Simandhar Swami Aradhna Trust vs State Of Gujarat on 10 October, 2019

[Cites 2, Cited by 1]

Gujarat High Court

Simandhar Swami Aradhna Trust vs State Of Gujarat on 10 October, 2019

Bench: Vipul M. Pancholi

        C/SCA/10003/2017                                JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO.        10003 of 2017

                            With
       CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
       In R/SPECIAL CIVIL APPLICATION NO. 10003 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the
      fair copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

==========================================================
          SIMANDHAR SWAMI ARADHNA TRUST & 1 other(s)
                             Versus
                 STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR SI NANAVATI, SENIOR ADVOCATE WITH MR.D K.PUJ(3836) for
the Petitioner(s) No. 1
MR MAULIK R SHAH(6385) for the Petitioner(s) No. 2
MS ANUJA S NANAVATI(5229) for the Petitioner(s) No. 1,2
MR KM ANTANI, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1,2
==========================================================

    CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

                           Date : 10/10/2019

                             ORAL JUDGMENT

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C/SCA/10003/2017 JUDGMENT

1. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioner has prayed for the following main relief/s:

"(A) THIS HON'BLE COURT may be pleased to issue a Writ of Mandamus and/or a Writ of Certiorari or any other appropriate writ, order or direction quashing and setting aside the Communication cum Order dated 23.03.2017 passed by Respondent No.2 -

      Collector,       Gandhinagar        bearing
      No.CB/Ganot/Vashi975      to      976/2017

(Annexure "A"Colly. hereto) and further be pleased to direct Respondents to issue N.A. Use permission under Section 65 of the Gujarat Land Revenue Code, 1879 without insisting for the payment of additional premium and as per the judgment delivered by this Hon'ble Court in Special Civil Application No.405 of 2011;

(B) Pending hearing and final disposal of the present petition, THIS HON'BLE COURT may be pleased to stay the operation, implementation and execution of the impugned Communication cum Order dated 23.03.2017 bearing No.CB/Ganot/Vashi975 to 976/2017 passed by Respondent No.2 and further be pleased to restrains the Respondents not to take any coercive action in pursuance thereof and not to disturb the developed construction;

(C) An exparte adinterim relief in terms of Prayer (B) above may kindly be granted;"

2. Looking to the issue involved in the present petition, learned advocates appearing for the Page 2 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019 C/SCA/10003/2017 JUDGMENT parties jointly requested that this petition be disposed of finally at the admission stage. Hence, Rule. Learned AGP Mr. K.M.Antani waives service of notice of Rule qua respondent authorities.

3. Heard learned Senior Advocate Mr. S.I.Nanavati assisted by learned advocate Mr.D.K.Puj for the petitioners and learned Assistant Government Pleader Mr. K.M.Antani for the respondents.

4. The factual matrix of the present case is as under:

4.1. It is the case of the petitioners that petitioner No.1 is a registered religious charitable Trust and has been carrying out various religious and social activities since 09.02.1995. Petitioner No.2 is one of the trustees of petitioner No.1 Trust. The dispute is with regard to the land bearing original Survey No.295/2 admeasuring 13,622 sq. mtrs. (now given Block No.409/1) which was running under the head of Old Tenure, whereas the another parcel of land bearing original Survey No.295/1, 3 admeasuring 12,253 sq. mtrs. (now given Block No.409/2) which was running under the head of New Tenure. The petitioner Trust wanted to buy the aforesaid parcels of land for carrying out its activities and therefore application under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 Page 3 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019 C/SCA/10003/2017 JUDGMENT (hereinafter referred to as 'the Tenancy Act') was submitted to the competent authority. The permission under Section 63 of the Tenancy Act was granted by the Collector, Gandhinagar subject to conditions mentioned in the said order. Copy of the said order is produced at Annexure C with the compilation. Condition No.3 of the said order provides for fixation of and payment of premium for obtaining permission for conversion of land from restricted tenure.

