Gujarat High Court
Dhilankumar Jayantibhai Patel vs State Of Gujarat on 24 January, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/10398/2023 ORDER DATED: 24/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10398 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 10430 of 2023
================================================================
DHILANKUMAR JAYANTIBHAI PATEL
Versus
STATE OF GUJARAT
==============================================================================
Appearance:
MR K B VIRVADIYA(11272) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 24/01/2024
ORAL ORDER
1. Rule. Learned AGP Mr. Nikunj Kanara waives service
of notice of rule on behalf of the respondent - State.
2. By way of both these petitions, the petitioner has
challenged the order dated 04.06.2023 passed by the
District Collector, Patan whereby the petitioner's
application for grant of NA permission was rejected.
3. Though, both the petitions are preferred challenging
the order dated 04.06.2023 by the same person separate
petitions are filed as by way of two separate applications.
The petitioner has sought for NA permission in respect of
two different lands.
4. In Special Civil Application No.10398 of 2023, the
petitioner has challenged the order dated 04.06.2023
NEUTRAL CITATION
C/SCA/10398/2023 ORDER DATED: 24/01/2024
undefined
whereby permission for NA was rejected in respect of
Survey No.97 of Village: Matarvadi, Taluka: Patan, District:
Patan. In respect of Special Civil Application No.10430 of
2023, the Collector, Patan rejected the application for NA
permission in respect of land bearing survey No.95 of
Village: Matarvadi, Taluka: Patan, District: Patan.
5. Both the applications were rejected on the ground
that in respect of land in question as there is a First
Appeal No.3153 of 2014 is pending. In view of pendency
of First Appeal, the NA permission cannot be granted as
the Collector is not required to decide such application.
6. Learned advocate Mr. Nishit Gandhi submitted that
such order rejecting the NA application on the ground of
pendency of First Appeal is erroneous and bad in law as
this Court in case of Tusharbhai Harjibhai Ghelani v. State
of Gujarat reported in (2019) 4 GLR 2578 has considered
the aforesaid aspect about pendency of litigation and has
held that for grant of NA permission, pendency of
litigation before the concerned Court cannot be one of the
factor to deny the same. Learned advocate Mr. Gandhi
relies upon the observations made by this Court in
paragraph No.47 of the aforesaid judgment. Learned
NEUTRAL CITATION
C/SCA/10398/2023 ORDER DATED: 24/01/2024
undefined
advocate Mr. Gandhi states that in similar set of facts, this
Court has by overlooking the pendency of First Appeal,
had directed the concerned Collector to reconsider the
prayer of the petitioner for grant of NA and the impugned
order was quashed.
7. According to learned advocate Mr. Gandhi, the case
on hand, squarely covered by the aforesaid decision in
case of Tusharbhai Harjibhai Ghellani.
8. Learned AGP Mr. Nikunj Kanara though tried to
defend the order vehemently and submitted that pendency
of First Appeal is one of the factor which has been
considered by the Collector, Patan while rejecting the NA
application of the petitioner. He could not dispute the
ratio of the judgment in case of Tusharbhai Harjibhai
Ghelani which has been relied upon by learned advocate
Mr. Gandhi.
9. In case of Tusharbhai Harjibhai Ghelani, coordinate
bench of this Court in paragraph No.47 to 49 has made
following observations:-
"47. It would have been in the fitness of things if the
appeal from order pending before this Court would have
been decided by now one way or the other. However, the
NEUTRAL CITATION
C/SCA/10398/2023 ORDER DATED: 24/01/2024
undefined
question is whether this appeal from order has any bearing
over the issue in question. Let me assume for the moment
that the appeal from order is ordered to be dismissed and
the order of status quo passed by the Civil Court is
affirmed. Will this be a legal impediment in the way of the
Collector in considering the prayer for grant of N.A.
Permission. In my view, the answer is in the negative. The
order of status quo would mean that the writ applicants
shall not change or alter the nature, character and
possession of the property in question. The order of status
quo cannot be a legal impediment so far as the grant of
N.A. Permission is concerned. In future, if any further
injunction is granted by the Civil Court in the suit filed by
the respondents Nos.3 to 17, or as noted above, if the
order of status quo passed by the Civil Court is affirmed by
this Court in the appeal from order, then the writ
applicants will not be in a position to develop the land.
However, that does not mean that they cannot pray for
permission to put the land for nonagricultural use.
48. I am of the view that the Collector should reconsider
its decision in the light of the decision of this Court in the
case of Bhayabhai (supra) and also keeping in mind the
order passed by this Court in an Appeal from Order No.16
of 2018 with Civil Application No.1 of 2018 with Civil
Application No.3 of 2018.
49. In the result, this petition succeeds in part. The
impugned order passed by the Collector, Surat dated 19th
November, 2014, Annexure-A to this petition is hereby
quashed and set aside. The Collector, Surat is directed to
once again reconsider the prayer of the writ applicants for
grant of N.A. Permission bearing in mind the observations
of this Court, more particularly, the decision of this Court
in the case of Bhayabhai (supra) and also keeping in mind
that while deciding an application under section 65 of the
Code, the title of the parties should not be looked into. Let
this exercise be undertaken afresh at the earliest and the
same shall be completed with an appropriate order within a
period of two months from the date of the receipt of the
writ of this order. The application shall be decided afresh
only on the basis of the materials on record and the
observations of this Court without giving any further
hearing to either of the parties."
NEUTRAL CITATION
C/SCA/10398/2023 ORDER DATED: 24/01/2024
undefined
10. The aforesaid observations made by the coordinate
bench. In the aforesaid judgment makes it clear that even
if there is an order of status quo in respect of the land in
question then also that would only restrain the developer
from developing the land. It has nothing to do with grant
or rejection of NA permission. Therefore, the judgment in
case of Tusharbhai Harjibhai Ghelani is squarely applicable
in the facts of the present case.
11. In view of that, as the petitioner's application for NA
permission is also rejected only on the ground of pendency
of First Appeal. The impugned order dated 04.06.2023 in
both the petitions are required to be quashed and set
aside. The Collector, Patan is directed to reconsider the
petitioner's application for NA in light of above
observations and decision of this Court and to decide the
same in accordance with law within the time limit
prescribed by the statute.
12. With the aforesaid observations, both the petitions
are allowed. Rule is made absolute. Direct service is
permitted.
(NIRZAR S. DESAI,J)
Manoj Kumar Rai
