Allowed

Kiritbhai Ramniklal Patel v. State of Gujarat

Gujarat HC4 Jan 2022SCA/7491/2021

Case brief

AI extract

What is this about?

The Court quashed the orders of the Collector and SSRD rejecting the petitioner's application for Non-Agricultural permission. The judgment held that the authorities failed to apply their mind to affirmative departmental opinions and relied solely on an irrelevant factor (tenure period) contrary to the requirements of Section 65 of the Code. The petition was allowed.

What did the court decide?

The orders of the Collector dated 07.03.2020 and the SSRD dated 20.03.2021 were quashed. The Collector was directed to grant N.A. permission within eight weeks.

Kiritbhai Ramniklal Patel Vs State of Gujarat — Specific Performance | Gujarat HC (2022)

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 7491 of 2021

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	No
2	To be referred to the Reporter or not ?	No
3	Whether their Lordships wish to see the fair copy of the judgment ?	No
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

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KIRITBHAI RAMNIKLAL PATEL

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Versus

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STATE OF GUJARAT

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Appearance:

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JAY R TALAVIA(9311) for the Petitioner(s) No. 1

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MR. BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No. 1 MS.ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER(1) for the Respondent(s) No. 1

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NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4

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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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Date : 04/01/2022 ORAL JUDGMENT

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With the consent of the learned advocates appearing for the respective parties, the captioned writ petition is taken up for final disposal.

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Issue Rule, returnable forthwith. Ms.Asmita Patel, learned

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Page 1 of 14

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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Assistant Government Pleader waives service of notice of Rule on behalf of respondent Nos.1 to 4.

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By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for direction for quashing and setting aside the order dated 20.03.2021 passed by the Special Secretary, Revenue Department (Appeals) (hereinafter referred to as the “SSRD”) as well as the order dated 07.03.2020 passed by the Collector whereby, the application of the petitioner seeking N.A. permission has been rejected.

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Tersely stated are the facts:

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4.1 The lands bearing revenue survey nos.2A, 2B and 2C of village Vijalpore, taluka Jalalpore, district Navsari were purchased by the petitioner vide three registered sale deeds all dated 07.07.2010. Apropos which, the Entry Nos.21610, 21611 and 21612 came to be mutated in the revenue record on 16.07.2010. All the entries were certified on 16.09.2010. The petitioner, thereafter submitted an application dated 21.10.2010 for the purpose of amalgamation and the office of the Mamlatdar, passed an order dated 16.03.2011 allowing the amalgamation of revenue survey nos.2A, 2B and 2C. Necessary entry no.23636 dated 23.01.2012, has been mutated in the Village Form no.6 and certified on 13.03.2012. As per entry no.23636, the revenue survey nos.2A, 2B and 2C were designated as survey no.2A (hereinafter referred to as the “land in question”). Further durasti proceedings were initiated, and as a result whereof, entry no.23720 of 2012 has been mutated in the revenue record, certified on 27.03.2012.

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4.2 Thereafter, the petitioner submitted an application seeking N.A. permission. The application of the petitioner, came to be rejected by the office of the Collector vide order dated 20.11.2013,

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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which order was carried in revision before the SSRD who, vide order dated 18.03.2016 rejected the application and thereby, the order dated 20.11.2013 passed by the Collector stood confirmed. Being aggrieved, the petitioner had preferred the writ petition being Special Civil Application No.10801 of 2016 before this Court and this Court, quashed and set aside the orders dated 20.11.2013 and 18.03.2016 and remitted back the matter to the office of the District Collector for fresh consideration. The petitioner was also permitted to file the representation along with all documents on which, the petitioner wanted to place reliance. The Collector was directed to examine the record that may be produced by the petitioner as well as the revenue record available with regard to the land in question and after giving an opportunity to the petitioner to pass appropriate order.

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4.3 Thereafter, the petitioner submitted applications dated 19.02.2019, 28.05.2019 and 07.01.2020 together with all the documents, with a request that the applications of the petitioner seeking N.A. permission be granted. It is the case of the petitioner that whatever documents which were available with the petitioner were produced on the record. The office of the Collector, after considering the documents so also the applications of the petitioner, passed an order dated 07.03.2020 rejecting the applications on the ground that upon verification of the Village Form No.6, it appears that the lease has been recorded till the year 1962 and thereafter, there are no entries. It has also been observed that the applicant, has been given sufficient opportunity to produce the record to substantiate the ownership right; however, the petitioner has failed to prove the same. With this observation, the Collector rejected the applications vide aforesaid order dated 07.03.2020.

