Gujarat High Court
Rajput Motiji Mansingji Since Decd Thro ... vs CollectorBanaskantha & 3 on 7 May, 2014
Author: M.R. Shah
Bench: M.R. Shah
C/SCA/11797/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11797 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? NO
3. Whether their Lordships wish to see the fair copy NO
of the judgment ?
4. Whether this case involves a substantial question NO
of law as to the interpretation of the constitution
of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ? NO
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RAJPUT MOTIJI MANSINGJI SINCE DECD THRO LEGAL HEIRS &
2....Petitioner(s)
Versus
COLLECTORBANASKANTHA & 3....Respondent(s)
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Appearance:
MR DJ BHATT, ADVOCATE for the Petitioner(s) No. 1 1.5 , 2 3
MR. DHAWAN JAYSWAL ASSIT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 4
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 07/05/2014
ORAL JUDGMENT
1.0. By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and order quashing and setting aside the order passed by the Collector, Banaskantha dated 30.3.1998 confirmed by the Revisional Authority Secretary, Revenue Department (Appeals), State of Gujarat dated 12.07.2003 as well as order dated 23.12.2004 of the Collector, Banaskantha and thereby remand the matter for determination of the Page 1 of 7 C/SCA/11797/2005 JUDGMENT price for the land in question in accordance with law bearing survey no. 8/1 of village Nagana, Tal: Vadgam, Dist. Banaskantha.
2.0. The facts leading to the present petition in nutshell are as under:
2.1. That the dispute is with respect to land bearing survey no.8/1 situated at village Nagana, Tal: Vadgam, Dist. Banaskantha. That the said land came to be purchased by the petitioners herein Rajput Motiji and others by registered sale deed. That the proceedings were initiated before the Deputy Collector, Palanpur pursuant to the report made by Mamlatdar for breach of condition on the ground that the said land is a new tenure land. A show cause notice came to be issued on 19.5.1976. The purchasers - petitioners and others appeared before the learned Deputy Collector, Palanpur submitting that there is no breach of condition as nothing is on record that the land is of new tenure land.
That by order dated 3.6.1976 Deputy Collector, Palanpur withdrew the said show cause notice. That the Collector, Banaskantha took the order passed by the Deputy Collector, Palanpuar dated 3.6.1976 in suo motu revision being Revision Application No. 36 of 1983 and by order dated February 1984 set aside the order passed by the Deputy Collector, Palanpur in exercise of suo motu revisional powers under Section 211 of the Bombay Land Revenue Code and held that there is a breach of condition as the land in question is a new tenure land and ordered to forfeit the said land to the government.
2.2. Feeling aggrieved and dissatisfied with the order passed by the Collector, Banaskantha dated February 1984 passed in Revision Application No. 36 of 1983, the purchasers petitioners preferred revision application before the State Government Secretary, Revenue Page 2 of 7 C/SCA/11797/2005 JUDGMENT Department (Appeals) and by order dated 5.9.1984, the Revisional Authority allowed the said revision application and set aside the order passed by the Collector, Banaskantha and remanded the matter to the Collector, Banaskantha by observing that it will be open for the Collector to initiate the proceedings for regularization the transaction by recovering the amount and the penalty. That thereafter, the Collector passed an order dated 15.12.1986 to recover two and half time market price at the rate of Rs.3000/ per acre by way of penalty i.e. Rs.53,440/ 2.3. Feeling aggrieved and dissatisfied with the order passed by the Collector, Banaskantha considering the market price at the rate of Rs. 3000/ per acre for the purpose of levying penalty - two and half time i.e. Rs. 53,400/, the petitioners preferred revision application before the Revisional Authority, Secretary (Appeals), Revenue Department being Revision Application No. SRD/JMN/BNS/1/ 1987 and by order dated 30.9.1994, the Revisional Authority partly allowed the said revision application and set aside the order passed by the Collector, Banaskantha dated 15.12.1986 and remanded the matter to the Collector to decide the market price of the land afresh and after giving an opportunity to the petitioners. That thereafter, the Collector, Banaskantha again passed an order dated 30.3.1998 by observing that request of the applicant to reduce the amount is not accepted. The Collector, Banaskantha also passed an order that if the petitioners are ready and willing to pay the prevalent market price and fresh application is made and the petitioners are ready and willing to pay prevalent market price, the same shall be considered, failing which within 60 days fresh order shall be passed forfeiting the land to the Government and to dispose of the land.
2.4. Feeling aggrieved and dissatisfied with the order passed by Page 3 of 7 C/SCA/11797/2005 JUDGMENT the Collector, Banaskantha dated 30.3.1998, the petitioners preferred revision application before the Secretary (Appeals), Revenue Department, State of Gujarat being Revision Application No. MVV/JMN/BNS/44/1998 and by impugned judgment and order dated 12.07.2003 learned Secretary, Revenue Department dismissed the said revision application confirmed the order passed by the Collector, Banaskantha dated 30.3.1998. It appears that thereafter, the Collector, Banaskantha has passed fresh order dated 23.12.2004 directing the petitioners to pay market price at the rate of Rs. 12/ per sq mtr and prevalent market price as determined by the District Land Valuation Committee as on 31.11.2004 and by the aforesaid communication petitioners are called upon to submit that they are liable to pay two and half times market price at the rate of Rs.12 per sq mtr.
