{"id":204759,"date":"2008-07-03T00:00:00","date_gmt":"2008-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-mr-y-n-oza-on-3-july-2008"},"modified":"2016-01-24T20:48:06","modified_gmt":"2016-01-24T15:18:06","slug":"appearance-vs-mr-y-n-oza-on-3-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-mr-y-n-oza-on-3-july-2008","title":{"rendered":"Appearance : vs Mr.Y.N.Oza on 3 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Appearance : vs Mr.Y.N.Oza on 3 July, 2008<\/div>\n
Author: Abhilasha Kumari,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/27413\/2007\t 27\/ 27\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 27413 of 2007\n \n\n \n \nFor\nApproval and Signature:  \n \nHON'BLE\nSMT. JUSTICE ABHILASHA KUMARI\n \n \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=====================================================\n \n\nDASHRATHBHAI\nAMBALAL PATEL & OTHERS\n \n\nVersus\n \n\nPRIYALAXMI\nCO-OPERATIVE ESTATE LTD. & OTHERS\n \n\n=====================================================\n \nAppearance : \nMr.P.C.Kavina,learned\nadvocate, for MR TATTVAM K PATEL for\nPetitioners. \nMr.Y.N.Oza,learned senior advocate, with Mr.Rutvij\nM.Bhatt for respondent No.1\n \n\nMr.Jaswant\nK.Shah,learned Assistant Government Pleader for Respondents Nos.2 and\n4. \nMR HS MUNSHAW,learned advocate, and Mr.K.R.Patel for Respondent\nNo.3. \n=====================================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHON'BLE\n\t\t\tSMT. JUSTICE ABHILASHA KUMARI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 03\/07\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tRule.\tMr.Rutvij
\nM.Bhatt, learned advocate, waives service of notice of rule for the
\nrespondent No.1, Mr.Jaswant K.Shah,learned
\nAssistant Government Pleader, waives service of notice of rule  for
\nthe respondents Nos.2 and 4 and Mr.H.S.Munshaw, learned advocate,
\nwaives service of notice of rule for the respondent No.3. In the
\nfacts and circumstances of the case, and with the consent of the
\nlearned counsel for the respective parties, the petition is taken up
\nfor final disposal today.\n<\/p>\n
2.\tThis
\npetition under Articles 226 and 227 of the Constitution of India has
\nbeen filed with a prayer to issue a writ of certiorari or any other
\nwrit or order, quashing and setting aside the order dated 29-9-2007
\npassed by the Chief Secretary (Appeals), Revenue Department whereby,
\nthe order dated 14-6-2007 passed by the Collector,Ahmedabad has been
\nupheld.\n<\/p>\n
3.\tThe
\nbrief facts of the case, as emerging  from a perusal of the averments
\nmade in the petition, are that the land bearing Survey No.201 of
\nvillage Ranip (hereinafter referred to as ?Sthe said land??)
\noriginally belonged to Mangaji Mathurji and Kalaji Mathurji, who were
\nthe predecessors-in-title of the present petitioners. In the year
\n1996, the Chairman of the then proposed respondent No.1-Society,
\nfiled a Civil Suit against the predecessors-in-title of the
\npetitioners, on the ground that Mangaji Mathurji and others had
\nexecuted an agreement for sale for the said land, in favour of the
\nproposed Laxmi Industrial Co-operative Society, which was
\nsubsequently converted into Priyalaxmi Co-operative Estate Ltd.
