Gujarat High Court
State Of Gujarat vs Tusharbhai Harjibhai Ghelani on 10 September, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO.
1216 of 2023
In R/LETTERS PATENT APPEAL NO. 1381 of 2024
With
R/LETTERS PATENT APPEAL NO. 1381 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 22072 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023 In
R/LETTERS PATENT APPEAL NO. 1381 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 22072 of 2017
With
R/CIVIL APPLICATION NO. 1218 of 2023
In
R/LETTERS PATENT APPEAL NO. 1382 of 2024
With
R/LETTERS PATENT APPEAL NO. 1382 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 4418 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023 In
R/LETTERS PATENT APPEAL NO. 1382 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 4418 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
============================================
1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
Page 1 of 28
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=============================================
STATE OF GUJARAT
Versus
TUSHARBHAI HARJIBHAI GHELANI & ANR.
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Appearance:
MS MANISHA LAVKUMAR SHAH, LD. ADDL. ADVOCATE
GENERAL WITH MS. HETAL PATEL, ASST.GOVERNMENT
PLEADER for the Applicant(s) No. 1
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 10/09/2024
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
(1) The abovenoted appeals filed on behalf of the State
are directed against the judgment and order dated 08.04.2022
passed by the learned Single Judge. The appeals suffer from
delay of about 485 days, which has been explained to the
satisfaction of the Court. The Delay Condonation application is
allowed. The delay in filing the appeals is hereby condoned.
(2) Coming to the merits of the case, the writ petitions
were filed challenging the order dated 23.11.2016 passed by
the District Collector refusing to grant Non-Agricultural use
Permission (for short, 'NA Permission') to the petitioner.
Further prayer is to direct the District Collector to comply
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with the order dated 24.06.2015 passed by the Gujarat
Revenue Tribunal (for short, 'GRT') in Revision No.18 / 2015
and thereby grant NA Permission to the petitioner with
respect to the land bearing Final Plot No.92 admeasuring
3574 sq.mts in TP Scheme No.29 situated in the sim of village
Rundh, Surat by re-consideration of the application dated
03.10.2017 filed by the petitioner for the purpose.
(3) In a brief note, the facts of the case are that the
original petitioner purchased the land in question vide
registered sale deed dated 13.11.2006 and his name was
mutated in the revenue records vide Revenue Entry No.1611
dated 29.01.2009, which was certified on 01.06.2009. As the
land in question was included in the TP Scheme, the petitioner
had applied for NA Permission under Section 65 of the
Gujarat Land Revenue Code' 1879 (for short, 'the Code'
1879'). Vide order dated 23.05.2014, the District Collector
had rejected the application filed under Section 65 dated
13.02.2014. The order appended as Annexure - 'D' to the writ
petition indicates that certain clarifications were sought from
the office of the District Collector, Surat.
(4) The petitioner, thereafter, filed a detailed
application dated 25.06.2014 clarifying the objections cited in
the order dated 23.05.2014 explaining each and every
circumstances incurred. Again vide order dated 28.08.2014,
the application was rejected on new grounds. The reason
given in the order passed by the Collector is that the land in
question is a New tenure land, though no such objection has
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been raised by any authority at any point of time.
(5) In order to challenge the rejection of the
application, the petitioner filed a revision before the GRT
against the order dated 28.08.2014. It is submitted in the writ
petition that the Tribunal, after examining the record, had set
aside the order passed by the Collector dated 28.08.2014 and
directing the Collector to grant NA Permission treating the
land in question as an Old tenure land while allowing the
revision vide order dated 24.06.2014. Vide application dated
27.10.2016, the petitioner requested the Collector to re-open
his case and consider the application for NA Permission.
Further, vide letter dated 23.11.2016, it was intimated to the
petitioner that the application cannot be considered as there
was a proposal of the State Government to challenge the
order passed by the GRT dated 24.06.2015 before this Court.
