1. Rule. Mr.Rutvij M.Bhatt, learned advocate, waives service of notice of rule for the respondent No.1, Mr.Jaswant K.Shah,learned Assistant Government Pleader, waives service of notice of rule for the respondents Nos.2 and 4 and Mr.H.S.Munshaw, learned advocate, waives service of notice of rule for the respondent No.3. In the facts and circumstances of the case, and with the consent of the learned counsel for the respective parties, the petition is taken up for final disposal today.
2. This petition under Articles 226 and 227 of the Constitution of India has been filed with a prayer to issue a writ of certiorari or any other writ or order, quashing and setting aside the order dated 29- 9-2007 passed by the Chief Secretary (Appeals), Revenue Department whereby, the order dated 14-6-2007 passed by the Collector,Ahmedabad has been upheld.
3. The brief facts of the case, as emerging from a perusal of the averments made in the petition, are that the land bearing Survey No.201 of village Ranip (hereinafter referred to as “the said land”) originally belonged to Mangaji Mathurji and Kalaji Mathurji, who were the predecessors-in-title of the present petitioners. In the year 1996, the Chairman of the then proposed respondent No.1-Society, filed a Civil Suit against the predecessors-in-title of the petitioners, on the ground that Mangaji Mathurji and others had executed an agreement for sale for the said land, in favour of the proposed Laxmi Industrial Co-operative Society, which was subsequently converted into Priyalaxmi Co-operative Estate Ltd. (respondent No.1). An application for temporary injunction had also been filed alongwith the Civil Suit, vide Exh.5. It is averred that this application for injunction was dismissed by the trial court on 31-5-1997. Thereafter, the Chairman of the respondent No.1 filed Civil Misc.Appeal No.106 of 1997 before the District Court, which came to be withdrawn. According to the averments made in the petition, these proceedings have now obtained finality. It is further stated in the petition that the Chairman of the respondent No.1 again preferred an application for injunction on 17-8-2001 vide Exh.61, wherein a direction was sought against the defendants i.e. the predecessors-in-title of the present petitioners, against the transfer of the said land as well as construction thereupon. This application was partly allowed, vide order dated 4-2-2003,whereby the trial court directed the maintenance of status quo during the pendency of the suit. It is further stated in the petition, that the predecessors-in-title of the present petitioners preferred an Appeal From Order No.304 of 2003 before the High Court, which was allowed by order dated 2-12-2003. Against the order dated 2-12-2003 of this Court, the Chairman of the respondent No.1 filed a petition for Special Leave to Appeal (Civil) Nos.307 and 308 of 2004 before the Supreme Court, which came to be dismissed by order dated 19-1-2004, a copy of which is annexed as Annexure “C” to the petition. It further transpires from a reading of the averments made in the petition, that the predecessors-in-title of the petitioners sold the said land to the present petitioners Nos.1 to 5 by registered sale deed dated 16-6-2004. Thereafter, the petitioner No.6 purchased the land from petitioners Nos.1 to 5 by two separate, registered sale deeds, dated 8-9-2006 and 20-9-2006, annexed as Annexure “D” collectively to the petition.
4. It is the case of the petitioners that on 18-5- 2002, the revised Town Planning Scheme was sanctioned by the State Government and the said land was included in the residential zone (Type I) as per the zoning certificate, a copy of which is annexed as Annexure “E” to the petition. It is further averred, that the petitioners made an application for the grant of Development Permission to the Ahmedabad Urban Development Authority (“the AUDA” for short) and paid development charges amounting to Rs.38,525/- to the said authority on 24-5-2006, as also betterment and other charges, to the tune of Rs.7,53,015/- on 15-6-2006. It further transpires that the AUDA (respondent No.3) intimated the petitioner No.6, vide communication dated 17-6-2006, that the Development Permission, as sought by him, has been principally granted and the order will be released upon the production of Non-Agricultural use permission (“NA permission” for short). A copy of the communication dated 17—6-2006 of the respondent No.3 is annexed as Annexure “F” to the petition. The petitioners, thereafter made an application dated 20- 6-2006 for conversion of the said land for Non- Agricultural use before the Collector, Ahmedabad (respondent No.4). According to the petitioners, this application was not decided within the stipulated period of three months by the respondent No.4 and as per the provisions of Section 65 of the Bombay Land Revenue Code,1879 (“the Code” for short), the said permission is deemed to have been granted. Ultimately, the Collector decided the application by order dated 8-12-2006. The application of the petitioners was rejected on the ground of pendency of Civil Suit No.235 of 2001, in respect of the land in question, as well as pendency of R.T.S. Appeal No.79 of 2006.It is averred in the petition, that the petitioners filed a revision application against this order of the Collector, which was registered as Revision Application No.14 of 2006, which came to be partly-allowed, vide order dated 4-4-2007, and the Collector was directed to decide the application of the petitioners for grant of NA permission, afresh.
