CAV Judgment

1. By the present Special Civil Application, the petitioner is praying for the following reliefs :-

          "(A) to quash and set aside the order No.SRD/LND/B/76/84 dated 3/12/1988 of the second respondent,

          (B) to stay pending the hearing and final disposal of this petition operation, implementation and execution of the said order and to restrain the respondents nos.1 and 2, their officers and servants from disturbing the petitioners' possession of the Lands,

          (C) to grant such other and further reliefs as this Hon'ble Court may deem fit and proper,

          (D) to provide for the cost of this petition."

2. The factual matrix in the present case is that the subject land being Survey No.91, Block No.78, situated at Village Mota Borsara, Taluka Mangrol, District Surat admeasuring 5 Acres 29 Guntha, was of the ownership of the respondent Nos.3 and 4 by way of heirship. That the land was of restricted tenure under Section 43 of the Gujarat Tenancy and Agricultural Land Act, 1948 [hereinafter referred to as "Tenancy Act" for short]. That on 03.08.1982, the respondent Nos.3 and 4 applied for Non-Agricultural Use Permission (NA Use Permission) under Section 65 of the Gujarat Land Revenue Code [hereinafter referred to as "Code" for short] seeking permission to use the land for non-agricultural purpose. At the relevant point of time, the Taluka Panchayat was empowered to grant such NA use permission. On 14.09.1982, by the Resolution No.26, the Committee of the Taluka Panchayat granted NA use permission in respect of the subject land. That thereafter by order dated 17.09.1982, the Taluka Development Officer issued NA use permission to the respondent owners subject to the conditions enumerated in the order. The said NA use permission was sought for construction of Industrial Sheds. That thereafter, by the registered sale deeds dated 07.04.1983 and 11.04.1983, the petitioners herein purchased the subject land from the respondent owners. That on 22.10.1982, in terms of the NA use permission, the respondent owners had paid Rs.17,915.30 towards premium amount. That thereafter, by the orders dated 01.06.1983 and 19.10.1983, the learned Mamlatdar was pleased to cancel the mutation entries in favour of the petitioner herein since the subject land was not converted to old tenure and no premium was determined under Section 43 of the Tenancy Act. Further, the land being of restricted tenure, no prior permission was taken by the respondent owners. That on 07.05.1984, the suo motu proceedings came to be initiated by the Secretary (Appeals), Revenue Department and the show cause notice came to be issued to the respondent owners as to why the order dated 17.09.1982 passed by the Taluka Development Officer granting NA use permission should not be cancelled. The said suo motu proceedings were initiated under Section 211 of the Code. By the order dated 23.05.1984, the Secretary (Appeals), Revenue Department allowed the suo motu proceedings and set aside the order dated 17.09.1982 on the ground that as per the Government Resolution dated 25.03.1981, the opinion of other departments have to be obtained, it is to be ensured that there is no breach of Ribbon Development Rules and further that no development was made on the land despite such permission being obtained. Further, it was observed that as per condition No.3A, the premium was not paid. Aggrieved, the respondent owners preferred Special Civil Application No.5855 of 1984 before this Court. The said writ petition came to be allowed and the case was remanded back for reconsideration. In the remand proceedings, by the impugned order, the learned Secretary (Appeals) has once again set aside the order dated 17.09.1982 passed by the Taluka Development Officer. It was held that the action of the Taluka Development Officer was contrary to the provisions of Section 32R of the Tenancy Act. Further, the competent authority had not satisfied itself that the proposed NA use permission will not affect others. That the reasons for obtaining the NA use permission were also required to be considered. Further, the land was kept unused after obtaining such permission and the use of land as per NA use permission was not commenced as pe the direction in the said order. The learned Secretary (Appeals) was pleased to thereby cancel the NA use permission granted by the Taluka Development Officer vide order dated 17.09.1982. Aggrieved, the petitioners have filed the present Special Civil Application.