(6) It is contended in the writ petition that till filing of
the writ petition in the year 2017, no such challenge had been
made. It seems that the writ petition namely Special Civil
Application No.4418 of 2018 was filed by the State
Government out of which the connected Letters Patent Appeal
No.1382 of 2024 has arisen challenging the order dated
24.06.2015 passed by the GRT on the ground that it had no
jurisdiction to look into the correctness of the order passed by
the Collector under Section 65 of the Code' 1879. The remedy
before the petitioner was to challenge the said order by filing
revision under Section 211 of the Revenue Code.
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(7) Main ground pressed into service before us to
challenge the order passed by the learned Single Judge is that
an error has been committed in ignoring the fact that the GRT
is a statutory tribunal created under the Gujarat Revenue
Tribunal Act' 1957 (for short, 'the Act' 1957'). As per the First
Schedule of the Act' 1957, as extracted in the order impugned
itself, the tribunal has no jurisdiction to entertain revision
against the order passed under Section 65 of the Code' 1879,
inasmuch as, Section 65 has not been included in the relevant
column conferring jurisdiction to the tribunal against the
orders or decisions in cases arising out of the provisions of the
Bombay Land Revenue Code' 1879 (now the Gujarat Land
Revenue Code' 1879).
(8) We may record that the learned Single Judge has
also noted that from the First Schedule under the Act' 1957,
the order of refusal of grant of NA Permission under Section
65 of the Code' 1879 would not fall within the jurisdiction of
the Gujarat Revenue Tribunal. However, it was swayed by the
ground of refusal stated in the order passed under Section 65
of the Code' 1879, which narrates the land in question being a
New tenure land and hence concluded that the provisions of
the Gujarat Tenancy and Agricultural Land Act' 1948 (for
short, 'the Act' 1948') would be applicable. It was observed by
the learned Single Judge that in view of the restrictions of
transfer of agricultural land under Sections 43 and 63 of the
Act' 1948 for adjudicating the question as to whether there is
a breach of the said provisions, the proceedings under the
Tenancy Act need to be followed.
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(9) The learned Single Judge has, then, in the
judgment impugned, proceeded to look into the procedure
examining the provisions of the Tenancy Act and noted that as
per the scheme of the Tenancy Act as contained in Chapter
'VI', against any order passed by the Collector in appeal under
Section 75, there is a remedy of revision under Section 76
thereof.
(10) The learned Single Judge, thus, has held that since
the revision was filed before the GRT against the order of the
Collector holding that the land in question is a New tenure
land, the exercise of power by the GRT was proper in view of
Section 76 of the Act' 1948. The contentions of the State -
Petitioners challenging the order passed by the GRT for lack
of jurisdiction was, thus, turned down.
(11) The provisions of Section 76 containing the power
of revision of the GRT under the Act'1948 has been placed
before us by the learned counsel appearing for the respondent
to submit that the revision application can be maintained
before the GRT constituted under the Act'1957, "against any
order of the Collector", except those which are expressly
excluded in the said provision. The revisional power of the
GRT, thus, is not confined to the provisions of the Act' 1957
and can be invoked to examine the correctness of the even an
order passed by the Collector under Section 65 of the
Revenue Code.
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(12) On the first question of the jurisdiction of the
Gujarat Revenue Tribunal, we may note that the tribunal
namely the Gujarat Revenue Tribunal has been constituted
under the Bombay (Gujarat) Revenue Tribunal Act' 1957. The
long title of the Act' 1957 states that the said enactment has
been brought to constitute a Revenue Tribunal in the State of
Bombay (now Gujarat), to invest it with jurisdiction to
entertain appeals and revise decisions in certain cases, to
abolish corresponding bodies in any part of the State, and to
provide in matters connected therewith. From the reading of
the long title itself, it is evident that the investiture of
jurisdiction to the GRT is guided by the Act' 1957. Section 9 of
the Act' 1957 further reads as under:
"9. Jurisdiction of Tribunal.
1. Subject to the provisions of this section, the Tribunal
shall have jurisdiction to entertain and decide appeals
from and revise decisions and orders of officers, not
below the rank of a Collector or Deputy Commissioner,
in respect of cases arising under the provisions of the
enactments specified in the First Schedule.
