Gujarat High Court
Niranjan Vasudev Vyas vs State Of Gujarat on 21 April, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 993 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 3154 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
==========================================================
Approved for Reporting Yes No
==========================================================
NIRANJAN VASUDEV VYAS & ORS.
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR AJAY S JAGIRDAR(2688) for the Petitioner(s) No. 1,2,3,4,5
MR JAYNEEL PARIKH ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 21/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Ajay S. Jagirdar for the petitioners and
learned AGP Mr. Jayneel Parikh for the respondent No.1 State.
2. It is informed that the notice has been refused by the respondent
No.5 in Special Civil Application No.3154 of 2025.
3. Since both the petitions are interconnected, the same are being taken
up for final disposal together.
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
4. In Special Civil Application No.993 of 2025, the challenge is to
impugned order dated 11.03.2024 passed by the Collector, Gandhinagar,
rejecting application of the petitioners for grant of NA permission on the
ground of pendency of a Revision Application before the SSRD being
Revision Application No.127 of 2023.
5. On the other hand, Special Civil Application No.3154 of 2025
challenges an order dated 08.01.2025 passed by the SSRD, whereby interim
relief had been granted in a Revision Application preferred by the
respondent No.4 herein.
6. Learned Advocate Mr. Jagirdar for the petitioners would assail order
dated 11.03.2024 passed by the Collector, Gandhinagar, on the ground that
merely on account of pendency of tenancy proceedings, grant of NA could
not have been refused. Learned advocate would submit that the law as
regards exercise of powers under Section 65B of the Gujarat Land Revenue
Code having been explained by this Court in case of Tusharbhai Harjibhai
Ghelani vs. State of Gujarat, reported in 2019 (4) GLR 2578, the Collector
had committed a grave error in going beyond the conspectus of the said
direction and having rejected the application for grant of NA permission
merely on account of pendency of a Revision Application.
7. Learned advocate would further assail the order passed by the SSRD
dated 08.01.2025 in interim application in Revision Application No.127 of
2023 on the ground that the SSRD had not taken into consideration the fact
that the transaction was with regard to purchase of a property by the
petitioners, which had been challenged by the respondent No.5, who
himself was a beneficiary of the family partition, based on which the
respondent Nos.6 and 7 had sold the property to the petitioners. Learned
advocate would further submit that the SSRD had granted interim relief in
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
the nature of staying order dated 05.07.2022 passed by the Deputy
Collector, whereby entry with regard to purchase of the property by the
petitioners had been certified. Learned advocate would submit that the
SSRD vide impugned order, was granting interim relief, which even the
learned Civil Court had not granted in favour of the respondent No.5 and
whereas it is submitted that for such reasons, the order of the SSRD also
would require interference.
8. As against the same, while contesting respondent i.e. the respondent
No.5 has chosen to refuse notice of this Court, more particularly inspite of a
very specific observation by this Court vide order dated 13.09.2024 that the
respondent No.5 shall ensure appropriate representation on his behalf on
the returnable date, failing which this Court could pass appropriate order.
The above observations in view of the prima facie finding of this Court that
instead of granting interim relief, the SSRD could be directed to decide the
Revision Application within a specific period of time.
9. On the other hand, learned AGP Mr. Parikh would vehemently
object to both these petitions. Learned AGP would submit that in so far as
order dated 11.03.2024 passed by the Collector, Gandhinagar, is concerned,
it was brought to the notice of the Collector that a litigation was pending
before the SSRD and whereas it was under such circumstances, more
particularly with due difference to fact that a litigation was pending before
SSRD, that the Collector had stayed the proceedings. Learned AGP would
submit that no error has been committed by the Collector while passing the
said order.
10. Learned AGP would submit that in so far as the order passed by the
SSRD is concerned, it is submitted that the petition reflects an inter se
dispute between the private individuals and whereas the State would not
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
have much of role to play and whereas appropriate orders are requested to
be passed in this regard.
