Gujarat High Court
Rasiklal Manikchand Dhariwal (Huf) & 2 vs State Of Gujarat & on 21 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/18874/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18874 of 2015
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RASIKLAL MANIKCHAND DHARIWAL (HUF) & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS VIDHI J BHATT,
ADVOCATE for the Petitioner(s) No. 1 - 3
MS NISHA THAKORE, AGP ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 21/09/2017
ORAL ORDER
1. By this writapplication under Article 226 of the Constitution of India, the writapplicants have prayed for the following reliefs: 32(A) to declare the inaction on the part of the respondent Collector in informing the petitioners of his decision on the applications made by them for change of use of the subject properties from industrial use to commercial use as envisaged under sections 65 and 65A of the Gujarat Land Revenue Code, 1879 as illegal, being in violation of the provisions of the Code, arbitrary, unreasonable and thus violative of Articles 14, 19(1)(g) and 300A of the Constitution of India;
(B) to issue a writ of mandamus commanding the respondent, Collector to inform the petitioners of his decision on the applications made by them for change of use of the subject properties from industrial use to commercial use as envisaged under Sections 65 and 65A of the Gujarat Land Revenue Code, 1879;
(C) to declare that the petitioners have a legal right to assume the permission applied for them is deemed to have been granted by the Collector under section 65 of the Gujarat Land Revenue Code, 1879 in Page 1 of 12 HC-NIC Page 1 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER view of the inaction on the part of the Collector in informing the petitioners of the decision taken by him;
(D) pending admission and final hearing of the petition, to allow the petitioners to proceed with the development of the properties as per the development permission granted by Vadodara Municipal Corporation on 16.10.2014; and (E) to pass any other and/or further order, as deemed fit, in the interest of justice.
2. The writapplicants herein claim to be the lawful owners and occupiers of the land bearing City Survey No.1138 of Village Subhanpura, Taluka Vadodara (consolidated City Survey No.1138 to 1164, 1240 to 1242), admeasuring 57,959 sq.mtrs. and bearing City Survey No.383 (part) of village Wadi Wadi, Taluka Vadodara, admeasuring 6354.21 sq.mtrs., aggregating 64313.21 sq,mtrs. It appears that on the land in question, there is construction of about 50,000 sq.ft. This construction was put up by the erstwhile owner Ambalal Sarabhai Enterprises Limited, a company incorporated under the Companies Act, 1956.
3. To give a fair idea as to how the applicants derived the land in question, I take note of the following pleadings made in the writ application.
3. By a registered Deed of Conveyance, registration no.15275 Book 1 dated 21.10.2008, the petitioners herein purchased plots of land bearing City Survey No.1138 of village Subhanpura, Taluka Vaodara (consolidated City Survey No.1138 to 1164, 1240 to 1242 admeasuring 57, 959 sq.mtrs. and bearing City Survey No.383 (part) of village Wadi Wadi, taluka Vadodara, admeasuring 6354.21 sq.mtrs. and thus the total property admeasuring 64313.21 sq.mtrs., including building having constructed area approximately 50,000 sq.ft. from Ambalal Sarabhai Enterprises Limited, a company incorporated under the Companies Act, 1956 having its registered office at Dr. Vikram Sarabhai Marg, Wadi Wadi, Vadodara 390023, Neptune Infrastructure, a partnership firm having its office at Gujarat Page 2 of 12 HC-NIC Page 2 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER Spun Pipe Compound, Samiala, Vadodara and Monet Securities Pvt. Ltd., a company incorporated under the Companies act, 1956 in the State of West Bengal and having its registered office at 7, Lyons Range, Room No.7, Third Floor, Kolkata - 700001. A copy of the said Conveyance Deed executed and registered on 21.10.2008 is annexed hereto and marked as AnnexureA.
5. The Properties of different Revenue Survey No. were acquired by Government of Gujarat under the provisions of the Land Acquisition Act, 1894 at the instance of M/s. Karamchand Premchand Private Limited sometime between the year 1958 and 1962. M/s. Karamchand Premchand Private Limited had paid the market value of the entire land as determined by the competent authority.
6. By a Deed of Indenture dated 1.7.1974, M/s. Karamchand Premchand Private Limited transferred the land of survey no.124, 125, 126/1, 126/2 and 127 along with other land and buildings, plant and machinery, etc. to Sarabhai Chemicals Private Limited (SCPL) by a registered saledeed dated 1.7.1974.
7. The name of the said Sarabhai Chemicals Private Limited was changed to M/s. Sarabhai Chemicals Limited, who in turn by a Deed of Indenture of Transfer dated 2.2.1978, transferred the said land in survey no.124, 125, 126/1, 126/2, 127 along with other land and buildings, plant and machinery, etc. to M/s. Elscope Private Limited.