2. Save as expressly provided in any enactment for the
time being in force, the State Government may, by
notification in the Official Gazette, direct that the
Tribunal shall also have jurisdiction to entertain and
decide appeals from, and receive decisions and orders
of, such persons, officers and authorities in such other
cases as the State Government may determine; and for
that purpose the State Government may, by notification
in the Official Gazette, add to, amend or omit, any of
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the entries in the First Schedule, and thereupon the
Tribunal shall have jurisdiction in such matter and the
jurisdiction of any other persons, officer or authority
therein shall cease.
3. The State Government may, at any time, in like
manner, cancel such notification or omit any entry from
the First Schedule and resume to itself such
jurisdiction:
Provided that nothing herein shall prevent the State
Government after such resumption of jurisdiction from
conferring any such jurisdiction on any other person,
officer or authority.
4. Notwithstanding anything contained in any other law
for the time being in force, when the Tribunal has
jurisdiction to entertain and decide appeals from and
revise decisions and orders of any person, officer or
authority in any matter aforesaid, no other person,
officer or authority shall have jurisdiction to entertain
and decide appeals from and revise decisions or orders
of such person, officer or authority in that matter."
(13) Section 10 is also relevant to be noted hereinunder:
10. Jurisdiction barred in certain cases.
1. The Tribunal shall have no jurisdiction in any matter
which is sub-judice in a court of law.
2. The Tribunal shall also have no jurisdiction in respect
of a matter which in its opinion involves a question as
to the validity of any Act, Ordinance or Regulation or
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any provision contained in an Act, Ordinance or
Regulation, the determination of the invalidity of which
in its opinion is necessary to the disposal of that matter.
Explanation. - In this section "Regulation" means any
Regulation of the Bombay Code of Regulation as
defined in the General Clauses Act, 1897 (X of 1879), or
in a General Clauses Act in force in any part of the
State.
(14) From a reading of Section 9 (1) of the Act' 1957, it
is evident that the tribunal has jurisdiction to entertain and
decide appeals and revision, in respect of cases arising under
the provisions of the enactments specified in the First
Schedule, against the orders of officers not below the rank of
Collector or Deputy Commissioner.
(15) Sub section (2) of Section 9 empowers the State
Government to extend or restrict the jurisdiction of the
tribunal as specified in the First Schedule, while notifying in
the official Gazette.
(16) Sub section (3) of Section 9 states that the State
Government may cancel such notification or omit any entry
from the First Schedule and resume to itself such jurisdiction
and the proviso to Sub section (3) further states that nothing
shall prevent the State Government after such resumption of
jurisdiction from conferring any such jurisdiction on any
person, officer of authority.
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(17) Further, from the language employed in Sub
section (4) of Section 9, it is evident that notwithstanding
anything contrary in any law for the time being in force in the
cases where the tribunal has jurisdiction to entertain and
decide the appeal and revision, no other officer or authority
shall have jurisdiction.
(18) Section 10 further provides instances where the
tribunal will not have any jurisdiction such as in any matter,
which is sub-judice in the Court of law or the matter involving
the question as to the validity of any Act, Ordinance or
Regulation etc.
(19) From the careful reading of the aforesaid
provisions of the Act' 1957, it is evident that the statutory
tribunal (GRT) created under the Act' 1957 will have
jurisdiction to deal with the cases under various enactments,
as conferred in the First Schedule. The First Schedule, as
extracted by the learned Single Judge in the order impugned,
shows that the jurisdiction with respect to orders or decisions
in cases arising under the provisions of the Bombay Land
Revenue Code' 1879 (Gujarat Land Revenue Code' 1879) has
been conferred, but it is restricted to the provisions
incorporated in Column No.2 of the table in the First
Schedule. Section 65 of the Code' 1879 has not been included
therein, which would mean that the legislature has expressly
excluded the orders passed under Section 65 of the Code'
1879 from the purview of scrutiny by the tribunal.
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(20) The Act' 1957 has been enacted to invest the body
constituted as Gujarat Revenue Tribunal with the jurisdiction
to entertain appeal or revision in certain cases, as specified
therein with the cases in the First Schedule, which would be
within the jurisdiction of the tribunal.