3. The learned senior counsel Mr. Dhaval D. Vyas appearing with the learned counsel Mr. Saurabh Mehta for the petitioner submits that the impugned order has been passed in violation of principles of natural justice. He submits that though the petitioner had purchased the parcel of land under the sale deeds dated 07.04.1983 and 11.04.1983, despite the same, the petitioner was neither impleaded as party to the suo motu proceedings, nor was permitted to intervene in the said proceedings. He submits that though it has been recorded in the impugned order that the Advocate had appeared on behalf of the original owners and also had filed Vakalatnama on behalf of the petitioner, even then the petitioner was required to be heard before passing of the impugned order since there was no proper representation of the petitioner in the proceedings. The learned senior counsel further submits that it appears that the Vakalatnma of the petitioner was not taken on record in the impugned proceedings and that the petitioner remained unrepresented in the impugned proceedings. The learned senior counsel further submits that in the present case, no show cause notice was issued to the petitioner and hence, there was breach of principles of natural justice in as much as no effective hearing was given to the petitioner to place its case before the learned Secretary (Appeals). He submits that in the present case, the petitioner is deprived of filing its own affidavit and affidavits of the witnesses in support of its case. Even otherwise, there was gross delay in initiating the suo motu proceedings against the respondent owners and the petitioner. He submits that the learned Secretary (Appeals) had received various reports from the revenue authorities showing that the land was lying unused. He submits that the petitioner was not given a copy of any such report to effectively deal with the same. The learned senior counsel submits that the show cause notice dated 07.05.1984 was based on only six grounds, whereas the observations made in the impugned order relate to the facts and considerations, for which, no show cause notice was issued to the parties and therefore, the impugned order was beyond the scope of notice issued to the respondent owners. It is also contended by the learned senior counsel that suo motu revision proceedings under section 211 were not maintainable in as much as the same would lie before the Deputy Collector/Collector of the concerned district. He submits that therefore, the Secretary (Appeals) had no jurisdiction to initiate such proceedings in law. The learned senior counsel further submits that the learned Secretary (Appeals) was exercising suo motu revisional power under the Code and it was not within his jurisdiction to decide the aspect arising under the Tenancy Act by holding that since the provisions of Tenancy Act were breached, permission granted under the Code was liable to be recalled. The learned senior counsel has also assailed the proceedings on the ground that the same are initiated beyond reasonable period of time. He submits that this Court in various decisions has held that such power has to be exercised promptly. It is submitted that in the present case, it is alleged that the land remained without cultivation for a long time despite NA use permission which was in contravention of the conditions enumerated while granting such permission. The learned senior counsel submits that even otherwise, the impugned order is bad in law and is liable to be set aside and the Special Civil Application be allowed.

4. Per contra, the learned senior counsel Ms. Trusha Patel appearing with the learned counsel Mr. Nirav Sanghvi for the respondent owners submits that the present petition has become academic in nature due to subsequent events pending the present writ petition. She submits that in the present proceedings, no stay to the impugned order was granted by this Court. Thereafter, the respondent owners have plotted the subject land as per the NA use permission. The subject land was accordingly converted from restricted tenure to old tenure by paying necessary premium amount. That thereafter, in terms of the NA use permission, development permission was also obtained from the competent authority. The subject land has been accordingly plotted and about 50% of the plots have already been sold to third parties thereby creating third party rights by way of various sale deeds. The learned senior counsel submits that the petitioner has preferred proceedings before the Civil Court, however, in such proceedings, Exh.5 Application seeking stay of further sale of plots and restraining the respondent owners has also been dismissed. She submits that in the revenue proceedings also, the petitioner has not been able to obtain any relief in its favour. She submits that as on today, the respondent owners are the occupants of the subject land in question. She submits that the petitioner has no locus in the present case. It is further submitted that since the requisite permission under section 43 of the Tenancy Act was not obtained by the petitioner at the relevant point of time, the sale deed executed in favour of the petitioner was void and the petitioner did not acquire any right under the sale deed. She further submits that when the NA use permission granted in favour of the respondent owners was cancelled, the same was not challenged independently by the petitioner. She submits that throughout the earlier proceedings, the respondent owners' name continued in the column of the occupant in the revenue record. She submits that the occupant, whose name is appearing in 7/12 extract, has locus. She submits that the petitioner could have independently applied for NA use permission. She submits that in the present case, the order under Section 65 of the Code for grant of NA use permission was independent of the proceedings under Section 43 of the Tenancy Act for permission to transfer the land which was of restricted tenure. The permission to covert the land into old tenure from restricted tenure was never obtained. She submits that till date, the petitioner has not challenged the order passed by the Mamlatdar cancelling the mutation entries in its favour. She further submits that no civil suit has been preferred by the petitioner till date seeking any declaration on the basis of the sale deed in favour of the petitioner, nor any application is filed seeking any injunction against the respondent owners. She submits that the impugned order passed by the Secretary (Appeals) is just and proper in law. She submits that the petitioner has no locus in the present proceedings and therefore, the present Special Civil Application be dismissed.

5. In rejoinder, the learned senior counsel Mr. Dhaval Vyas submits that the competent authority, by the order dated 30.06.2016, has granted permission for conversion of land from restricted tenure to old tenure, pursuant to which, the respondent owners have sold the land to the new purchasers, who are the applicants in Civil Application No.1 of 2024. It is further submitted that the petitioner preferred a civil suit challenging the sale deeds in favour of the new purchasers, which is pending consideration before the Civil Court. He submits that the new purchasers have no right, title or interest in the subject land as on the date of transfer, the sale deeds dated 07.04.1983 and 11.04.1983 executed in favour of the petitioner are valid in law and have not been challenged in any court of law. The learned senior counsel submits that the applicants/new purchasers are not bona fide purchasers in view of Section 3 of the Transfer of Properties Act, 1982 as they are aware of pre-existing rights of the petitioner in the subject land. He submits that further permission and transfer effected pending final hearing of the present petition cannot cause any prejudice to the rights of the petitioner and have to be ignored. He submits that the present challenge to the impugned order does not become academic in view of subsequent events. He submits that therefore, the present petition be decided and allowed on its own merits.

