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2022 Supreme(Guj) 1717

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Indumatiben Girjashaner Oza – Appellant
Versus
The State Of Gujarat & 3 others – Respondents
R/Special Civil Application No. 23608 of 2007
Decided on : 09-06-2022

Advocates:
Advocate Appeared:
For the Appellant : MR ANSHIN H DESAI
For the Respondent: MR NIKUNJ KANARA, MR ASHISH M DAGLI

Headnote:

Constitution of India, 1950 – Article 226 – By way of preferring this petition under Article 226 of Constitution, petitioner has sought reliefs – Held, Therefore, considering facts and circumstances of present case, it clearly reveals that Ld. Collector has exceeded his jurisdiction and he ought to have followed direction of Ld. SSRD wherein regarding factual aspects, it has already been observed in favour of petitioner for grant of non-agriculture permission – When higher authority has directed subordinate authority to act and decide matter, then it is an incumbent duty on part of subordinate authority to decide matter which has been remanded by higher authority in a prompt manner and in accordance with observations made by higher authority – In present case, it appears that Ld. Collector, for reasons best known to him, has adopted adamant attitude in taking decision in the matter of appreciation for N.A. permission as preferred by petitioner – Under these circumstances, present petition deserves to be partly allowed directing Ld. Collector to decide application of non-agriculture permission filed by petitioner in year 2007 in accordance with law and in consonance with observations made by this Court – Petition is partly allowed.

JUDGMENT :

1. By way of preferring this petition under Article 226 of the Constitution, the petitioner has sought the following reliefs:

    “[A] YOUR LORDSHIPS may be pleased to admit and allow this petition.

[B] YOUR LORDSHIPS may be pleased to call for R & P from the Office of the respondent No.2 – Collector, Surendranagar.

[C] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by directing the respondent No.2, Collector, Surendranagar, its officers, employees, agents and servants, to follow. the order dated 6/6/2007 – 14/6/2007 passed by the Joint Secretary, Revenue Department [Appeals] in Revision Application No. MVV/BKP/SNR/4/2007, at Annexure “J” to the petition, in the interest of justice.

[D] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by directing the respondent No.2, Collector, Surendranagar, its officers, employees, agents and servants, to grant application for N.A. Permission filed by the petitioner, dated 7/8/2006, at Annexure “F” to the petition. 7.

[E] Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to direct the respondent No.2, Collector, Surendranagar, its officers, employees, agents and servants, to follow the order dated 6/6/2007 – 14/6/2007 passed by the Joint Secretary, Revenue Department [Appeals] in Revision Application No. MV V/BKP/SNR/4/2007, at Annexure “J” to the petition, in the interest of justice.

[F] YOUR LORDSHIPS may be pleased to pass such other and further relief in favour of the petitioner, as deemed just and proper, in the facts and circumstances of the case.”

2. The brief facts giving rise to the present petition are as under:

2.1 That vide registered sale deed dated 22.04.1974, the husband of the petitioner, namely late Oza Girjashanker Narottamdas purchased the land bearing old survey No. 2988, admeasuring A 12-30 G, situated at the sim of Halvad, Dist. Surendranagar. This land was purchased from the original owners namely, [1] Kumbhar Karsanbhai Dayabhai, [2] Kumbhar Baldevbhai Dayabhai, [3] Kumbhar Maganbhai Dayabhai, [4] Kumbhar Bhikhabhai Shamjibhai, [5] Kumbhar Bai Jiviben Dayabhai, [6] Ben Shanta Dayabhai.

2.2 That another piece of land bearing old Survey No. 2991, admeasuring A 3-13 G (new Survey No. 2549, admeasuring A 3-8 G) was purchased by late Oza Girjashanker Narottamlal by way of registered sale deed from [1] Dalwadi Shamjibhai Chonda, [2] Dalwadi Premjibhai Chonda, and [3] Dalwadi Vithalbhai Lakhman. This land originally belonged to the father of the sellers, namely, Dalwadi Chonda Moti, who had expired, and his two sons, namely, Shamjibhai Chonda and Premjibhai Chonda, and his third son had died at the time of the register of sale deed, namely Lakhman Chonda, his son Vithalbhai Lakhman and his deceased wife Baluben Chonda.

2.3 That the necessary revenue entries were mutated bearing No. 949 dated 30.06.1974 and were also certified. That name of the petitioner’s late husband was also entered into village form No. 7/12 abstract and after his death, the name of the petitioner has been entered.

2.4 That vide order dated 09.12.2006, the Mamlatdar, Halvad passed an order of consolidating six survey numbers being revenue survey Nos. 2548, 2549, 2550, 2552, 2553, 2554, and the new number was given for all the consolidated pieces of land being survey No. 2548 of Halvad, Taluka: Halvad, Dist: Surendranagar. The petitioner applied for conversion of land from agriculture purpose to non-agriculture purpose of survey No.2548 vide application dated 07.08.2006. All the authorities have given No Objection Certificates for consideration of the said application for grant of non-agriculture permission. That vide certificate dated 13.02.2007, the Mamlatdar – Halvad also gave a certificate, under Rule 111 and 112 of the Code, stating that, from the revenue record village

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