(21) It is settled law that the statutory tribunal is required to
confine its jurisdiction within the four corners of the statute
by which it is created and any transgression outside the four
walls of the enactment creating such statutory tribunal would
make their order without jurisdiction. The tribunal, which is a
creature of the statute, has only the powers expressly
conferred on it or resulting directly from powers so conferred.
Acting otherwise goes to the very existence of the power.
This lack of jurisdiction may relate to the subject matter, the
territory or the person. Statutory tribunals, set up under an
Act of legislature are creatures of the Statute and should be
guided by the conditions stipulated in the statutory provisions
while exercising powers expressly conferred or those
incidental thereto. Statutory tribunals, created by the
Legislature, have limited jurisdiction and must function within
the four corners of the Statute which created them.
(Reference may be made to the decisions of the Apex Court in
the case of O.P. Gupta v. Dr. Rattan Singh [1962 SCC
OnLine SC 111], D. Ramakrishna Reddy v. Addl. Revenue
Divisional Officers [(2000) 7 SCC 12] and the judgment of
High Court of Hyderabad at Hyderabad in the case of State
of Telangana v. Md. Hayath Uddin [2017 SCC OnLine
Hyd 356]
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(22) In the instant case, the order impugned dated
23.11.2016 was passed by the District Collector, Surat in
refusing to grant permission under Section 65 of the Code'
1879, which provides that if the occupant of an agricultural
land wishes to apply his land for any other purpose such as
non-agricultural purpose, the Collector's permission would be
required. The Revenue Code' 1879 is an enactment to
consolidate and amend the law relating to revenue officers
and to the assessment and recovery of land revenue and other
matters connected with the land revenue administration.
(23) Section 211 of the Revenue Code' 1879 confers
power upon the State Government or any revenue officer not
inferior in the rank of Assistant or Deputy Collector or
Superintendent of Service in their respective department, to
call for and examine the record of any inquiry or the
proceedings of any subordinate revenue officer, so as to
satisfy itself as to the legality or propriety of any decision or
order passed and also as to the regularity of the proceedings
of such officer. The said provision also confers jurisdiction
upon the supervisory Authority to modify, annul or reverse
any order passed by any subordinate revenue officer.
(24) It is, thus, evident that the order passed by the
Collector in refusing to grant NA Permission on any ground
stated therein is revisable under Section 211 of the Code'
1879, where the revisional authority not only can examine the
legality and propriety of the said order, but modify, annul or
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reverse the same, if it is found contrary to law. This remedy
available to the petitioner has been by-passed in the present
case by filing revision before the GRT, jurisdiction of which
was confined to the four corners of the Act' 1957.
(25) Coming to the provisions of the Gujarat Tenancy
and Agricultural Land Act' 1948, it is an Act to regulate the
tenancy, to govern the relations of the landlord and tenants of
agricultural lands, to regulate and impose restrictions on the
transfer of agricultural lands, dwelling use etc. belonging to
or occupied by agriculturists, agricultural labours and
artisans in the province of Bombay (Gujarat) and to make
provisions for certain other purposes provided therein.
(26) Sections 43 and 63 put restrictions on transfer of
certain categories of land of agricultural tenant / agriculturist
without the permission of the Collector for certain purposes.
For any violation of the provisions of Sections 43 and 63, the
jurisdiction is conferred upon the Mamlatdar under Section
84C to initiate action suo motu or on the application of any
person interested in such lands, where he has reason to
believe that such transfer or acquisition is or becomes invalid
in any of the provisions of the Act. The Mamlatdar is required
to issue notice and hold an inquiry as provided for in Section
84P and additionally whether the transfer or acquisition is or
is not valid.
(27) The order passed by the Mamlatdar under Section
84C or 84B is appealable before the Collector under Section
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74 and revision can be maintained before the GRT under
Section 76. The Act' 1948, thus, is a special act, which
prescribes remedy against the order passed by the Mamlatdar
in the proceedings initiated under the said Act.