\n(respondent No.1). An application for temporary injunction had also
\nbeen filed alongwith the Civil Suit, vide Exh.5. It is averred that
\nthis application for injunction was dismissed by the trial court on
\n31-5-1997. Thereafter, the Chairman of the respondent No.1 filed
\nCivil Misc.Appeal No.106 of 1997 before the District Court, which
\ncame to be withdrawn. According to the averments made in the
\npetition, these proceedings have now obtained finality. It is further
\nstated in the petition that the Chairman of the respondent No.1 again
\npreferred an application for injunction on 17-8-2001 vide Exh.61,
\nwherein a direction was sought against the defendants i.e. the
\npredecessors-in-title of the present petitioners, against the
\ntransfer of the said land as well as construction thereupon. This
\napplication was partly allowed, vide order dated 4-2-2003,whereby the
\ntrial court directed the maintenance of status quo during the
\npendency of the suit. It is further stated in the petition, that the
\npredecessors-in-title  of the present petitioners preferred an Appeal
\nFrom Order No.304 of 2003 before the High Court, which was allowed by
\norder dated 2-12-2003. Against the order dated 2-12-2003 of this
\nCourt, the Chairman of the respondent No.1 filed a  petition for
\nSpecial Leave to Appeal (Civil) Nos.307 and 308 of 2004 before the
\nSupreme Court, which came to be dismissed by order dated 19-1-2004, a
\ncopy of  which is annexed as Annexure ?SC?? to the petition. It
\nfurther transpires from a reading of the averments made in the
\npetition, that the predecessors-in-title of the petitioners sold the
\nsaid land to the present petitioners Nos.1 to 5 by registered sale
\ndeed dated 16-6-2004. Thereafter, the petitioner No.6 purchased the
\nland from petitioners Nos.1 to 5 by two separate, registered sale
\ndeeds, dated 8-9-2006 and 20-9-2006, annexed as Annexure ?SD??
\ncollectively to the petition.\n<\/p>\n
4.\tIt
\nis the case of the petitioners that on 18-5-2002, the revised Town
\nPlanning Scheme was sanctioned by the State Government and the said
\nland was included in the residential zone (Type I) as per the zoning
\ncertificate, a copy of which is annexed as Annexure ?SE?? to the
\npetition. It is further averred, that the petitioners made an
\napplication for the grant of Development Permission to the Ahmedabad
\nUrban Development Authority (?Sthe AUDA?? for short) and paid
\ndevelopment charges amounting to Rs.38,525\/- to the said authority on
\n24-5-2006, as also betterment and other charges, to the tune of
\nRs.7,53,015\/- on 15-6-2006. It further transpires   that the AUDA
\n(respondent No.3) intimated the petitioner No.6, vide communication
\ndated 17-6-2006, that the Development Permission, as sought by him,
\nhas been principally granted and the order will be released upon the
\nproduction of Non-Agricultural use permission (?SNA permission??
\nfor short). A copy of  the communication dated 17? 6-2006 of the
\nrespondent No.3 is annexed as Annexure ?SF?? to the petition. The
\npetitioners, thereafter made an application dated 20-6-2006 for
\nconversion of the said land for Non-Agricultural use before the
\nCollector, Ahmedabad (respondent No.4). According to the petitioners,
\nthis application was not decided within the stipulated period of
\nthree months by the respondent No.4 and as per the provisions of
\nSection 65 of the Bombay Land Revenue Code,1879 (?Sthe Code?? for
\nshort), the said permission is deemed to have been granted.