5. It further transpires from the statements made in the petition that, after the receipt of the communication dated 17-6-2006 of the respondent No.3, intimating the petitioner No.6 that Development Permission has been granted but the order will be released on production of the NA permission, the petitioners had started construction upon the land in question, according to the sanctioned plan. It further transpires that, in the meantime, the respondent No.3, vide order dated 29-5-2007, annexed as Annexure “K” to the petition, rejected the application of the petitioners for the grant of Development Permission, on the ground that construction has been carried out without any formal order according Development Permission. It is averred that, upon the remand of the matter regarding the NA permission by the State Government to the Collector, the application for grant of NA permission has been rejected by the Collector by order dated 14-6-2007, on the sole ground that Civil Suit No.235 of 2001 is pending. A copy of the order dated 14-6-2007 is annexed as Annexure “L” to the petition. The petitioner filed a Revision Application against the above-stated order, which has been dismissed by the respondent No.2 by order dated 29-9-2007, whereby the order dated 14-6-2007 of the respondent No.4 has been upheld. Being aggrieved by the rejection of the Revision Application, the petitioners have approached this Court, by filing the present petition.
6. Mr.P.C.Kavina for Mr. Tattvam K.Patel, learned counsel for the petitioners, has made the following submissions:
(a) That the petitioners had filed an application for grant of NA permission on 20-6-2006 before the respondent No.4 and as per the provisions of Section 65 of the Code, the application is deemed to have been granted, since there is no decision within 90 days of the filing of the same. It is contended, that the order of rejection of the said application was passed only on 8-12-2006 i.e. after a period of six months, instead of three months, and, therefore, the application is deemed to have been granted and the permission accorded.
(b) That, in any case, even though the petitioners had made an application for the grant of NA permission, the said permission is not required, in view of the provisions of Section 488 of the Bombay Provincial Municipal Corporations Act, 1949 and the petitioners are only required to pay the altered assessment, which the petitioners are ready to pay. It is submitted by the learned counsel for the petitioners, that the land in question is situated in village Ranip and all the lands of the said village are now included within the limits of Ahmedabad Municipal Corporation, by Notification dated 20-7- 2006 of the State Government and, therefore, NA permission in respect of the land in question, is not necessary. It is further elaborated by Mr.P.C.Kavina, that the land in question has now been included in the Town Planning Scheme No.67 and in lieu of Revenue Survey No.201, Final Plot No.112 is allotted and in view of the inclusion of the said land in the residential zone, it is obvious that the land can no longer be used for agricultural purposes and in this view of the matter as well, the NA permission is not required, as the construction carried out by the petitioners is for residential purposes alone.
(c ) It is strongly urged by Mr.P.C.Kavina that the rejection of the NA permission by the respondent No.4 is not in consonance with the provisions of Section 65 of the Code, or the Circulars of the State Government, issued from time to time. It is submitted that as per Government Circular dated 15-11-2001 only three aspects are to be verified for the grant of NA use permission in case the land is situated in the Municipal limit i.e. (i) whether there is any breach of road line control, (ii) whether the land is acquired by the State and, (iii) whether the land is vested in the State Government under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976. It is contended on behalf of the petitioners that the NA permission cannot be refused on any other ground,if these three questions are answered in the negative and,therefore, the refusal of the said permission, is not sustainable in law. Referring to order dated 2-8-2005 of this Court rendered in Special Civil Application No.7354 of 2005(Bankim Bipinbhai Desai v. State of Gujarat), the learned counsel for the petitioners has contended, that the Division Bench of the High Court has also taken a view that the Collector cannot revise the NA permission on any other ground, other than the grounds, stated in Circular dated 15-11-2001. It is strongly urged by the learned counsel for the petitioners that the Collector could not have refused NA permission solely on the ground of pendency of the Civil Suit, in view of the said decision of the High Court and, even otherwise there is no circular of the State Government which lays down that the NA permission ought to be rejected on the ground of pendency of a Civil Suit and nor is such a stipulation to be found in the provisions of Section 65 of the Code.
