SCA/6186/2008 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6186 of 2008 ========================================================= MINAXIBEN WD/O KIRANBHAI MAHIPATBHAI & 14 - Petitioner(s) Versus JAYESHBHAI N PATEL & 3 - Respondent(s) ========================================================= Appearance : MR TATTVAM K PATEL for Petitioner(s) : 1 - 15. MR HUKUM SINGH, AGP for Respondent(s) : 2 - 4. MR D. SHAH for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 07/07/2008 ORAL ORDER
Heard
learned advocate Shri Tattvam Patel for the petitioners, learned AGP
Shri Hukum Singh for respondent Nos.2 to 4 and learned advocate Shri
Davashish Shah for respondent No.1.
2. The
petitioners are owners of certain agricultural lands. They had
applied for putting the land for non-agricultural use. Said
application, however, came to be dismissed by the Collector,
Gandhinagar by order dated 6.10.06 only on one ground, namely, that
with respect to the land in question, Regular Civil Suit No.2/2000 is
pending. The petitioners carried the order of the Collector in
appeal. The Joint Secretary, however, by his order dated 17.10.07
upheld the order of the Collector and turned down the revision of the
petitioners.
3. Having
heard the learned advocates for the parties, it appears that
respondent No.1 herein has instituted above-mentioned regular civil
suit before the Civil Court. However, since the year 2000, no
injunction has been granted in favour of the plaintiff. Learned
advocate for the petitioners submitted that at one stage, the suit
was also dismissed for default. The same, however, has since been
restored. Be that as it may, the fact remains that till date, no
stay or injunction has been granted in favour of the plaintiff.
Apparently, the plaintiff claims an agreement to purchase the land
with the petitioners and seeks specific performance thereof.
4. It
may be that in a given case, it would be advisable and appropriate
not to process the application for NA permission when litigation is
pending. This would be necessary to avoid multiplicity of
proceedings. However, even the learned AGP agrees that this cannot
be an inviolable rule to be applied in all cases. No such
instructions of the Government are brought to the notice of the
Court. Only on this ground, therefore, the decision of the Collector
to reject the application of the petitioners by recording one line
reason that since the civil proceedings are pending, the application
cannot be granted, cannot be countenanced. Similarly, the Joint
Secretary also was in error in not examining the grievance of the
petitioners on merits.
5. Therefore,
only on this limited ground without expressing any opinion on the
desirability of keeping the application of the petitioner for NA use
pending, in the facts of the present case, without expressing any
opinion whatsoever about the merits of the said application, both the
impugned orders, namely one passed by the Collector as upheld by the
Joint Secretary are quashed. The Collector shall decide the
application of the petitioners afresh. If respondent No.1 herein
lodges written objections, the same shall also be taken into
account. The collector shall in particular decide whether in the
facts of the present case necessary not to decide the NA permission
on merits. Such exercise shall be completed expeditiously and
preferably within three months from the date of receipt of a copy of
this order.
6. With
the above directions, the petition is disposed of.
(Akil Kureshi, J.)
(vjn)