\nUltimately, the Collector decided the application by order dated
\n8-12-2006. The application of the petitioners was rejected on the
\nground of pendency of Civil Suit No.235 of 2001, in respect of the
\nland in question, as well as  pendency of R.T.S. Appeal No.79 of
\n2006.It is averred  in the petition, that the petitioners  filed a
\nrevision application against this order of the Collector, which was
\nregistered as Revision Application No.14 of 2006, which came to be
\npartly-allowed, vide order dated 4-4-2007, and the Collector was
\ndirected to decide the application of the petitioners  for grant of
\nNA permission,  afresh.\n<\/p>\n
5.\tIt
\nfurther transpires from the statements made in the petition that,
\nafter the receipt of the communication dated  17-6-2006 of the
\nrespondent No.3, intimating the petitioner No.6 that Development
\nPermission has been granted but the order will be released on
\nproduction of the NA permission, the petitioners had started
\nconstruction upon the land in question, according to the sanctioned
\nplan. It further transpires that, in the meantime, the respondent
\nNo.3, vide order dated 29-5-2007, annexed as Annexure ?SK?? to the
\npetition, rejected the application of the petitioners  for the grant
\nof Development Permission, on the ground that construction has been
\ncarried out without any formal order according Development
\nPermission. It is averred that, upon the remand of the matter
\nregarding the NA permission by the State Government  to the
\nCollector, the application for grant of NA permission has been
\nrejected by the Collector by order dated 14-6-2007, on the sole
\nground that Civil Suit No.235 of 2001 is pending. A copy of the order
\ndated 14-6-2007 is annexed as Annexure ?SL?? to the petition. The
\npetitioner  filed a Revision Application  against the above-stated
\norder, which has been dismissed by the respondent No.2 by order dated
\n29-9-2007, whereby the order dated 14-6-2007 of the respondent No.4
\nhas been upheld. Being aggrieved by  the rejection of the Revision
\nApplication, the petitioners have approached this Court, by filing
\nthe present petition.\n<\/p>\n
6.\tMr.P.C.Kavina
\nfor Mr. Tattvam K.Patel, learned counsel  for
\nthe petitioners, has made the following submissions:\n<\/p>\n
(a)\tThat
\nthe petitioners had filed an application for grant of NA permission
\non 20-6-2006 before the respondent No.4 and as per the provisions of
\nSection 65 of the Code, the application is deemed to have been
\ngranted, since there is no decision within 90 days of the filing of
\nthe same. It is contended, that the order of rejection of the said
\napplication was passed only on 8-12-2006 i.e. after a period of six
\nmonths, instead of three months, and, therefore, the application is
\ndeemed to have been granted and the permission accorded.\n<\/p>\n
(b)\tThat,
\nin any case, even though the petitioners had  made an application for
\nthe grant of NA permission, the said permission is not required, in
\nview of the provisions of Section 488 of the Bombay Provincial
\nMunicipal Corporations Act, 1949 and the petitioners are only
\nrequired to pay the altered assessment, which the petitioners are
\nready to pay. It is submitted by the learned counsel for the
\npetitioners, that the land in question is situated in village Ranip
\nand all the lands of the said village are now included within the
\nlimits of Ahmedabad Municipal Corporation, by  Notification dated
\n20-7-2006 of the State Government and, therefore, NA permission in
\nrespect of the land in question, is not necessary. It is further
\nelaborated by Mr.P.C.Kavina, that the land in question has now been
\nincluded in the Town Planning Scheme No.67 and in lieu of Revenue
\nSurvey No.201, Final Plot No.112  is allotted and in view  of the
\ninclusion of the said land in the residential zone, it is obvious
\nthat the land can no longer be used for agricultural purposes and in
\nthis view of the matter as well, the NA  permission is not required,
\nas the construction carried out by the petitioners is for residential
\npurposes alone.\n<\/p>\n
(c
\n)\t It is strongly urged by Mr.P.C.Kavina that the rejection of the NA
\npermission by the respondent No.4 is not in consonance with the
\nprovisions of Section 65 of the Code, or the Circulars of the State
\nGovernment, issued from time to time. It is submitted that as per
\nGovernment Circular dated 15-11-2001  only three aspects are to be
\nverified for the grant of NA use permission in case the land is
\nsituated in the Municipal limit  i.e. (i) whether there is any breach