8. By a Deed of Indenture dated 25.4.1978, M/s. Elscope Private Limited transferred the aforesaid land to M/s. Ambalal Sarabhai Enterprises Private Limited.
9. M/s. Karamchand Premchand Private Limited transferred land of Revenue Survey No.131/1, 131/2, 132 and 133 together with all the assets and liabilities, including buildings standing thereon, plant and machinery, equipment, current assets and liabilities, etc., to M/s. Packart Private Limited.
By a Deed of Indenture dated 14.2.1979, M/s. Packart Private Limited transferred all the assets and liabilities, including buildings standing thereon, plant and machinery, equipment, current assets and liabilities,etc. To M/s. Offisade Private Limited.
By a Deed of Indenture dated 15.2.1979, M/s. Offisade Private Limited transferred this land together with buildings standing thereon, plant and machinery, equipment, current assets and liabilities, etc. to M/s. ASEPL.
10. The name of ASEPL was changed to M/s. Ambalal Sarabhai Page 3 of 12 HC-NIC Page 3 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER Enterprises Limited in the year 2001 and thus, M/s. Ambalal Sarabhai Enterprises Limited became the absolute owner of the said land.
11. A Memorandum of Understanding was entered into on 31.7.2006 between Ambalal Sarabhai Enterprises Limited and Neptune Infrastructure as regards the land bearing survey no.124, 127 (part) and 126/1 and 126/2 of Subhanpura Gram and 54A part, Wadi Wadi admeasuring 27,764 sq.mtrs. on the terms and conditions mentioned therein, and the Addendum to the Memorandum of Understanding dated 31.7.2006.
12. A Memorandum of Understanding was entered into on 26.11.2006 between Ambalal Sarabhai Enterprises Limited and Neptune Infrastructure and Monet Securities Private Limited as regards the land bearing survey no.124(part), 131/1, 131/2, 132, 132/1 and 133 of Subhanpura admeasuring 29,320.10 sq.mtrs on the terms and conditions specified therein as amended by Memorandum of Agreement dated 28.7.2007.
13. Pursuant to the Board resolution dated 29.7.2006 Ambalal Sarabhai Enterprises Limited authorized Shri Krupesh Patel for Neptune and Monet to make an application as per rules and make representations on behalf of Ambalal Sarabhai Enterprises Limited for obtaining the approvals/clearances/permissions required under law from various Government/SemiGovernment authorities such as Vadodara Municipal Corporation/City Survey/Twon Planning Department/VUDA/ Collectorate/Electricity Board/ or any other appropriate authority and to carry out all necessary and required procedures for obtaining approval for development of the land/ properties of the company lying and situated at village Wadi Wadi and Subhanpura for the land bearing survey numbers as per the details given in the said letter of authority and Shri Krupesh Patel has been acting on the basis of such authority.
14. For good and sufficient reasons, Neptune Infrastructure and Monet Securities Private Limited had decided not to obtain conveyance of the said land in their favour and in exercise of the rights granted to them under three Memorandum of Understanding with Ambalal Sarabhai Enterprises Limited, requested the latter to execute a Deed of Conveyance in favour of the petitioners herein and had agreed to join for confirming the conveyance and thereby give their irrevocable consent for the sale of the said land in favour of the petitioners.
15. Thus, the aforesaid registered Conveyance Deed dated 21.10.2008 came to be executed in favour of the petitioners.
16. On 30.1.2008, Ambalal Sarabhai Enterprises Limited made an Page 4 of 12 HC-NIC Page 4 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER application to Collector, Vadodara, for grant of permission for change of use of the subject land from industrial use to commercial use. A copy of the said application dated 30.1.2008 is annexed hereto and marked as AnnexureB.
17. Pursuant to the aforesaid Conveyance Deed dated 21.10.2008 in favour of the petitioners, mutation of entry in favour of the petitioners was made in the property card on 27.10.2008. A copy of the extract from the property card is annexed hereto and marked as AnnexureC.
18. The petitioners state that on 1.12.2008 Vadodara Municipal Corporation accorded development permission for commercial use in respect of the subject property. A copy of the said development permission dated 1.12.2008 along with the approved plan is annexed hereto and marked as AnneuxreD.
