IMPORTANT POINT
If an easement in other immovable property of transferor or testator is necessary for enjoying subject of transfer or bequest, transferee or legatee shall be entitled to such easement.

JUDGMENT (CAV)

Bhargav D. Karia, J.—Heard learned Senior Advocate Mr. Mehul Shah assisted by learned advocate Mr. Manan A. Shah for the petitioners, learned advocate Mr. R.M. Parmar for the respondent Nos.1 to 5, learned advocate Mr. Nishit P. Gandhi for the respondent Nos.11 and 12 and learned AGP Mr. K.M. Antani for the respondent – State through video conference.

1. Rule, returnable forthwith. Learned advocates for the respective respondents waives service of notice of rule.

2. By this petition, under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 31st July, 2017 passed by the Special Secretary Revenue Department (Appeals) (for short ‘the SSRD’) in Revision Application No.8 of 2016 whereby, the order dated 03.07.2016 passed by the Deputy Collector was set aside by which the application under Section 73AA of the Gujarat Land Revenue Code, 1879 (for short ‘the Code, 1879’) filed by the respondent Nos.1 to 5 was rejected. The SSRD also cancelled the NA permission order dated 27.08.2015 qua land bearing block Nos.252, 253, 254, 255, 259, 260 which was consolidated in block no.252 situated at Village: Ishanpor, Taluka: Olpad, District: Surat.

3. The short facts of the case are that the petitioners had initially purchased the block nos.252, 253, 254 255, 259, 260, 262, 263 and 264 by different sale deeds from different original owners and subsequently, the registered sale deeds were executed in favour of respondent Nos.11 and 12 and in turn the said land was transferred in name of the petitioner No.4 by registered sale deeds. An application was made for granting development permission by the petitioners and by separate order such permission was granted for separate block numbers in the year 2014 by the Town Planning Officer, Surat. In the development permission, it was specifically mentioned that road of 12 Mtrs is to be derived from northern side for ingress and egress and as per the actual location of the area, block no.237 falls under northern side of the non agricultural land of the petitioners ad-measuring 5883 Sq.Mtrs.

4. It appears that thereafter, an application was made for consolidation of all the blocks in block no.252 which was granted by order dated 2.7.2015 passed by the Mamlatdar, Olpad, District, Surat. Pursuant to the development permission, the NA permission was granted by order dated 27.08.2015. The petitioners thereafter carried out the development on the consolidated block no.252 by constructing 390 residential units in the name of “Royal Park” out of which 234 units were sold to the third party purchasers and all the occupants are using the road passing through block no.237 since 20 to 25 years continuously.

5. It appears that the respondent Nos.1 to 5 were owners of the land of survey no.139/1, block no.237 situated at village: Ishanpor, Taluka: Olpad, District: Surat which is restricted tenure land under Section 73AA of the Code, 1879. The respondent No.1 executed a notarized power of attorney on 07.12.2007 in favour of the respondent No.6. The land owners of block Nos.68, 238, 236, 237 and 253 have executed inter-say agreement of easementary rights without any consideration for using the road from Olpad-Sayan main road passing through the said blocks which was being used as roads since before Section 73AA came into force in the year 1980.

6. The respondent Nos.1 to 5 thereafter filed proceedings under Section 73AA of the Code, 1879 in respect of the agreement of easement with the petitioners before the Deputy Collector, Surat. The Deputy Collector after holding inquiry passed an order dated 03.07.2016 holding that there is no breach of Section 73AA of the Code, 1879 as the NA permission was granted and while granting NA permission, condition was imposed to use the 12 Mtrs road from the subject land on the basis of agreement for the easementary rights executed by the respondent no.1 through his power of attorney holder in favour of the petitioner Nos.1 to