\nof road line control, (ii) whether the land is acquired by the State
\nand, (iii) whether the land is vested in the State Government under
\nthe provisions of the Urban Land (Ceiling & Regulation) Act,
\n1976. It is contended on behalf of the petitioners that the NA
\npermission cannot be refused on any other ground,if these three
\nquestions are answered in the negative and,therefore, the refusal of
\nthe said permission, is not sustainable in law. Referring to order
\ndated 2-8-2005 of this Court rendered in Special Civil Application
\nNo.7354 of 2005(Bankim Bipinbhai Desai v. State of Gujarat), the
\nlearned counsel for the petitioners has contended, that the Division
\nBench of the High Court has also taken a view that the Collector
\ncannot revise the NA permission on any other ground, other than the
\ngrounds, stated in  Circular dated 15-11-2001. It is  strongly urged
\nby the learned counsel for the petitioners that the Collector could
\nnot have refused NA permission solely on the ground of pendency of
\nthe Civil Suit, in view of the said decision of the High Court and,
\neven otherwise there is no circular of the State Government which
\nlays down that the NA permission ought to be rejected on the ground
\nof  pendency of a Civil Suit and nor is such a  stipulation  to be
\nfound in the provisions of Section 65 of the Code.\n<\/p>\n
(d)\tThat
\neven though the Collector has rejected the application of the
\npetitioners  for grant of NA permission on the ground of pendency of
\nCivil Suit No.235 of 2001, he has lost sight of the fact that the
\norder dated 2-12-2003 of the High Court, whereby the appeal of the
\npetitioners against the grant of status quo, upon the application for
\ninjunction vide Exh.61 filed by the Chairman of the respondent No.1,
\nhas been allowed by the High Court and the SLP filed by the Chairman
\nof the respondent No.1 against the order dated 2-12-2003 of the High
\nCourt, has been dismissed.  In effect, the dismissal of the
\napplication for injunction against the predecessors-in-title of the
\npetitioners has been upheld, upto the Apex Court. It is forcefully
\nargued that in view of the dismissal of the SLP filed by the Chairman
\nof the respondent No.1, the ground of pendency of the Civil Suit,
\nwhich has been taken by the Collector, is neither germane nor is it
\nin accordance with law or any circular of the State Government.\n<\/p>\n
7.\tOn
\nthe strength of the above submissions, it has been submitted by
\nMr.P.C.Kavina that the impugned orders be set aside, and the petition
\nbe allowed.\n<\/p>\n
8.\tMr.Y.N.Oza,learned
\nsenior counsel with Mr.Rutvij M.Bhatt,learned counsel  for respondent
\nNo.1, has submitted as under :\n<\/p>\n
(a)\tThat
\nthe development permission  granted by the respondent No.3 to the
\npetitioners,  vide communication dated 17-6-2006, is subject to the
\ngrant of NA permission under Section 65 of the Code and when the
\nCollector exercises power under the provisions  of Section 65, he is
\nempowered to cancel or modify the plan sanctioned by the respondent
\nNo.3 (AUDA) and the respondent No.3 is bound by the order of the
\nCollector passed under Section 65 of the Code.\n<\/p>\n
(b)
\nIt is submitted that the Collector is empowered to decide whether to
\ngrant or not to grant NA permission and, in the case of the
\npetitioners, the said permission has rightly been refused.\n<\/p>\n
(c
\n)\tThat the petitioners does not deserve to be granted equitable
\nrelief since the order dated 17-6-2006 of the respondent No.2 has
\nbeen flouted by them and they have embarked upon illegal
\nconstruction, on the land in question and, therefore, the respondent
\nNo.3 (AUDA) has rightly cancelled the Development Permission in
\nfavour of the petitioners, by its order dated 29-5-2007. It is
\nvehemently  contended by the learned senior advocate,  that one who
\ntakes the law into his own hands does not deserve relief from this
\ncourt and, therefore, the petition deserves to be dismissed.\n<\/p>\n
(d)
\nIt is submitted by Mr.Y.N.Oza, learned senior advocate, that a public
\ninterest litigation, being Special Civil Application No.15596 of 2007
\nwas filed by the son of the Chairman of the respondent No.1 Society,
\nin which a prayer has been made for the issuance of a writ of
\nmandamus against the respondents Nos.1,2 and 4 i.e. State of Gujarat,
\nAhmedabad Urban Development Authority and the Ahmedabad Municipal
\nCorporation, for stoppage of illegal construction being carried out
\non Survey No.201, Final Plot No.112 T.P.Scheme No.67 of Ranip.
