Gujarat High Court
Madhu Developers vs State Of Gujarat & 2 on 10 December, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/18936/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18936 of 2015
With
CIVIL APPLICATION NO. 13023 of 2015
In
SPECIAL CIVIL APPLICATION NO. 18936 of 2015
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MADHU DEVELOPERS....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR MEHULSHARAD SHAH, ADVOCATE for the Petitioner(s) No. 1
MR. RAKESH PATEL AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 10/12/2015
ORAL ORDER
1. The prayer made in the petition is to direct the Collector to grant revised N.A. permission by charging necessary conversion charges as per the provisions of Gujarat Revenue Code. It appears that the Gujarat Revenue Tribunal passed order dated 31/08/2015 setting aside the order dated 12/02/2015 passed by the Deputy Collector and remanded the matter to pass amended order by holding that since the land was already converted for N.A. purpose, the petitioner is required to pay Page 1 of 6 HC-NIC Page 1 of 6 Created On Sat Dec 12 02:01:46 IST 2015 C/SCA/18936/2015 ORDER premium only for commercial use of the land.
2. The grievance of the petitioner is that though such order of the Tribunal has become final and that the petitioner is not required to pay any other premium under Section 43 of the Tenancy Act, the Collector still insisted for payment of such premium for the purpose of conversion of the land under Section 43 of the Tenancy Act, and on such insistence, the application of the petitioner for revised N.A. permission is not being considered.
3. This Court on 6.11.2015 passed following order: Notice returnable on 23rd November,2015. Learned AGP Ms. Thakore appearing for respondent No.1 on advance copy waives service of notice for respondent No.1. Direct Service for rest of the respondents is permitted. Learned Advocate Mr. Shah states that the petitioners are agreeable to deposit the amount of premium as stated in the impugned order dated 12.2.2015 without prejudice to the rights of the petitioners and subject to the rights and contentions of the parties. Therefore, on returnable date, respondent No.2 Collector may state on affidavit as to whether the amount from the petitioner as required by the impugned order could be accepted for considering the application of the petitioner for revised permission.
4. The Collector then filed affidavit inter alia stating Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Dec 12 02:01:46 IST 2015 C/SCA/18936/2015 ORDER that the State would be entitled to get premium as on the date of the decision, that by filing the undertaking by the petitioner to deposit of amount of premium, the petitioner wants to secure advance rates and wants to avoid deposit of the premium as on the date of actual decision. Pending the petition, the petitioner has now filed application being Civil Application No. 13023 of 2015, seeking permission to deposit the premium amount as demanded by the Collector for grant of N.A. permission for land in question without prejudice to the rights and contentions of both the parties and subject to final outcome of the proceedings of the main petition.
5. Learned advocate Mr. Shah submitted that since the order of the Tribunal is not challenged, the Collector was required to grant the revised N.A. permission by accepting the amount of N.A. premium for commercial use. Mr. Shah submitted that the petitioner however in order to avoid any delay in developing the land wants to deposit the premium amount even under Section 43 of the Tenancy Act so that the application for revised N.A. permission could be granted and the petitioner could develop the land.
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6. Learned AGP Mr. Patel on the other hand submitted that till the question involved in the matter as to whether the petitioner is liable to pay premium on conversion under Section 43 of the Tenancy Act is decided, the petitioner in advance could not be permitted to pay the amount as the relevant date for such premium will be date of decision, and therefore by permitting the petitioner to deposit such amount in advance, the interest of the State to collect appropriate revenue shall be affected.
7. The Court having heard learned advocates for the parties finds that the petitioner has already succeeded before the Gujarat Revenue Tribunal in Revision Application No. 26 of 2015, which was filed against the order dated 12/02/2015 passed by the Deputy Collector, whereunder the application of the petitioner for N.A. permission for commercial use was disposed of on the ground that the petitioner did not give consent to deposit the amount of premium under Section 43 of the Tenancy Act as per the prevailing jantri.
8. The Collector, however, is of the view that the petitioner would still be required to pay premium under Section 43 over and above the premium paid for change of use under Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Dec 12 02:01:46 IST 2015 C/SCA/18936/2015 ORDER Section 65, as the permission which was granted under Section 65 lapsed because of noncompliance of the condition of the order passed under section 65. However, the Court finds that as per the communication dated 12/02/2015 of the Deputy Collector, if the petitioner had given undertaking, his application for change of use could be considered. The petitioner has then succeeded before the Tribunal. In such facts situation, now when the petitioner is ready to deposit such premium subject to his rights and contentions in the main petition, the Court finds that there should not be any objection on the part of the State Authority.
9. In view of the above, Rule returnable on 27/06/2016. Learned AGP Mr. Patel waives service of Rule for the respondents.
10. By way of interim relief, it is directed that the petitioner shall be permitted to deposit the amount of premium as required under Section 43 of the Tenancy Act. However, such deposit of the premium by the petitioner shall be without prejudice to the rights and contentions of the parties and subject to the final outcome of the main petition.
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11. Learned Advocate Mr. Shah states that the petitioner shall deposit of such premium within 15 days from today with the office of Collector. On such deposit made by the petitioner, the collector shall take further action on the application preferred by the petitioner for revised N.A. permission.
12. It is directed if the petitioner succeeds in the present petition, the petitioner shall be entitled to refund of amount, deposited by the petitioner in pursuace of the present order with interest.
Order in Civil Application No. 13023 of 2015.
Since the Court passed an interim order in main petition, no order is required on the civil application. Hence, it is disposed of.
(C.L.SONI, J.) MANOJ KUMAR Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Dec 12 02:01:46 IST 2015