6. Heard the learned counsels for the parties, perused the documents on record and considered the submissions.

7. The present case has a checkered history. The petitioner is the purchaser of the subject land being Survey No.91, Block No.78, situated at Village Mota Borsara, Taluka Mangrol, District Surat admeasuring 5 Acres 29 Guntha vide registered sale deeds dated 07.04.1983 and 11.04.1983. In the present case, the respondent owners had applied for NA use permission under Section 65 of the Code on 03.08.1982. On the said date, the Taluka Panchayat was the competent authority to grant such a permission. By Resolution No.26 dated 14.09.1982, the application of the respondents came to be allowed by the Taluka Panchayat. Accordingly, the Taluka Development Officer granted Non-Agricultural permission for Industrial sheds to the respondent owners on certain terms and conditions. One of the conditions in the said order was that such permission was granted subject to the provisions of the Tenancy Act since the subject land was of restricted tenure and permission was granted without converting the subject land from new tenure to old tenure. Further, it was also stated in the order that from the date of the said order, the land would have to be used for non-agricultural purpose. Accordingly, the premium of Rs.17,915.30 came to be determined by the Taluka Development Officer to be paid by the respondent owners for such grant of permission under Section 65 of the Code. Accordingly, the mutation entry No.2268 came to be effected in the revenue record. That thereafter, the respondent owners executed two sale deeds in respect of the subject land dated 07.04.1983 and 11.04.1983. Accordingly, the mutation entry No.2272 and 2273 came to be effected in favour of the petitioner herein in view of the two sale deeds. That since the land was of restricted tenure and no premium was determined by the Collector under Section 43 of the Tenancy Act in respect of change of tenure of subject land, the Mamlatdar, vide order dated 19.10.1983, cancelled the mutation entry No.2268 in favour of the respondent owners in respect of NA use permission. It is pertinent to note here that this order dated 19.10.1983 has not been challenged by the respondent owners or by the petitioner herein and the same has become final.

8. It is further required to be noted that by the order dated 19.10.1983, the Mamlatdar, Mangrol, cancelled the mutation entries in favour of the petitioner in view of the fact that there was no change in the tenure of the subject land and no application was made for determination of premium by the revenue authorities. The cancellation of such mutation entries Nos.2272 and 2273 in favour of the petitioner was not challenged by the petitioner and thus, in the revenue records, the subject land continued in the name of the respondent owners. Further, the petitioner has also not initiated any proceedings in this regard and therefore, the order dated 19.10.1983 cancelling the mutation entry in favour of the petitioner has become final.

9. That on 07.05.1984, a show cause notice under Section 211 of the Code came to be issued by the Secretary (Appeals) in suo motu revision proceedings against the order dated 17.09.1982 to the respondent owners in respect of grant of NA use permission. By the order dated 23.5.1984, the Secretary (Appeals) set aside the order dated 17.09.1982 granting NA use permission to the respondent owners. It was held that the Taluka Development Officer had no jurisdiction to grant any NA use permission. Further, as per the Government Resolution dated 25.03.1981, when any permission for Industrial purpose has to be granted, the opinions of other concerned departments have to be obtained, breach in respect of Ribbon Development Rules have to be examined and it has to be ensured that there are no dues to any society in respect of the subject land. It was observed that the said procedure was not followed by the Taluka Development Officer while granting permission for NA use vide order dated 17.09.1982. It was further held that since there was no development made even after two years and the premium was also not paid by the respondent owners, the said order came to be set aside.

10. Aggrieved by the order dated 23.05.1984 passed by the Secretary (Appeals), the respondent owners had preferred the Special Civil Application No.5855 of 1984 before this Court challenging the same. By the order dated 16.06.1987 passed in Special Civil Application No.5855 of 1984, the writ petition came to be allowed by this Court and the case was remanded back to the Secretary (Appeals) in light of the observations in the said order.

11. In the remand proceedings, by the impugned order dated 03.12.1988, the learned Secretary (Appeals) once again set aside the order of the Taluka Development Officer dated 17.09.1982 and cancelled the NA use permission granted in favour of the respondent owners. The learned Secretary (Appeals) held that the Taluka Development Officer had failed to record a satisfaction in respect of the proposed NA use and reasons stated in the application for grant of such NA use. It was held that Taluka Development Officer was also obliged to look into other factors such as effect on neighboring agricultural lands and compliance of Government resolution dated 25.03.1981. It was further observed that the land was not utilized for the purpose for which the NA use permission was sought for. The usage had not commenced as per the direction contained in the order and the agricultural land was lying unused, which cannot be permitted.