\nDrawing the attention of this court to the order dated 7-8-2007 of
\nthe Division Bench, passed in the above mentioned petition, it is
\nurged by the learned senior advocate that the Division Bench had
\ndirected the Anti-Corruption Bureau, Ahmedabad to hold an inquiry and
\nsubmit a report regarding the alleged illegal  construction and,
\nalthough the execution of this order of the Division Bench has been
\nstayed by the Apex Court, the matter is still pending before the
\nDivision Bench, and in view of the pendency of the same, this Court
\nmay not like to entertain the petition  since the illegal
\nconstruction mentioned in Special Civil Application No.27413 of 2007
\nis the same construction, which is being carried out by the
\npetitioners.\n<\/p>\n
(e)\tThat
\nthe petition suffers from the vice of suppressio veri and suggestio
\nfalsi, inasmuch as the petitioners have filed a false affidavit
\nbefore the Urban Land Ceiling Authority that there is no court case
\npending,whereas the Civil Suit filed by the Chairman of the
\nrespondent No.1 is still pending, in which the petitioners are the
\ndefendants and, therefore, the petition deserves dismissal. It is
\nsubmitted that this affidavit has also been submitted to the
\nrespondent No.3, who has taken it into consideration while granting
\npermission in favour of the petitioners by order dated 17-6-2006 and,
\ntherefore, the petition deserves dismissal on this ground as well.\n<\/p>\n
9.\tOn
\nthe strength of the above submissions, it is strongly contended by
\nMr.Y.N.Oza,learned senior advocate for the respondent No.1, that the
\npetition be dismissed.\n<\/p>\n
10.\tIn
\nrejoinder, Mr.P.C.Kavina, learned counsel for the petitioners has
\nclarified that the petitioners have not suppressed any facts which
\nare material or relevant for the adjudication of the issues that
\narise in this petition,  and since the affidavit referred to by the
\nlearned senior advocate for the respondent No.1 was made in the
\ncontext of  the proceedings under the Urban Land (Ceiling and
\nRegulation) Act, it has to be seen as such, and in that context the
\nlitigation would mean any litigation between the State Government and
\nthe petitioners, and not   against any private litigant, and
\ntherefore, there is no suppression,leave alone suppression of any
\nmaterial fact, and therefore, the petition be allowed.\n<\/p>\n
11.\tThe
\nrespondent no.1 has filed the first affidavit-in-reply dated
\n23-12-2007 and an additional affidavit-in-reply dated 27-12-2007, and
\nyet another additional-affidavit-in-reply dated 2-7-2008,which has
\nbeen submitted today, by Mr.Rutvij M.Bhatt,learned counsel for the
\nrespondent No.1, and is taken on the record of the case. An
\naffidavit-in-rejoinder has been filed by the petitioners to the
\nearlier two affidavits-in-reply filed by the respondent No.1.\n<\/p>\n
12.\tMr.Jaswant
\nK.Shah,learned Assistant Government Pleader  for the respondents
\nNos.2 and 4, has supported the order dated 14-6-2007 of the Collector
\nand the order dated 29-9-2007, of the State Government and has
\nsubmitted that since they do not suffer from any illegality, the same
\nmay be upheld and the petition be dismissed .\n<\/p>\n
13.\tIn
\nthe background of the above-mentioned submissions advanced by the
\nlearned counsel   for the respective parties, it emerges that the
\nmain question to be decided by this court is regarding the legality,
\nor otherwise, of the refusal of the Non-Agricultural use permission
\nby the Collector on the sole ground of pendency of a Civil Suit vide
\norder dated 14-6-2007, and the confirmation of this order by the
\nState Government, by  order dated 29-9-2007.\n<\/p>\n
14.\tAs
\nper the provisions of Section 65(1)(b) of the Code, the competent
\nauthority to  grant Non-Agricultural use permission, is the District
\nCollector. The application for grant of NA permission  in respect of
\nthe land in question has been rejected by the Collector, vide order
\ndated 14-6-2007, solely on the ground of pendency of Civil Suit
\nNo.235 of 2001. The provisions of Section 65 of the Code make it
\nclear that the Collector, upon receipt of an application for N.A.