11. Heard learned advocates for the respective parties and perused the
documents on record. At the first instance, this Court would deal with
Special Civil Application No.3154 of 2025. In so far as the said writ petition
is concerned, what is under challenge is an order passed by the SSRD
granting interim relief in favour of the revision applicant therein. It would
appear that before the SSRD, an order dated 05.07.2022 passed by the
Deputy Collector, further confirmed by the Collector, Gandhinagar, dated
19.08.2023 was under challenge. It would also appear perusing the orders
passed by the Deputy Collector as well as the Collector that respondent
No.5 herein as well as respondent Nos.6 and 7 herein were beneficiaries of a
family partition with regard to land situated at village: Vasna Hadmatiya, Ta.
Dist. Gandhinagar and whereas while the respondent No.5 had sold of his
land to a third party, he was objecting to the respondent Nos.6 and 7
dealing with the property, which had come to their share vide the partition
deed. It would also appear that the respondent No.5 had preferred a
substantive Civil Suit in this regard being Regular Civil Suit No.142 of 2022.
Thus, while entry with regard to a registered sale deed had been certified by
the Deputy Collector and Collector inspite of the objections by the
respondent No.5, it would also appear that the issue being with regard to
substantive rights of parties, a Civil Suit had been preferred in which as of
date, no interim injunction has been passed in favour of the plaintiff therein.
It would also appear that inspite of such a decision, merely by recording that
a Civil Suit was pending and non-grant of interim relief would lead to
multiplicity of litigation, the SSRD had granted the interim relief. To this
Court, the course of action adopted by the SSRD is erroneous. When the
matter was with regard to substantive rights of the parties, the SSRD ought
to have followed the view, which would be taken by the Civil Court in this
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
regard and whereas merely on account of Civil Suit being filed where no
interim injunction was granted, the SSRD ought not to have stayed the
certification of entry with regard to a registered sale deed. It would also be
apposite to mention here that as it is both the Deputy Collector and the
Collector were influenced by argument, which does not appear to have been
controverted before the GRT that the respondent No.5 having sold of a
parcel of land which he had received as beneficiary of the very partition,
basis which the respondent Nos.6 and 7 had sold the land in favour of the
present petitioners.
12. Having regard to such observations, to this Court, it would appear
that ends of justice would be met, if order granting interim relief is set aside
and whereas SSRD is directed to hear and decide the Revision Application
within a specific period of time.
13. In so far as Special Civil Application No.993 of 2025 is concerned, to
this Court, it would appear that the order dated 11.03.2024 passed by the
Collector is completely erroneous. To this Court, it would appear that
merely because a Revision Application is pending before competent Court,
the Collector should have not considered an application for grant of NA
permission in accordance with law. To this Court, it would appear that the
Collector, while he may be entitled to not to grant an application for grant
of NA on basis of germane reasons, but at the same time, mere pendency of
Revision Application, without the relevance of such Revision Application
being discussed in the order, would render application non-est.
Furthermore, it could be noticed that when the Collector had passed the
order impugned dated 11.03.2024, even interim relief, which was granted by
the SSRD on 08.01.2025 was not in existence. Furthermore, this Court
would also like to refer to and rely upon observations of the learned
Coordinate Bench (Hon'ble Mr. Justice J.B. Pardiwala as His Lordship then
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
was) in the case of Tusharbhai Harjibhai Ghelani vs. State of Gujarat,
reported in 2019 (4) GLR 2578. Paras 26 to 47 being relevant for the
present purpose are reproduced herein below for benefit of the State
authorities.
"25.The power to grant permission for use of land for non-
agricultural purpose is an executive power or a power of an
administrative character. What is the scope of interference with an
administrative order in a writ petition under Article 226 of the
Constitution is also an issue which deserves consideration.
26. Article 226 of the Constitution is designed to ensure that each
and every authority in the State, including the State, acts bonafide
and within the limits of its power. However, the scope of judicial
review in administrative matters has always been a subject matter of
debate despite catena of case law on the issue. We may now refer
to a few decisions, wherein some broad principles of judicial
review in the field of administrative law have been evolved.
27. In Council of Civil Service Unions Vs. Minister for the Civil
Service, (1984) 3 All ER 935 Lord Diplock enunciated three
grounds upon which an administrative action is subject to
control by judicial review, viz. (i) illegality (ii) irrationality and (iii)
procedural impropriety. While opining that "further development
on a case by case basis may not in course of time add further
grounds" he added that principle of "proportionality" may be a
possible ground for judicial review for adoption in future.
