Back
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Abhilasha Kumari, J.
Nrupal Narendrabhai Dalwadi and Others – Appellants
Versus
State of Gujarat and Others – Respondents
Special Civil Application Nos. 4971, 6876, 6957, 7049 of 2012, 15321, 15322, 15348, 15349 of 2015
Decided On : 05-05-2017
Bombay Merged Territories (Ankadia Tenure Abolition) Act, 1953 – Section 2(1)(a), 3(iii) and 4(1)(A)(iii – Bombay Land Revenue Code, 1879Constitution of India, 1950 – Articles 226 – Seeks Grant of Non Agricultural Use Permission – Notice – Vadodara Urban Development Authority ("VUDA") vide its communication opined that it does not have any objection if N.A. Permission, as sought for, is granted in favour of the petitioners – Since the earlier application preferred by the petitioners was rejected for non-compliance of certain documents, the petitioners made another application to the second respondent, wherein it was stated that the predecessors-in-interest of the petitioners were holding the lands by way of succession, ever since the years 1941-42, and the land was of old tenure. It is the case of the petitioners that the second respondent, without granting the petitioners an opportunity of hearing, passed the impugned orders, rejecting the application preferred by the petitioners for the grant of N.A. Permission, on ground that the land was originally granted by virtue of the order passed by the Mamlatdar in the year 1971 and appears to be of new tenure. According to the second respondent, premium is leviable while granting N.A. Permission – Challenged – Held, there is no delegation of power as the Collector has merely asked the Mamlatdar to conduct a fact-finding inquiry regarding the claims of the predecessors of the petitioners who demanded their just entitlements under the Act. This was done on the direction of the State Government. No power under any statute was exercised by the Collector in the first place, therefore, none could have been delegated to the Mamlatdar. A direction to conduct a fact-finding inquiry does not require the delegation of statutory power. This submission advanced by the learned Additional Advocate General, therefore, cannot be accepted – Order of the Mamlatdar has not been passed under any provision of the Code, but in a fact-finding inquiry. Revisional power under Section 211 cannot be exercised in relation to an inquiry under the Ankadia Tenure Abolition Act. The very genesis of the show-cause notice is flawed and unsustainable in law. Hence, the show-cause notice deserves to be quashed and set aside. In Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others (supra), the Supreme Court has upheld a challenge to a show-cause notice on the ground of lack of jurisdiction – Impugned orders passed by the Collector in the first set of petitions and the show-cause notices issued by the Collector, in the second set of petitions quashed – Petition Allowed. (Paras 101 to 109)
Abhilasha Kumari, J.
1. Rule. Mr. Vishrut R. Jani, learned Assistant Government Pleader, waives service of notice of Rule for the respondents in each petition.
2. This group of eight petitions has been filed by the same petitioners under Articles 226 of the Constitution of India. Four petitions, namely, Special Civil Applications Nos. 4971/2012, 7049/2012, 6957/2012 and 6876/2012, have been filed by the petitioners challenging separate orders dated 21.03.2012, passed by the District Collector, Vadodara, rejecting the applications made by them for the grant of Non Agricultural Use Permission ("N.A. Permission"). These four petitions would hereinafter be referred to as the first set of petitions and reference would be made to the facts and contentions raised in Special Civil Application No. 4971/2012. The second set of petitions, namely, Special Civil Applications Nos. 15321/2015, 15322/2015, 15348/2015 and 15349/2015, have been filed challenging separate show-cause notices dated 05.03.2015, issued by the District Collector, Vadodara, in exercise of suo motu powers under Section 211 of the Gujarat Land Revenue Code, 1879 ("the Code"). The lead matter in the second set of petitions would be Special Civil Application No. 15321/2015, to the contents of which reference would be made for the sake of convenience. The show-cause notices impugned in the second set of petitions are consequential to the order passed by the Collector, rejecting the N.A. Permission in the first set of petitions. All the petitions are, therefore, interconnected and as similar issues of fact and law are involved, they are required to be heard and decided together.
3. The subject lands from which the dispute has arisen are situated at Village Sherkhi, Taluka and District Vadodara. The description of the lands involved in the first set of petitions is as below:
(i) Special Civil Application No. 4971/2012 - Survey Nos. 556/17, 556/3, 556/7, 556/6 - New Survey Nos. 556/17, 556/3 and 556/6
(ii) Special Civil Application No. 6957/2012 - Survey No. 556/9
(iii) Special Civil Application No. 7049/2012 - Survey Nos. 555/1, 555/2, 556/16, 556/2, 556/10, 556/11, 556/12 and 556/5 - New Survey Nos. 555/1, 556/2 and 556/5
(iv) Special Civil Application No. 6876/2012 - Survey No. 556/1
The dispute pertains to the same lands in the second set of petitions as well.
4. A brief narrative of the background in which the petitions came to be preferred, emerging from a perusal of the voluminous record, is required to be given. The petitioners purchased the lands in question by different registered Sale Deeds, in the year 1981, after paying full consideration and due verification of the revenue records showing that the lands were of old tenure. It is the case of the petitioners that before purchasing the land, they have carried out a proper and thorough verification of the revenue records and found that the lands are of old tenure. Necessary mutation entries in respect of the registered Sale Deeds of the petitioners were posted in the revenue record. Being desirous of using the land for Non Agricultural Purposes, more particularly, residential purposes, the petitioners made an application dated 01.10.2010, to the second respondent, District Collector, Vadodara, in the prescribed format. Pursuant to the aforesaid application, the second respondent informed the petitioners that their application for grant of N.A. Permission has been forwarded to the Mamlatdar, Rural, for further proceedings. Thereafter, by a communication dated 08.04.2011, the second respondent informed the petitioners that the application dated 01.10.2010 has been rejected in view of the negative opinion of the Mamlatdar and ALT, since necessary compliance was not made by the petitioners as required by the Mamlatdar, vide his communication dated 24.01.2011. However, Vadodara Urban Development Authority ("VUDA") vide its communication dated 13.07.2011, opined that it does not have any objection if N.A. Permission, as
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