\nPermission, (a) shall  send to the applicant a written acknowledgment
\nof its receipt, and (b) may, after due inquiry, either grant or
\nrefuse the permission applied for. There is no stipulation in Section
\n65 to the effect that the N.A, permission can be refused, on account
\nof pendency of a Civil Suit. The order dated 29-9-2007 of the State
\nGovernment, whereby the order of the Collector dated 14-6-2007 has
\nbeen upheld, also does not throw much light upon this aspect i.e. the
\nreason why the non-agricultural use permission   can be refused on
\nthe ground  of  pendency of the Civil Suit. Since the conditions
\nunder which NA permission can be granted or refused have not been
\nenumerated in Section 65, and in order to ascertain whether the State
\nGovernment has issued executive instructions in this regard, and, in
\norder to effectively adjudicate upon the question in issue, the
\nCollector, Ahmedabad,who was joined as respondent No.4 to the
\npetition, by order dated 21-2-2008 of this Court, was directed to
\nfile an affidavit, detailing what are the conditions under which NA
\npermission can be granted or refused, and to produce on record the
\nrelevant orders\/instructions in this regard. Pursuant to order dated
\n21-2-2008 of this court, the Collector, Ahmedabad (respondent No.4)
\nfiled an affidavit dated 27-3-2008,wherein certain averments have
\nbeen made, on internal page 10 of the affidavit, which are reproduced
\nbelow:\n<\/p>\n
\t?SI
\nsay that in addition to the aforesaid requirements, the competent
\nauthority is required to ascertain and satisfy himself as to whether:\n<\/p>\n
\tany
\n\tproceedings are pending in a Civil Court?\n<\/p>\n
\tAny
\n\torder of injunction\/stay granted by any competent Civil Court is
\n\toperating?\n<\/p>\n
\tAny
\n\tcharge created in favour of any private person or financial
\n\tinstitution is shown in the revenue Record?\n<\/p>\n
\tAny
\n\tproceedings for breech of condition in respect of the land in
\n\tquestion are pending?\n<\/p>\n
\tI
\nsay that these enquiries are required to be made before NA Permission
\nis granted, in order to avoid any complications taking place in
\nfuture.??\n<\/p>\n
15.\tAfter
\nperusing the above-quoted averments made in the affidavit dated
\n27-3-2008 of the respondent No.4, this Court, vide order dated
\n9-5-2008 requested the learned Assistant Government Pleader to
\nclarify  whether the points, which have been enumerated regarding the
\npendency of a Civil Suit, are supported by any Government Resolution
\nor Circular and, further, to clarify whether the pendency of a Civil
\nSuit  debars an applicant from being granted non-agricultural use
\npermission. In compliance of the order dated 9-5-2008 the respondent
\nNo.4 filed a further-affidavit dated 20-6-2008. Paragraphs 3 and 4 of
\nthis affidavit are relevant and are quoted herein-below:\n<\/p>\n
\t?S3.\n<\/p>\n
In view of the above directions, I say and submit that as far as the
\nascertaining or satisfying about the pendency  of the civil suit and
\nother aspects are mentioned  at page 129 is not based on any
\nGovernment Resolutions or Circulars,but the same is based on the
\npower vested with the authority under the Act as per Section 65 of
\nthe Bombay Land Revenue Code and to prevent any kind of multiplicity
\nof proceedings by way of sound practice. All these aspects as
\nmentioned in page No.129 is taken into consideration while examining
\nevery applications of NA Permission and it is also made a part of NA
\nPermission Form by which, the applicant is directed to produce 19
\ndocuments and the same are referred at Item No.14 of the NA
\nPermission Form. Copy of the NA Permission Form is annexed hereto and
\nis marked as Annexure-I to this further affidavit.\n<\/p>\n
4.\tIt
\nis further submitted that as far as the aspect that whether the
\npendency of Civil Suit debars an applicant from being granted Non
