SONAL RAJU SHAH vs STATE OF GUJARAT
- Court
- Gujarat High Court
C/SCA/4785/2024 JUDGMENT DATED: 05/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4785 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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Approved for Reporting Yes No
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SONAL RAJU SHAH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KISHAN P KOTAK(13912) for the Petitioner(s) No. 1
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/05/2026
ORAL JUDGMENT
1. Rule returnable forthwith. Ms. Dharitri Pancholi, learned AGP
waives the service of Rule for and on behalf of the respondent – State
authorities.
2. Heard Mr. Vimal A. Purohit, learned advocate appearing for the
petitioner and Ms. Dharitri Pancholi, learned AGP appearing for the
respondent – State authorities.
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3. By way of the present petition, the petitioner herein has prayed
for the following reliefs:
“(21) In the premises aforesaid, Petitioners most humbly
and respectfully prays that:
(A) YOUR LORDSHIP'S may be pleased to issue a writ of
certiorari or any other appropriate writ in the nature of
certiorari, order or direction quashing and setting aside the
impugned order dated 20.11.2023 passed by the learned
District Collector, Vadodara in application no.
31916202305949 (At Annexure A) and further be pleased
to direct the learned District Collector, Vadodara to allow
application for Change of use permission preferred by the
petitioners strictly under the ambit of the Section 65(A) of
Gujarat Land Revenue Code, 1879;
(B) During the and final pendency disposal of the present
petition, YOUR LORDSHIPS may be pleased to direct the
respondent authority- Ld. District Collector, Vadodara to
consider the application for grant of Change of use
permission in light of the settled legal principle (Annexure
A);
(C) Pass any such other and/or further orders that may be
thought just and proper, in the facts and circumstances of
the present case;”
4. The petitioner herein is aggrieved by the impugned order dated
20.11.2023 passed by the respondent no. 2 – District Collector
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wherein the petitioners application for revised Non-Agricultural (NA)
permission bearing Application No. 31916202305949 dated
04.10.2023 was filed on the ground of deficit stamp duty upon the
negative opinion of the Deputy Collector, Stamp Duty. It is submitted
that the petitioner herein is in receipt of a valid NA permission since
2012 and for the deficit stamp duty separate proceedings are initiated
against the petitioner, however, while considering the case of the
petitioner for revised NA, the findings arrived at by the respondent no.
2 are beyond jurisdiction.
5. Briefly stated, it is the case of the petitioner that the land
bearing Survey No. 45 of Village: Kalali, Taluka: Vadodara (South),
District: Vadodara (for the short, “land in question”) was originally
owned and occupied by Suryakant Shiva Patel and others. Sonal Raju
Shah i.e., the petitioner and Nayna Bharat Patel purchased land in
question by way of registered Sale Deed No. 5964 dated 31.05.2011
from the original owner, pursuant to which Mutation Entry No. 2024
dated 16.08.2011 came to be mutated and duly certified.
5.1. The petitioner preferred an application under Section 65 of
Gujarat Land Revenue Code, 1879, (for short, “the Code”) for grant of
NA use permission, pursuant to which vide order dated 08.08.2012
District Collector, Vadodara granted NA permission and effect of the
same was given vide Mutation Entry No. 2130 dated 26.09.2012.
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5.2. Thereafter, the petitioner purchased the share of Nayna Bharat
Patel by way of registered Sale Deed No. 10447 dated 21.08.2014,
pursuant to which Mutation Entry No. 2369 dated 18.09.2014 came
to be mutated and duly certified. The petitioner preferred an
application under Section 65(A) of the Code for grant of NA use
permission from NA use to multipurpose NA use, which came to be
numbered as Application No. 31916202305949. The said application
came to be “Filed” by District Collector vide order dated 20.11.2023 on
the ground of negative opinion by the Deputy Collector, Stamp duty
Valuation with regard to the Mutation Entry No. 3019.
6. Mr. Vimal Purohit, learned advocate that while processing NA
application, the District Collector has not taken into consideration the
Entry No. 3019 in its true spirit and has not even verified whether the
survey number mentioned in the said entry are subject matter
involved in the revised NA application so far as this stamp duty is
concerned.