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4.4 Being aggrieved, the petitioner preferred a revision under

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Page 3 of 14

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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Section 211 of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as the “Code”) before the SSRD who, after recording the submissions and the observations of the office of the Collector, rejected the revision and thereby, confirmed the order of the Collector dated 07.03.2020. Being aggrieved, the petitioner has filed the present writ petition with the aforementioned prayers.

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Mr.Bhaumik Dholariya, learned advocate submitted that the land was originally held by one Gamanlal Hiralal and heirship entry no.2842 was mutated in the revenue record. The names of the legal heirs of Gajendrabhai Hiralal, came to be mutated with respect to revenue survey nos.2A, 2B and 2C. Thereafter, Nanubhai Mangabhai Patel and Maganbhai Mangabhai Patel purchased the land from Premilaben – widow of Gajendrabhai Hiralal and Rajuben Gajendrabhai Parikh the legal heirs through registered sale deed dated 20.03.1990. Apropos the said transaction, entry no.7246 came to be mutated on 23.04.1990. It is submitted that the land, was a non-agriculture land, which is clear from the endorsement made in the 7/12 forms upto years 1959-60 to 1967-68 and thereafter; inadvertently, the endorsement, non-agriculture, was not mentioned in the revenue record. Noticing the said defect, the Mamlatdar passed an order dated 30.12.2009 mentioning the word “Non-agriculture” in the revenue record for the subject lands.

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5.1 It is submitted that the petitioner, has purchased the land in question vide three registered sale deeds, all dated 07.07.2010, pursuant whereof, entry Nos.21610, 21611 and 21612 came to be mutated on 16.07.2010 and certified on 16.09.2010. It is submitted that the petitioner has entered into sale transaction only after verifying the revenue record and when it was found that the land was of old tenure land; without restriction, that the sale deed was executed. It is submitted that the land was non-agriculture land and

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Page 4 of 14

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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since the petitioner society wanted to develop, it submitted revised application for non-agriculture permission under the provisions of the Section 65 of the Code, on 22.05.2012. It is submitted that apropos the application, opinions were sought for by the office of the Collector from the offices of (i) Deputy Collector, Navsari; (ii) Mamlatdar, Jalalpore; (iii) District Inspector of Land Records; (iv) Chief Officer, Vijalpore Municipality; (v) Executive Engineer, Drainage Department; (vi) Chief District Health Officer etc. It is submitted that all the opinions given by the respective authorities, were in affirmative. It has been opined by all the officers that there is no objection if application seeking N.A. permission is granted.

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5.2 It is submitted that disregarding all the opinions given by the various officers, the Collector, Navsari passed an order dated 20.11.2013 rejecting the application of the petitioner for N.A. use on the ground that the revenue survey no.2A admeasuring 607 sq. meter is a tenure land given on patta. It is submitted that so far as the revenue survey Nos.2B and 2C are concerned, the endorsement in the revenue register is to the effect that the land was given to the erstwhile owner for construction of a house. It is therefore submitted that the Collector, has not properly applied his mind and disregarding the documents available on the record so also the provisions of the Code, had rejected the application. It is submitted that the petitioner had unsuccessfully challenged the order before the SSRD. Thereafter, the petitioner was compelled to approach this Court, challenging the orders of the Collector and SSRD and this Court, was kind enough to quash and set aside both the orders remitting back the matter to the Collector and SSRD with a direction to decide afresh. However, the Collector has reiterated the earlier reasons and rejected the application in a cryptic manner without offering any reasons. It is submitted that if one peruses the reasoning part of the order dated 07.03.2020, it is clearly

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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discernible that except the penultimate paragraph, no reasons worth the name are available on the record. It is also submitted that favourable opinions given, recommending grant of N.A. permission, do not find place in the discussion.