(d) That even though the Collector has rejected the application of the petitioners for grant of NA permission on the ground of pendency of Civil Suit No.235 of 2001, he has lost sight of the fact that the order dated 2-12-2003 of the High Court, whereby the appeal of the petitioners against the grant of status quo, upon the application for injunction vide Exh.61 filed by the Chairman of the respondent No.1, has been allowed by the High Court and the SLP filed by the Chairman of the respondent No.1 against the order dated 2-12-2003 of the High Court, has been dismissed. In effect, the dismissal of the application for injunction against the predecessors- in-title of the petitioners has been upheld, upto the Apex Court. It is forcefully argued that in view of the dismissal of the SLP filed by the Chairman of the respondent No.1, the ground of pendency of the Civil Suit, which has been taken by the Collector, is neither germane nor is it in accordance with law or any circular of the State Government.
7. On the strength of the above submissions, it has been submitted by Mr.P.C.Kavina that the impugned orders be set aside, and the petition be allowed.
8. Mr.Y.N.Oza,learned senior counsel with Mr.Rutvij M.Bhatt,learned counsel for respondent No.1, has submitted as under :
(a) That the development permission granted by the respondent No.3 to the petitioners, vide communication dated 17-6-2006, is subject to the grant of NA permission under Section 65 of the Code and when the Collector exercises power under the provisions of Section 65, he is empowered to cancel or modify the plan sanctioned by the respondent No.3 (AUDA) and the respondent No.3 is bound by the order of the Collector passed under Section 65 of the Code.
(b) It is submitted that the Collector is empowered to decide whether to grant or not to grant NA permission and, in the case of the petitioners, the said permission has rightly been refused.
(c ) That the petitioners does not deserve to be granted equitable relief since the order dated 17-6- 2006 of the respondent No.2 has been flouted by them and they have embarked upon illegal construction, on the land in question and, therefore, the respondent No.3 (AUDA) has rightly cancelled the Development Permission in favour of the petitioners, by its order dated 29-5-2007. It is vehemently contended by the learned senior advocate, that one who takes the law into his own hands does not deserve relief from this court and, therefore, the petition deserves to be dismissed.
(d) It is submitted by Mr.Y.N.Oza, learned senior advocate, that a public interest litigation, being Special Civil Application No.15596 of 2007 was filed by the son of the Chairman of the respondent No.1 Society, in which a prayer has been made for the issuance of a writ of mandamus against the respondents Nos.1,2 and 4 i.e. State of Gujarat, Ahmedabad Urban Development Authority and the Ahmedabad Municipal Corporation, for stoppage of illegal construction being carried out on Survey No.201, Final Plot No.112 T.P.Scheme No.67 of Ranip. Drawing the attention of this court to the order dated 7-8-2007 of the Division Bench, passed in the above mentioned petition, it is urged by the learned senior advocate that the Division Bench had directed the Anti-Corruption Bureau, Ahmedabad to hold an inquiry and submit a report regarding the alleged illegal construction and, although the execution of this order of the Division Bench has been stayed by the Apex Court, the matter is still pending before the Division Bench, and in view of the pendency of the same, this Court may not like to entertain the petition since the illegal construction mentioned in Special Civil Application No.27413 of 2007 is the same construction, which is being carried out by the petitioners.
(e) That the petition suffers from the vice of suppressio veri and suggestio falsi, inasmuch as the petitioners have filed a false affidavit before the Urban Land Ceiling Authority that there is no court case pending,whereas the Civil Suit filed by the Chairman of the respondent No.1 is still pending, in which the petitioners are the defendants and, therefore, the petition deserves dismissal. It is submitted that this affidavit has also been submitted to the respondent No.3, who has taken it into consideration while granting permission in favour of the petitioners by order dated 17-6-2006 and, therefore, the petition deserves dismissal on this ground as well.
9. On the strength of the above submissions, it is strongly contended by Mr.Y.N.Oza,learned senior advocate for the respondent No.1, that the petition be dismissed.
10. In rejoinder, Mr.P.C.Kavina, learned counsel for the petitioners has clarified that the petitioners have not suppressed any facts which are material or relevant for the adjudication of the issues that arise in this petition, and since the affidavit referred to by the learned senior advocate for the respondent No.1 was made in the context of the proceedings under the Urban Land (Ceiling and Regulation) Act, it has to be seen as such, and in that context the litigation would mean any litigation between the State Government and the petitioners, and not against any private litigant, and therefore, there is no suppression,leave alone suppression of any material fact, and therefore, the petition be allowed.
11. The respondent no.1 has filed the first affidavit-in-reply dated 23-12-2007 and an additional affidavit-in-reply dated 27-12-2007, and yet another additional-affidavit-in-reply dated 2-7-2008,which has been submitted today, by Mr.Rutvij M.Bhatt,learned counsel for the respondent No.1, and is taken on the record of the case. An affidavit-in- rejoinder has been filed by the petitioners to the earlier two affidavits-in-reply filed by the respondent No.1.