6.1. It is further submitted that the entry clearly reflects that there
were 18 survey numbers in the ownership of the petitioner out of
which the family partition was only in seven survey numbers. That,
while rejecting the revised NA application, the District Collector has
also included those survey numbers which were not a part of the
seven survey numbers and has committed an error apparent on the
face of the record.
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7. Mr. Purohit, learned advocate relies on the judgment rendered
in the case of Laxmi Associates v. Collector, Vadodara reported in
2006 (3) GLR 1982 .
8. Ms. Pancholi, learned AGP is not in a position to controvert the
aforesaid factual position, however, submits that it be kept open for
the respondent authority to take appropriate steps, if there is any
stamp duty payable by the petitioner herein in accordance with law.
ANALYSIS:
9. Having heard the learned advocates appearing for the respective
parties, it is not in dispute that the petitioner herein is in receipt of a
valid NA permission dated 08.08.2012 duly produced on record at
Annexure-C. The petitioner herein approached the respondent
authority for revised NA under Section 65A of the Code which, in the
opinion of this Court, came to be declined on an erroneous ground
and in gross utilisation of powers relying on the deficit stamp duty
paid by the petitioner for land in question for which separate
proceedings are initiated by the competent authority. Even otherwise,
the impugned order is beyond jurisdiction.
9.1. At this stage, it is apposite to refer to the decision rendered in
the case of Laxmi Associates v. Collector, Vadodara reported in
2006 (3) GLR 1982 , more particularly, page no. 4, paragraph No. 12,
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which reads thus:
“12. There is much substance in the second submission of Mr.
Hawa also. Ordinarily when a transfer of property takes place by
a registered account, an entry is effected in the revenue record
and it is certified by the Mamlatdar after making necessary
inquiries. If there is any dispute regarding mutation, the dispute
has to be entered in the register of the disputed cases, and then
such disputes are to be disposed of by the Mamlatdar. Under
sub-rule (5) of Rule 108 of the Rules, the aggrieved party can
prefer an appeal within 60 days from the date of the service of
the order. The State Government has power to call for and
examine the record of any enquiry or the proceedings of any
subordinate revenue officer and to review the same under sub-
rule (6) of the rules. It is to be noted in the present case that no
appeal had been presented within 60 days from the date of
Mamlatdars order certifying the initial entry. The Assistant
Collector, Surat took the said entry in suo motu revision, even
though, he had no such power under the provisions of Rule 108.
It, therefore, appears that the additional Chief Secretary,
Revenue Department remanded the proceeding to the Collector for
treating the same as an appeal. This was done after a period of 4
years after the certification of the entry. It was only the State
Government which had the power to call for a record of inquiry of
proceeding under sub-rule (6) of Rule 108. Even the State
Government was empowered to satisfy itself "as to the regularity
of such proceedings and as to the legality or propriety of any
decision or order passed in such proceedings.” So, the entire
inquiry and revisional power has to proceed under the Bombay
Land Revenue Rules and not under any enactments like the
Bombay Tenancy and Agricultural Lands Act, Under Land
(Ceiling And Regulations) Act or Bombay Prevention of
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Fragmentation and Consolidation of Holdings Act. It is quite
possible that an officer of the Revenue Department may be
occupying different capacities under not empower him to exercise
any powers under one enactment while proceeding under
another enactment. So far as the proceeding under Rule 108 of
the Rules, popularly known as R.T.S. proceedings, are concerned,
it is well settled that the entries made in the revenue records
have primarily a fiscal value and they do not create any title.
Such mutations have to follow either the documents of title or the
order passed by competent authority under special enactments.
Independently, the Revenue authorities, as mentioned in Rule
108 of the Rules, cannot pass orders of cancelling the entries on
an assumption that the transaction recorded in the entry are
against the provisions of a particular enactment. Whether the
transaction is valid or not has to be examined by the competent
authority under the particular enactment by following the
procedure prescribed therein, and by giving an opportunity of
hearing to the concerned parties likely to be affected by any order
that may be passed. Thus, on this second ground also the orders
of the Collector and the additional Chief Secretary appear to be
beyond their jurisdiction. The additional Chief Secretary has held
that the sale by auction was not consistent with the provisions of
Section 27 of the Urban Land (Ceiling and Regulation) Act.
