Gujarat High Court

Umeshbhai Mohanbhai Parmar vs State Of Gujarat on 3 November, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                           C/SCA/16037/2022                                   JUDGMENT DATED: 03/11/2025

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                                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                R/SPECIAL CIVIL APPLICATION NO. 16037 of 2022


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                      =============================================

                                   Approved for Reporting                    Yes           No

                      =============================================
                                         UMESHBHAI MOHANBHAI PARMAR & ANR.
                                                       Versus
                                              STATE OF GUJARAT & ORS.
                      =============================================
                      Appearance:
                      MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2
                      MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1,2,4
                      REFUSED SERVED (N)(10) for the Respondent(s) No. 3
                      =============================================

                         CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                                         Date : 03/11/2025

                                                         ORAL JUDGMENT

1. Issue Rule, returnable forthwith. Mr. Jayneel Parikh,

learned AGP waives service of notice of rule for and on behalf

of the respondents.

2. Heard Mr. S.P. Majmudar, learned advocate appearing for

the petitioners and Mr. Jayneel Parikh, learned AGP appearing

for the respondents - authorities.

3. The petitioners herein have invoked Article 226 of the

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Constitution of India being aggrieved and dissatisfied by the

impugned order passed by the Collector, Panchmahals, dated

27.01.2022, dismissing the application preferred by the

petitioners for change of use. By the said order, it is directed

that the construction put on by the petitioners on the land-in-

question, be removed, the petitioners be evicted from the

land-in-question and further directed that, the land to vest in

the State Government as there was breach of condition of the

N.A. order. It was kept open for the petitioner to prefer an

application to the competent authority i.e. Nagarpalika for

getting fresh plans under the provisions of the GDCR and if

such an application is preferred, the Nagarpalika should

measure the construction and upon verifying the same,

sanction the revised plans.

4. Mr. S.P. Majmudar, learned advocate appearing for the

petitioners submitted that the impugned order passed by the

respondent No.2 is beyond the jurisdiction wherein, no power

is available to the respondent- State to vest the land-in-

question with the State Government, the petitioners herein

being owners of the subject land by way of a registered sale

deed which is not in dispute. It is submitted that the petitioners

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herein have appeared before the competent authority and

were ready and willing to pay the penalty for the purpose of

change of use permission.

4.1 Mr. Majmudar, learned advocate submitted that the

petitioners were granted the Non-Agricultural (NA) use

permission for the land-in-question for residential purposes by

the respondent No.2 - Collector by order dated 21.02.2018.

The petitioners also made an application for getting

development permission from Kalol Nagarpalika on

24.09.2018, which was also granted by order dated

09.10.2018. Pursuant thereto, the petitioners put up

construction on the land-in-question. It was only upon an

objection/application raised by the third party namely,

Sanjaykumar Jayantilal Patel that, the proceedings came to be

initiated against the petitioners by the respondent No.2 -

Collector for breach of condition.

4.2 Mr. Majmudar, learned advocate relied on the Additional

Affidavit filed by the petitioners herein duly produced at page

60 to the petition wherein, it is stated that pursuant to the

impugned order passed by the respondent No.2 - Collector,

dated 21.07.2022, keeping it open for the petitioners to apply

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afresh for regularization of the land-in-question, the application

preferred by the petitioners came to be granted by order dated

19.05.2023, which is duly produced on record at page 62 to

the petition. Placing reliance on the Further Affidavit filed by

the petitioners herein duly produced at page 66 to the petition,

it is submitted that the petitioners herein paid the requisite

fees to the tune of Rs.1,41,490/- for regularization of

construction, the same having been regularized under Section

12 of the GURDA, 2022. It is submitted that pursuant to the

order of regularization dated 19.05.2023, the plans are

sanctioned along with the payment receipt dated 22.05.2023.

It is submitted that in view of the aforesaid, as such the

construction stands regularized, the petitioner having applied

under the GRUDA, 2022.

