1. The petitioner, who claims to be providing social services to the different members of the society, has filed this petition under Article 226/227 of the Constitution of India challenging the order dated 1st January, 2000 passed by the Additional Secretary, Revenue Department (Appeals) Gujarat State, Ahmedabad in Revision Application No. SRD-7-98 which was preferred by respondents No.5 and 6 herein who owned the agricultural land bearing Survey No. 454, 455 (Block No. 432 Part) situated in the sim of village Pal, Taluka Choryasi, District Surat ad- measuring 14,266.00 square meters out of which 629square yards (525.92 square meters) of land came to be sold to the petitioner after obtaining permission under section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, [“the Act” for short].
2. As per the case of the petitioner, the Deputy Collector had granted permission under sec. 63 of the Act on 17.4.96 and extended the said permission on 26.9.1996. Copy of the order dated 17.4.1996 passed by the Deputy Collector under section 63 of the Act is found at Annexure A, page 19 of the petition. As averred in the petition, the petitioner had also applied for permission under section 26 of the Urban Land (Ceiling and Regulation) Act, 1976 (“the ULC Act” for short) and the competent authority granted the said permission and thereafter, respondent no.5 executed registered sale deed dated 25.9.1996. It is the further case of the petitioner that the permission of Surat Urban Development Authority [“SUDA” for short] was sought for the construction on the land by the petitioner and the said authority sanctioned the plan for construction on 26.9.1997. However, since the land was agricultural land, the petitioner then felt it necessary to apply for permission for non agriculture use on 7.1.1998. However, before that, the petitioner had started the construction and, therefore, the District Development Officer being the competent officer passed order for imposing penalty of Rs.3660.0 under sec. 101 of the Bombay Land Revenue Code and construction of the petitioner was ordered to be regularized. Said order is dated 19.7.1998 which is found at Annexure-C to the petition.
3. Respondents No. 5 and 6 who had already sold away their lands to the petitioner challenged the above said order of District Development Officer by filing the Revision Application before the State Government being Revision Application No. SRD-7-98. Revisional authority initially granted interim order of status quo but after hearing the parties, the revision authority passed order dated 30.4.1999 whereby the interim order of status quo came to be vacated. However, when the main revision application was decided, the revisional authority i.e. Additional Secretary, Revenue Department (Appeals) State of Gujarat came to the conclusion that the permission granted under section 63 of the Act to the petitioner was not extended and without regularizing such permission under sec. 63 of the Act, construction of the petitioner could not have been regularized. Revisional authority also came to the conclusion that it was required of the petitioner to first get extension of the permission under sec.63 of the Act and without doing so, proceedings for non agriculture permission as also the construction could not have been put up by the petitioner. Revisional authority was, thus, of the opinion that it was automatic lapse of the permission under sec. 63 of the Act because of the breach of condition, therefore, proceedings for regularization of the construction were required to be initiated by the competent authority only after regularizing lapse in permission under section 63 of the Act. On the above said premise, the revisional authority set aside the order dated 13.7.98 passed by the District Development Officer and remanded the matter to the District Development Officer for taking appropriate steps in light of the observations made in the order. It is this order which is under challenge in this petition.
4. I have heard the arguments of the learned advocate for the petitioner as also the learned AGP Mrs. VS Pathak appearing for the State.
5. Learned Advocate Mr.R.N.Shah for the petitioner has submitted that the revision application before the Additional Secretary at the instance of the land owners who had already sold away and pocketed the money was not maintainable. He also argued that the land was sold to the petitioner after obtaining necessary permission under sec.
63 of the Act and, therefore, there was no illegality in the transaction of sale in favour of the petitioner. He would further submit that since the petitioner had already got the plan sanctioned from the competent authority under the SUDA, the petitioner had started construction on bona fide belief that it was authorized to start the construction, though the application for NA Permission was pending. He also submitted that before starting construction also, there was already permission under sec. 26 of the ULC Act for the land in question. However, the only fault committed was to start construction without waiting for NA Permission. Such permission was granted and the petitioner also suffered the penalty of Rs.3660.00 for the regularization of construction put up by the petitioner before getting the NA Permission. He, thus, submitted that it was mere irregularity on the part of the petitioner which was condoned and regularized by the competent authority and, therefore, it cannot be said that the petitioner has put up construction without obtaining necessary non agricultural permission and it also cannot be said that there was breach of the condition of permission under section 63 of the Act because the such permission was already granted and under such permission, the petitioner had purchased the land in question and permission for NA Use was required but such lapse of extension of time in permission under sec. 63 of the Act would not make the permission under sec. 63 of the Act itself as invalid and consequently permission for NA Use also would not become invalid. He ultimately urged that the revision application which was filed by the original owner was an act of vengeance and the land owners had no locus to file such revision application. He ultimately urged to set aside the impugned order and to allow the petition.