\nAgricultural use permission, I say and submit that there is no
\nstraight jacket formula or the guidelines, the same is required to be
\nseen case by case and appropriate decision is required to be taken
\nafter considering the effect and pendency of any proceedings of
\nSuit.??\n<\/p>\n
16.\tFrom
\nthe above-quoted averments it transpires that the refusal of NA
\npermission on the ground of pendency of a Civil Suit is not based on
\nany Government Resolution or Circular but, according to the
\nrespondent No.4, is based on the power vested with the authority
\nunder the Act as per Section 65 of the Code, in order to prevent any
\nkind of multiplicity of proceedings and by way of sound practice.
\nAccording to the respondent No.4, there is no straight-jacket formula
\n or guidelines which bar an applicant from being granted NA
\npermission on the ground of pendency of a Civil Suit and the same is
\nrequired to be seen case by case, and   appropriate decision
\nis required to be taken after considering the effect and pendency of
\nany proceedings of the Suit.\n<\/p>\n
17.\tIf
\nthe case of the petitioners is considered in the light of the
\naverments made in the affidavit dated 20-6-2008 of the respondent
\nNo.4, it has to be taken into consideration that in Civil Suit No.235
\nof 2001, the injunction sought by the Chairman of the respondent No.1
\nagainst the petitioners has been refused, and the  refusal of the
\ninjunction has been upheld by the High Court as well as by the Apex
\nCourt. In the light of the fact that  the Apex Court has upheld the
\nrefusal of the injunction against the petitioners, it cannot be
\ndisputed that there can be no further multiplicity of proceedings,
\nbeyond the level of the Apex Court, which is the highest Court of the
\nland.\n<\/p>\n
18.\tThe
\nState Government, in the impugned order dated 29-9-2007 has taken
\nnote of the factual position as per the record. Admittedly, under the
\nprovisions of Section 211 of the Code, the State Government is
\nempowered to call for the record in respect of proceedings before it
\nand to examine the same.The pendency of Civil Suit No.235 of 2001 has
\nbeen taken note of,  as well as the refusal of the development
\npermission by respondent No.3 in favour of the petitioners. Moreover,
\nit has been noticed that the petitioners have carried on construction
\nupon the land in question without there being valid non-agricultural
\nuse permission, in their favour. On the above grounds, the State
\nGovernment has upheld the order of the Collector, whereby the NA
\npermission has been refused only on the ground of pendency of the
\nCivil Suit. A perusal of the order dated 29-9-2007 of the State
\nGovernment  reveals, that no convincing or cogent reasons have been
\nassigned for upholding the finding of the Collector that NA
\npermission is required to be refused on the ground of pendency of the
\nCivil Suit. Merely, by stating that the order of the Collector is
\njust and proper  and  does not require interference, will not answer
\nthe question whether the Collector, who is the competent authority
\nunder the provisions of Section 65 of the Code, can legally refuse to
\ngrant NA  permission on the ground of pendency of a Civil Suit. The
\nrejection  of the application for NA permission on the ground of
\npendency of the Civil Suit, has to be viewed in the background of the
\nfact that the application for injunction against the petitioners
\nfiled in the said Civil Suit has been refused and the refusal has
\nbeen upheld upto the Supreme Court.\n<\/p>\n
19.\tMoreover,
\nthe express provisions of Section 65(1)(b) of the Code do not
\nenumerate the conditions under which NA permission can be granted or
\nrefused, and a perusal of both these affidavits dated 27-3-2008 and
\n20-6-2008, make it evident that there are no executive instructions
