Gujarat High Court
Deepak Kantilal Patel vs State Of Gujarat on 1 October, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/9709/2024 ORDER DATED: 01/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9709 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 9923 of 2024
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DEEPAK KANTILAL PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
JAYDEEP H SINDHI(9585) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 01/10/2024
ORAL ORDER
1. Heard learned Advocate Mr. Jaydeep H. Sindhi for the petitioners
and learned AGP Mr. Jayneel Parikh for the respondent-State.
2. By way of these petitions, the petitioners challenge order passed by
the Collector, Navsari dated 26.03.2024, whereby the application
preferred by the petitioners for accepting their request for payment of
premium has been rejected on the ground that civil suit being Regular
Civil Suit No. 75 of 2015 was pending before the Civil Court, Navsari
and the petitioners had filed withdrawal application which was pending
consideration.
3. While these petitions have been moved on the 01.07.2024 and had
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been listed for hearing on 04.07.2024, time had been granted to the
learned Advocate for the petitioners to ensure that appropriate orders are
obtained from the learned Civil Court so as to ensure that the Collector,
Navsari could be directed to consider the application preferred by the
petitioners afresh. According to the learned Advocate, learned Civil Court
has not passed any orders and now the said civil suit in adjourned to
06.11.2024.
4. Be that as it may, to this Court, it would appear that the petitions
themselves were premature since the application for withdrawal had not
been finalized, and while time had been granted to the petitioners to make
amends, yet, till date the petitioners could not get the orders from the
Civil Court.
5. Considering such a position, this Court is inclined to dispose of the
petitions as being premature with liberty to the petitioners to file
application afresh before the Collector, after orders are passed by the
learned Civil Court.
6. At this stage, learned Advocate Mr. Sindhi would submit that this
Court may instead of passing the above order take into consideration the
observations of a learned Co-ordinate Bench of this Court in case of
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Tusharbhai Harjibhai Ghelani Vs. State of Gujarat reported in 2019
(4) GLR 2578. Learned Advocate Mr. Sindhi would rely upon paragraph
No. 40 of the said decision which reads as thus :
"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."
7. Considering the law laid down by learned Co-ordinate Bench of
this Court, from the perspective of the facts of the case in question, it
would appear that reliance placed by the learned Advocate for the
petitioners is absolutely misconceived. The judgment of learned Co-
ordinate Bench is with regard to exercise of power under Section 65 of
the Gujarat Land Revenue Code, more particularly with regard to grant of
non-agriculture permission. On the other hand, the application preferred
by the petitioners before the Collector was for grant of permission to pay
the premium for converting the land from restricted tenure to unrestricted
tenure, under Section 43 of the Gujarat Tenancy and Agricultural Lands
Act. The observations of the learned Co-ordinate Bench being in context
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of a completely different enactment and in context of complete different
permission, would not in any manner help the cause of the present
petitioners.
8. Furthermore, learned Advocate Mr. Sindhi would also request this
Court to also deal with a decision of the Allahabad High Court in case of
Sheikh Khalikuzzama (D) Through LRs. Vs. Sheikh Akhtaruzzama ,
reported in 2004 LawSuit (ALL) 268 . The High Court of Allahabad, has
inter alia observed that since the plaintiff is the dominus litis, and
withdrawing a suit is a unilateral act of the part of the plaintiff and
requires no permission or order of the Court and is not subject to any
condition, it becomes effective as soon as it is done.
9. To this Court, the reliance placed by the petitioners on the above
decision of the High Court of Allahabad is completely irrelevant and
misplaced. As such, to this Court, it would appear that revenue authorities
are not clothed with any power whereby the revenue authorities could
come to a conclusion that upon a withdrawal Pursis filed by the plaintiff
in a civil suit, the same becomes effective forthwith. In the instant case,
the Collector considering an application for grant of permission to
convert the land from restricted tenure to unrestricted tenure and whereas
it is at this stage that it has come to the notice of the Collector that a civil
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suit has been preferred by certain third parties and though it was
contended before the Collector that a withdrawal Pursis has been
preferred, yet, it had also come to the notice of the Collector that the
withdrawal Pursis has not been acted upon. To this Court, it would clearly
appear that since the petitioners in response to the fact of the suit being
pending, had relied upon the withdrawal application, the Collector was
well justified in observing that the Civil Court has not passed any final
orders as regards the same.
9.1 The petitioners having submitted that the civil suit is pending
consideration for withdrawal, no fault could be found with the Collector
in coming to a conclusion that the said withdrawal application has not
been finally allowed by the Civil Court.
10. Again, to this Court, it would appear that if the petitioners are
seeking a declaration that upon the withdrawal application being filed, the
same would become effective, such a declaration ought to be sought by
the petitioners from the Civil Court itself and the burden could not be
shifted upon the revenue authorities and consequently, upon this Court.
Such an argument cannot be countenanced.
11. Having regard to the above discussion, since it appears to this
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Court that the request made by the petitioners being absolutely
misconceived, the present petitions are disposed of reserving liberty in
favour of the petitioners to move afresh application before the Collector,
after appropriate orders are passed by the Civil Court.
(NIKHIL S. KARIEL,J)
BDSONGARA
