is shown as holder of the land, which is required to be verified and the persons shown in the entry No.6858 does not appear to be straight line heirs and hence the application of the petitioners is rejected.

4. Learned advocate Mr.Rakesh Patel, appearing for the petitioners has submitted that so far as the first ground as stated in the impugned order with regard to the pendency of the regular civil suit, the same is already dismissed for non- prosecution vide order dated 23.08.2017 by 3 rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Deesa.

4.1 Learned advocate Mr.Patel, while placing reliance on the judgment of this Court in the case of Tusharbhai Harjibhai Ghelani Vs. State of Gujarat, 2019 (4) GLR 2578, has submitted that while deciding the application under the provision of Section 65 of the Code, the Collector has only to see the name of the applicant in the revenue records and he is an occupant of the land, it is submitted that in fact, the revenue records reveal that the petitioners are the occupants of the land, however, the Collector has straightway rejected their application.

4.2 Learned advocate for the petitioners has further relied upon the judgment passed by this Court in the case of Bhayabhai Vajshibhai Hathalia vs. State of Gujarat in Special

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Civil Application No.5924 of 2019, and has submitted that while the aforesaid writ petition, this Court has specifically observed 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. It is contended that when the party fails in obtaining any appropriate order of injunction prohibitory order from the competent civil court, then that party would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant.

5. Per contra, learned AGP Mr.Parikh, has submitted that the impugned order does not require any interference since the same is appropriately passed by the respondent No.2. However, he has submitted that it is not in dispute that Regular Civil Suit No.88 of 2011 is already dismissed for non- prosecution vide order dated 23.08.2017. It is further submitted that the impugned order dated 13.08.2021 rejecting the application filed by the petitioners seeking NA permission under the provisions of Section 65 of the Code, is rejected primarily on four grounds i.e. (a) as per the entry No.10243 and entry No.10299, it has been stated therein that the decision of Regular Civil Suit No.88/2011 will be binding to the parties and on verification, it appears to the respondent No.2 that the above referred civil suit is not finally disposed of; (b) as per the 7/12 abstract of year 1956-57, the land is shown as Padtar in the holders account ; (c) Khed rit -3 is shown in the revenue record; and (d) as per 7/12 abstract of the year 1969, Rajpur Math is shown as the occupier and after Mahant Chandrapuri is shown as holder of the land, which is required

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to be verified and the persons shown in the entry No.6858 do not appear to be the straight line heirs and hence, the application of the petitioners is rejected.

6. I have heard the learned advocates appearing for the respective parties.

7. By the above referred two judgments namely Tusharbhai Harjibhai Ghelani(supra) and Bhayabhai Vajshibhai Hathalia (supra), it is by now well settled that while exercising the powers under Section 65 of the Code, the Collector has to examine that the person applying, is occupant of the land. For the purpose of Section 65 of the Code, it would be sufficient that the person applying for NA permission is the occupant of the land, considering the fact that Section 65 of the Code nowhere provides that the applicant should have a title or occupation over the land for which the NA permission is sought. In case of Tusharbhai Harjibhai Ghelani(supra), this Court, while considering the judgment of the co-ordinate Bench in the case Bhayabhai Vajshibhai Hathalia (supra) has held and observed thus:-

"38. Thus, the plain reading of section 65 makes it clear that for the purpose of grant of N.A. Permission, the first thing the Collector should look into is whether the applicant, seeking N.A. Permission, is an occupant of the land which is being assessed or held for the purpose of agriculture. For the purpose of ascertaining this, the Collector is expected to look into the revenue records. The name of the applicant in the revenue records would prima facie go to show or rather indicate that he is the occupant of the land. The second step in the process would be to ascertain whether such land is being assessed or held for the purpose of agriculture.

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39. Section 65 of 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 the agriculture or agriculture-related activities, he is required to make an application to the Collector for permission to do so. It may be noted 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 thought 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. The said sale deed may be a subject matter of challenge before the Civil Court but the fact remains that the Civil Court has not yet passed any decree cancelling the same or declaring it to be illegal or obtained by fraud.

40. Thus, it transpires that, no power is available to the Collector under Section 65 of the Code to examine or conclude regarding the title of the writ applicants over the land in question. A bare reading of the said provision makes it clear that it only provides for the uses 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. Nowhere is it contemplated in Section 65 that the Collector is empowered to undertake an inquiry into the title of the occupier.

41. A perusal of the impugned order dated 19th November, 2014 passed by the Collector makes it clear that the reason for the rejection of the application of the writ applicants is that their title to the land in question is defective on the ground that two civil suits are pending.

42. In State of Gujarat v. Patel Raghav Natha,(1969)2 SCC 187, the Supreme Court has clearly held as below:

"14. We are also of the opinion that the Commissioner should not have gone into question of title. It seems to us that when the title of an occupant is disputed by any party before the

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Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent Court and not decide the question of title himself against the occupant."

43. This was also a case where the NA Permission under the provisions of Section 65 of the Code was in issue. The above principles of law therefore, squarely apply to the present case.

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. 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 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

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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. 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 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 successful in obtaining any order in any manner from civil court, which is competent, i.e. only court to adjudicate upon and acknowledge their rights and title in the land in question, that party cannot be permitted to throw spanner in the wheels of development set in motion by the legitimate competent authority, whose entry is there in the revenue 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

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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 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."

8. Therefore, it is manifest that while considering the application for NA permission, what the Collector, is required to examine is that the person is the occupant or not and the Collector, cannot venture into inquiry about the title ownership of the land in question. Also, in the case of Dhansukhbhai Somabhai Ahir (supra), the NA permission, was rejected by the Collector by passing an order citing the pendency of RTS appeal before the Collector, so also, the revenue authorities. This Court while considering the above referred judgments in the cases of Tusharbhai Harjibhai Ghelani(supra) and Bhayabhai Vajshibhai Hathalia (supra), quashed and set aside the order passed by the Collector. It has been held and observed that merely because there are proceedings pending before the revenue authorities in the RTS appeals, the same cannot be made a ground to reject the permission. This Court, remitted the matter to the Collector with a direction to decide it afresh keeping in mind the principles laid down by this Court, in the above referred judgments.

9. Thus, the impugned order dated 13.08.2021 passed by the respondent No.2 breaches his jurisdiction and hence, the same is required to be quashed and set aside and hence the same is hereby set aside. The respondent No.2 - Collector, Banaskantha is directed to process the NA permission

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application filed by the petitioners afresh, in the light of the observations made by this Court. The same shall be decided within a period of eight (08) weeks from the date of receipt of writ of order of this Court.

10. Resultantly, the present writ petition succeeds. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

A. S. SUPEHIA, J)

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