(28) Insofar as the jurisdiction conferred upon the GRT
under Section 76, pertinent is to note from the language
employed in Sub section (1) is that an application for revision
may be made to the Gujarat Revenue Tribunal constituted
under the Act' 1957, "against any order of the Collector" ,
except an order under Section 32P or an order in appeal
against the order under Sub section (4) of Section 32G. The
words 'against any order of the Collector' is to be interpreted
to mean the order passed by the Collector under the Act' 1948
and cannot be extended to envelop or include any order
passed by the Collector under any other enactment such as
the Code' 1879 (in the instant case).
(29) From the provisions of two enactments noted
hereinabove, it is evident that they operate in two different
fields and the jurisdiction conferred upon the revenue
authorities or the tribunal in those two enactments is not
overlapping and are confined to the provisions of the
enactment itself. Special enactment dealing with specific
areas providing remedy cannot be mixed up to employ
provisions of one enactment to challenge the order passed
under another enactment.
(30) The fact that the remedy of revision under Section
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76 before the GRT was confined to the orders passed by the
Collector under the Act' 1948, itself makes it evident that the
revision against the order passed under Section 65 under the
Code' 1879 was not maintainable before the tribunal and the
revisional power under Section 76 could not have been
exercised. Suffice it to note that the reasons given in the order
of the Collector passed under one enactment would not give
rise to the remedy under another enactment, which is
confined to the proceedings arising under the said enactment.
(31) In the instant case, though the learned Single
Judge was of the view that the GRT had no jurisdiction to look
to the propriety or legality of the order passed by the
Collector under Section 65 of the Code' 1879, however, has
misguided himself by reading much into the provisions of the
Act' 1948, on the premise that the order impugned rejecting
the application for NA Permission narrates the ground for
rejection as the land being New tenure land, the provisions of
the Act' 1948 hence would be attracted.
(32) The learned Single Judge has lost sight of the fact
that the proceedings, if any, for violation of the provisions of
the Act' 1948 can only be initiated under the Act' 1948 and
the mere mentioning of the land in question being a New
tenure land in the order of rejection of application for NA
Permission does not give rise to or confer jurisdiction upon
the tribunal under Section 76 of the Act' 1948.
(33) The question as to whether the Collector has
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committed illegality in rejecting the application seeking NA
Permission on the premise of the land in question being a
New tenure land could very well be examined within the
scope of revisional power under Section 211 of the Code'
1879.
(34) We are, therefore, of the considered opinion that
the judgment and order dated 08.04.2022 passed by the
learned Single Judge insofar as the dismissal of the writ
petition filed by the State of Gujarat namely Special Civil
Application No.4418 of 2018 is liable to set aside. The relief,
as prayed for in the writ petition challenging the order dated
24.06.2015 passed by the GRT, Ahmedabad in Revision
Application No. TEN / PS / 80 / 2015 is hereby allowed
resulting in setting aside of the said order. Consequently, the
order dated 28.08.2014 passed by the Collector, Surat stands
revived, which was subject matter of challenge in the
connected writ petition namely Special Civil Application
No.2207 of 2017 passed by the respondent.
(35) We may now proceed to examine the correctness of
the order dated 28.08.2014 passed by the Collector in
rejecting NA Permission of the petitioner.
(36) In the series of various orders passed by the
Collector, the first be the order dated 23.05.2014, whereby
while making certain queries and clarifications, the
application has been consigned to record. On another detailed
application filed by the petitioner dated 25.06.2014, by order
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dated 28.08.2014, the Collector had again consigned the
application on record stating the reasons that;
1. The land in question being a land of re-grant was
a restricted New tenure land for which, premium
was liable.
2. No details are provided for disposal of the case
ME 754 related to Sections 43 and 63 of the Act'
1948.
3. Development permission from Surat Municipal
Corporation was not produced.
(37) The third application was filed by the petitioner
after the order passed by the GRT, which has been held to be
without jurisdiction hereinbefore. However, the fact remains
that the Collector had rejected the application seeking NA
Permission filed by the petitioner by giving three reasons in
the order dated 28.08.2014 noted hereinbefore.
