The Collector's decision on non-agriculture permission must prioritize occupancy based on revenue records, without requiring adversarial proceedings.

ORAL ORDER

1. Heard learned Senior Advocate Ms.Trusha Patel with learned Advocate Mr.Bhavesh Babariya on behalf of the petitioners and learned Assistant Government Pleader Mr.J.K.Shah on behalf of the respondent – State.

1.1. Draft amendment tendered by learned Senior Advocate Ms.Patel is granted. To be carried out forthwith.

2. By way of this petition, the petitioners inter alia challenge an order passed by the Collector, Jamnagar dated 22.06.2024 granting non-agriculture (NA) permission to the respondents no.3, 4, 5 and 6 herein.

3. Considering the submissions made by learned Senior Advocate Ms.Patel, it would appear that the private respondents referred to hereinabove and the petitioners and/or predecessors were siblings and whereas, while it would appear that the land stood mutated in the revenue record in favour of the private respondents herein, it is the case of the petitioners that at no point, they had relinquished their rights over the land in question.

3.1. Furthermore, it is the submission on behalf of learned Senior Advocate for the petitioners that the private respondents herein had moved four applications for grant of NA permission and whereas, in none of the applications the private respondents had mentioned about a civil suit pending in the learned Civil Court more particularly being Civil Suit No.21/2022 before the learned Principal Senior Civil Judge, Jamnagar though such a requirement is a mandatory requirement in an application for permission under Section 65 of the Land Revenue Code .

3.2. Learned Senior Advocate would further drawn the attention of this Court to a Government Resolution dated 25.03.1981 whereby it has been inter alia laid down that if a permission for grant of NA has been rejected, then an appeal has to be preferred against the same and whereas, the fresh application without curing the objection would not be maintainable. Learned Senior Advocate would submit that inspite of such a lacuna, the Collector without considering the fact that the petitioners have a claim on the land in question, has granted the permission for non-agriculture use.

4. On the other hand, learned Assistant Government Pleader Mr.Shah would rely upon Sections 3, 16, 17 , 18 and 19 of the Land Revenue Code and whereas, learned AGP would submit that while considering the application for NA, only the occupancy has to be looked into and whereas, if the Collector was prima facie of the opinion that the private respondents were the occupants of the land in question, then the Collector was well within his right to grant permission under Section 65 of the Land Revenue Code .

4.1. Learned AGP would also rely upon a decision of this Court in case of Bhayabhai Vajshibhai Hathalia & Ors. vs. State of Gujarat & Ors, reported in 2012 (2) GLR 1741 , whereby the learned Coordinate Bench of this Court had inter alia laid down that even if a suit is pending in absence of any prohibitory orders, the Collector merely is not to take any cognizance of the pendency while considering the application for grant of NA.

4.2. Furthermore, it would appear to this Court that the law with regard to grant of NA has been crystallized by a learned Coordinate Bench of this Court in case of Tusharbhai Harjibhai Ghelani vs. State of Gujarat , reported in 2019 (4) GLR 2578 .

5. For the purpose of present petition, it would appear that the law as laid down by the learned Coordinate Bench inter alia envisages that there is no provision for any adversarial proceedings while considering the application for grant of NA under Section 65 of the Code. Furthermore, it also appears as observed by learned Coordinate Bench that while considering the occupancy of a land in question, the Collector has to go by the revenue entries.

5.1. Prima facie, it would appear to this Court that the decision of this Court being post the resolution of the State Government dated 25.03.1981 as well as Government Resolution dated 16.08.2018 relied upon by learned Senior Advocate, any observatio