4. It appears that according to the proposed modification in the Draft Revised Development Plan of the Vadodara Urban Development Authority under the Government Notification, Urban Development and Urban Housing Department, dated 08/09/2010, the area in which the subject land is situated, has been declared to be a Local Commercial Zone. The materials on record further reveal that the Ambalal Sarabhai Enterprises Limited preferred an application addressed to the Collector, Vadodara for change of the use of the subject land from Industrial Use to Commercial Use, dated 30/01/2008. It is almost nine years bynow, but unfortunately, the Collector has not been able to take any decision in this regard.
5. At this stage, Ms. Thakore, the learned AGP clarified that the application of Ambalal Sarabhai Enterprises Limited, which the Court is referring to, was not considered, but in the meantime, the land came to be purchased by the writapplicants. They filed a fresh application in the year 2008, which is still pending as on date. The confusion in the mind of the Collector is with regard to the acquisition of the land in question, Page 5 of 12 HC-NIC Page 5 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER which had taken place wayback in the year 1958. It appears that the Government acquired the land for a particular company. The record reveals that thereafter, the land has been transferred time to time in favour of the different parties and companies. No one has questioned those transactions till this date. At one point of time, the issue as regards the applicability of section44A of the Land Acquisition Act arose. This also came to be clarified by the State Government vide its communication dated 04/08/2010, which is at Page69 of the paper book. The communication reads as under: Revenue Department, Secretariat, Gandhinagar.
04082010 To, The Collector, Vadodara.
Subject: Land acquisition - Vadodara.
Ambalal Sarabhai Pvt. Ltd.
Regarding the land located at Mouje - Vadivadi, C.S.No.383 of S.No.54/A admeasuring 6554.21 sq. mt. and C.S.No.1138 of S.No.124 to 127, 131 to 133 admeasuring 57959 sq. mt.
Respected sir, With reference to your letter No. LAQ/ VASHI/1943/2009 dated 23092009 and other letters from time to time, this is to inform you that Ambalal Sarabhai Pvt. Ltd. made demand to grant permission for revise nonagriculture u/s - 67 of Land Revenue Act for the land, as mentioned above, located at Mouje - Vadivadi, bearing C.S.No. 388 of S.No.54/A admeasuring 6554.21 sq. mt. and at Mouje
- Subhanpura bearing C.S.No. 1138 of S.No. 124 to 127, 131 to 133 admeasuring 57959 sq. mt., but since the land in question was acquired as per the Entry No.155 made in Other Rights column of 7/12 of the land, change of name was made subject to compliance with the conditions. The land in question was acquired by M. Karamchand Premchand Pvt. Ltd. under the Land Acquisition Act and entry was mutated from time to time.
Looking the property card of City Survey No.383, the same has been Page 6 of 12 HC-NIC Page 6 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER entered in the name of Shri Anilkumar Parikh, the Director and President of Ambalal Sarabhai Pvt. Ltd. Thus, the land in question, despite the same had been acquired under the Land Acquisition Act, was sold from time to time without prior permission from the competent authority. The permission of the government is to be obtained first u/s 44(A) of the Land Acquisition Act.
On seeking guidence from the Legal Department with the aforesaid facts, as per the opinion of the Legal Department, Section 44(A) of the Land Acquisition Act has come into effect since 1962. Whereas, the land in question was acquired prior to that. Besides, the land was sold before 40 years. Hence, Section44 (A) cannot be enforced. The amount of premium is also not to be recovered. Considering the same, the first sale is granted permission with retrospective effect. Whereas, there is no question to obtain permission or recover premium for the frequent mutation after that. Hence, it is requested to undertake futher procedure in this matter.
Yours faithfully, Sd./ illegible, (K.D. Upadhyay) Dy. Secretary Revenue Department, Gujarat Government.
6. It also appears that on the strength of the communication of the State Government dated 04/08/2010, the Collector passed a detailed order dated 27/08/2010, which is at Page68/A. The same reads as under: No.LAQ/Vashi/1102/2010 Additional Chitnish Branch, Kothi Building Compound, Collectorate, Vadodara.
Date : 27/08/2010 03/09/2010 T.No.(0265)2413299 / Fax.No.2431093 E.Mail.addchit[email protected] Perused :
(1) Letter No.Non agriculture/K.66/Vashi/90/09, dated 04/05/2009 of the Mamalatdar, Non agriculture.
(2) Part7 of the Land Acquisition Act1894, section44(A) of the Land Acquisition Company Rules, 1963 and rules5 and 8 of the Page 7 of 12 HC-NIC Page 7 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER Companies Rules1963.
(3) This office letter No.LAQ/Vashi/1843/2009, dated 17/09/2009. (4) Letter No.JVD/2909/2503/Dh, dated 07/10/2009 of the Government in Revenue Department.
