Authority under Gujarat Land Revenue Code cannot assess land title when considering applications for Non-Agricultural permission; the focus must remain on occupancy rights.

JUDGMENT :

ANIRUDDHA P. MAYEE, J.

1. By the present writ petition, the petitioners impugn the order dated 05.04.2016 passed by the Special Secretary (Appeals), Revenue Department, Ahmedabad as well as the order dated 30.05.2014 passed by the Dy. Collector, Dhoraji rejecting the application for grant of Non-Agricultural [“NA” for short] permission by the petitioners.

2. The factual matrix in the present case is that, the petitioners have purchased Survey No.1332/paiki 1/paiki 1 at Village Bhayavadar, Taluka Upleta, District Rajkot through registered sale deed No.538 and mutation entry No.19582 also came to be recorded in favour of the petitioners in the revenue records based on the sale deed. Thereafter, mutation entry No.19809 came to be entered and certified reflecting partition and separate ownership of the land admeasuring 1-19-96 sq. mts. in favour of the petitioners. The petitioners thereafter applied for NA permission for residential use to the Dy. Collector, Dhoraji on 01.02.2014. By communication dated 28.04.2016, the said application came to be rejected by the Dy. Collector, Dhoraji on the ground that the opinion of the Mamlatdar, Upleta has not been received in respect of the title of the land in question. The petitioners thereafter moved another application for reviewing the rejection of the NA permission. By order dated 30.05.2014, the Dy. Collector, Dhoraji has rejected the application for NA permission of the petitioners on the ground that the title of the land is not clear.

2.1 Aggrieved, the petitioners have preferred revision before the Secretary (Appeals), Revenue Department under Section 211 of the GUJARAT LAND REVENUE CODE , 1879 [“GLRC” for short]. By impugned order dated 30.03.2016, the revision of the petitioners came to be rejected upholding the reasoning given by the Dy. Collector, Dhoraji that since the title of the petitioners was not clear in respect of the subject land in question, the NA permission has been rightly refused.

Aggrieved, the petitioners have preferred the present writ petition.

3. Mr. Y.V.Vaghela, learned advocate for the petitioners submits that the petitioners are the lawful owners and occupiers of the land bearing Survey No.1332/paiki 1/paiki 1 admeasuring 1-19-96 sq. mts. situated at Village Bhayavadar, Taluka Upleta, District Rajkot. The mutation entries have also been effected and duly certified. The mutation entry No.19809 in the revenue records clearly shows that the petitioners are the lawful owners and occupiers of the subject land. The Dy. Collector, Dhoraji has come to a wrong conclusion that the title in respect of the subject land is not clear. It is submitted that the respondent authorities have completely ignored the registered sale deed in favour of the petitioners. It is submitted that the order of the Dy. Collector, Dhoraji as upheld by the Secretary (Appeals) is discriminatory and arbitrary in as much as the NA permission in respect of the same subject land was already granted earlier on 22.10.2008 to one Mahendrakumar Manilal Patel from whom the petitioners had purchased the subject land. Further, the Rajkot Urban Development Authority / Town Planner by order dated 17.09.2013 has also granted development permission after considering the lay out plan. It is submitted that the title of the petitioners on the subject land was never in question even before the other authorities. The learned counsel further submits that even otherwise, the impugned orders are in breach of principles of natural justice in as much as no opportunity of hearing has been given to the petitioners before passing the impugned orders. He submits that even otherwise, by various