Explaining the said three grounds, Lord Diplock said:
"By "illegality" he means that the decision-maker must
understand correctly the law that regulates his decision-
making power and must give effect to it, and whether he has
or has not, is a justiciable question; by "irrationality" he
means "Wednesbury unreasonableness". It applies to a
decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had
applied his mind to the question to be decided, could have
arrived at it; and by "procedural impropriety" he means not
only failure to observe the basic rules of natural justice or
failure to act with procedural fairness, but also failure to
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
observe procedural rules that are expressly laid down in the
legislative instrument by which the tribunal's jurisdiction is
conferred, even where such failure does not involve any denial
of natural justice."
28. The principle of "Wednesbury unreasonableness" or irrationality,
classified by Lord Diplock as one of the grounds for
intervention in judicial review, was lucidly summarised by Lord
Greene M.R. in Associated Provincial Picture Houses Ltd. Vs.
Wednesbury Corpn., (1948) 1 KB 223 = (1947) 2 All ER 680 as
follows:
"...the court is entitled to investigate the action of the local
authority with a view of seeing whether it has taken into
account matters which it ought not to take into account,
or conversely, has refused to take into account or neglected to
take into account matters which it ought to take into account.
Once that question is answered in favour of the local
authority, it may still be possible to say that the local authority,
nevertheless, have come to a conclusion so unreasonable that
no reasonable authority could ever have come to it. In such a
case, again, I think the court can interfere."
29. In State of U.P. & Anr. Vs. Johri Mal, (2004) 4 SCC 714 :
2004 eGLR_SC 20002249, the Hon'ble Supreme Court has observed
thus:
"The scope and extent of power of the judicial review of the
High Court contained in Article 226 of the
Constitution of India would vary from case to case, the
nature of the order, the relevant statute as also the other
relevant factors including the nature of power exercised by the
public authorities, namely, whether the power is statutory,
quasi-judicial or administrative. The power of judicial review is
not intended to assume a supervisory role or don the robes of
the omnipresent. The power is not intended either to review
governance under the rule of law or do the courts step into
the areas exclusively reserved by the suprema lex to the other
organs of the State. Decisions and actions which do not
have adjudicative disposition may not strictly fall for
consideration before a judicial review court."
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
30. In Rameshwar Prasad & Ors. (VI) Vs. Union of India & Anr.,
(2006) SCC 1, wherein a proclamation issued under Article 356
was under challenge, Arijit Pasayat, J. observed thus:
"A person entrusted with discretion must, so to speak, direct
himself properly in law. He must call his attention to matters
which he is bound to consider. He must exclude from
his consideration matters which are irrelevant to what he
has to consider. If he does not obey those rules he may
truly be said to be acting unreasonably. Similarly, there
may be something so absurd that no sensible person could
ever dream that it lay within the powers of the authority. It is
an unwritten rule of law, constitutional and administrative, that
whenever a decision-making function is entrusted to be
subjective satisfaction of a statutory functionary, there is an
implicit obligation to apply his mind to pertinent and
proximate matters only, eschewing the irrelevant and the
remote."
31. In the case of Jayrajbhai Jayantibhai Patel Vs. Anilbhai
Jayanitbhai Patel and Ors., 2006 (3) GLH 226, the Hon'ble
Supreme Court in Para 18 observed as under:-
"18. Having regard to it all, it is manifest that the power of
judicial review may not be exercised unless the
administrative decision is illogical or suffers from
procedural impropriety or it shocks the conscience of the
court in the sense that it is in defiance of logic or moral
standards but no standardised formula, universally
applicable to all cases, can be evolved. Each case has to be
considered on its own facts, depending upon the authority
that exercises the power, the source, the nature or scope of
power and the indelible effects it generates in the operation of
law or affects the individual or society. Though judicial
restraint, albeit self-recognised, is the order of the day, yet
an administrative decision or action which is based on
wholly irrelevant considerations or material; or excludes
from consideration the relevant material; or it is so absurd
that no reasonable person could have arrived at it on the
given material, may be struck down. In other words, when a
Court is satisfied that there is an abuse or misuse of
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
power, and its jurisdiction is invoked, it is incumbent on the
Court to intervene. It is nevertheless, trite that the scope
of judicial review is limited to the deficiency in the decision-
making process and not the decision."