4.2. It is further stated that petitioner Trust purchased the land admeasuring 25,875 sq. mtrs.

on 27.11.1999 by registered sale deed. Though the petitioners purchased land admeasuring 25,875 sq. mtrs. only, permission under Section 63 of the Tenancy Act was granted as if the petitioners have purchased land admeasuring 28200 sq. mtrs. Therefore, the respondent Collector, realizing the said mistake, rectified the order. Thereafter the petitioner requested for division of the Block.

4.3. It is further stated that on 05.10.2000, the Collector informed the petitioners that application submitted by the petitioners for conversion of the land into Old Tenure was allowed and as per the valuation made by the District Level Valuation Committee, the market price of the land in question was assessed to the tune of Rs.220/ per sq. meter. Petitioner was, Page 4 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019 C/SCA/10003/2017 JUDGMENT therefore, directed to pay 70% of the total market value of the land. Petitioner, therefore, paid the amount of premium to the tune of Rs.18,86,962/ along with the interest to the tune of Rs.4,07,584/ for conversion of land into Old Tenure for NA use.

4.4. It is also permission under C/SCA/10003/2017 dated 12.11.2010 passed as orders dated 06.07.2010 by the concerned respondent Collector the application permission afresh on merits and in accordance with law. stated that while granting href="/doc/53995741/" id="a_5">Section 43 of the Tenancy Act, imposed condition to obtain under Section 65 of the Bombay and to get the plans sanctioned Petitioners, therefore, application for development the competent authority. in the meantime submitted an extension of time before the the Collector, vide order asked the petitioners to pay as per the Circular dated Petitioners, therefore, inquired premium which is to be paid In response to the same, the the petitioner that it is pay premium to the tune of (Rupees One Crore Eighty Eight Thousand Thirty Eight only). The therefore, filed a petition being Application No.405 of 2011 before This Court disposed of the said and setting aside the order Page 5 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019 JUDGMENT by the Collector as well and 20.10.2010 passed respondent authorities. The was directed to reconsider of the petitioner for N.A. and decide the said application

4.5. It is stated that pursuant to the direction issued by this Court vide order dated 15.07.2016, now the respondent No.2 - Collector has passed fresh order on 23.03.2017 by which the petitioner is asked to make the payment of Rs.2,50,69,638/ by way of premium. Petitioner has, therefore, preferred this petition.

5. Learned Senior Counsel Mr. Nanavati mainly contended that the petitioners had already paid an amount of Rs.18,86,962/ along with the interest as per the order passed by the Collector at the relevant point of time and therefore in the first round of litigation when the Collector passed an order by which the petitioners were asked to pay the premium at Rs.1,88,13,038/ , petitioners preferred Special Civil Application No.405 of 2011. It is pointed out that this Court has specifically observed in para 14 of the order dated 15.07.2016 that when the petitioners had already paid the premium with interest and the petitioners had taken all bona fide steps to obtain necessary permission, the respondent State Page 6 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019 C/SCA/10003/2017 JUDGMENT or the respondent Collector could not have asked the petitioners to pay the additional premium at the prevailing jantri rate as sought to be demanded in the impugned orders. Thereafter, this Court has quashed and set aside the orders passed by the respondent Collector. In spite of that, now once again the respondent Collector without referring to the aforesaid order, asked the petitioners to pay the premium of Rs.2,50,69,638/ . It is, therefore, urged that the impugned order passed by the respondent Collector be set aside.

6. On the other hand, learned Assistant Government Pleader Mr. Antani has opposed this petition and contended that the respondent Collector has, while relying upon the circular issued by the State Government, decided the amount of premium which is to be paid by the petitioners and therefore no error is committed by the respondent Collector while passing the impugned order. It is submitted that the petitioners are required to pay the premium as per the prevailing Jantri rate. Hence, no error is committed by the respondent Collector. It is, therefore, urged that this petition be dismissed.