12. Mr.Jaswant K.Shah,learned Assistant Government Pleader for the respondents Nos.2 and 4, has supported the order dated 14-6-2007 of the Collector and the order dated 29-9-2007, of the State Government and has submitted that since they do not suffer from any illegality, the same may be upheld and the petition be dismissed .
13. In the background of the above-mentioned submissions advanced by the learned counsel for the respective parties, it emerges that the main question to be decided by this court is regarding the legality, or otherwise, of the refusal of the Non- Agricultural use permission by the Collector on the sole ground of pendency of a Civil Suit vide order dated 14-6-2007, and the confirmation of this order by the State Government, by order dated 29-9-2007.
14. As per the provisions of Section 65(1)(b) of the Code, the competent authority to grant Non- Agricultural use permission, is the District Collector. The application for grant of NA permission
2001. The provisions of Section 65 of the Code make it clear that the Collector, upon receipt of an application for N.A. Permission, (a) shall send to the applicant a written acknowledgment of its receipt, and (b) may, after due inquiry, either grant or refuse the permission applied for. There is no stipulation in Section 65 to the effect that the N.A, permission can be refused, on account of pendency of a Civil Suit. The order dated 29-9-2007 of the State Government, whereby the order of the Collector dated 14-6-2007 has been upheld, also does not throw much light upon this aspect i.e. the reason why the non- agricultural use permission can be refused on the ground of pendency of the Civil Suit. Since the conditions under which NA permission can be granted or refused have not been enumerated in Section 65, and in order to ascertain whether the State Government has issued executive instructions in this regard, and, in order to effectively adjudicate upon the question in issue, the Collector, Ahmedabad,who was joined as respondent No.4 to the petition, by order dated 21-2-2008 of this Court, was directed to file an affidavit, detailing what are the conditions under which NA permission can be granted or refused, and to produce on record the relevant orders/instructions in this regard. Pursuant to order dated 21-2-2008 of this court, the Collector, Ahmedabad (respondent No.4) filed an affidavit dated 27-3-2008,wherein certain averments have been made, on internal page 10 of the affidavit, which are reproduced below:
“I say that in addition to the aforesaid requirements, the competent authority is required to ascertain and satisfy himself as to whether:
(1) any proceedings are pending in a Civil Court?
(2) Any order of injunction/stay granted by any competent Civil Court is operating?
(3) Any charge created in favour of any private person or financial institution is shown in the revenue Record?
(4) Any proceedings for breech of condition in respect of the land in question are pending?
I say that these enquiries are required to be made before NA Permission is granted, in order to avoid any complications taking place in future.”
15. After perusing the above-quoted averments made in the affidavit dated 27-3-2008 of the respondent No.4, this Court, vide order dated 9-5-2008 requested the learned Assistant Government Pleader to clarify whether the points, which have been enumerated regarding the pendency of a Civil Suit, are supported by any Government Resolution or Circular and, further, to clarify whether the pendency of a Civil Suit debars an applicant from being granted non- agricultural use permission. In compliance of the order dated 9-5-2008 the respondent No.4 filed a further-affidavit dated 20-6-2008. Paragraphs 3 and 4 of this affidavit are relevant and are quoted herein- below:
“3. In view of the above directions, I say and submit that as far as the ascertaining or satisfying about the pendency of the civil suit and other aspects are mentioned at page 129 is not based on any Government Resolutions or Circulars,but the same is based on the power vested with the authority under the Act as per Section 65 of the Bombay Land Revenue Code and to prevent any kind of multiplicity of proceedings by way of sound practice. All these aspects as mentioned in page No.129 is taken into consideration while examining every applications of NA Permission and it is also made a part of NA Permission Form by which, the applicant is directed to produce 19 documents and the same are referred at Item No.14 of the NA Permission Form. Copy of the NA Permission Form is annexed hereto and is marked as Annexure-I to this further affidavit.
4. It is further submitted that as far as the aspect that whether the pendency of Civil Suit debars an applicant from being granted Non Agricultural use permission, I say and submit that there is no straight jacket formula or the guidelines, the same is required to be seen case by case and appropriate decision is required to be taken after considering the effect and pendency of any proceedings of Suit.”
16. From the above-quoted averments it transpires that the refusal of NA permission on the ground of pendency of a Civil Suit is not based on any Government Resolution or Circular but, according to the respondent No.4, is based on the power vested with the authority under the Act as per Section 65 of the Code, in order to prevent any kind of multiplicity of proceedings and by way of sound practice. According to the respondent No.4, there is no straight-jacket formula or guidelines which bar an applicant from being granted NA permission on the ground of pendency of a Civil Suit and the same is required to be seen case by case, and appropriate decision is required to be taken after considering the effect and pendency of any proceedings of the Suit.