(5) This Office Letter No.LAQ/Vashi/2096/2009, dated 15/10/2009. (6) Letter No.CTS/Vashi/335/09, dated 29/10/2009 of the City Survey Superintendent No.2, Vadodara.
(7) This office letter No.LAQ/Vashi/2163/2009, dated 27/11/2009. (8) Letter No.JVD/2909/2546/Dh, dated 09/05/2010 of the Government in Revenue Department.
(9) This office letter No.LAQ/Vashi/743/2010, dated 10/06/2010. (10) Letter No.JVD/2909/2502/Dh, dated 04/08/2010 of the Government in Revenue Department.
:: ORDER ::
The fact of this case is such that this matter arises as the application under section67 of the Land Revenue Code has been filed before the Mamalatdar (Non agriculture) seeking revised non agriculture permission of the lands located at moje Wadi wadi, Ta.Di.Vadodara bearing S.No.54/A paiki C.S.No.383 paiki admeasuring 6354.21 sq.mt. and the land in moje Subhanpura, Ta.Vadodara bearing S.No.124 to 127, 131 to 133 paiki C.S.No.1138 admeasuring 57959 sq.mt., in total admeasuring 64313.21 sq.mt.
It appears from the letter under reference 1 that the land in question was acquired under the Land Acquisition act for the industrial use. As Shri Anilkumar Harilal Parekh, the director of Amabalal Sarabhai Pvt.Ltd. sought for the revised non agriculture permission for the commercial use of the land in question, since it has been acquired for the industrial use, prior permission of the Government is to be sought for before change of use of the land. Therefore, the proposal has been made here.
Without prior permission of the Government, the lands acquired as per section44(A) of the Land Acquisition Act1894 cannot be mortgaged, sold, gifted or transferred through lease or any other means. In the instant case, it is clear that the original land holder has sold the land through registered sale deed - means he has not obtained prior permission of the Government. Thus, prima facie, it appears that there is violation of section44(A) of the Land Acquisition Act1894, section 44(A) of the Land Acquisition Company Rules, 1963 and rules5 and 8 of the Companies Rules1963.
Vide this office letter No.LAQ/Vashi/1844/2009, dated 17/09/2009, detailed proposal was made to the Government. Since there is violation of section44(A) of the Land Acquisition Act and rules5 and 8 of the Page 8 of 12 HC-NIC Page 8 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER Land Acquisition Companies Rules1963, the opinion has been given from this office to take steps against violation of conditions.
Vide letter No.JVD/2909/2503Gh, dated 07/10/2009 of the Government in Revenue Department, in this case the latest updates and whether additional lands have been made surplus have been called for. In response thereto, vide this office letter No.LAQ/Vashi/ 2061/2009, dated 07/10/2009, the information has been forwarded that as per mutation entry no.54 dated 01/12/1958 made in the land in question at moje Wadi wadi, Ta.Vadodara, the entry of consolidation of the survey numbers 54 to 79 has been done. Whereas, as per the Pahani patrak of the year 1943, the land bearing S.No.57 and 74 are the government fallow lands. The lands elsewhere have been consolidated on being acquired from the farmers. Thus, the survey number '54' has been formed after consolidation of the above survey numbers, the Government owned lands are also being included therein. As the City Survey was instituted in the year 1974, the city survey numbers to the land in question bearing S.No.54 were alloted as 382, 383, 384, 385 and 386. Looking at the details of Tika no.4 (resolution) of the City survey examination register, there is a road towards northern and western boundaries of the said survey number, and adjacent to the same there is village Subhanpura. It has been mentioned in the resolution of C.S. No.1974 that the land of the boundary road on western direction has been acquired from village Subhanpura on 27/12/1962. Whereas, regarding rest of the land of the road towards Northern side boundary admeasuring A.2 Gu.10 it was allotted on new tenure vide the order no.LND/303/61, dated 06/02/1961 of the Collector, Vadodara by taking the amount against possession right, the same has been included in the C.S. No.383, 388 and 386.
Vide this office letter No.LAQ/Vashi/2163/2009, dated 27/11/2009, the detailed submission has been made before the Government. Wherein, the mutation entry has been mutated vide no.2804 dated 27/10/2008 in the city survey records regarding selling of land in moje Wadi wadi, Ta.Vadodara bearing S.No.54/A paiki C.S.No.383 paiki admeasuring 6354.21 sq.mt. to Raskilal Manekchand Dhariwal. Whereas, the mutation entry of the sale of land in moje Wadi wadi, Ta.Vadodara bearing R.S.No.124 to 127, 131 to 133 paiki has been done vide C.S.No.1138 admeasuring 57959 sq.mt. in favour of Raskilal Manekchand Dhariwal, which has been entered in the city survey records on 27/10/2008. As per the city survey records, the road on boundary of this land in moje Subhanpura has not been included in the city survey number 1138.
