Amiben Shelat Wd/O Late ... vs Heirs Of Late Kanabhai Sukhabhai ...
2023 Latest Caselaw 8019 Guj

                                                                                        NEUTRAL CITATION




      C/AO/101/2023                                    ORDER DATED: 02/11/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/APPEAL FROM ORDER NO. 101 of 2023

                                      With

               CIVIL APPLICATION (FOR STAY) NO. 2 of 2023

                                         In

                      R/APPEAL FROM ORDER NO. 101 of 2023
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  AMIBEN SHELAT WD/O LATE HARIYANTBHAI CHAMPAKLAL SHELAT
                           Versus
         HEIRS OF LATE KANABHAI SUKHABHAI BHARVAD
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Appearance:
MR KV SHELAT(834) for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 1.1,2
DECEASED LITIGANT for the Respondent(s) No. 1
MR.D K.PUJ(3836) for the Respondent(s) No. 1.2,1.3,1.4,1.5,1.6,1.7
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 02/11/2023


                                 ORAL ORDER

1. Heard Mr. K.V. Shelat, learned advocate

for the appellants - original plaintiffs and Mr.

D.K. Puj, learned advocate for the respondents -

original defendants. The matter is taken up for

final hearing.

2. The challenge is given to the order

dated 18.11.2022 passed by City Civil Court,

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Ahmedabad below notice of motion, Exh.6/7 in

Civil Suit No.513 of 2020.

3. Advocate Mr. K.V. Shelat submitted that

the prayer was made to restrain the defendants,

their agents, servants, persons etc. from

interfering with the settled legal possession of

the plaintiffs till the final disposal of the

suit and to restrain them from encroaching upon

the suit land, and further to remove the

encroachment made by the defendants in the suit

property.

3.1 Advocate Mr. Shelat submitted that

predecessor-in-title of the plaintiffs, late Shri

Hariyant Shelat had received the interest in the

suit property by way of Sale Deed No.8532

executed on 29.12.1988, which came to be

registered on 29.04.1989. Mr. Shelat submitted

that the purpose for purchase of the land was to

start a petroleum business in the property and

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therefore, upon permission of the Ahmedabad

Municipal Corporation, approximately 34 sq. yards

construction was made. The conveyance deed was

with regard to 1000 sq. Mtrs. of land at

Block/Survey No.64 paiki, F.P.84 part of Village

Ghodasar, Taluka-City Maninagar.

3.2 Referring to the documents, Mr. Shelat

submitted that late Shri Hariyantbhai Champaklal

Shelat had continued the petrol pump business

till he died on 14.12.2019. The Petrol/HSD Pump

Dealer Agreement was executed on 26.10.1989 with

Indian Oil Corporation Limited. Form No.3CB in

connection with audit report under section 44AB

of the Income Tax Act, 1961, for the person

carrying on the business in the name of M/s.

Navgujarat Petroleum, has been referred to from

31.03.1991 till 1997-98. Necessary permission

under the Essential Commodities Act, and order

under Form-B of Gujarat Essential Articles

(Licensing, Control and Stock Declaration) Order

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1981, has been referred to. The documents

regarding sale of petroleum and electricity

connection bills have been referred to by learned

advocate Mr. Shelat.

3.3 Referring to the impugned order, Mr.

Shelat submitted that learned Judge while

rejecting the application had observed that

registered Sale Deed No.8532, in the year 1989,

was executed, and, thereafter plaintiffs had not

obtained any N.A. Permission from the competent

authority, which is mentioned in the order of

Deputy Collector passed on 02.06.2018, and now

after a long passage of time from 1989 to 2022,

the plaintiffs have not obtained any Permission

under section 65 of the Bombay Land Revenue Code,

and without obtaining N.A. Permission,

plaintiffs' predecessor or the plaintiffs do not

acquire any right title or have any settled legal

possession by virtue of sale deed, hence,

observed that the defendants have better title

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and better possession rather than the plaintiffs,

and have observed that the claim of the

plaintiffs that they are in settled legal

possession by virtue of sale deed of 1989, was

not prima facie established.

3.4 Thus, Mr. Shelat submitted that this

observation now would require further

reconsideration, since the order of the District

Collector, Ahmedabad against the Deputy Collector

dated 02.06.2018 came to be passed on 24.02.2023,

and the Revision Application No.595 of 2018 came

to be allowed.

3.5 Advocate Mr. Shelat further stated that

the registered sale deed reflects the fact that

the process of N.A. Permission was pending, and

it was agreed upon that the vendor would seek the

permission, and if at all, in any case, there

would be a legal hindrance, then that was

required to be removed by the vendor himself.

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3.6 Referring to Entry No.4644 dated

01.02.1989, Mr. Shelat submitted that permission

so granted was to Kanabhai Sukhabhai Bharwad and

he was required to fulfill the conditions, and it

was his responsibility to have received the

permission under section 65 of the Land Revenue

Code, and the sale deed executed had laid down

the responsibility on the seller. He further

stated that the Court Commission also indicates

the construction on the land. Thus, in view of

the submissions, prays that prayer below notice

of motion is required to be granted.

4. Per contra Advocate Mr. D.K. Puj

referring to the judgment of this Court in the

case of Hardik Harshadbhai Patel Vs. Amarsang

Nathaji and Ors., decided on 13.04.2016 in Appeal

From Order No.489 of 2013, submitted that the

agreement in execution of the violation of the

Tenancy Act, is always required to be considered

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as invalid and not legally enforceable since the

transfer of the land would be in violation of the

conditions laid down, such sale cannot be

considered as valid unless and until the

condition is fulfilled.

