Case Note & Summary
The petitioner, Shradhdha Land Corporation & Organisers, filed a Special Civil Application under Article 226 of the Constitution of India before the Gujarat High Court challenging an order dated 3/12/1988 passed by the second respondent (Deputy Collector) cancelling the Non-Agricultural Use (NA) Permission granted under Section 65 of the Gujarat Land Revenue Code, 1879. The subject land, Survey No.91, Block No.78, situated at Village Mota Borsara, Taluka Mangrol, District Surat, admeasuring 5 Acres 29 Guntha, was originally owned by respondent Nos.3 and 4 by way of heirship and was of restricted tenure under Section 43 of the Gujarat Tenancy and Agricultural Land Act, 1948. On 03.08.1982, the respondent Nos.3 and 4 applied for NA Permission to use the land for non-agricultural purpose. The Deputy Collector granted NA Permission on 07.10.1982. Subsequently, the petitioner purchased the land from respondent Nos.3 and 4. However, the Deputy Collector, by order dated 3/12/1988, cancelled the NA Permission on the ground that it was granted without obtaining prior consent of the Collector as required under Section 43 of the Tenancy Act. The petitioner challenged this cancellation. The court framed the issue whether the NA Permission granted without prior consent under Section 43 of the Tenancy Act is valid. The petitioner argued that the cancellation was arbitrary and that the petitioner had acquired rights in the land. The respondents contended that the NA Permission was void ab initio for want of mandatory consent. The court analyzed Section 43 of the Tenancy Act, which prohibits transfer or use of restricted tenure land for non-agricultural purposes without the previous consent of the Collector. The court held that the NA Permission under Section 65 of the Code is subject to the provisions of the Tenancy Act, and without the requisite consent, the permission is void. The court further held that a void order cannot be validated by delay or laches, and the petitioner cannot claim any rights based on a void permission. The court dismissed the petition, upholding the cancellation order.
Headnote
A) Land Revenue - Non-Agricultural Use Permission - Section 65 Gujarat Land Revenue Code, 1879 read with Section 43 Gujarat Tenancy and Agricultural Land Act, 1948 - Validity of NA Permission - The petitioner challenged the cancellation of NA Permission granted for land of restricted tenure - The court held that NA Permission under Section 65 of the Code cannot be granted without prior consent of the Collector under Section 43 of the Tenancy Act, and such permission granted without consent is void ab initio - The petitioner cannot claim any rights based on a void permission, and delay or laches cannot validate a void order (Paras 1-14).
Issue of Consideration
Whether the Non-Agricultural Use Permission granted under Section 65 of the Gujarat Land Revenue Code, 1879 for land of restricted tenure under Section 43 of the Gujarat Tenancy and Agricultural Land Act, 1948, without prior consent of the Collector, is valid and whether the petitioner can claim any rights based on such permission.
Final Decision
The petition is dismissed. The order dated 3/12/1988 cancelling the NA Permission is upheld.
Law Points
- Non-Agricultural Use Permission under Section 65 of Gujarat Land Revenue Code cannot be granted without prior consent of the Collector under Section 43 of Gujarat Tenancy and Agricultural Land Act
- 1948 for lands of restricted tenure
- NA Permission granted without such consent is void ab initio
- Petitioner cannot claim rights based on void permission
- Delay and laches cannot cure a void order