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5.3 It is also submitted that there is no dispute as regards the ownership of the land, all the requisite documents are available on the record and in absence of any deficiency, the Collector ought not to have passed the order dated 07.03.2020 rejecting the N.A. application. It is submitted that in the similarly situated cases, the office of the very Collector had passed the orders dated 26.10.2015 and 16.10/11.2015 with respect to Survey Nos.3A and 15/A/2/Paiki 1. While inviting the attention to the Village Form no.2, it is submitted that similar endorsement are made in the revenue record with respect to the said two survey numbers and therefore, when the office of the Collector granted the N.A. permission with respect to Survey No.3A and Survey No.15/A/2/Paiki 1, there was no reason available to the Collector to reject the application of the petitioner granting N.A. permission. It is therefore submitted that on all counts, the order of the Collector is bad and illegal. It is also submitted that the Collector has not offered any reasons and therefore, there is a sheer non-application of mind inasmuch as, the opinions of the office of the Deputy Collector; office of the Mamlatdar; office of the District Inspector of Land Records; office of the Chief Officer, Vijalpore Municipality; office of the Executive Engineer, Drainage Department, have been not considered. Under the circumstances, there was no reason available to the office of the Collector to have rejected the application on the ground, which was totally misplaced inasmuch as, in view of the provisions of Section 65 of the Code, what is required to be seen is occupancy and not the ownership. It is submitted that the sole reason, which weighed with the Collector was that the land in question, is granted on tenure basis and after

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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the year 1962, there is no record available to substantiate that the land is an old tenure land. It is submitted that such ground, is fallacious inasmuch as, the evidence, clearly goes to show that the land is not given on any tenure basis. Had it been the case, all the revenue record namely Village Form No.6, 7/12, 8A would have carried the endorsement “patta”. It is submitted that Village Form Nos.6, 7/12, 8A etc. of the land bearing survey nos.2A, 2B, 2C from 1958-59 onwards, show that the subject lands are non-agricultural land and that the same is not a patta land.

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5.4 It is submitted that it has also been stated that the petitioner has failed to produce any record after 1958; however, the petitioner could not have produced the record considering the fact that when the petitioner applied to the office of the Mamlatdar, the Mamlatdar, has in no uncertain terms informed that there is no record available of survey nos.2A, 2B, 2C for the period from 1969 to 1988 and from 1997 to 2004. It is therefore submitted that in absence of the documents available at the office of the Mamlatdar, the petitioner could not have produced the said documents. Under the circumstances, the order of the Collector, is erroneous and deserves to be quashed and set aside.

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5.5 It is further submitted that the SSRD, except reiterating the observation in one para, has not given its independent finding and therefore, the SSRD also committed an error in not accepting the say of the petitioner and rejecting the revision application without assigning any reasons, therefore, both the orders dated 07.03.2020 of the Collector and dated 20.03.2021 of the SSRD deserve to be quashed and set aside.

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On the other hand, Ms.Asmita Patel, learned Assistant Government Pleader submitted that the Collector, undertook the exercise and after considering the opinions from various

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Page 7 of 14

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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government officers and perusing the record, it was noted that the land in question, was originally given on tenure basis i.e. patta to Shri Gamanlal Hiralal in the year 1912 and extended again on 01.08.1942. It is submitted that the land was given for specific purpose for a fixed period of 50 years from 10.12.1912 till 10.12.1962. So is the position, with respect to survey nos.2B and 2C, which was also given for a specific purpose for a fixed period of 30 years. It is submitted that after expiry of the tenure of the land in question, the tenure was not extended and therefore, anybody if he is occupying would be contrary to the grant order. It is submitted that the land in question, was of a fixed tenure and in absence of renewal of the tenure, at any point of time, the petitioner was in illegal occupation. It is also submitted that the petitioner has not been able to produce on record any documents to substantiate its title and therefore, the order passed by the Collector is in right earnest. So is the position with the order passed by the SSRD. It is therefore urged that no interference is called for.

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Heard Mr.Bhaumik Dholariya, learned advocate appearing for the petitioner and Ms.Asmita Patel, learned Assistant Government Pleader for the respondents and perused the documents available on the record.

