1. Heard Mr.S.I. Nanavati, learned Senior Advocate with Mr.Nikhil S. Kariel, learned advocate for the petitioner. The learned Senior Advocate has submitted that:
(a) The petitioner had purchased the land bearing Survey No.215/2, admeasuring 12596 sq. meters, situated at Village Vaghodia, District Vadodara on 07.11.2007, vide registered Sale Deed executed by the Power of Attorney Holder of the legal heirs of the original owner.
(b) The petitioner made an application on 11.09.2007 for grant of Certificate under Section 63-AA of the Gujarat Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act" for short), for use of land for bonafide industrial purpose. This application has been rejected by the Collector vide order dated 04.08.2010, after hearing the objector (respondent No.2), on the ground that the Sale Deed executed by the original owner of the land in favour of respondent No.2, is prior in point of time and is 'legal' as per the provisions of Section 48 of the Transfer of Property Act, 1882. Further, the application cannot be decided, as a Civil Suit regarding possession and title of the land in question and other cross Suits are pending before the Civil Court. In the Civil Suit filed against the petitioner, no injunction has been granted, which aspect has not been taken into consideration by the Collector and the Principal Secretary while passing the impugned orders.
(c) The Collector (respondent No.1) has failed to consider that the possession of the land in question is with the petitioner and considerable development work has already been commenced by it.
(d) The Collector has exceeded the jurisdiction vested in him under Section 63-AA in coming to the conclusion that the Sale Deed executed by the original owner in favour of respondent No.2, being prior in point of time is a legal one, which implies that the one in favour of the petitioner is not legal. The Collector does not have the power to pronounce upon the legality, or otherwise of the Sale Deeds in question. No power is vested in him to decide issues relating to title of the land in question, especially when Civil Suits are pending.
(e) As per the provisions of Section 63-AA, the Collector is required to consider whether the purchaser of such land has validly purchased the land for a bonafide industrial purpose or not, and he is not required to consider whether the document by which the land has been purchased, is a legal document conferring ownership. The finding of the Collector, as upheld by the Secretary, to the effect that the Sale Deed of respondent No.1 is legal, being prior in point of time, almost amounts to granting a declaration, which would result in decreeing the suit instituted by respondent No.2 against the petitioner.
(f) In the impugned order passed by the Principal Secretary, the findings rendered by the Collector have been upheld. However, at the same time, the Principal Secretary accepts the fact that the Collector has no power to decide issues regarding validity of the Sale Deed. The ground on which the application has been rejected is that the question of title, ownership and possession of the land in question is pending adjudication before the Civil Court.
(g) No injunction has been granted by the Civil Court and the authorities are not restrained from deciding the application made by the petitioner. Under the provisions of Section 63-AA, the Collector is under a statutory obligation to decide the application on merits. However, the application cannot be rejected merely on the ground that Civil Suits are pending, and by recording a finding that the Sale Deed of respondent No.2 is a legal one.
(h) The consequence of rejection of the application would entail proceedings for contravention of the provisions of Section 63 of the Tenancy Act, and disastrous consequence would follow, insofar as the petitioner is concerned. The final decision of the Civil Suit would take a considerable period of time, and if proceedings are initiated against the petitioner for breach of the provisions of Section 63, the transaction of sale would be considered void, even before the Suit is decided, therefore, the Court may protect the petitioner, in the interregnum.
2. Mr.
Tattvam K. Patel, learned advocate for the Caveator (respondent No.2), has opposed the grant of ad-interim relief to the petitioner and submits that the petition may be summarily dismissed. The submissions made by Mr.Patel, learned advocate, are as under:-
(a) That the land has been purchased by respondent No.2 by a registered Sale Deed dated 03.02.1996, which is prior in point of time to the transaction entered into by the Power of Attorney of the legal heirs of the original land owner in favour of the petitioner. The application made by the petitioner under Section 63-AA of the Tenancy Act is not in conformity with the the provisions that section inasmuch as, it is not mentioned therein that the land which is proposed to be sold shall not exceed four times the area on which construction for a bonafide industrial purposes is proposed to be made by the petitioner.
(b) That while deciding the application, the Collector is empowered to decide whether the land has been validity purchased as per Section 63AA (3)(c)(i), therefore, it cannot be said that the Collector has exceeded his jurisdiction in concluding that the Sale Deed executed in favour of respondent No.2 is a legal document in terms of Section 48 of the Transfer of Property Act, 1882. The notification dated 03.06.2008 designating certain lands, including the land in question, for industrial purposes is only a proposed notification and it cannot be said that the land has been designated for industrial use. Even if the subsequent notification dated 11.09.2008, whereby the land has been designated for industrial use is taken into consideration, the petitioner does not satisfy the requirements of Section 65B of the Bombay Land Revenue Code, 1879, as mentioned in Section 63-AA (1), for the reason that the land was not designated for industrial use at the time when the Sale Deed was executed in favour of the petitioner.
(c) That as on today, the title of the petitioner to the land in question is not clear, and in the absence of clear title, the Certificate sought by the petitioner under Section 63-AA has rightly not been granted by the Collector.
(d) That the impugned orders of the Collector and the Principal Secretary are legal and valid and the findings that the matter is subjudice, therefore, the application of the petitioner deserves to be rejected, is correct and deserves no interference.
(e) As the provisions of Section 63-AA are different from other provisions of the Tenancy Act and even a non-agriculturist is permitted to hold agricultural land subject to fulfillment of certain conditions, the requirements of the provisions of law have to be strictly complied with. The petitioner does not comply with the requirements of Section 63-AA, therefore, the application has been rightly rejected.
(f) That the petitioner is proposing to build a township on the land in question which is not an industrial activity and considering the submissions made above, ad-interim relief may not be granted and the petition may be summarily rejected.
3. In rejoinder, Mr.Nanavati, learned Senior Advocate has submitted that the objection regarding Section 63-AA(i)(c) has not been raised before the authorities by the respondents, nor has the objection regarding Section 65-B of the Bombay Land Revenue Code being raised before the authorities. Further, the application has not been rejected on the ground that the petitioner does not comply with the provisions of Section 63-AA.
4. The learned advocate for the Caveator has referred to the written submissions advanced by respondent No.2 before the Collector to point out that the contentions have been raised.
5. Having heard the learned counsel for the respective parties and upon consideration of the submissions advanced at the bar, the legal issues that arise in the petition, and the material on record, in the prima-facie view of this Court, the questions raised by the learned counsel for the respective parties require deeper consideration, at a later stage. At this stage, the petition is being heard for issuance of notice and grant of ad-interim relief.
6. Considering the aspect that the Collector has rejected the application of the petitioner on the ground that Civil Suits are pending and that the Sale Deed of respondent No.2, being prior in point of time, is a legal document, which order has been confirmed by respondent No.1, and as the rejection of the application would entail initiation of proceedings for contravention of Section 63, rendering the Sale Deed void, and as such proceedings may culminate before the final decision of the Civil Suits is arrived at, in the view of this Court, in the interest of justice would be served if the following order is passed:
Issue Notice, returnable on 16.02.2012.
Ad-interim relief in terms of Paragraph-8(D) is granted till further orders.
(Smt.
Abhilasha Kumari, J.) rakesh/ Top