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2022 Supreme(Guj) 1119
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sangeeta K. Vishen, J.
Sanjay Pravinkumar Shah – Petitioner
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 11441 of 2022
Decided On : 04-10-2022
For the Petitioner: Mr. Jaimin R. Dave, Ms. Hirva R. Dave.
For the Respondent: Mr. Nikunj Kanara.
The main legal point established in the judgment is that the Collector's inquiry for NA permission should focus on the applicant's occupancy of the land and cannot delve into the title ownership of the land. Additionally, the pendency of proceedings before the revenue authorities cannot be a ground to reject the NA permission.
Headnote:
NA Permission - Land Dispute - Urban Land Ceiling Act, 1976 - Section 65 of the Code - [Section 65 of the Code] - The court discussed the legal provisions of Section 65 of the Code and its interpretation in various judgments, emphasizing that the Collector is required to examine whether the person applying for NA permission is an occupant of the land and cannot venture into an inquiry about the title ownership of the land in question. The court also highlighted that the pendency of proceedings before the revenue authorities cannot be a ground to reject the permission. The Collector's order was quashed and set aside, and the Collector was directed to reconsider the NA permission application after hearing the petitioners and keeping in mind the legal principles laid down by the court.
Fact of the Case:
The petitioners sought to quash the order rejecting their application for Non-agricultural (NA) permission due to the pendency of proceedings before the revenue authorities. The land in question was subject to a long-standing dispute involving multiple parties and sale transactions.
Finding of the Court:
The court found that the Collector's rejection of the NA permission application based on the pendency of proceedings before the revenue authorities was erroneous. The court emphasized that the Collector's inquiry should focus on whether the applicant is an occupant of the land and cannot delve into the title ownership of the land. The court also noted that the petitioners, as the lawful owners of the land, were entitled to the NA permission.
Issues: The key issues revolved around the Collector's grounds for rejecting the NA permission application, the legal principles governing NA permission under Section 65 of the Code, and the pendency of proceedings before the revenue authorities as a basis for rejection.
Ratio Decidendi: The court's decision was based on the interpretation of Section 65 of the Code, emphasizing that the Collector's inquiry should focus on the applicant's occupancy of the land and that the pendency of proceedings before the revenue authorities cannot be a ground to reject the NA permission. The court also highlighted the violation of principles of natural justice due to the lack of opportunity for the petitioners to be heard.
Final Decision: The petition was allowed, and the Collector's order rejecting the NA permission application was quashed and set aside. The Collector was directed to reconsider the application after hearing the petitioners and in accordance with the legal principles discussed by the court.
ORDER :
1. With the consent of the learned Advocates appearing for the respective parties, the matter is taken up for final hearing.
2. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioners have prayed for quashing and setting aside the order dated 16.12.2021 passed by the Collector in application bearing reference no. 31916202104863, whereby the Collector has rejected the application seeking Non-agricultural permission (hereinafter referred to as "the NA permission") on the ground of pendency of the RTS proceedings (six in number) before the learned Special Secretary, Revenue Department (hereinafter referred to as "the learned Secretary"). Being aggrieved, the petitioners have preferred the present writ petition, with the aforementioned prayers.
3. Briefly stated are the facts:
3.1. The land bearing survey no. 70, mauje Manjalpur, taluka Vadodara, admeasuring 8296 sq. mts. (hereinafter referred to as "the land in question") originally belonged to one Ramabhai Bariya. In the year 1940, Ramabhai Bariya had decided to transfer the land in question in favour of his grandson Bariya Babarbhai Shankarbhai through registered gift deed and accordingly, vide gift deed bearing registration no. 1262 dated 18.06.1940, the land in question was transferred in favour of Bariya Babarbhai Shankarbhai. Entry no. 220 was posted in the revenue record indicating the land in question being transferred to Bariya Babarbhai Shankarbhai. The name of the father Shankarbhai Ramabhai was entered as custodian/ guardian of Bariya Babarbhai Shankarbhai, as he was a minor. In the year 1980, RCS No. 970 of 1980 was preferred before the learned Civil Court, Vadodara against Bariya Babarbhai Shankarbhai seeking permanent injunction from entering into the land in question and from cutting the crops so also, entering into the house constructed over the land in question. The Civil Court, Vadodara, passed an ex-parte decree in favour of Shankarbhai Ramabhai allowing the suit and decree dated 31.08.1984 was drawn. As per the said decree, Bariya Babarbhai Shankarbhai was injuncted from entering into the land in question. On 06.03.1987, mutation entry no. 2506 was entered in the revenue record recording the factum of decree passed in RCS no. 970 of 1980.
3.2. In the year 1987, Shankarbhai Ramabhai, made an application before the concerned authorities to enter his name in the revenue record on the basis of the decree and the Mamlatdar, vide order dated 16.12.1987 rejected the application. Being aggrieved, appeal was filed before the Deputy Collector who vide order dated 24.06.1988 confirmed the order of the Mamlatdar and rejected the revision application. Aggrieved by the said order of the Deputy Collector, an appeal was filed before the learned Secretary which, was rejected vide order dated 17.11.1990.
3.3. After the death of Shankarbhai Ramabhai, the heirs of Shankarbhai Ramabhai, namely Smt. Revaben Shankarbhai, Smt. Shantaben Shankarbhai and Shri Rajubhai Harmanbhai, made an application before the Mamlatdar to enter their names in the revenue record on the basis of the Will of Shankarbhai Ramabhai, however, the entry was rejected. The Deputy Collector allowed the appeal and directed the Mamlatdar to enter the names of all the heirs vide order dated 16.06.1992, which, was confirmed by the Collector in appeal. Bariya Babarbhai Shankarbhai, preferred revision application before the learned Secretary and vide order dated 21.07.1995, revision came to be allowed and mutation entry no. 2721, recording the heirship, was canceled.
3.4. Bariya Babarbhai Shankarbhai preferred Regular Civil Suit No. 587 of 1992 seeking declaration and permanent injunction against the heirs of Shankarbhai Ramabhai and the Civil Court granted ex-parte injunction against the legal heirs of Shankarbhai Ramabhai protecting the possession of Bariya Babarbhai Shankarbhai, with respect to the land in question.
3.5. The land was covered under the provisions of Urban La
