Gujarat High Court
Vrajesh S/O Surendrabhai Jaydevbhai ... vs State Of Gujarat on 1 May, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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C/SCA/16793/2023 JUDGMENT DATED: 01/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16793 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may
be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of
India or any order made thereunder ?
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VRAJESH S/O SURENDRABHAI JAYDEVBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DARSHAN M VARANDANI(7357) for the Petitioner(s) No. 1
MR NIKUNJ KANARA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 01/05/2024
ORAL JUDGMENT
1. By way of this petition, the petitioner has
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challenged the order/communication dated
11.1.2023 passed by the District Collector,
Kheda rejecting the petitioner's application for
converting the land into non agricultural land
on the ground that there is no clarity about
whether the restrictions under Section 43 of the
Gujarat Tenancy and Agricultural Land Act, 1948
would be applicable in respect of land in
question and whether any premium is required to
be levied in respect of such conversion or not.
2. Heard learned advocate Mr. Darshan M. Varandani
appearing for the petitioner and learned
Assistant Government Pleader Mr. Nikunj Kanara
appearing for the respondent - State.
3. With the consent of learned advocates appearing
for the parties, the matter was taken up for
final hearing. Hence, RULE. Learned Assistant
Government Pleader Mr. Nikunj Kanara waives
service of rule on behalf of the respondent -
State.
4. The brief facts as stated by learned advocate
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Mr. Varandani are as under:-
4.1 The dispute pertains to a land situated
at village Lakhavad Party, Taluka Nadiad (City),
District Kheda bearing Survey No.1171/B/2.
According to the petitioner on 12.9.1960, the
land bearing Survey No.1171/B was purchased by
Jaydevbhai Ghanshyambhai Patel who happens to be
the grandfather of the petitioner by way of a
registered sale deed from original owner of the
land Bai Ganga widow of Patel Nathabhai
Kushalbhai vide sale deed No.1093/1060. In
respect of the aforesaid sale from the pleadings
it seems that some proceedings under the Tenancy
Act had taken place and the Mamlatdar and ALT
vide order dated 11.10.1963 in Tenancy Case
No.425 of 1963 passed some order in favour of
tenant Chaganbhai Sankarbhai.
4.2 As per the pleadings, being aggrieved
by the order dated 11.10.1963, Tenancy Appeal
No.110 of 1989 was preferred under Section 74 of
the Gujarat Tenancy and Agricultural Lands Act
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by Jaydevbhai Ghanshyambhai Patel who happens to
be the grandfather of the petitioner and the
Deputy Collector Land Reforms and Appeal vide
order dated 7.12.1990 held that the order dated
11.10.1963 was contrary to the provisions of
Tenancy Act and therefore, the same was set
aside and for which the mutation entry No.12876
was mutated in favour of the grandfather of the
petitioner on 29.1.1992.
4.3 Thereafter, according to the petitioner
in the year 2010, father of the petitioner made
an application under Section 65 of the Gujarat
Land Revenue Code, 1879 seeking N.A. permission
and vide order dated 10.6.2010 the Collector,
Kheda sought opinion from the Mamlatdar and ALT,
Nadiad, upon inquiry as to whether there are any
restrictions under Section 43 of the Tenancy Act
or not.
4.4 At the relevant point time, in the year
2010, instead of giving the aforesaid opinion,
the Mamlatdar and ALT initiated a proceedings
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vide Tenancy Case No.29 of 2010 and vide order
dated 15.3.2011, the sale dated 12.9.1960 was
regularized on the ground that the sale was
between tenant and land owner and hence, there
would be restrictions under Section 43 of the
Tenancy Act.
4.5 The petitioner challenged the aforesaid
order before the Deputy Collector Land Reforms
and the matter was remanded back. According to
the petitioner after two rounds of litigation,
ultimately, when the matter was remanded back to
the Mamlatdar and ALT to consider the aforesaid
issue, ultimately, in Tenancy Case No.1 of 2016
vide order dated 30.8.2016, the Mamlatdar and
ALT, Nadiad passed an order and held that it was
a transfer between the tenant and landlord and
hence, restrictions of Section 43 would apply.
4.6 The petitioner challenged the aforesaid
order before the Deputy Collector Land Reforms
by way of Tenancy Revision Case No.20 of 2018
and ultimately, he succeeded as vide order dated
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21.8.2018, the Deputy Collector Land Reforms and
Appeal, Kheda-Nadiad quashed and set aside the
order passed by the Mamlatdar and ALT, Nadiad
dated 30.8.2016 in Tenancy Case No.1 of 2016.
According to the petitioner, the said order has
become final and there is no further challenge
to the aforesaid order by either side.
4.7 In this background, the petitioner
preferred an application seeking permission
under Section 65 to convert the land into N.A.
land. Such application earlier also was made in
the year 2019, in respect of half of the portion
of the land and the said permission was granted
by the authority vide order dated 3.5.2019.
4.8 Again for remaining portions of land,
the petitioner made an application seeking
permission to convert the remaining portion of
land into N.A. land vide application dated
18.10.2022 and the aforesaid application was
rejected by the Collector, Kheda on the ground
that the petitioner has purchased the land in
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question after 1.8.1956 and therefore, whether
the restrictions of Section 43 of the Tenancy
Act would be applicable in respect of land in
question or not and whether any premium is
required to be levied upon such conversion or
not. The Collector rejected by putting a
question mark over both the aforesaid aspect
rather than forming any opinion and by keeping
the aforesaid aspect unanswered, without
arriving at any conclusion, he rejected the
petitioner's application seeking conversion of
land into N.A. land and therefore, the
petitioner has preferred this petition.
