JITUBHAI NATHUBHAI WAGHANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the communication/order dated 27.4.2012 (Annexure "A" to the petition) and seeks a direction to the respondents to grant non-agriculture permission qua the land bearing survey No.481/2 of Kosad, Taluka City, Surat.

(2.) THE facts of the case stated briefly are that the petitioner is the owner of land bearing survey No.481/2 of Kosad, Taluka City, and Surat (hereinafter referred to as "the subject land"). Originally, Bai Amina widow of Ahmad Ismail Bhalla and daughter of Ismail Ibrahim Ravat was the owner and one Gandabhai Manchabhai was the tenant of the subject land. The original owner had a certificate under section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Tenancy Act"). It appears that the tenant had made certain defaults, including non-payment of rent. The original owner, therefore, filed proceedings under section 29(2) of the Tenancy Act before the competent authority, viz., the Mamlatdar, Choryasi vide Tenancy Case No.2/1971. The competent authority, after hearing the parties, passed an order dated 11.4.1972 in favour of the land owner under section 29(3) of the Tenancy Act. The order of the Mamlatdar came to be challenged by the tenant before the Assistant Collector, Choryasi Prant in Tenancy Appeal No.17/1972, which came to be dismissed by an order dated 14.5.1973. The tenant carried the matter in revision before the Gujarat Revenue Tribunal (hereinafter referred to as "the Tribunal") being Revision Application No.43/1973. By an order dated 12-13.07.1974, the Tribunal upheld the orders passed by the lower authorities and rejected the revision application. The Tribunal held that the notice given by the landlord for termination of tenancy of the tenant and the proceedings under section 29(2) of the Tenancy Act was legal and valid, and that the relationship of landlord and tenant had validly come to an end. The said order of the Tribunal was not carried any further and as such, attained finality.

(3.) SUBSEQUENTLY , the petitioner purchased the subject land by way of a registered sale deed from the original landlord. Thereafter, the petitioner filed an application dated 23.3.2006 before the Collector, seeking non-agriculture permission for residential purposes. Since the land in question was included in the area of Surat Urban Development Authority (hereinafter referred to as "the SUDA"), the petitioner also applied for development permission. The SUDA vide its letter dated 16.01/02.2006, granted technical sanction. However, the respondent No.2, Collector, Surat turned down the request of the petitioner on the ground that the proceedings under section 32P of the Tenancy Act are required to be commenced in view of the settlement arrived at between the landlord and the tenant. It appears that subsequently proceedings under section 32P of the Tenancy Act came to be initiated, however, by an order dated 17.4.2008 made by the Mamlatdar and ALT, Surat, such proceedings came to be ordered to be withdrawn/closed. Thereafter, on 21.6.2008, the petitioner once again approached the Collector, Surat with a copy of the said order and requested for grant of non-agriculture permission. Despite repeated requests being made for granting non-agriculture permission, such application was not decided. The petitioner, therefore, approached this court by way of Special Civil Application No.4317 of 2009, wherein notice was issued on 5.5.2009, making it returnable on 7.7.2009. After issuance of notice by this court and service thereof, the Mamlatdar and ALT was asked by the Deputy Collector, Choryasi Prant to approach the office of the Government Pleader, with a direction that the order of the Tribunal passed in the year 1974 is to be challenged by filing a special civil application. The learned Assistant Government Pleader was also asked to challenge the order dated 18.7.1988 passed by the District Court, Surat in Regular Civil Appeal No.75 of 1985. It appears that the learned Assistant Government Pleader had pointed out that against the order of the District Judge, special civil application cannot be filed and that a second appeal would be required to be filed and that, the delay of twenty years would be required to be explained. Thereafter, it appears that a direction was issued to take the order passed by the Mamlatdar and ALT under section 32P of the Tenancy Act in revision. In suo motu revision initiated by the Deputy Collector, by an order dated 01.10.2011, it was held that the provisions of section 15 of the Tenancy Act would not be applicable and that there was no question of any surrender under the Act. The Deputy Collector, Surat, accordingly, confirmed the order passed by the Mamlatdar and ALT under section 32P of the Act. Pursuant to the aforesaid order passed by the Deputy Collector, Surat, the petitioner once again made an application to the Collector, Surat on 07.10.2011 to reopen and reconsider the petitioner's application for grant of non-agriculture permission. By the impugned communication dated 27.4.2012, the petitioner was informed that his application for reconsidering grant of non- agriculture permission, is required to be filed in view of the fact that a second appeal is to be preferred by the Government against the order dated 18.7.1988 passed by the District & Sessions Judge, Surat. Being aggrieved, the petitioner has filed the present petition.