(38) In the writ petition, it is categorically stated by the
learned counsel for the petitioner that the petitioner has got
regularization of the transaction under Section 63AB of the
Act' 1948 to regularize the last transaction, which was made
in favour of the non-agriculturist by depositing of an amount
of Rs.1,14,12,500/-. On deposit of the said amount before the
Mamlatdar and ALT (Revenue), Surat, the transaction in
favour of the vendors of the petitioner stood regularized. The
petitioner, thereafter, had applied for NA Permission vide
application dated 03.10.2017 to use the land in question for
commercial purpose. There has been no proceeding against
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the petitioner for breach of any of the conditions of the
Tenancy Act' 1948.
(39) It was argued by Ms. Manisha Lavkumar Shah, the
learned Additional Advocate General for the State - Appelant
that the land bearing Survey No. 45 / 4 of Village Rundh,
Taluka Surat City(Majura) District Surat admeasuring 5500
sq.mts pertains to "Gam Naukar Raiyat Upyogi" land, initially
mutated in the name of the State Government by Entry No.
180 dated 10.06.1955 after passing of the Bombay Service
Inams (Useful to Community) Abolition Act' 1953. The said
land was re-granted by the Prant Officer and entry in that
regard came to be seen in the mutation entry no.204 in the
revenue records dated 08.12.1959. Submissions have been
made to substantiate the reasons for declining NA Permission
vide order dated 28.08.2014 passed by the Collector, by
giving reference to various provisions of Bombay Service
Inams Abolition Act' 1953 and the clarifications given by the
State Government. However, none of the reasons urged
before us by the learned Additional Advocate General could be
discerned from the order impugned dated 28.08.2014 passed
by the Collector.
(40) In the affidavit filed by the Collector in Special Civil
Application No.22072 of 2017, several reasons have been
assigned to substantiate his order dated 28.08.2014, none of
which could be seen as incorporated in the said order. It is
settled law that the order passed by the administrative
authorities, while exercising administrative / quasi judicial
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powers cannot be supplemented by averments made in the
counter affidavit. The validity of the order is to be examined
from the reasons assigned therein. (Reference may be made
to the decision of the Apex Court in the case of Mohinder
Singh Gill & Anr VS The Chief Election Commissioner,
New Delhi and Ors. [1978 (1) SCC 405].)
(41) Moreover, on a pointed query made by the Court,
the learned Additional Advocate General appearing for the
State respondent could not dispute that NA Permission can be
granted even in case of a New and impartial tenure land, in
accordance with the procedure in various circulars /
notifications of the State Government, wherein premium may
be leviable. In this scenario, for the first reason given by the
Collector in the order dated 28.08.2014, the application
seeking to grant NA Permission could not have been rejected,
by consigning it on record.
(42) Insofar as the second reason of the case ME 754,
nothing has been brought on record and specific contention of
the learned counsel for the petitioner that no proceedings
under Sections 43 and 63 of the Tenancy Act' 1948 has ever
been initiated against the petitioner nor are pending could not
be disputed. The second reason of rejected claim for
consideration, therefore, cannot be sustained.
(43) Coming to the third ground for rejection of the
application that development permission from Surat
Municipal Corporation was not produced, suffice it to say that
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the same is curable.
(44) Thus, the order dated 28.08.2014 passed by the
District Collector cannot but be said to have been passed on
irrelevant considerations. From the record, it is evident that
the District Collector, Surat kept on rejecting the applications
one after the other filed by the petitioner by consigning them
on record since the year 2014, for one or the other irrelevant
reasons, and all the orders passed under Section 65 of the
Code' 1879 by the Collector, Surat are unsustainable.
