Back
2018 Supreme(Guj) 1739
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R. SUBHASH REDDY, VIPUL M. PANCHOLI, JJ.
Somabhai Sharubhai Gamit - Appellant
Versus
State of Gujarat & Ors. - Respondents
Letters Patent Appeal No. 890 of 2017 In Special Civil Application No. 10924 of 2017 With Civil Application Nos. 7334 & 8944 of 2017 In Letters Patent Appeal No. 890 of 2017 With Special Civil Application No. 10924 of 2017
Decided On : 08-11-2017
Advocate Appeared:
For the Appellant : Mr. Shakeel A. Qureshi
For the Respondents: Mr. K.M. Antani, Mr. Amit M. Panchal, Mr. Siddharth Jha, Mr. Angesh A. Panchal, Mr. Mayur Rajguru
Headnote:
Co-Operative Societies Act -Bombay Land Revenue Act, 1980 -Section 73A -Appeal is filed under clause 15 of the Letters Patent by the original respondent No.3 against the interim order passed by the learned Single Judge in Special Civil Application No.10924 of 2017 by which, the learned Single Judge has granted interim relief and also restored status quo ante in favour of the original petitioners. When this appeal was listed for hearing, learned advocates appearing for the parties jointly requested that the main Special Civil Application be heard and finally disposed of. Accordingly, order was passed for listing of Special Civil Application on board. At the request of the learned advocates appearing for the parties, main Special Civil Application is heard and disposed of by this order petitioners that one Cooperative Housing Society situated is a society registered under the provisions of the Co-Operative Societies Act. The said society is formed by the employees serving in the ONGC for the purpose of construction of their residential houses. The society had purchased the land bearing Survey No.3/12 situated, from the erstwhile owner under three different sale deeds. Necessary entries were made in the revenue record. After purchase of the said land, the society applied for nonagricultural permission for the purpose of construction of residential houses from the competent authority. The competent authority granted nonagricultural permission and accordingly, the residential houses were constructed. Heard assisted by, learned advocates for the original petitioners, learned advocate appearing for the original respondent No.3, learned Assistant Government Pleader appearing for the original respondent Nos.1 and 2. learned advocate appearing for the original petitioners mainly contended that the respondent Collector has committed an error by passing the impugned order as the provisions contained in section 73AA of the Code would not be applicable to nonagricultural land. It is submitted that the respondent No.3 has constructed the house on the nonagricultural land and, therefore, the aforesaid provision would not be applicable -Held It is also required to be noted that in the meantime, the petitioner No.2 has also executed an Agreement to Sell in favour of the petitioner No.1 and the petitioner No.1 is in possession of the property in question and the petitioner No.1 is a bona fide purchaser. Thus, in the aforesaid facts and circumstances of the case, without going into further merits of the matter, we are inclined to entertain this petition. Accordingly, the impugned orders passed by the Collector and passed by the SSRD are hereby quashed and set aside. The petition is accordingly allowed. The respondent No.2Collector is hereby directed to restore the possession of the property in question to the petitioner No.1 within a period of four weeks from today. Rule is made absolute. As the main Special Civil Application is disposed of, no order is required to be passed in Letters Patent Appeal and connected Civil Applications. Direct service is permitted -Petition is Allowed.
Vipul M. Pancholi, J.
1. The captioned appeal is filed under clause 15 of the Letters Patent by the original respondent No.3 against the interim order dated 15.6.2017 passed by the learned Single Judge in Special Civil Application No.10924 of 2017 by which, the learned Single Judge has granted interim relief and also restored status quo ante in favour of the original petitioners.
2. When this appeal was listed for hearing, learned advocates appearing for the parties jointly requested that the main Special Civil Application be heard and finally disposed of. Accordingly, order was passed on 7.11.2017 for listing of Special Civil Application on board. At the request of the learned advocates appearing for the parties, main Special Civil Application is heard and disposed of by this order.
3. The factual matrix of the present case is as under:
3.1 It is the case of the petitioners that one Ambika Nagar Cooperative Housing Society situated at Kansari, Taluka Khambhat, District Anand, is a society registered under the provisions of the Co-Operative Societies Act. The said society is formed by the employees serving in the ONGC for the purpose of construction of their residential houses. The society had purchased the land bearing Survey No.3/12 situated at Moje Kansari, Taluka Khambhat, District Anand, from the erstwhile owner under three different sale deeds. Necessary entries were made in the revenue record. After purchase of the said land, the society applied for nonagricultural permission for the purpose of construction of residential houses from the competent authority. The competent authority granted nonagricultural permission and accordingly, the residential houses were constructed.
3.2 It is the case of the petitioners that being an employee of ONGC and a member of the society, ONGC has allotted plot No.C/18 to the respondent No.3. The respondent No.3 constructed the house on the said plot. Subsequently, by sale deed dated 8.11.2002, the respondent No.3 sold the said house to the petitioner No.2. The said sale deed is produced on record at page 115 of the compilation.
3.3 The respondent No.3 thereafter submitted an application on 24.6.2005 to the Collector seeking nonagricultural permission under the provisions contained in section 73AA of the Bombay Land Revenue Code (hereinafter referred to as “the Code” for the sake of convenience). The Collector by an order dated 17.7.2008 rejected the said application and the property in dispute is forfeited. Thereafter, on 4.2.2010, the petitioner No.2 executed an Agreement to Sell in favour of the petitioner No.1 for purchase of the land. When the petitioners came to know that the Collector has passed an order on 17.7.2008 rejecting the application submitted by the respondent No.3, they challenged the said order by filing revision application before the Special Secretary (Revenue Department) [hereinafter referred to as “the SSRD” for the sake of convenience]. The SSRD rejected the revision application being Revision Application No.17 of 2014 preferred by the petitioners by an order dated 23.2.2016 on the ground that there is a gross delay in preferring the said revision application. The petitioners, therefore, challenged the said order passed by the SSRD by filing Special Civil Application No.4572 of 2016 before this Court. The learned Single Judge by an order dated 30.06.2016 allowed the said petition and matter is remanded back to the SSRD for rehearing of the revision on its own merits.
3.4 It is further stated that the SSRD thereafter heard the revision application on merits and rejected the said revision application by an order dated 11.11.2016. The petitioners, therefore, filed the present petition in which, they have prayed for the following reliefs:
“(A) this Hon'ble Court may be pleased to admit and allow this petition;
(B) this Hon'ble Court may be pleased to issue a writ of certiorari or a writ in the nature of mandamus or any other appropriate writ, order or direction quashin