6. In reply to the above contentions raised by the learned advocate for the petitioner, Mrs. VS Pathak, learned AGP submitted that the revision application at the instance of the original owners was maintainable because the original owners were very much aggrieved by the order passed by the competent authority that is District Development Officer which was totally illegal. She would further submit that the permission under sec. 63 of the Act to sell in favour of the petitioner was not absolute in nature but was required to be extended till the permission for NA Use from the competent authority was obtained. She would further submit that the purpose for such extension of permission was to see that the land may not be put to N.A. Use before obtaining any permission from the competent authority. She further submitted that the petitioner put up the construction without obtaining NA Permission from the competent authority, without getting extension under sec. 63 of the Act, therefore, petitioner has committed gross illegality in putting up the construction. In view of this, she submitted that no illegality can be said to have been committed by the revisional authority in setting aside the order passed by the District Development Officer and to remand the matter to the authority for taking appropriate proceedings under the law. She ultimately urged to dismiss the petition.
7. Having heard the learned advocates for the parties and having perused the order produced on record, it appears that the petitioner had purchased the land in question under valid permission. Of course, said permission under section 63 was subject to certain conditions as regards taking permission for NA Use etc. but the fact remains that the original owners of the land had decided to sell the land to the petitioner after taking prior permission from the competent authority under sec. 63 of the Act and having obtained such permission, the land was sold to the petitioner. Therefore, so far as the original owners – respondents no.5 and 6 are concerned, they could not have made any grievance or raise any objection if some lapse was committed by the petitioner in the matter of getting extension in permission under section 63 of the Act or putting up the construction on the land in question before obtaining permission for NA Use of the land.
8. It is required to be noted that the permission under sec. 26 of the ULC Act was granted for the transaction of sale in favour of the petitioner. It is also required to be noted that the petitioner had also sought permission from the SUDA and necessary plans were also got sanctioned by the petitioner from the said authority. The petitioner had also asked for NA Permission. However, before the NA Permission was granted, the petitioner on the basis of the plans sanctioned by the SUDA, started putting up construction. District Development Officer who on coming to know that the petitioner had already started construction on the land in question before NA Permission was granted, imposed penalty upon the petitioner, which the petitioner has paid, and granted NA Permission and regularized the construction. Under the circumstances, though there was lapse on the part of the petitioner, it cannot be said that the petitioner had committed such gross illegality which cannot be regularized at all. The petitioner having purchased the land after paying the amount of consideration to the original land owners, the original owners of the land had lost interest, therefore, original owners had no locus to file such revision application before the State Authority and the revision application, at the instance of the original owners, was not at all maintainable. Even apart from this, when there was already permission under sec. 63 of the Act, some lapse in getting extension in the said permission and putting up construction before getting permission for NA Use, according to my opinion, the petitioner cannot be said to have committed such irregularity which cannot be regularized. In view of this court, there was no illegality on the part of the petitioner but some lapse or irregularity in not getting extension in permission under section 63 of the Act and in putting up the construction before obtaining permission for NA Use. In view of this position, revisional authority could not have set aside the order passed by the competent authority dated 13.7.98 where-under the construction of the petitioner was regularized and the NA Use of the land was also regularized, effect of the same was regularizing permission under sec. 63 of the Act, meaning thereby, lapse on the part of the petitioner was condoned by the competent authority.
9. Under the circumstances, the order passed by the revisional authority dated 10th December, 1999 is required to be quashed. In the opinion of this court, no further proceedings are required to be taken by the competent authority , therefore, remand of the case is not necessary in the facts of the case.
10. Accordingly, this petition is allowed. Order passed by the revisinal authority dated 10th December, 1999 is quashed and set aside. Rule is made absolute accordingly. No order as to costs.
(C.L. Soni,J.) an vyas