4.3 Mr. Majmudar, learned advocate also submitted that the

petitioners herein would also prefer an application for change

of Non-Agricultural (NA) use for commercial construction

however, by the impugned order dated 21.07.2022, the land

vests with the respondent - State. It is submitted that the said

order is required to be interfered with, the same being beyond

the jurisdiction of the respondent - authority wherein, the

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respondent authority is exercising powers under the Code that,

the respondent is empowered to evict the petitioners under

Section 66 of the Code. However, powers do not flow to forfeit

the land more particularly, the petitioners herein being owners

of the land-in-question by way of a registered sale deed.

5. Mr. Jayneel Parikh, learned AGP appearing for the

respondents is not in a position to dispute the factual position

that while keeping it open for the petitioners herein to

regularize the construction by paying/depositing the penalty

amount and revised plans, the respondent No.2 - Collector

herein passed an order of forfeiting the land-in-question. It is

submitted that though the construction stands regularized by

order dated 19.05.2023 under the GRUDA, 2022, the

petitioners still would have to prefer an application for change

of Non-Agriculture (NA) use permission.

6. Mr. S.P. Majmudar, learned advocate appearing for the

petitioners, in rejoinder, relied on the application preferred by

the petitioners herein for change of use of Non-Agriculture (NA)

use permission, which was preferred on 02.04.2019 but, the

same was not decided in light of the fact that the petitioners

were granted permission of Non-Agriculture (NA) use for

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residential purpose but, the petitioners had change the use of

the land-in-question by putting up commercial construction.

7. Having heard the learned advocate and learned AGP

appearing for the respective parties, the factual position not

being in dispute and having considered the impugned order

passed by the respondent - Collector dated 21.07.2022, it

emerges that the respondent No.2 - Collector initiated

proceedings against the petitioners herein pursuant to the

objection raised by a third party, one Sanjaykumar Jayantilal

Patel, on the ground that though the petitioner was granted

permission for Non-Agriculture (NA) purpose of residential use,

the petitioners had violated such condition of use and erected

construction for commercial purpose.

7.1 Upon perusal of the impugned order, it emerges that it

was kept open for the petitioners to prefer an application

seeking regularization of the construction, which was also

accepted by the petitioners herein having stated that, when

the petitioners appeared before the competent authority, the

petitioners were ready and willing to deposit the penalty

amount and regularize the construction. While passing the

impugned order, the land stands forfeited with the respondent

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- State as per Clause - 1 of the order duly produced at page 56

to the petition.

8. Pursuant to the order dated 21.07.2022, the petitioners

herein applied for regularization of construction under GRUDA,

2022, which was granted by order dated 19.05.2023 and

appears to have attained finality. The plans to the said effect

are also sanctioned, which are duly produced on record at

page 68 to the petition.

9. At this stage, it is apposite to reproduce Section 66 of the

Gujarat Land Revenue Code, 1879, which reads thus:

"66. Penalty for using land without Permission.- [If any land referred to in section 65 or section 65A be used for any purpose other than the purpose for which such land is assessed or held without the permission of the Collector being first obtained, or before the expiry of three months referred to in section 65 or despite refusal of permission during the said period of three months, then, without prejudice to the occupant's liability to pay the new assessment leviable under section 48 or the conversion tax leviable under section 67-A,-

(a) the occupant and any tenant or other person holding under or through him shall be liable to be summarily evicted by the Collector from the land so used and from the entry survey number or sub-

division of the survey number of which it may form a part; and

(b) the occupant shall also be liable to pay for the period during which the said land has been so used, such fine as the Collector may, subject to the general orders of the State Government, direct.]

Any tenant of any occupant or any other person holding under or through an occupant, who shall without the occupant's consent use any such land for any such purpose, and thereby render the said occupant liable to the penalty aforesaid, shall be responsible to the said occupant in damages."