4.1 Relying on the judgment of Lotan

Ramchandra Shimpi And Ors. Vs. Shankar Ganpat

Kayasth and Ors. decided in Second Appeal No.202

of 1983 on 04.08.1994, Advocate Mr. Puj submitted

that if the sanction required under section 44 of

the Tenancy Act is not obtained, then possession

given to the purchaser would not be valid and

same even cannot be protected under section 53-A

of the T.P. Act, and possession, therefore has to

be considered as of the real owner.

4.2 Advocate Mr. Puj relied on the judgment

of Sukumabai Vs. Chandgonda Kalgonda Patil,

decided in Second Appeal No.249 of 1987 on

25.02.2002, to submit that when the sale deed is

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ex facie illegal and invalid and when no previous

sanction has been obtained for using it as a non-

agricultural land, then the sale deed would be

hit under the Tenancy Act and, therefore, stated

that the learned Judge has rightly observed that

the defendants have better title than the

plaintiff.

4.3 Advocate Mr. Puj has relied upon the

provision of Bombay Tenancy and Agricultural Land

Rules, 1956 by specifically laying reference to

sub-Rule (3) of Rule 25-C to state that, in case,

where the land is being sold, bonafide for any

non-agricultural purpose, then person in whose

favour the transfer is made, is mandated to apply

for N.A. Permission before the competent

authority under the Bombay Land Revenue Code,

1879 to put the land for use of non-agriculture

purpose; thus, stated that, even if, any

agreement is made by the vendor, such would not

be binding since law itself lays down the

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responsibility on the head of the purchaser.

4.4 Advocate Mr. Puj further stated that

earlier Regular Civil Suit No.1239 of 2019 was

filed, which came to be withdrawn on 10.02.2021,

and, thus the suit would also be hit by order 2

Rule (2) of Code of Civil Procedure (for short

'CPC'), when no specific permission has been

granted to the plaintiffs for filing of the suit.

Mr. Puj submitted that the conditions as laid

down in Order 23 Rule (1) sub-Rule (3) and (4)

CPC, has not been satisfied, and therefore since

the permission has not been granted, the

plaintiff would be precluded from filing the

suit.

5. Countering the said argument, Advocate

Mr. Shelat submitted that the present suit had

been filed even prior to withdrawal of the Civil

Suit No.1239 of 2019 filed on 06.07.2020, and,

thus the provisions as referred by learned

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advocate Mr. Puj would not be applicable.

6. The District Collector in his order

dated 24.02.2023 in Revision Application No.595

of 2018 observed the fact of permission for

construction of petrol pump in Survey No.64 of

the restricted tenure land sought by the occupant

Kanabhai Sukhabhai on 1000 sq. Mtrs., and

thereafter considering Rs.95 per sq. mtrs.

aggregating to Rs.95,000/-, out of which 70% i.e.

Rs.66,500/- premium was ordered to be paid, and

on the sanction being granted by an order of City

Deputy Collector in CTC/TNC/Dt.17/12/88, the

necessary change in the record by Entry No.4644

on 01.02.1989, had been mutated, and thereafter

1000 sq. Mtrs. land had been sold on 29.04.1989

by registered sale deed No.8532 to Hariyantbhai

Champaklal Shelat, and the same had been noted in

the record on 13.07.2017 by Entry No.8581, and

against that entry, objections were raised by the

heirs of the vendor, but the objections were

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waived with further observation that as per

Talati report, there was a construction of the

petrol pump on the place. The order, further has

found that the observation made by the Mamlatdar

in the order dated 02.06.2018, to set aside the

order of the Mamlatdar on 08.11.2017, was found

not to be proper by giving the reasons that

disputed land of 1000 sq. Mtrs. was sold for

construction of petrol pump, and, as per relevant

Rules, on premium of Rs.66,500/- the sale was

sanctioned, and reference had been made of

sections 66 and 67 of the Gujarat Land Revenue

Code for an independent proceeding for non-

agricultural construction.

7. The admitted fact in the matter would be

that the disputed land of Final Plot No.84,

encompassing of 1000 sq. yard had been sold by

way of registered sale deed dated 29.04.1989. The

agreement of the dealership of Petrol/HSD was

executed. The business was conducted in the name

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of M/s. Navgujarat Petroleum. Necessary documents

to fortify the said claim has been referred to.

The District Collector's order dated 24.02.2023

refers to the Talati report, which shows the

construction of the petrol pump. The Court

Commissioner's report also reflects the

construction on the land in question. The premium

of Rs.66,500/- was paid. The land at present, by

way of sale deed, is in possession of the

plaintiffs. The District Collector, Ahmedabad has

made necessary orders for the proceedings to be

initiated.

7.1 Thus, to the fact of the sale deed and

the business undertaken of the sale of petroleum,

the plaintiffs can be considered to be in the

settled possession. There is no denial of the

registered sale deed. The question regarding N.A.

permission is to be dealt with by the competent

authority.

8. In the result, the present Appeal From

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Order is allowed. The order dated 18.11.2022

passed by City Civil Court, Ahmedabad below

notice of motion Exh.6/7 in Civil Suit No.513 of

2020 is quashed and set aside. Thus, prayers of

Exhibit-6/7 in Civil Suit No.513 of 2020 is

hereby allowed.

9. In view of the same, Civil Applications

stands disposed of.

Direct service is permitted.

(GITA GOPI,J) Pankaj