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The petitioner, is aggrieved by the order dated 07.03.2020 passed by the Collector so also the order dated 20.03.2021 passed by the SSRD. The Collector, vide order dated 07.03.2020 rejected the application for grant of N.A. permission to the petitioner on the ground that upon verification of Village Form no.2, it appears that the tenure was only upto the year 1962 and thereafter, there is no such entry of extending the tenure. The Collector, has also observed that the petitioner has been granted sufficient opportunity still, the petitioner, has not been able to produce or substantiate that the

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Page 8 of 14

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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land, has been allotted to the petitioner by way of an ownership. By citing this reason, the Collector, has rejected the application seeking N.A. permission of the petitioner. In the revision before the SSRD, the SSRD, after recording the submissions of the advocate of the applicant and observations by the Collector, has reiterated the findings of the Collector to the effect that upon verification of the revenue record, there is an endorsement upto the year 1962; however, no further endorsement has been recorded in the revenue record. Apparently, unnumbered para above the operative portion of the order of the Collector so also para 4.1 of the order of the SSRD, are verbatim same. Therefore, the order of the SSRD, suffers from the vice of non-application of mind inasmuch as, the SSRD except reiterating the observations has not independently applied its mind, and on this count as well, the order of the SSRD deserves to be quashed and set aside.

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Adverting to the merits of the matter, it is required to be noted that the petitioner, has submitted an application dated May 2020. Apropos which, the office of the Collector has sought for various information/opinions from the office of the (i) Deputy Collector; (ii) Mamlatdar; (ii) District Inspector of Land Records; (iv) Chief Officer, Vijalpore Municipality; (v) Executive Engineer, Drainage Department; (vi) Chief District Health Officer etc. So far as the opinion of the Deputy Collector is concerned, the Deputy Collector has on 22.06.2012, opined that if the N.A. permission is granted for residential purpose, there is no objection. Thereafter further clarification were sought for vide letter dated 24.05.2012 by the office of the Collector and the Deputy Collector has addressed a communication dated 17.07.2012. The Deputy Collector has clearly stated that (i) upon verification of 7/12 form, the title of the land is clear and there is no discrepancy/deficiency in the measurement; (ii) the land is of old tenure land and is not governed by the Tenancy

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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Act; (iii) the land is not under the acquisition; (iv) land is not vested in the State Government under the ULC Act; (v) there are no proceedings or appeal pending as clarified by the office of the Mamlatdar and (vi) there are no outstanding government dues. The office of the Deputy Collector, recommended grant of N.A. permission under the provisions of Section 65 of the Code. Similarly, the office of the Mamlatdar, also has given its opinion dated 03.07.2012 wherein, after verification of the various documents and recording the transactions, which have been executed from time to time, with respect to the land in question, it has been opined that the land bears a clear title and that there is no objection if the N.A. permission is granted for residential purpose (retail shop). Then comes opinions of the various authorities namely Executive Engineer dated 31.05.2012, Dakshin Gujarat Vij Company Limited dated 17.09.2012; Health Department of District Panchayat dated 05.06.2012; the office of the District Inspector of Land Records dated 18.06.2012 so also the opinion of the Vijalpore Nagarpalika dated 03.09.2012. All the offices have recommended grant of N.A. permission for the purpose of residence.

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Adverting to the transaction, it is required to be noted that the land, originally belonged to Gajendrabhai Hiralal. Upon the death of Gajendrabhai, the names of the legal heirs of Gajendrabhai namely Premilaben the widow of Gajendrabhai and Rajuben Gajendrabhai, were mutated in the revenue record. Thereafter, Nanubhai Mangabhai Patel and Maganbhai Patel, purchased the land from Premilaben through a registered sale deed. Apropos which, an entry no.7246 came to be mutated in the revenue record on 23.04.1990. Thereafter, somewhere in the year 2010, the petitioner, has purchased the lands bearing revenue survey nos.2A, 2B, 2C vide three registered sale deeds, all dated 07.07.2010. Necessary entry nos. 21610, 21611 and 21612 have been registered in the Village

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Page 10 of 14

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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Form no.6 on 16.07.2010 and certified on 16.09.2010. It is undisputed that the entries which were mutated recording the transactions of registered sale deed in favour of the petitioner, is still in existence and not disputed. Therefore, so far as the ownership aspect is concerned, there is no dispute that the land has been purchased by the petitioner vide registered sale deeds. Another aspect which requires a mention, is the orders passed by the office of the Collector dated 26.10.2015 and 16.10/11.2015 granting N.A. permission with respect to survey no.3A and survey no.15/A/2/Paiki 1. So far as the survey no.3A is concerned, as per Village Form no.2, it carries an endorsement of the patta; however, considering the subsequent transactions executed in respect of the said survey number, the N.A. permission has been granted. So is the position with survey no.15/A/2/Paiki 1. In the said case also the N.A. permission has been granted. It is also not in dispute that survey nos.3A and 15/A/2/Paiki 1, are identically situated and are of the same village. The learned Assistant Government Pleader, could not dispute or distinguish that the land in question, is different from the lands bearing survey nos.3A and 15/A/2/Paiki 1.

