RAFIKBHAI RAHEMATKHAN THEBA vs STATE OF GUJARAT
- Court
- Gujarat High Court
C/SCA/14345/2025 JUDGMENT DATED: 07/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14345 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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RAFIKBHAI RAHEMATKHAN THEBA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MS DHARITRI Y.PANCHOLI, AGP for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/05/2026
ORAL JUDGMENT
1. Heard Mr. Nishit P. Gandhi, the learned advocate appearing
for the petitioner and Ms. Dharitri Y. Pancholi, the learned AGP
appearing for the respondent – State.
2. Rule returnable forthwith. Ms. Dharitri Y. Pancholi, the
learned AGP waives service of rule for and on behalf of the
respondent – State.
3. By way of present petition, the petitioner herein has
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challenged the impugned order dated 7.5.2025 passed by the
respondent No.2 – District Collector, Patan pursuant to the
Application No.30301202500202 seeking Non-Agricultural Use
Permission under Section 65 of the Gujarat Land Revenue Code,
1879 (hereinafter referred to as ‘the Code’ for short) which came
to be rejected on the ground that the measurement of original
holding of land is increased more than 5% after re-survey
promulgation.
4. Mr. Nishit P. Gandhi, the learned advocate appearing for
the petitioner submits that the aforesaid is contrary to the powers
that can be enforced under Section 65 of the Code. It is submitted
that the respondent No.2 is required to summarily inquire whether
the petitioner is the legally occupying the land in question and is
undertaking agricultural activities. It is submitted that the petitioner
herein is in possession of the land in question admeasuring 5649
square meters for which the mutation entry is recorded in the 7/12
record. It is submitted that in view of thereof, there is no anomaly
in the land occupied by the petitioner. It is submitted that the
petitoiner’s application is required to be considered on its own
strength for the land admeasuring 5649 square meters. It is
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submitted that the respondent No.2 has erred in relying on the
report of the D.I.L.R. It is further submitted that the petitioner
herein has no concern, claim or connection with the said excess /
increase of land pursuant to re-survey and does not seek NA
permission beyond his purchased share.
5. Ms. Dharitri Y. Pancholi, the learned AGP is not in position
to controvert the submissions advanced by Mr. Gandhi, the
learned advocate appearing for the petitioners.
6. Having heard the learned advocates appearing for the
respective parties, it is not in dispute that the petitioner herein is in
occupation of the land admeasuring 5649 square meters and the
same is recorded in 7/12 record, more particularly, it is the
contention of the learned advocate appearing for the petitioner
herein that the petitioner herein has no concern, claim or
connection with the said excess / increase of land pursuant to re-
survey and does not seek NA permission beyond his purchased
share. In the opinion of this Court, the impugned order is passed
by respondent No.2 relying upon the negative opinion of the DILR
is such that, it would not disentitle the petitioner herein for NA
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permission.
7. At this stage, it is apposite to refer to the ratio laid down by
the Hon’ble Division Bench in Letters Patent Appeal No.1181 of
2025 and allied matters. It is apposite to refer to Para – 14 to 18
and 25 of the said judgment, which reads thus:
“14. The impugned order dated 24.12.2024 records that the affidavit
filed by the Collector, Vadodara was taken on record and the said
affidavit though started with an apology, but the collector tried to
justify the reasons for passing the orders impugned dated 28.10.2024
and 29.10.2024 for rejection of the NA application, more particularly,
as regards the probability of the provisions of Agricultural Land Ceiling
Act being violative on account of the Entry No. 780 dated 06.02.1985.
It is noted by the learned Single Judge in the order impugned that the
Collector, Vadodara has failed to appreciate the law laid down by this
court in the case of Tusharbhai Harjibhai Ghelani and Anr. Vs
State of Gujarat and Ors. [2019 (4) GLR 2578] , which was the
basis of passing the judgement and order dated 31.01.2024 wherein
the scope of inquiry under Section 65 of the Bombay Land Revenue
Code, 1879 has been laid down.
15. The writ court records that in the first round of litigation vide
judgment and order dated 31.01.2024, the Coordinate Bench had
specifically laid down that Section 65 of the Bombay Land Revenue
Code, 1879 provides for the use to with an occupant of the land for
the purposes of agriculture may put his land to. The key words in
section 65 of the Code is the occupant of the land and it is sufficient
for the purposes of Section 65 of the Code that the person applying for
NA permission is the occupant of the land. The question about the title
or ownership over the land in question for which NA permission is
sought, cannot be examined within the scope of Section 65 of the
Bombay Land Revenue Code, 1879. It was also noted that in the facts
of the present case, the petitioners therein (herein as well) stand at a
better footing as they are not only occupants of the subject lands but
also the owners thereof by virtue of the registered Sale Deed dated
06.09.2022.It is also noted that the registered sale deed has not been
cancelled or held invalid by any competent Court of law.
16. The judgment and order dated 31.01.2024 passed by the writ
court allowing the writ petitions of the year 2023 categorically records
that the Collector, Vadodara while rejecting the applications for
conversion of the land into NA land had travelled back in time in
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respect of history of the lands in question about 30 years ago. The
questionable entries being revenue entries of 30 years old could not
have been made basis for rejection of the NA applications. Some
entries mutated on account of the Will could not have been disputed
on the doubts raised in the order as to whether there was a blood
relationship between the parties (executant and the beneficiary) or
not
17. It was noted that the impugned order indicated of some alleged
illegalities committed sometime in the years 1980s and 1990s which
was not the subject matter of scrutiny to raise any doubt about the
title of the petitioners over the lands in question so as to take it a
ground for rejection of NA applications. It is also noted by the writ
court in the first round that nothing came out from the record as to
whether any proceedings were initiated in respect of any of the
shortcomings mentioned in the orders impugned for rejecting NA
permission. In absence of there being any other material and also the
fact that the petitioners are bona fide purchasers of the land in
question, being the last persons in the chain of transactions, NA
applications moved by them could not have been rejected. The writ
petitions were allowed taking note of the ratio of law laid down by the
Coordinate bench in Tusharbhai Harjibhai Ghelani (supra) vide
judgment and order dated 31.01.2024 with the above noted
categorical observations by the writ court to remand the matter to the
Collector, Vadodara for fresh decision.