Section 27 relates to prohibition of transfer of any urban land
with a building thereon. Apart from legal position that Section 27
has been struck down as ultra vires, it is quite obvious that no
such question of transferring urban land with a building thereon
has ever arisen in the present case. Thus, the order of the
revisional authority has proceeded on a misconception of relevant
legal provisions also.”
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9.2. Further, while processing the revised NA application, the
respondent no. 2 failed to properly consider Entry No. 3019 and did
not verify whether the survey numbers mentioned in the said entry
were the subject matter involved in the revised NA application insofar
as the issue of stamp duty was concerned.
9.3. The said entry clearly reflects that, out of 18 survey numbers
standing in the ownership of the petitioner, the family partition
pertained only to seven survey numbers. However, while rejecting the
NA application, the District Collector also considered those survey
numbers which were not part of the said seven survey numbers,
thereby rendering the impugned order erroneous and unsustainable
in law.
9.4. The principles governing Section 65 of the Code for changing
agricultural to non-agricultural purpose would also be applicable for
change of use of land from non-agricultural to use a different non-
agricultural purpose use specified in clauses(b) to (e) of Sub-Section
(1) of Section 48 of the Code.
10. At this stage, it is apposite to refer to the ratio laid down in
Letters Patent Appeal No. 1181 of 2025 and allied matters with CA (for
condonation of delay) No. 4716 of 2025, wherein, the Hon’ble Division
Bench reiterated the ratio laid down in Tusharbhai Ghelani. It is
apposite to refer to paragraph no. 14 to 18 and 25 of the said
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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
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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 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
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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.”
10.1. It is also apposite to refer to the ratio laid down by the Hon’ble
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Court in the case of Tusharbhai Harjibhai Ghelani and Anr. v/s.
State of Gujarat and Ors. reported in 2019 (4) GLR 2578 , relevant
paragraph nos. 34 to 44 reads thus:
“34. Tested on the touchstone of the above principles, the
impugned order passed by the Collector, in my view, is not
sustainable.
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 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
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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 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
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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.
th
41. A perusal of the impugned order dated 19 November, 2014
passed by the Collector makes it clear that the reason for the
rejection of the application of the writ applicants is that their title
to the land in question is defective on the ground that two civil
suits are pending.
42. In State of Gujarat v. Patel Raghav Natha,(1969)2 SCC 187,
the Supreme Court has clearly held as below ”14. We are also of
the opinion that the Commissioner should not have gone into
question of title. It seems to us that when the title of an occupant
is disputed by any party before the Collector or the Commissioner
and the dispute is serious the appropriate course for the Collector
or the Commissioner would be to refer the parties to a competent
Court and not decide the question of title himself against the
occupant.”
43. This was also a case where the NA Permission under the
provisions of Section 65 of the Code was in issue. The above
principles of law therefore, squarely apply to the present case.
44. Considering the provisions of Section 65 of the Code as well
as the above pronouncement of law by the Supreme Court, this
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Court cannot but arrive at the inevitable conclusion that the
denial of NA Permission to the writ applicants under the garb of a
purportedly defective title over the land in question amounts to a
transgression of the limits of jurisdiction vested in the second
respondent under the Code. The impugned order is, therefore,
one without jurisdiction. For such reason also the plea of
alternative remedy should fail.”
11. Considering the aforesaid, in light of the position of law as
referred to herein-above, in the facts of the present case and for the
reasons as referred to herein-above, the impugned order dated
20.11.2023 passed by the respondent no. 2 – District Collector, in
exercise of powers under Article 226 of the Constitution of India is
quashed and set aside. It is open for the petitioner herein to apply
afresh for revised NA permission under Section 65A of the Code and
the same be decided by the respondent no. 2 in accordance with the
powers as provided under Section 65A of the Code, in line with the
ratio as referred to herein-above in the case of Tushar Ghelani (supra),
as confirmed in the Letters Patent Appeal No. 1181 of 2025 within the
statutory period.
12. Accordingly, the present petition stands allowed. Rule is made
absolute.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J)
KUMKUM
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