2.5. It is required to be noted that in the meantime by communication dated 13.11.2003 addressed to the Collector, Banaskantha as well as Mamlatdar, Vadgam, the petitioners stated that they are ready and willing to pay two and half times of market price i.e. Rs.53,440/ as ordered earlier as they are challenged is failed upto Secretary (Appeals). That thereafter also, the petitioners have represented to the Collector vide Communication dated 14.3.2005 requesting to reconsider his earlier decision to pay market price at the rate of Rs.12 per sq mtr. However, by ordered dated 27.4.2005 the Collector has passed an order to restore the earlier order dated 30.3.1998 by observing that the petitioners are not agreeable to pay two and half times penalty considering the market price at Rs.12 per sq mtrs. Hence, petitioners have preferred present Special Civil Application under Articles 226 & 227 of the Constitution of India.
3.0. Shri D.J. Bhatt, learned advocate for the petitioners has Page 4 of 7 C/SCA/11797/2005 JUDGMENT vehemently submitted that as such the petitioners were aggrieved by the order passed by the Collector directing the petitioners to pay total sum of Rs. 53,440/ for regularization of their sale transaction, which came to be confirmed, however upon remand by the Joint Secretary, the market price as on 30.11.2004 has been demanded from the petitioners i.e. at the rate of Rs. 12 per sq mtr. It is submitted that at the most the petitioners should have been directed to pay Rs. 53,440/ being two and half times the market price determined earlier. It is submitted that on remand Collector could not have been gone beyond earlier determination of the market price - two and half times of market price i.e. Rs.53,440/. It is further submitted by Shri Bhatt, learned advocate for the petitioners that as such after the petitioners failed in proceedings challenging the order directing the petitioners to pay Rs.53,440/ for regularization of their sale transaction, the petitioners were ready and willing to pay the amount of Rs.53,440/ and for which the petitioners also made application / representation to the Collector, Banaskantha as well as Mamlatdar, Vadgam. It is submitted that, therefore, the subsequent order passed by the Collector directing the petitioners to pay two and half times market price i.e. Rs.12 per sq. mtr., the market price determined by the District Land Valuation Committee in its meeting dated 31.11.2004, cannot be sustained and the same deserves to be quashed and set aside.
4.0. Shri Dhawan Jayswal, learned AGP has appeared on behalf of the respondent State. He has tried to oppose the present petition, however has failed to justify the order passed by the Collector dated 23.12.2004 and the subsequent orders directing the petitioners to pay two and half times market price i.e. at the rate of Rs.12 per sq. mtr., on the basis of market price determined by the District Land Valuation Committee in its meeting dated 31.11.2004. He is also not in a position Page 5 of 7 C/SCA/11797/2005 JUDGMENT to justify as to earlier what was challenged by the petitioners was directing the petitioners to pay Rs.53,440/ being two and half times market price for regularization of sale transaction.
5.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that earlier the Collector, Banaskantha passed an order directing the petitioners to pay Rs.53,440/ being two and half times of market price prevailing at the relevant time, for the purpose of regularization of sale transaction with respect to land bearing survey no.8/1. However, the petitioners were dissatisfied with the same and therefore, they challenged the aforesaid order and Secretary (Appeals), Revenue Department as such remanded the matter to the Collector for redetermination of the market price. However, subsequently by passing order dated 23.12.2004, on remand the Collector has determined the market price at the rate of Rs.12 per sq mtr considering the market price by the District Land Valuation Committee in its meeting held on 31.11.2004 and thereafter the petitioners are called upon to make aforesaid payment failing which the land in question is ordered to be forfeited. When earlier Collector passed an order directing the petitioners to pay Rs.53440/ being two and half times of market price prevailing at the relevant time and when the same came to be challenged before the Secretary (Appeals), Revenue Department and the Revisional Authority remanded the matter to the Collector for deciding the market price afresh, in any case, the Collector could not have been gone beyond Rs. 53440/. Subsequent orders passed by the Collector dated 23.12.2004 and other subsequent orders directing the petitioners to pay two and half times market price at the rate of Rs.12 per sq mtr and failing which to forfeit the land, cannot be sustained. At the most the petitioners would have been directed to pay Rs.53440/ determined earlier. Therefore, orders passed by the Collector Page 6 of 7 C/SCA/11797/2005 JUDGMENT directing the petitioners to pay two and half times of market price at the rate of Rs.12 per sq mtr for regularization of sale transaction with respect to land bearing survey no.8/1, cannot be sustained and at the most the petitioners are required to be directed to pay Rs.53440/ with reasonable interest thereon. As observed hereinabove, the petitioners have already agreed to pay / deposit Rs.53440/ towards penalty for regularization of sale transaction.
6.0. In view of the above and for the reasons stated above, the impugned orders passed by the Collector, Banaskantha confirmed by the Secretary (Appeals), Revenue Department, State of Gujarat directing the petitioners to pay penalty for regularization of sale transaction at the rate of Rs.12 per sq mtr considering the market price as on November 2004 and consequently on non payment of the same to forfeit the land in question are hereby quashed and set aside and it is directed that on payment of Rs. 53440/ towards penalty for regularization of sale transaction with respect to land bearing survey no.8/1 of Village Nagana, Tal: Vadgam, Dist. Banaskantha with 6% interest from the earlier order passed by the Collector i.e. from the first order dated 15.12.1986 passed by the Collector, Banaskantha till the amount of Rs.53,440/ is paid. It appears that petitioners have deposited Rs.53,440/ pursuant to the interim order passed by this Court and therefore, now the petitioners are required to pay interest at the rate of 6% p.a on the aforesaid amount i.e. Rs.53,440/ from the date of first order i.e. 15.12.1986 till the aforesaid amount of Rs.53,440/ is paid within a period of four months from today, failing which necessary consequence shall follow. Rule is made absolute to the aforesaid extent. No costs.
sd/ (M.R.SHAH, J.) Kaushik Page 7 of 7