18. Taking note of the above, it is neither understandable nor
acceptable as to how that the Collector, Vadodara could have rejected
the fresh applications filed by the petitioners in the second round by
passing the orders dated 28.10.2024 and 29.10.2024 on the very
selfsame grounds on which the NA applications filed in the year 2023
were rejected.
25. Noticing the above, we find that the officers holding the office of
Collector, Vadodara at the relevant point of time have failed to apply
their minds to the settled legal position pertaining to the inquiry to be
made under Section 65 of the Bombay Land Revenue Code, 1879 in
utter ignorance of the decision of this Court in Tusharbhai Harjibhai
Ghelani (supra). The attitude of the officers in passing repeated orders
putting caveat about the title of the predecessor in interest of the
petitioners by digging graves, to reject the NA permission was without
any substantive basis. There is nothing on record even in the present
set of appeals filed by the State appellant which would indicate that
any legal proceedings had ever been initiated with respect to the
revenue entries made in favour of the predecessors in interest of the
petitioners. All doubts raised in the first set of orders of rejection of
the NA permission of the year 2023 till the third set of orders of
rejection of the year 2025, were without any basis.”
7 .1 It is also apposite to refer to the ratio laid down in case of
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Tushar Ghelani and Ors. Vs. State of Gujarat, reported in 2019
(4) GLR 2578 wherein, paragraphs 35 to 40 read thus:
“35. Section 65 of the Code, referred to above, on its plain reading, do
not provide for any scope of raising objection by any party who is yet
to establish its right in his favour over the land in question. In other
words, the proceedings under section 65 of the Code is not an
adversary proceeding at all.
36. In section 65 of the Code, referred to above, two words are of
pivotal importance; (i) "occupant" and (ii) "holding". Section 3(12)
defines the term "holding". It reads as under,
"3(12): "holding" "holding" means a portion of land held by a holder"
37. Section 3(16) defines the term "occupant". It reads as under,
"3(16):-"occupant"; "occupant means a holder in actual possession of
unalienated land, other than a tenant, provided that where the holder
in actual possession is tenant the landlord or superior landlord, as the
case may be, shall be deemed to be the occupant."
38. Thus, the plain reading of section 65 makes it clear that for the
purpose of grant of N.A. Permission, the first thing the Collector should
look into is whether the applicant, seeking N.A. Permission, is an
occupant of the land which is being assessed or held for the purpose of
agriculture. For the purpose of ascertaining this, the Collector is
expected to look into the revenue records. The name of the applicant
in the revenue records would prima facie go to show or rather indicate
that he is the occupant of the land. The second step in the process
would be to ascertain whether such land is being assessed or held for
the purpose of agriculture.
39. Section 65 of the Code provides for the uses to which an occupant
of land for the purpose of agriculture may put his land to. If the
occupant of the land wishes to use the land for purposes other than the
agriculture or agriculture-related activities, he is required to make an
application to the Collector for permission to do so. It may be noted
that the key-word in Section 65 is the occupant of the land. It is
sufficient for the purposes of Section 65, that the person applying for
NA Permission is an occupant of the land. It is nowhere stated in the
said provision that the applicant should have title or ownership over
the land for which NA Permission is sought. The legislature, in its
wisdom, has thought it fit that it should suffice if an occupant of the
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land applies for NA Permission. It is not necessary that such person has
to prove his title to the land before he makes an application. The
present case is on a far better footing. Not only are the petitioners
occupants of the land, they are also the owners thereof, by a legal and
valid registered Sale Deed. The said sale deed may be a subject matter
of challenge before the Civil Court but the fact remains that the Civil
Court has not yet passed any decree cancelling the same or declaring
it to be illegal or obtained by fraud.
40. Thus, it transpires that, no power is available to the Collector under Section
65 of the Code to examine or conclude regarding the title of the writ applicants
over the land in question. A bare reading of the said provision makes it clear that
it only provides for the uses to which an occupant of land for agricultural
purposes, may put his land to. The provision further lays down the procedure to
be followed for making an application for NA Permission by the occupier and the
manner in which it is to be processed by the Competent. Authority. Nowhere is it
contemplated in Section 65 that the Collector is empowered to undertake an
inquiry into the title of the occupier.”
8. Considering the aforesaid position of law, as referred to
hereinabove, and in the facts of the present case, for the reasons,
as stated hereinabove, the impugned order dated 7.5.2025
passed by the respondent No.2 – District Collector, Patan rejecting
the petitioners’ Application No.30301202500202 seeking Non-
Agricultural Use Permission under Section 65 of the Code is
required to be quashed and set aside. The matter is remanded
back to the respondent No.2 – District Collector, Pathan to decide
afresh.
9. If the petitioners were to prefer a fresh application seeking
N.A. Use Permission, the same be decided by the respondent
No.2 in accordance with law under the provisions of Section 65 of
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the Code as also the ratio laid down in the aforesaid judgments, as
referred to hereinabove i.e. Hon’ble Division Bench in Letters
Patent Appeal No.1181 of 2025 and in case of Tushar Ghelani
and Ors. Vs. State of Gujarat, reported in 2019 (4) GLR 2578
within the statutory period.
10. With the aforesaid directions, the present petition is partly
allowed. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J)
H.M. PATHAN
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