[Cites 6, Cited by 0]
Gujarat High Court
Yash Kishore Mandalia vs The State Of Gujarat on 25 March, 2026
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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C/SCA/14336/2025 ORDER DATED: 25/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14336 of 2025
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YASH KISHORE MANDALIA & ANR.
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
TIRTH NAYAK(8563) for the Petitioner(s) No. 1,2
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 25/03/2026
ORAL ORDER
1. Issue RULE, returnable forthwith. Mr. Jayneel Parikh,
learned Assistant Government Pleader waives service of Rule
for and on behalf of the respondent - State authorities. With
the consent of the learned advocates appearing for the
respective parties, the matter is taken up for final hearing.
2. Heard Mr. Tirth Nayak, learned advocate appearing for
the petitioners and Mr. Jayneel Parikh, learned Assistant
Government Pleader appearing for the respondent - State
authorities.
3. By way of the present petition, petitioners herein have
invoked Article-226 of the Constitution of India, being
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aggrieved and dissatisfied by the impugned order dated
25.08.2025, rejecting the petitioner's application seeking
permission for Non-Agriculture (N.A.) use being NA Application
No.30708202505844, with respect to the land situated at
Survey No. 69 (old Survey No. 92), admeasuring 28,536
sq.mtrs. situated at Village: Bhayala, Tal.: Bavla, Dist.:
Ahmedabad, on the ground that the report was awaited with
respect to the Ceiling proceedings that were drooped under
Section 20(2) of the Gujarat Agricultural Lands Ceiling Act,
1960 (hereinafter referred to as 'the Ceiling Act, 1960' for the
sake of brevity), wherein, the entry was certified as entry
no.2441 on 19.09.1968. The impugned order dated 25.08.2025
is duly produced at Annexure-A, page-11. The aforesaid has
given rise to the filing of the present Petition, wherein,
petitioners have prayed for the following reliefs, which reads
thus:
"7. In the aforesaid facts and circumstances, the Petitioners pray
that this Hon'ble Court may be pleased to:
(A) Issue writ of certiorari or any other appropriate writ, order or
direction to quash and set aside the decision of the Respondent No.2
dated 25.08.2025 [at Annexure-A];
(B) Issue writ of mandamus or any other appropriate writ, order or
direction and direct the Respondent No.2 to grant the Application dated
28.05.2025 [at Annexure-C] to grant NA Permission to the Petitioner in
accordance with law within 3 weeks;
(C) Pass such other and further orders as may be deemed just and
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expedient."
4. Mr. Nayak, learned advocate submits that, in absence of
any review or any negative opinion for the entry which was
certified as back as on 19.09.1968 as entry no.2441, it is
erroneous on the part of the respondent Collector to File such
application on the ground that, it is not clear whether such
entry was taken in the review or not. That there is no negative
report produced on record under the Tenancy Act and in view
thereof, petitioner's application is erroneously ordered to be
Filed.
4.1. It is submitted that, even otherwise, while exercising the
powers under Section 65 of the Gujarat Land Revenue Code,
1879 (hereinafter referred to as 'the Code' for short) the
respondent no.2 - Collector is required to inquire only two
aspects, i.e. whether the applicant/ petitioner is occupier of the
land in question and is undertaking agriculture activities. In the
facts of the present case, the revenue record establishes the
occupancy of the petitioners herein as provided under Section
3(16) of the Code and occupant means 'a holder in actual
possession of unalienated land, other than a tenant'. The
petitioner's name is recorded in the revenue records, which
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establishes occupancy. Under such circumstances, the
respondent authority is bound to grant such permission for the
use of N.A.
4.2. It is submitted that, it is not even the case of the
respondent authority that the petitioner herein is not the
occupant or is not undertaking agriculture activities. In view
thereof, the order passed by the respondent no.2 fails the test
of Section 65 of the Code and has proceeded to File the
petitioner's application seeking N.A. permission on erroneous
ground, are such that the same cannot be taken into
consideration, while exercising the powers under Section 65 of
the Code, by the respondent no.2- Collector.