\nor circulars of the State Government to the effect that  NA
\npermission  should be refused on the ground of pendency of a Civil
\nSuit. Even if the averments made in the affidavit by the respondent
\nNo.4 to the effect that,  power under Section 65 has to be used to
\nprevent  multiplicity of proceedings, and  there is no
\nstraight-jacket formula or guidelines for refusal of NA permission
\nbut, the same is required to be seen case by case,is taken at its
\nface value,  it transpires that the culmination of the litigation
\nregarding  the injunction against the petitioners in the Civil Suit,
\nhas reached upto the Supreme Court, and matter has ended there.\n<\/p>\n
20.\tIn
\nthe background of the above facts and circumstances, I am not
\ninclined to go into any other question  or deal with any other
\nsubmission of the learned counsel for the respective parties except
\nregarding the legality and validity of the order dated 14-6-2007 of
\nthe respondent No.4 as confirmed by order dated 29-9-2007 of the
\nrespondent No.2.\n<\/p>\n
21.
\nIt is relevant to note that the only reason assigned by the
\nrespondent No.4 for refusal of NA permission, is the pendency of the
\nCivil Suit. No reason has been assigned why such pendency precludes
\nthe grant of NA permission in the case of the petitioners. Similarly,
\n no provision of law or any executive instructions\/circulars of the
\nState Government have been pointed out, to support this view. The
\nrespondent No.2 vide order dated 29-9-2007, has also  not given any
\nreason for upholding the order of the respondent No.4 on this ground.
\nThe other aspects gone into by the respondent No.2 in the impugned
\norder are not the reasons for which NA permission has been refused by
\nthe respondent No.4. The crux of the matter, i.e. the legality and
\nvalidity of the order dated 14-6-2007 of the Collector, regarding
\nrejection of the NA permission  on the ground of pendency of the
\nCivil Suit, has not been supported by giving any cogent reasons,
\neither factual or legal.\n<\/p>\n
22.\tI
\nhave given serious and thoughtful consideration to the issue that
\narises for adjudication, in this petition. In the light of the
\nfactual and legal situation discussed hereinabove, in my considered
\nview, the matter deserves to be remanded to the respondent No.4, to
\ndecide afresh, in accordance with law.\n<\/p>\n
23.\tFor
\nthe afore-stated reasons, the order dated 29-9-2007 of the respondent
\nNo.2, and order dated 14-6-2007 of the respondent No.4, are quashed
\nand set aside. The matter  is remanded to the respondent No.4, to
\ndecide afresh in accordance with law. While deciding the matter, the
\nrespondent No.4 shall  keep in mind the reasons for remand, as stated
\nin this order, the provisions of Section 65 of the Code, as well as
\nthe relevant Government circulars\/executive instructions.\n<\/p>\n
24.\tThe
\npetition is, therefore, partly allowed. Rule is made absolute to the
\nabove extent. There shall be no orders as to costs.\n<\/p>\n
\t\t\t\t\t\t\t\t\t(Smt.Abhilasha Kumari,J)<\/p>\n
arg<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Appearance : vs Mr.Y.N.Oza on 3 July, 2008 Author: Abhilasha Kumari,&Nbsp; Gujarat High Court Case Information System Print SCA\/27413\/2007 27\/ 27 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27413 of 2007 For Approval and Signature: HON’BLE SMT. JUSTICE ABHILASHA KUMARI ===================================================== 1 Whether Reporters of Local […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-204759","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAppearance : vs Mr.Y.N.Oza on 3 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/appearance-vs-mr-y-n-oza-on-3-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Appearance : vs Mr.Y.N.Oza on 3 July, 2008 - 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