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9.1 Considering the aforesaid provision, while it is kept open

for the respondent authorities to evict for violation of Section

65A of the Act, the power is not vested with the State for

forfeit the land-in-question.

10. The aforesaid was subject matter of consideration in an

identical issue reported in 2022 (0) AIJEL-HC-244751 in case

of Shardaben W/o Govindbhai Kodipatel D/o Mathurbhai

Gafurbhai Vs. State of Gujarat through The Secretary. It

is apposite to reproduce paragraphs 2.1, 4.1 and 5.2 of the

said decision rendered by the Hon'ble Division Bench, which

read thus:

"2.1 In response to this, Deputy Collector, Sanand investigated and passed an order on 15.02.2017 whereby, it was concluded that land has been used for non agricultural and commercial purposes though same was a new tenure and undivided type of land, without prior permission of the competent authority and as such ordered for such land being vested with the Government without encumbrances. This order was carried in appeal before the Collector, who vide order dated 23.08.2017 was pleased to confirm the order of Deputy Collector and dismissed the appeal against which a further appeal came to be filed by the petitioner before the Revenue Secretary, who disposed of revision/appeal vide order dated 06.01.2018 and dismissed the same. It was submitted by the petitioner that construction of 49 shops were never concealed at any point of time from revenue authorities, but it is only on account of personal vendetta, respondent no. 2 is out to destroy and ruin the petitioner and her livelihood a complaint has been lodged. It was the case of petitioner that similarly placed persons have also filed Special Civil Application 29374 of 2007 which was disposed of with a liberty to petitioner therein to approach the Collector seeking regularization of construction on payment of any prevalent price or premium as the case may be. The said petition was disposed of by order dated 08.07.2008 vide Annexure-E.

4.1 Learned Assistant Government Pleader has however, fairly conceded that Section 79A does not permit the authorities to forfeit the

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land as has been ordered by the Deputy Collector which came to be later on confirmed and as such, learned Assistant Government Pleader is not fairly confronting the issue. The learned Assistant Government Pleader has submitted that though powers are not available with the authority, in view of peculiar background of facts to forfeit the land with the Government without any encumbrances has been rightly passed. Hence, to that extent, learned Assistant Government Pleader has fairly conceded and has thereafter requested the Court to pass suitable orders in the interest of justice.

5.2 Further it also appears from the records that original authority i.e. the Deputy Collector, Sanand passed the order on 15.02.2017 and same has been confirmed by higher authorities which indicate that not only it has been held therein that subject land has been put to non- agricultural and commercial use without prior approval, but has also ordered for vesting of the land with the State without any encumbrances, in exercise of power under Section 79A (a) and (b). Section 79 no doubt invest the authority the power to summarily evict a person who is unauthorizedly occupying land, which is not the case here, since the land has been purchased by the appellant under a registered sale deed and undisputedly appellant is the owner of the land in question. The only act which appellant has committed is putting the land to non-agricultural use without prior permission of the authorities, seeking for either commercial use or for non- agricultural purposes and as such, Section 79(a) & (b) would not be applicable and as such, Deputy Collector has erroneously exercised the power under Section 79A of the Act. That apart from reading of this provision it would indicate that this provision is attracted it would not empower even if the authority to resume or forfeit the land with the Government, as no power of forfeiture is provided under this provision and as such, learned Assistant Government Pleader has also rightly and fairly conceded to this fact and has submitted that resumption of the land is impermissible. Hence, the order under challenge deserves to be interfered with.

11. Upon harmoniously considering the judgment rendered

by the Hon'ble Division Bench and the facts of the present

case, as discussed herein above, as such the impugned order

dated 21.07.2022 stands satisfied. However, the impugned

order provides for forfeiting the land-in-question with the State

Government which, in the opinion of this Court, is a direction

beyond the purview of the Section 66 of the Code.

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12. Considering the fact that the application of the

petitioners for regularization of construction is granted by