5. Learned advocate Mr. Darshan Varandani appearing
for the petitioner submitted that whether there
are restrictions of Section 43 of the Tenancy
Act would be applicable in respect of land in
question or not is the issue which has already
attained finality in Tenancy Revision
Application No.20 of 2018 vide order dated
21.8.2018. The Deputy Collector Land Reforms has
already quashed and set aside the order dated
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30.8.2016 passed by the Mamlatdar and ALT,
Nadiad in Tenancy Case No.1 of 2016. Learned
advocate Mr. Darshan Varandani submitted that
thereafter, the aforesaid order has not been
challenged by any of the party including the
State and the same has attained finality. Once
the restrictions under Section 43 would not be
applicable in respect of land in question, the
question of levying any premium would not arise
according to learned advocate Mr. Darshan
Varandani and therefore, according to learned
advocate Mr. Darshan Varandani the authority
viz. Collector was absolutely unjustified in
pausing such questions and leaving it
unanswered, without forming any opinion and on
the basis of that without arriving at any
conclusion, when the Collector rejected the
petitioner's application only on the basis of
some unanswered questions, the said order is
absolutely illegal order and the questions which
are paused and left unanswered by the Collector,
had the Collector tried to gather information
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about the land in question from the office of
the Collector, Kheda himself he would find
answers of all the aforesaid questions, as the
aforesaid question was decided very recently in
the year 2018, by the Deputy Collector in the
tenancy proceedings.
5.1 Learned advocate Mr. Varandani
submitted that had the Collector called the
petitioner and sought such details, the
petitioner also would have given such details by
providing the orders which the petitioner has
already annexed along with the petition but it
seems that just to hide the inaction on the part
of subordinates, the aforesaid questions were
left unanswered and without forming any opinion
in very casual manner, the petitioner's
application for grant of N.A. permission was
rejected and therefore, learned advocate
Mr.Varandani submitted that the impugned order
may be quashed and set aside and the matter may
be remanded back with a direction to the
Collector to consider the petitioner's
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application, keeping in mind the earlier order,
which are part of this petition and which are
already referred to in foregoing paragraph.
5.2 Learned advocate Mr. Varandani
submitted that the matter may be remanded back
to the Collector with the direction to him to
decide the petitioner's application seeking N.A.
permission afresh within some time bound
schedule.
5.3 According Learned advocate Mr.
Varandani, all the subordinates officer also
opined positively in respect of petitioner's
application for grant of N.A. permission.
However, learned Collector ignored everything
and passed the impugned order.
6. Learned Assistant Government Pleader Mr. Nikunj
Kanara appearing for the respondent - State
vehemently opposed the petition and submitted
that considering the fact that the sale had
taken placed in the year 1960, the Collector was
justified in pausing the question to examine
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whether the restrictions under Section 43 of the
Gujarat Tenancy and Agricultural Lands Act would
apply in respect of land in question or not.
However, learned Assistant Government Pleader
Mr. Nikunj Kanara could not point out to
indicate that at any point of time, any exercise
was carried by the office of the Collector, to
place on record the aforesaid aspect, which was
very much decided by the Deputy Collector Land
Reforms and held that the restrictions of
Section 43 would not apply in respect of land in
question.
6.1 Learned Assistant Government Pleader
Mr. Nikunj Kanara also could not justify the
action of the Collector whereby instead of
arriving at a conclusion he rejected the
application of the petitioner for N.A.
permission by leaving the questions open and
unanswered.
6.2 However, learned Assistant Government
Pleader Mr. Nikunj Kanara prayed for dismissal
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of the petition by submitting that the order
passed by the Collector is absolutely just,
legal and proper, as the Collector has acted in
accordance with law and there is nothing wrong
and due care is taken in verifying the status of
the land.
7. I have heard learned advocates appearing for the
parties and perused the record. On perusal of
the record, I found that after series of
litigation, ultimately in the year 2018, the
Deputy Collector Land Reforms, Kheda- Nadiad has
passed an order specifying that in respect of
sale of land in question in favour of the
petitioner, no provisions of Tenancy Act would
be applicable. Once there is a specific finding
in respect of the sale transaction above by none
other than the Deputy Collector Land Reforms is
there and the same after having attaining
finality as the aforesaid order has not been
challenged by any of the respondents nor learned
Assistant Government Pleader Mr. Kanara could
point out that even the Government has
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challenged the aforesaid order. The Collector
was not justified in rejecting the application
made by the petitioner by pausing the question
once again as to whether there would be any
restrictions of Section 43 of the Tenancy Act
would be applicable in respect of land in
question or not. Further, if the authority has
any doubt about the applicability of any law or
whether such conversion into N.A. would be
subject to any premium or not, the authority can
always seek opinion from the Subordinate
Officers or from the other Competent Authority
but it is not expected from the Authority to
reject the petitioner's application on account
of their own failure to get the instructions or
opinion from the Subordinate Authority or from
the Competent Authority and then to reject the
application just with a view to see that the
timeline to decide the N.A. application is met
with, and any how the matter is disposed of.
8. In view of above, as the petitioner has
successfully demonstrated before this Court by
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way of documentary evidence which could not be
disputed by the State that there are no
provisions related to Tenancy Act applicable in
respect of land in question. Accordingly, the
impugned order passed by the Collector, Kheda
dated 11.1.2023 being erroneous order is
required to be quashed and set aside and the
same is quashed and set aside. The matter is
remanded back to the Collector, Kheda for
considering the petitioner's application afresh
in accordance with law and within the time limit
prescribed under the Act with a direction to
consider the petitioner's case in light of the
orders passed by the Deputy Collector, Kheda in
respect of tenancy proceedings and in light of
the observations made by this Court.
9. With the aforesaid observations, the present
petition is allowed. Rule made absolute. Direct
service is permitted.
(NIRZAR S. DESAI,J)
Pallavi