(45) There is another aspect of the matter. The power of
the Collector under Section 65 of the Code' 1879 is limited in
the matter of grant of permission for use of land for non-
agricultural purposes. It is held by this Court in the case of
Tusharbhai Harjibhai Ghelani VS State of Gujarat [2019
(4) GLR 2578] that on a plain reading of Section 65 of the
Code' 1879, it is an executive power, which is in the nature of
a power of administrative character of the Collector. Section
65 of the Code' 1879 reads as under:
65. Uses to which occupant of land for purposes
of agriculture may put his land
[(1) Any occupant, of land [assessed or held for the
purpose of agriculture] is entitled by himself, his
servants, tenants, agents, or other legal
representatives, to erect farm-buildings, construct
wells or tanks, or make any other improvements
thereon for the better cultivation of the land, or its
more convenient [use for the purpose aforesaid]
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Procedure if occupant wishes to apply his land to any
other purpose [or for other different non-agricultural
purposes].- But, if any occupant [wishes to use his holding
or any part thereof for any other purpose] [or for other
different purposes] the Collector's permission shall in the
first place be applied for by the [***] occupant.
[The Collector, on receipt of such application,
(a)shall send to the the applicant a written acknowledgment
of its receipt, and
(b)may, after due inquiry, either grant or refuse the
permission applied for:
Provided that, where the Collector fails to inform the
applicant of his decision on the application within a period of
three months, the permission applied for shall be deemed to
have been granted; such period shall, if the Collector sends a
written acknowledgement within seven days from the date of
receipt of the application, be reckoned from the date of the
acknowledgment, but in any other case it shall be reckoned
from the date of receipt of the application.]
Unless the Collector shall in particular instances otherwise
direct, no such application shall be recognized except it be
made by the [* *] occupant.
[***]
[(2)Notwithstanding anything contained in sub-section (1)
but subject to any terms and conditions laid down by the
State Government in this behalf, where an occupant has his
holding in an area comprising a gram and such area is not
within an urban agglomeration or within a radius of five
kilometres from the limits of a municipal borough or notified
area or industrial estate and such occupant wishes to use his
holding or a part thereof only for a residential purpose, it
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shall not be necessary for him to obtain permission of the
Collector under sub-section (1)
Explanation.--For the purposes of this section--
(i) "gram" means a gram within the meaning of the Gujarat
Panchayats Act, 1961 (Guj. VI of 1962);
(ii) "industrial estate" means an industrial estate within the
meaning of the Gujarat Industrial Development Act, 1962
(Guj XXIII of 1962);
(iii)"municipal borough" or "notified area" means
respectively, a municipal borough or a notified area within
the meaning of the Gujarat Municipalities Act, 1963 (Guj. 34
of 1964);
(iv) "urban agglomeration" means an urban agglomeration
within the meaning of the Urban Land (Ceiling and
Regulation) Act, 1976.](83 of 1976.
(46) It was observed in Tusharbhai Harjibhai Ghelani
(Supra) while dealing with the application for grant of NA
Permission, the first thing the Collector should look into as to
whether the applicant seeking NA 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 record prima facie shows that he is
occupant of the land. The second step in the process would be
to ascertain as to whether such land is being assessed or held
for the purpose of agriculture.
(47) Further, Section 65 provides for uses of which
occupant of land for the purpose of agriculture may put his
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land to. The provision states that if the occupant of the land
wishes to use the land for the purpose other than agriculture
or agriculture related activities, he is required to make an
application to the Collector for permission to do so. The key
words in Section 65 is the occupant of the land. It is sufficient
for the purpose 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 the occupant of the land applies for NA Permission.
It is not necessary that such person has to prove his title
before he makes an application. The Collector has no power
under Section 65 of the Code' 1879 to examine or conclude
regarding title of the applicant over the land in question.
(48) 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 proceeded by
the competent authority. Nowhere it is contemplated in
Section 65 that the Collector is empowered to undertake
inquiry into the title of the occupier.
(49) This Court while holding the above in Tusharbhai
Harjibhai Ghelani (Supra) has referred to the judgment of
the Apex Court in the case of State of Gujarat v. Patil
Raghav Natha [(1969) 2 SCC 187], wherein it is held in
Paragraph '14' as under:
14. We are also of the opinion that the Commissioner
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should not have gone into the question of title. It seems
to us that when the title of an occupant is disputed by
any party before the 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 to decide the
question of title himself against the occupant.