5. Mr. Jayneel Parikh, learned AGP submits that the
petitioner's application seeking N.A. use is not rejected and it
is only Filed, in view of the fact that the respondent no.2 was in
the process of ascertaining whether there is a review with
respect to the order that was withdrawn under Section 20(2) of
the Ceiling Act and that the entry was mutated in the year
1993 and whether there is any violation of the Tenancy Act or
not.
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6. Mr. Nayak, learned advocate, in rejoinder, to substantiate
his submissions, rely on the oral judgment dated 31.01.2024
passed in Special Civil Application no. 7053 of 2023 and allied
matters and oral order dated 14.10.2025 passed in Civil
Application (for condonation of delay) No. 4716 of 2025 in
Letters Patent Appeal No. 1181 of 2025 and allied matters.
Reliance was also placed on the decision in the case of
Tusharbhai Harjibhai Ghelani and Anr. v/s. State of
Gujarat and Ors. reported in 2019 (4) GLR 2578, wherein, it
is held that, if earlier transaction after efflux of time are such
that the same cannot be the subject matter of scrutiny to raise
doubt. It is submitted that, in the facts of the present case,
notice under Section 20(2) of the Ceiling Act was dropped as
back as in the year 1993, for which the entry no. 2452 was
mutated on 25.08.1993, the same has attained finality.
7. Having heard the learned advocates appearing for the
respective parties, in the facts of the present case, it is not in
dispute that the proceedings against the petitioner under the
Ceiling Act came to be dropped and the notice under Section
20(2) and Section 16 of the Ceiling Act came to be withdrawn,
for which entry no.2441 was mutated in the revenue record as
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back as on 19.09.1968. There is neither review nor challenge
to such entry, the same has attained finality. Mr. Parikh,
learned AGP is not in a position to produce on record any
document contrary to what is stated by Mr. Nayak, learned
advocate appearing for the petitioner herein. In view thereof,
in the opinion of this Court, the impugned order passed by the
respondent no.2 dated 25.08.2025 is such that the same is
required to be quashed and set aside on the aforesaid ground
alone, in absence of any document on record to show that
there was any review or in absence of any negative opinion
under the Tenancy Act. In absence of any such documents on
record, in the opinion of this Court, the respondent no.2 was
required to decide the petitioner's application in accordance
with the scope provided under Section 65 of the Code. Mr.
Nayak, learned advocate submitted that, it is not in dispute
that the petitioner's name is reflected in the revenue record
and to show that the petitioner is occupant of the land in
question and has also produced on record the photographs
alongwith the application for N.A. permission, that it is an
agricultural land. The respondent no.2 to take into
consideration the aforesaid aspect, under which the
respondent no.2 is empowered to decide an application for
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N.A. use under Section 65 of the Code.
8. It is also apposite to refer to the ratio laid down in LPA
No. 1181 of 2025 and allied matters with CA (for condonation
of delay) No. 4716 of 2025, wherein, the Hon'ble Division
Bench reiterated the ratio laid down in Tusharbhai Ghelani
(supra). It is apposite to refer to Para-14 to 18 and 25 of the
said judgment, which reads thus:
"14. The impugned order dated 24.12.2024 records that the
affidavit filed by the Collector, Vadodara was taken on record
and the said affidavit though started with an apology, but the
collector tried to justify the reasons for passing the orders
impugned dated 28.10.2024 and 29.10.2024 for rejection of the
NA application, more particularly, as regards the probability of
the provisions of Agricultural Land Ceiling Act being violative on
account of the Entry No. 780 dated 06.02.1985. It is noted by
the learned Single Judge in the order impugned that the
Collector, Vadodara has failed to appreciate the law laid down
by this court in the case of Tusharbhai Harjibhai Ghelani and
Anr. Vs State of Gujarat and Ors. [2019 (4) GLR 2578],
which was the basis of passing the judgement and order dated
31.01.2024 wherein the scope of inquiry under Section 65 of the
Bombay Land Revenue Code, 1879 has been laid down.