32. The following passage from Professor Bernard Schwartz's
book Administrative Law (Third Edition) aptly echo's our
thoughts on the scope of judicial review:
"Reviewing courts, the cases are now insisting, may not simply
renounce their responsibility by mumbling an indiscriminate
litany of deference to expertise. Due deference to the agency
does not mean abdication of the duty of judicial review and
rubber-stamping of agency action : [W]e must accord the
agency considerable, but not too much deference; it is entitled
to exercise its discretion, but only so far and no further."
Quoting Judge Leventhal from Greater Boston Television
Corp. Vs. FCC, 444 F. 2d 841 (D.C.Cir. 1970), he further says:
"...the reviewing court must intervene if it "becomes
aware...that the agency has not really taken a 'hard look' at the
salient problems, and has not genuinely engaged in reasoned
decision-making..."
33. In the case of Ganesh Bank of Kurundwad Ltd. and others Vs.
Union of India and others, (2006) 10 SCC 645, the Hon'ble
Supreme Court in Paras 50 and 51 observed as under:-
"50. There should be judicial restraint while making
judicial review in administrative matters. Where
irrelevant aspects have been eschewed from consideration
and no relevant aspect has been ignored and the
administrative decisions have nexus with the facts on record,
there is no scope for interference. The duty of the court is
(a) to confine itself to the question of legality; (b) to decide
whether the decision making authority exceeded its powers
(c) committed an error of law (d) committed breach of the
rules of natural justice and (e) reached a decision which no
reasonable Tribunal would have reached or (f) abused its
powers. Administrative action is subject to control by
judicial review in the following manner:
(i) Illegality.- This means the decision-maker must
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
understand correctly the law that regulates his decision-
making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
51."13 One of the points that falls for determination is the
scope for judicial interference in matters of administrative
decisions. Administrative action is stated to be referable to
broad area of Governmental activities in which the
repositories of power may exercise every class of statutory
function of executive, quasi-legislative and quasi-judicial
nature. It is trite law that exercise of power, whether
legislative or administrative, will be set aside if there is
manifest error in the exercise of such power or the exercise
of the power is manifestly arbitrary (See State of U.P. and
Ors. v. Renusagar Power Co., (1988) 4 SCC 59 : AIR 1988
SC 1737. At one time, the traditional view in England was
that the executive was not answerable where its action was
attributable to the exercise of prerogative power. Professor
De Smith in his classical work "Judicial Review of
Administrative Action" 4th Edition at pages 285-287 states the
legal position in his own terse language that the relevant
principles formulated by the Courts may be broadly
summarized as follows. The authority in which discretion is
vested can be compelled to exercise that discretion, but not to
exercise it in any particular manner. In general, discretion must
be exercised only by the authority to which it is committed.
That authority must genuinely address itself to the matter
before it; it must not act under the dictates of another body or
disable itself from exercising discretion in each individual case.
In the purported exercise of its discretion, it must not do what
it has been forbidden to do, nor must it do what it has not
been authorized to do. It must act in good faith, must have
regard to all relevant considerations and must not be influenced
by irrelevant considerations, must not seek to promote
purposes alien to the letter or to the spirit of the legislation
that gives it power to act, and must not act arbitrarily or
capriciously. These several principles can conveniently be
grouped in two main categories: (I) failure to exercise a
discretion, and (ii) excess or abuse of discretionary power.
The two classes are not, however, mutually exclusive. Thus,
discretion may be improperly fettered because irrelevant
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
considerations have been taken into account, and where an
authority hands over its discretion to another body it acts ultra
vires.