(50) There is a reference of the decision of this Court of
Bhayabhai Vajshibhai Hathalia Vs State of Gujarat [2012
2 GLR 1741] in Paragraph '45' in Tusharbhai Harjibhai
Ghelani (Supra), which reads as under:
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
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and obtain any prohibitory orders would succeed in
thwarting and throatling 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
succeeful in obtaining any order in any manner
from civil court, which is competent, i.e. only
court to adjudicate upon and acknwoeldge their
rights and title in the land in question, that party
cannot be permitted to throw spanner in the
wheels of developemnt set in motion by the
legitimate competent authroty, whose entery is
there in the reveue record. Therefore the appeal
itself from the point of view of locus was also not
obtained."
(51) Similar view has been taken by another Bench of
this Court in the case of Jaswantbhai Ishwarbhai Patel LH
and Representatives of Deceased Ishwarbhai Aatmaram Vs.
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Paresh Kantilal Patel [2023 (2) GLH 53], wherein the
petitioner was challenging the order of grant of NA
Permission by the Collector under Section 65 of the Code'
1879 on the premise that the registered sale deed with regard
to the land in question purchased by the predecessor in
interest of the applications seeking NA Permission was illegal,
nonest and void ab initio. Referring to the decision of
Tusharbhai Harjibhai Ghelani (Supra), it was held therein
that since the Collector has no power to examine or conclude
regarding title of the occupant over the land in question and
Section 65 of the Code' 1879 merely provides for processing
of the applicant for change of use to which occupant of the
land for agricultural purposes may put his land to, and the
Collector is not empowered to make any further inquiry.
(52) Taking note of the restrictive scope of inquiry
under Section 65 of the Code' 1879, from the language
employed therein and the decisions of this Court relied by the
learned counsel for respondent noted hereinabove, it is more
than evident that none of the grounds taken by the Collector
for rejection of the application for NA Permission by
consigning it on record are sustainable. The rejection of the
application in a similar fashion, on one or other grounds given
in three orders passed by the Collector would show non-
application of mind by the Collector to the scope of the power
conferred upon it under Section 65 of the Code' 1879.
(53) We are, therefore, of the considered opinion that
the request of the original petitioner of the Special Civil
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Application No. 22072 of 2017 to grant NA Permission
requires re-consideration by the District Collector, Surat.
Consequently, while setting aside the orders of rejection of
the application dated 28.08.2014 by consigning it on record,
we revive the application dated 25.06.2014 filed by the
petitioner seeking grant of NA Permission before the
Collector.
(54) It is, further, provided that the petitioner is
permitted to add any material, which he thinks so in the
averments made in the application dated 25.06.2014,
inasmuch as, 10 years have been passed by so far. The
additional grounds or material shall be filed by the petitioner
along with the copy of this order before the District Collector,
Surat within the period of four weeks from today. The
District Collector, Surat is required to pass a reasoned and
speaking order strictly in accordance with law dealing with all
points raised by the petitioner within the limited scope of its
power under Section 65 of the Code' 1879, as expeditiously as
possible, preferably within the period of six weeks from the
date of receipt of the application.
(55) With the above, the writ petition stands disposed
of.
(56) It is clarified that the observations made in this
order will not come in the way of either the Collector or the
petitioner in the matter of processing and disposal of the
application seeking grant of NA Permission, which shall be
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decided independently without being influenced by any of the
observations made hereinabove.
(57) With the above, while disposing of the appeal
namely Letters Patent Appeal No. 1381 of 2024 arising out of
Special Civil Application No. 22072 of 2017, the judgment and
order dated 08.04.2022 passed by the learned Single Judge
stands modified to the above extent.
(58) For the reasoning given above, the connected
Letters Patent Appeal No. 1382 of 2024 arising out of Special
Civil Application No.4418 of 2018 stands allowed with the
modification of the order passed by the learned Single Judge
that the Gujarat Revenue Tribunal had no jurisdiction to
entertain the revision under Section 76 of the Act' 1948 in
passing the order dated 24.06.2015 in Revision Application
No. 18 of 2015.
(59) Consequently, all pending Civil Applications stand
disposed of.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
SAHIL S. RANGER