15. The writ court records that in the first round of litigation vide
judgment and order dated 31.01.2024, the Coordinate Bench
had specifically laid down that Section 65 of the Bombay Land
Revenue Code, 1879 provides for the use to with an occupant of
the land for the purposes of agriculture may put his land to. The
key words in section 65 of the Code is the occupant of the land
and it is sufficient for the purposes of Section 65 of the Code
that the person applying for NA permission is the occupant of
the land. The question about the title or ownership over the land
in question for which NA permission is sought, cannot be
examined within the scope of Section 65 of the Bombay Land
Revenue Code, 1879. It was also noted that in the facts of the
present case, the petitioners therein (herein as well) stand at a
better footing as they are not only occupants of the subject
lands but also the owners thereof by virtue of the registered
Sale Deed dated 06.09.2022.It is also noted that the registered
sale deed has not been cancelled or held invalid by any
competent Court of law.
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16. The judgment and order dated 31.01.2024 passed by the
writ court allowing the writ petitions of the year 2023
categorically records that the Collector, Vadodara while rejecting
the applications for conversion of the land into NA land had
travelled back in time in respect of history of the lands in
question about 30 years ago. The questionable entries being
revenue entries of 30 years old could not have been made basis
for rejection of the NA applications. Some entries mutated on
account of the Will could not have been disputed on the doubts
raised in the order as to whether there was a blood relationship
between the parties (executant and the beneficiary) or not
17. It was noted that the impugned order indicated of some
alleged illegalities committed sometime in the years 1980s and
1990s which was not the subject matter of scrutiny to raise any
doubt about the title of the petitioners over the lands in question
so as to take it a ground for rejection of NA applications. It is
also noted by the writ court in the first round that nothing came
out from the record as to whether any proceedings were
initiated in respect of any of the shortcomings mentioned in the
orders impugned for rejecting NA permission. In absence of
there being any other material and also the fact that the
petitioners are bona fide purchasers of the land in question,
being the last persons in the chain of transactions, NA
applications moved by them could not have been rejected. The
writ petitions were allowed taking note of the ratio of law laid
down by the Coordinate bench in Tusharbhai Harjibhai
Ghelani (supra) vide judgment and order dated 31.01.2024
with the above noted categorical observations by the writ court
to remand the matter to the Collector, Vadodara for fresh
decision.
18. Taking note of the above, it is neither understandable nor
acceptable as to how that the Collector, Vadodara could have
rejected the fresh applications filed by the petitioners in the
second round by passing the orders dated 28.10.2024 and
29.10.2024 on the very selfsame grounds on which the NA
applications filed in the year 2023 were rejected.
25. Noticing the above, we find that the officers holding the
office of Collector, Vadodara at the relevant point of time have
failed to apply their minds to the settled legal position pertaining
to the inquiry to be made under Section 65 of the Bombay Land
Revenue Code, 1879 in utter ignorance of the decision of this
Court in Tusharbhai Harjibhai Ghelani (supra). The attitude of
the officers in passing repeated orders putting caveat about the
title of the predecessor in interest of the petitioners by digging
graves, to reject the NA permission was without any substantive
basis. There is nothing on record even in the present set of
appeals filed by the State appellant which would indicate that
any legal proceedings had ever been initiated with respect to
the revenue entries made in favour of the predecessors in
interest of the petitioners. All doubts raised in the first set of
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orders of rejection of the NA permission of the year 2023 till the
third set of orders of rejection of the year 2025, were without
any basis."
8.1. It is also apposite to refer to the ratio laid down by the
Hon'ble Court in the case of Tusharbhai Harjibhai Ghelani
and Anr. v/s. State of Gujarat and Ors. reported in 2019
(4) GLR 2578, relevant Para-35 to 44 reads thus:
"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.
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 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
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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 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."
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9. For the reasons and the ratio as referred to herein-above,
impugned order dated 25.08.2025 passed by the respondent -
Collector is quashed and set aside, with a direction upon the
respondent no.2 - Collector, Ahmedabad to decide the
petitioner's NA application No. 30708202505844 dated
28.05.2025 afresh, taking into consideration the findings
arrived at by this Court and the ratio laid down the Hon'ble
Division Bench as referred herein-above, wherein, the scope of
power to be exercised by the respondent no.2 is extensively
explained, within the statutory period, in accordance with law.
10. For the foregoing reasons, the present Petition stands
allowed in part. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J)
NEHA