As mentioned in the letter dated 29/10/2009 of the City Survey Superintendent no.2, Vadodara, the land bearing R.S.No.54 paiki Page 9 of 12 HC-NIC Page 9 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER C.S.No.383 paiki admeasuring 05255 sq.mt., C.S.No.385 paiki admeasuring 00596 sq.mt., C.S.No.386 paiki admeasuring 00144 sq.mt. in total admeasuring 05995 sq.mt. has been mentioned of the boundary road. On examination the records of above land, it did not appear that it has been sold.
Vide letter No.JVD/2909/2546/Dh, dated 09/05/2010 of preamble8 received through fax message from the Government in Revenue Department, the information was called for as to how much amount is to be recovered under provision of the Land Acquisition Act as 50 percent of the unearned amount, and how much portion of the land is open and how much portion is having construction. In response thereto, vide this office letter no.LAQ/Vashi/743/2010 dated 10/06/2010, the details were furnished that as per the Panchkyas done on 10/06/2010 in presence of the City Survey Superintendent No.2, there is presently the old construction admeasuring around 58 X 39 - 2262 sqmt, which is in ruined condition, rest of the land is open at the place in Subhanpura. There are remains of removing old construction lying and the details of area mentioned in the Panch kyas have been produced. Further, the details of area mentioned in the Panchkyas have been mentioned.
Vide the letter No.JVD/2909/2502/Dh, dated 04/08/2010 of the preamble - 10 of the Government in Revenue Department, the reply / clarification has been received. According to the same, as the revenue department sought for the guidance, as per guidance of the legal department, "Section44(A) of the Land Acquisition Act has been enacted with effect from the year 1962. Whereas, the land in question has been acquired prior to the same and this land has been sold before 50 years. Therefore, section44(A) can neither be applied nor the amount of premium is to be recovered. Considering the same, in connection with this matter, the retrospective effect of first sale has been given and thereby permission of selling has been granted.
Thereafter, there does not arise any question of getting permission for selling and to recover any amount in connection with selling done time to time." The instructions have been given by the revenue department to further carry out the procedure in the matter.
In connection with above fact, the permission has been given in this matter with retrospective effect of first selling. Thereafter, on giving the instructions from the Government in Revenue department that the premium is not to be levied for the lands which have been sold / transferred time to time, since the instructions have been given to further carry out the procedure in this matter, with reference to the said order, by forwarding the copy of the letter dated 04/08/2010 of the Government in Revenue Department, the Mamalatdar (Non Agriculture) is ordered to carry out necessary procedure as per the rules under section67 of the Land Revenue Code.
Page 10 of 12HC-NIC Page 10 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER (Vijay Nehra) Collector, Vadodara.
To, The Mamalatdar, Collectorate, Vadodara.
2/ With reference to your letter no.Non agriculture/S.66/Vashi/90/09, dated 04/05/2009, for information and to carry out further requisite procedures as per the rules. (The case papers are enclosed herewith from page no.1 to ...)
7. As noted above, the land in question is no more in the industrial zone. The same now falls in the Local Commercial Zone. In such circumstances, this Court fails to understand what is coming in the way of the Collector in passing the appropriate order on the application filed by the applicants way back in the year 2008. It was expected of the Collector to take an appropriate decision once having sought clarification in the year 2010 from the State Government and having passed an order dated 27/08/2010, which is at page68/A referred to above. Even as on today, if the Collector has any good ground to decline the permission, it is always open for him to assign the reasons, but it is not clear what are those grounds, on which, the Collector is not able to pass an appropriate order and is in state of confusion.
8. In such circumstances referred to above, I direct the Collector, Vadodara, to take into consideration the application of the applicants filed in the year 2008 and take an appropriate decision in this regard by passing an appropriate order in writing within a period of four weeks from the date of the receipt of this order. The applicants may also be heard in this regard for the purpose of clarifying the issue, if need be.
9. With the above directions, this writapplication is disposed of in Page 11 of 12 HC-NIC Page 11 of 12 Created On Sat Oct 07 04:47:29 IST 2017 C/SCA/18874/2015 ORDER the hope that there is no second round of litigation in this regard. While taking an appropriate decision, the Collector shall keep in mind the communication of the State Government, dated 04/08/2010 as well as its own order dated 27/08/2010 referred to above.
Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 12 of 12 HC-NIC Page 12 of 12 Created On Sat Oct 07 04:47:29 IST 2017