14. The present trend of judicial opinion is to restrict the
doctrine of immunity from judicial review to those classes of
cases which relate to deployment of troupes, entering into
international treaties, etc. The distinctive features of some of
these recent cases signify the willingness of the Courts to
assert their power to scrutinize the factual basis upon which
discretionary powers have been exercised. One can
conveniently classify under three heads the grounds on
which administrative action is subject to control by judicial
review. The first ground is 'illegality' the second 'irrationality',
and the third 'procedural impropriety'. These principles were
highlighted by Lord Diplock in Council of Civil Service
Unions v. Minister for the Civil Service [1984 (3) All ER 935 :
1985 AC 374 : (1984) 3 WLR 1174 (HL)], (commonly known
as CCSU Case). If the power has been exercised on a non-
consideration or non-application of mind to relevant
factors, the exercise of power will be regarded as
manifestly erroneous. If a power (whether legislative or
administrative) is exercised on the basis of facts which do not
exist and which are patently erroneous, such exercise of power
will stand vitiated. (See CIT v. Mahindra and Mahindra Ltd.
[(1983) 4 SCC 392 : 1983 SCC (Tax) 336 : AIR 1984 SC 1182].
The effect of several decisions on the question of jurisdiction
has been summed up by Grahame Aldous and John Alder in
their book "Applications for Judicial Review, Law and
Practice" thus:
'There is a general presumption against ousting the jurisdiction
of the courts, so that statutory provisions which purport
to exclude judicial review are construed restrictively. There
are, however, certain areas of governmental activity,
national security being the paradigm, which the courts
regard themselves as incompetent to investigate, beyond an
initial decision as to whether the government's claim is bona
fide. In this kind of non-justiciable area judicial review is not
entirely excluded, but very limited. It has also been said that
powers conferred by the Royal Prerogative are inherently
unreviewable but since the speeches of the House of Lords
in Council of Civil Service Unions v. Minister for the Civil
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
Service (supra) this is doubtful. Lords Diplock, Scarman
and Roskill appeared to agree that there is no general
distinction between powers, based upon whether their source
is statutory or prerogative but that judicial review can be
limited by the subject matter of a particular power, in
that case national security. May prerogative powers are in fact
concerned with sensitive, non-justiciable areas, for example,
foreign affairs, but some are reviewable in principle,
including the prerogatives relating to the civil service where
national security is not involved. Another non-justiciable
power is the Attorney General's prerogative to decide whether
to institute legal proceedings on behalf of the public
interest.'
(Also see Padfield v. Minister of Agriculture, Fisheries and
Food, [1968 AC 997 : (1968) 1 All ER 694 : (1968) 2 WLR 924
(HL)].
15. The court will be slow to interfere in such matters
relating to administrative functions unless decision is
tainted by any vulnerability enumerated above; like
illegality, irrationality and procedural impropriety.
Whether action falls within any of the categories has to be
established. Mere assertion in that regard would not be
sufficient.
16. The famous case commonly known as "Wednesbury's
case" is treated as the landmark so far as laying down various
basic principles relating to judicial review of administrative or
statutory direction.
17. Before summarizing the substance of the principles laid
down therein we shall refer to the passage from the judgment
of Lord Greene in Associated Provincial Picture Houses Ltd.
v. Wednesbury Corpn. (KB at p. 229 : All ER pp. 682 H-683
A). It reads as follows:
"It is true that discretion must be exercised reasonably. Now
what does that mean? Lawyers familiar with the
phraseology used in relation to exercise of statutory
discretions often use the word 'unreasonable' in a rather
comprehensive sense. It has frequently been used and is
frequently used as a general description of the things that
must not be done. For instance, a person entrusted with a
discretion must, so to speak, direct himself properly in
law. He must call his own attention to the matters which he
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
is bound to consider. He must exclude from his
consideration matters which are irrelevant to what he has
to consider. If he does not obey those rules, he may truly be
said, and often is said, to be acting 'unreasonably'.
Similarly, there may be something so absurd that no
sensible person could even dream that it lay within the
powers the authority. ... In another, it is taking into
consideration extraneous matters. It is unreasonable that it
might almost be described as being done in bad faith; and
in fact, all these things run into one another."
Lord Greene also observed (KB p.230 : All ER p.683 F-G)
'...it must be proved to be unreasonable in the sense that the
court considers it to be a decision that no reasonable body
can come to. It is not what the court considers
unreasonable. ... The effect of the legislation is not to set up
the court as an arbiter of the correctness of one view over
another.'