12. The learned counsel for the petitioner has submitted that the petitioner was not heard at the time of passing of the impugned order and therefore, the same is in breach of principles of natural justice. In the present case, the petitioner's name was not reflected in the revenue records. A show cause notice was issued to the respondent owners as per the revenue record and the application for such NA use permission was also made by the respondent owners and not the petitioner. The petitioner had also filed its Vakalatnama at the time of hearing and the advocate representing the original owners had also represented the petitioner in the said proceedings. It is observed in the impugned order that Shri Atodariya had appeared on behalf of the respondent owners and had also presented Vakalatnama on behalf of the petitioner. Therefore, it cannot be said that only the respondent owners were heard in the proceedings and not the petitioner herein. The submissions made before the learned Secretary are supposed to be on behalf of the respondent owners as well as the petitioner. Therefore, the contention that the order is in breach of principles of natural justice and the petitioner was not heard, nor issued any show cause notice cannot be sustained and is accordingly rejected. No infirmity can be attached to the impugned order. The same is in accordance with law and the prevalent Government Resolutions. No interference is called for in the impugned order.

13. The subsequent developments, which have taken place in the present case, also cannot be ignored by this Court. The petitioner claims to be the owner of the subject land by way of two sale deeds dated 07.04.1983 and 11.04.1983. However, the mutation entries Nos.2272 and 2273 in favour of the petitioner on the basis of the sale deeds were set aside by the Mamlatdar, Mangrol by the order dated 19.10.1983. The said order is not challenged by the petitioner and therefore, in the revenue records, the name of the respondent owners came to be continued. Despite setting aside of the mutation entries in favour of the petitioner, the petitioner did not initiate any civil proceedings seeking to restrain the respondent owners on the basis of the said sale deeds from any further transactions or seeking a declaration in respect of the subject land being its owner. The present writ petition challenging the impugned order has also been filed after a period of about four years from the date of the impugned order and no interim relief was granted in favour of the petitioner by this Court. It is also pertinent to note that in the year 2016, the respondent owners have made an application for converting the subject land from new tenure to old tenure, which came to be granted by the order dated 30.06.2016. Accordingly, the revenue entry No.8388 also came to be effected in the revenue record. That thereafter, the respondent owners herein have sold the subject land to the applicants in Civil Application No.1 of 2024 vide registered sale deed No.6464 dated 08.09.2022 and accordingly, the mutation entry No.9666 dated 10.10.2022 came to be effected in the names of the new purchasers. Thereafter on 11.03.2023, the applicants/new purchasers filed a composite application for conversion of land into old tenure as well as seeking NA use permission, which came to be granted to them by the order dated 29.03.2023 passed by the Deputy Collector, Surat. That thereafter, on 02.05.2023, the District Collector, Surat has passed the order converting the subject land into old tenure for non-agricultural purpose. A premium of Rs.58,97,372/- also came to be determined. Pursuant to the said order, the revenue entry No.9810 came to be effected in the revenue record in favor of the applicants/new purchasers. That thereafter, the NA use permission was granted under Section 65 of the Code vide order dated 06.05.2023 on an application made by the applicants/new purchasers. Accordingly, the revenue entry No. 9816 came to be effected on the payment of conversion charges by the applicants/new purchasers on 06.05.2023. That thereafter, the District Development Officer, Surat has granted the development permission to the applicants/new purchasers on 15.06.2023 in respect of the subject land. Thereafter, the applicants/new purchasers plotted the subject land and floated the the Industrial scheme known as Brahmani Eco Park. The applicants/new purchasers have already sold more than 50% of the plots by registered sale deeds to the third parties.

14. Pursuant to all these developments, the petitioner herein challenged the revenue entry No.8300 dated 10.06.2016, revenue entry No.9434 dated 30.09.2021 and revenue entry No.9666 dated 08.09.2022 in favour of the applicants/new purchasers granting change of tenure of the subject land by the revenue authorities by way of RTS Appeal which came to be dismissed by the order dated 27.06.2024. That thereafter, the petitioner instituted Civil Suit No.6 of 2024 against the original owners as well as applicants/new purchasers seeking a declaration and cancellation of the sale deed dated 08.09.2022. In the said proceedings, the petitioner also moved an application for temporary injunction against the respondents herein, which has been dismissed.

In view of the subsequent events and the pending civil proceedings between the parties, this Court is not inclined to interfere with the impugned order.

15. For the aforesaid reasons and observations, the Special Civil Application is dismissed. The Civil Application also stands disposed of. No order as to costs.