17. If the case of the petitioners is considered in the light of the averments made in the affidavit dated 20-6-2008 of the respondent No.4, it has to be taken into consideration that in Civil Suit No.235 of 2001, the injunction sought by the Chairman of the respondent No.1 against the petitioners has been refused, and the refusal of the injunction has been upheld by the High Court as well as by the Apex Court. In the light of the fact that the Apex Court has upheld the refusal of the injunction against the petitioners, it cannot be disputed that there can be no further multiplicity of proceedings, beyond the level of the Apex Court, which is the highest Court of the land.
18. The State Government, in the impugned order dated 29-9-2007 has taken note of the factual position as per the record. Admittedly, under the provisions of Section 211 of the Code, the State Government is empowered to call for the record in respect of proceedings before it and to examine the same.The pendency of Civil Suit No.235 of 2001 has been taken note of, as well as the refusal of the development permission by respondent No.3 in favour of the petitioners. Moreover, it has been noticed that the petitioners have carried on construction upon the land in question without there being valid non-agricultural use permission, in their favour. On the above grounds, the State Government has upheld the order of the Collector, whereby the NA permission has been refused only on the ground of pendency of the Civil Suit. A perusal of the order dated 29-9- 2007 of the State Government reveals, that no convincing or cogent reasons have been assigned for upholding the finding of the Collector that NA permission is required to be refused on the ground of pendency of the Civil Suit. Merely, by stating that the order of the Collector is just and proper and does not require interference, will not answer the question whether the Collector, who is the competent authority under the provisions of Section 65 of the Code, can legally refuse to grant NA permission on the ground of pendency of a Civil Suit. The rejection of the application for NA permission on the ground of pendency of the Civil Suit, has to be viewed in the background of the fact that the application for injunction against the petitioners filed in the said Civil Suit has been refused and the refusal has been upheld upto the Supreme Court.
19. Moreover, the express provisions of Section 65(1)(b) of the Code do not enumerate the conditions under which NA permission can be granted or refused, and a perusal of both these affidavits dated 27-3- 2008 and 20-6-2008, make it evident that there are no executive instructions or circulars of the State Government to the effect that NA permission should be refused on the ground of pendency of a Civil Suit. Even if the averments made in the affidavit by the respondent No.4 to the effect that, power under Section 65 has to be used to prevent multiplicity of proceedings, and there is no straight-jacket formula or guidelines for refusal of NA permission but, the same is required to be seen case by case,is taken at its face value, it transpires that the culmination of the litigation regarding the injunction against the petitioners in the Civil Suit, has reached upto the Supreme Court, and matter has ended there.
20. In the background of the above facts and circumstances, I am not inclined to go into any other question or deal with any other submission of the learned counsel for the respective parties except regarding the legality and validity of the order dated 14-6-2007 of the respondent No.4 as confirmed by order dated 29-9-2007 of the respondent No.2.
21. It is relevant to note that the only reason assigned by the respondent No.4 for refusal of NA permission, is the pendency of the Civil Suit. No reason has been assigned why such pendency precludes the grant of NA permission in the case of the petitioners. Similarly, no provision of law or any executive instructions/circulars of the State Government have been pointed out, to support this view. The respondent No.2 vide order dated 29-9-2007, has also not given any reason for upholding the order of the respondent No.4 on this ground. The other aspects gone into by the respondent No.2 in the impugned order are not the reasons for which NA permission has been refused by the respondent No.4.
The crux of the matter, i.e. the legality and validity of the order dated 14-6-2007 of the Collector, regarding rejection of the NA permission on the ground of pendency of the Civil Suit, has not been supported by giving any cogent reasons, either factual or legal.
22. I have given serious and thoughtful consideration to the issue that arises for adjudication, in this petition. In the light of the factual and legal situation discussed hereinabove, in my considered view, the matter deserves to be remanded to the respondent No.4, to decide afresh, in accordance with law.
23. For the afore-stated reasons, the order dated 29-9-2007 of the respondent No.2, and order dated 14- 6-2007 of the respondent No.4, are quashed and set aside. The matter is remanded to the respondent No.4, to decide afresh in accordance with law. While deciding the matter, the respondent No.4 shall keep in mind the reasons for remand, as stated in this order, the provisions of Section 65 of the Code, as well as the relevant Government circulars/executive instructions.
24. The petition is, therefore, partly allowed. Rule is made absolute to the above extent. There shall be no orders as to costs.
(Smt.Abhilasha Kumari,J) arg