18. Therefore, to arrive at a decision on 'reasonableness' the Court
has to find out if the administrator has left out relevant factors or
taken into account irrelevant factors. The decision of the
administrator must have been within the four corners of the
law, and not one which no sensible person could have
reasonably arrived at, having regard to the above principles, and
must have been a bona fide one. The decision could be one of
many choices open to the authority but it was for that authority
to decide upon the choice and not for the Court to
substitute its view.
19. The principles of judicial review of administrative action
were further summarized in 1985 by Lord Diplock in CCSU
case, [Council of Civil Service Unions v. Minister for the Civil
Service, (1984) 3 All ER 935 : 1985 AC 374 : (1984) 3 WLR 1174
(HL)] as illegality, procedural impropriety and irrationality. He
said more grounds could in future become available, including
the doctrine of proportionality which was a principle followed by
certain other members of the European Economic Community.
Lord Diplock observed in that case as follows: [CCSU case
(supra)] 'Judicial review has, I think, developed to a stage today
when, without reiterating any analysis of the steps by which the
development has come about, one can conveniently classify under
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
three heads the grounds on which administrative action is
subject to control by judicial review. The first ground I would
call 'illegality', the second 'irrationality' and the third 'procedural
impropriety'. That is not to say that further development on a
case-by-case basis may not in course of time add further grounds.
I have in mind particularly the possible adoption in the future of
the principle of 'proportionality' which is recognized in the
administrative law of several of our fellow members of the
European Economic Community.'
Lord Diplock explained 'irrationality' as follows: (All ER p.951
a-b)
'By "irrationality" I mean what can by now be succinctly referred
to as Wednesbury [Associated Provincial Picture Houses Ltd. v.
Wednesbury Corpn. (supra)] unreasonableness". It applies to a
decision which is to outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have arrived
at it.'
20. In other words, to characterize a decision of the
administrator as 'irrational' the Court has to hold, on material,
that it is a decision 'so outrageous' as to be in total defiance of
logic or moral standards. Adoption of 'proportionality' into
administrative law was left for the future.
21. These principles have been noted in aforesaid terms in Union of
India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S)
1806]. In essence, the test is to see whether there is any infirmity
in the decision making process and not in the decision itself. (See
Indian Rly. Construction Co. Ltd. v. Ajay Kumar, [(2003) 4 SCC
579: 2003 SCC (L&S) 528] (SCC pp.588-91, paras 13-21.)"
34. Tested on the touchstone of the above principles, the
impugned order passed by the Collector, in my view, is not
sustainable.
35. Section 65 of the Code, referred to above, on its plain
reading, do not provide for any scope of raising objection by any
party who is yet to establish its right in his favour over the land
in question. In other words, the proceedings under section 65 of
the Code is not an adversary proceeding at all.
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
36. In section 65 of the Code, referred to above, two words are
of pivotal importance; (i) "occupant" and (ii) "holding". Section
3(12) defines the term "holding". It reads as under;
"3(12):-"holding":-"holding" means a portion of land held by a
holder"
37. Section 3(16) defines the term "occupant". It reads as under;
"3(16):-"occupant"; "occupant means a holder in actual
possession of unalienated land, other than a tenant;
provided that where the holder in actual possession is tenant
the landlord or superior landlord, as the case may be, shall be
deemed to be the occupant."
38. Thus, the plain reading of section 65 makes it clear that for
the purpose of grant of N.A. Permission, the first thing the
Collector should look into is whether the applicant, seeking N.A.
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 records would
prima facie go to show or rather indicate that he is the occupant
of the land. The second step in the process would be to ascertain
whether such land is being assessed or held for the purpose of
agriculture.
39. Section 65 of the Code provides for the uses to which an
occupant of land for the purpose of agriculture may put his land
to. If the occupant of the land wishes to use the land for purposes
other than the agriculture or agriculture-related activities, he is
required to make an application to the Collector for permission to
do so. It may be noted that the key-word in Section 65 is the
occupant of the land. It is sufficient for the purposes 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 an occupant of the land
applies for NA Permission. It is not necessary that such person has
to prove his title to the land before he makes an application. The
present case is on a far better footing. Not only are the petitioners
occupants of the land, they are also the owners thereof, by a legal
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
and valid registered Sale Deed. The said sale deed may be a
subject matter of challenge before the Civil Court but the fact
remains that the Civil Court has not yet passed any decree
cancelling the same or declaring it to be illegal or obtained by fraud.