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Clearly, in the first round of litigation, the Collector has passed the order rejecting the application which was challenged before this Court and this Court, has directed the office of the Collector to consider the documents and pass the order. Accordingly, the petitioner has submitted applications dated 19.02.2019, 28.05.2019 and 07.01.2020 along with all documents; however, the Collector does not appear to have dealt with any of the documents and straightaway, rejected the applications relying upon the tenure of the land in question, which was irrelevant for the purpose of considering the applications under Section 65 of the Code. Pertinently, when this Court, has directed the Collector to consider all the documents and take a decision, it was expected of the

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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Collector to have verified the documents and pass the order. This Court is of the opinion that the Collector disregarding the opinions of the various offices, only on the basis of the tenure of the land, which was of the year 1962, has rejected the applications which, is not in a right earnest.

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At this stage, the provisions of section 65 of the Code, are worth referring to. Section 65 reads thus:

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“65. Uses to which occupant of land for purposes of agriculture may put his land.- (1) Any occupant, of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.

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Procedure if occupant wishes to apply his land to any other purpose.- But, if any occupant wishes to use his holding or any part thereof for any other purpose the Collector's permission shall in the first place be applied for by the occupant.

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The Collector, on receipt of such application,

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(a) shall send to the applicant a written acknowledgment of its receipt, and

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(b) may, after due inquiry, either grant or refuse the permission applied for;

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Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall, if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application.

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Unless the Collector shall in particular instances otherwise direct, no such application shall be recognized except it be made by the occupant.

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(2) Notwithstanding anything contained in sub-section (1) but subject to any terms and conditions laid down by the State Government in this behalf, where an occupant has his holding in an area comprising a gram and such area is not within an urban agglomeration or within a radius of five kilometres from the limits of a municipal borough or notified area or industrial estate and such occupant wishes to use his holding or a part thereof only for a residential purpose, it shall not be necessary for him to obtain permission of the Collector under sub-section (1)."

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C/SCA/7491/2021 JUDGMENT DATED: 04/01/2022

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Section 65 of the Code, provides that if the occupant wishes to apply his land for any other purpose, or for a different non-agricultural purpose, it can make an application before the Collector. Therefore, the requirement as envisaged under the provision, is that any occupant, if he wishes to use his holding or any part thereof for any other purpose, it can apply to the Collector. It is the Collector, on receipt of such application, after due inquiry either grant or refuse the permission applied for. In the present case, the office of Collector though has carried out the inquiry; however, disregarding the opinions received, the Collector, has passed the order which is, against the record and can be said to be illegal and bad. Hence, the order dated 07.03.2020 passed by the Collector deserves to be quashed and set aside and is accordingly quashed and set aside. Similarly, the SSRD, has recorded the findings which are verbatim same, and cannot be said to have applied its mind. Para 4.1 is the only reason which has been assigned by the SSRD which is, reproduction of the conclusion recorded by the office of the Collector. The order of the SSRD, therefore, is without any reasons and deserves to be quashed and set aside and is hereby quashed and set aside.

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In view of the aforementioned discussions and the documents available on record, the office of the Collector is directed to consider the application of the petitioner and grant N.A. permission in terms of the present judgment within a period of eight weeks from the date of the receipt of the copy of this judgment.

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The petition succeeds in part. Rule is made absolute to the aforesaid extent. No order as to costs.

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Direct service is permitted.

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Sd/- (SANGEETA K. VISHEN, J)

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RAVI P. PATEL

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Kiritbhai Ramniklal Patel v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Kiritbhai Ramniklal Patel v. State of Gujarat

Case brief

What is this about?

What did the court decide?

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