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.
41. A perusal of the impugned order dated 19th November,
2014 passed by the Collector makes it clear that the reason for the
rejection of the application of the writ applicants is that their title
to the land in question is defective on the ground that two civil
suits are pending.
42. In State of Gujarat v. Patel Raghav Natha,(1969)2 SCC 187,
the Supreme Court has clearly held as below:
"14. We are also of the opinion that the Commissioner should not
have gone into 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 decide the question
of title himself against the occupant."
43. This was also a case where the NA Permission under the
provisions of Section 65 of the Code was in issue. The above
principles of law therefore, squarely apply to the present case.
44. Considering the provisions of Section 65 of the Code as well
as the above pronouncement of law by the Supreme Court, this
Court cannot but arrive at the inevitable conclusion that the denial
of NA Permission to the writ applicants under the garb of a
purportedly defective title over the land in question amounts to a
transgression of the limits of jurisdiction vested in the second
respondent under the Code. The impugned order is, therefore,
one without jurisdiction. For such reason also the plea of alternative
remedy should fail.
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
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 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
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
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."
46. Thus, the above referred decision makes the legal
position abundantly clear. The position, as on date, is that the
order of status quo passed by the Civil Court in the suit filed by the
respondents Nos.3 to 17 has been stayed by this Court in an Appeal
From Order No.16 of 2018. As on date, there is no prohibitory
order operating against the writ applicants or in favour of the
respondents Nos. 3 to 17. In such circumstances, what is the
Collector expected to do while deciding an application seeking
N.A. Permission. Indisputably, the names of the writ applicants
figure in the record of rights as the owners of the subject land.
The entry, mutating their names in the record of rights, is on the
basis of the sale deed executed in their favour in the year 2006.
The respondents Nos.3 to 7 are yet to obtain appropriate
declaration as regards the legality and validity of the sale deed of
the year 2006 executed in favour of the writ applicants. The only
proceeding pending as on date is the civil suit filed by them.
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 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
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
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."
14. In view of the observations by the learned Coordinate Bench as
above, to this Court, it would appear that setting aside the order passed by
the Collector, Gandhinagar, and directing the Collector to consider the
application preferred by the petitioner afresh in accordance with law, within
stipulated time limit, would meet with the ends of justice:
15. Having regard to the above discussions, the following directions are
passed:
Special Civil Application No.3154 of 2025:
(a) The impugned order passed by the SSRD dated 08.01.2025 is
quashed and set aside.
(b) The SSRD is directed to hear and decide Revision Application
No.MVV/HKP/GDN/127/2023 as expeditiously as possible,
but not later than a period of three months from the date of
receipt of this order.
Special Civil Application No.993 of 2025:
(a) The impugned order dated 11.03.2024 passed by the
Collector, Gandhinagar, is hereby quashed and set aside.
(b) The Collector is directed to consider the application preferred
NEUTRAL CITATION
C/SCA/993/2025 JUDGMENT DATED: 21/04/2025
undefined
by the petitioner dated 30.01.2024 for grant of NA permission
afresh strictly in accordance with law and strictly in
accordance with the observations of this Court in case of
Tusharbhai Ghelani (Supra). Such decision shall be taken by
the Collector within a period of 90 days from the date of
receipt of this order.
With this observations and directions, the present petitions are
disposed of as allowed. Direct service is permitted.
It is clarified that this Court has not gone into the merits of the
matter and whereas both the authorities i.e. the SSRD in so far as Special
Civil Application No.3154 of 2025 and the Collector, Gandhinagar, in so far
as Special Civil Application No.993 of 2025 shall take an appropriate
decision strictly in accordance with law and in accordance with the extant
policy of the State Government in this regard.
(NIKHIL S. KARIEL,J)
Y.N. VYAS