7. This Court has considered the submissions canvassed by learned advocate appearing for the parties. This Court has also considered the material placed on record. It would emerge from Page 7 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019 C/SCA/10003/2017 JUDGMENT the record that the petitioners had already paid the amount of premium to the tune of Rs.18,86,962/ . Since the said amount of premium was not paid within the time fixed by the concerned revenue authority, as per the order dated 13.01.2004, petitioners had also paid the amount of interest to the tune of Rs.4,07,584/ . Thereafter, the Collector called upon the petitioners by communication dated 31.07.2010 to pay the amount of premium of Rs.1,88,13,038/ . The said order was thereafter corrected by the Collector vide letter dated 12.11.2010. Petitioners, therefore, challenged the said communication addressed by the Collector by filing Special Civil Application No.405 of 2011. This Court has, while passing the order dated 15.07.2016, considered the terms and conditions imposed by the competent authority while granting permission under Section 63 of the Tenancy Act. This Court has also considered the fact of payment of premium by the petitioners at the relevant point of time and thereafter observed in paragraph Nos. 14, 15, 16 and 17 as under:

"14. As rightly submitted by Ms. Patel for the petitioner, though the petitioner has been called upon to pay the additional premium at the prevailing jantri rate for noncompliance of the condition No.5 in the order dated 17.11.1999 passed under Section 63 of the Tenancy Act, no such condition could be imposed for noncompliance of such order, in view of Page 8 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019 C/SCA/10003/2017 JUDGMENT the Rule 36 of the said Tenancy Rules, which specifies the conditions on which permission under Section 63 could be granted. The provision contained in Section 63 of the Tenancy Act also does not contemplate any payment of premium by the person seeking permission for transfer of the land to the nonagriculturist. Even otherwise, the petitioner having already paid the premium, and that too with interest, and having taken all bona fide steps to obtain necessary permissions, the respondent State or the respondent Collector could not have asked the petitioner to pay the additional premium at the prevailing jantri rate as sought to be demanded in the impugned orders.

15. In that view of the matter, the impugned orders passed by the respondent authorities being without any authority of law and being not in consonance with the provisions contained in Tenancy Act, the same deserves to be quashed and set aside.

16. Now that the petitioner has been granted development permission and the building permission as per the order dated 27.5.2011, and that its application for N.A. Permission has been rejected as per the order dated 28.3.2011 (AnnexureY colly.), the said application is required to be decided afresh in the light of the observations made in this order.

17. In the aforesaid premises, the impugned order dated 12.11.2012 passed by the Collector,and the orders dated 6.11.2010, dated 20.10.2010 and the impugned corrigendum dated 11.5.2011 issued by the Revenue Department and the intimation dated 3.8.2011 issued, as also the order dated 28.3.2011 passed by the Collector are hereby quashed and set Page 9 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019 C/SCA/10003/2017 JUDGMENT aside. The respondent Collector is directed to reconsider the application of the petitioner for N.A. Permission afresh and decide the same on merits and in accordance with law."

8. Thus, by the order dated 15.07.2016, the decision taken by the respondent Collector by which the petitioners were asked to pay amount of premium of Rs.1,88,13,038/ was quashed and set aside and matter was remanded back to the Collector to reconsider the application of the petitioners for N.A. permission. In spite of such direction issued by this court, without referring to the said order, impugned order dated 23.03.2017 has been passed by the respondent No.2 Collector by which now petitioner is asked to pay amount of premium of Rs.2,50,69,638/ within the stipulated time limit.

9. In view of the aforesaid facts and circumstances of the present case, this Court is of the view that the impugned order dated 23.03.2017 is required to be quashed and set aside as the respondent Collector has not considered the direction issued by this Court in the order dated 15.07.2016 passed by this Court in Special Civil Application No.405 of 2011, wherein this Court has specifically observed that the petitioners have paid the premium with interest and have taken all bona fide steps to obtain necessary permission and therefore the respondent State or the Collector could not have Page 10 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019 C/SCA/10003/2017 JUDGMENT asked the petitioners to pay the additional premium at the prevailing jantri rate. It is required to be noted that order passed by this Court in Special Civil Application No.405 of 2011 has attained finality and therefore it was not open for the respondent Collector to ask the petitioners to pay the premium of Rs.2,50,69,638/ .

10. In view of the aforesaid discussion, impugned order dated 23.03.2017 passed by the respondent No.2 Collector, Gandhinagar is hereby quashed and set aside. The respondent - Collector shall decide the application given by the petitioner under Section 65 of the Gujrat Land Revenue Code for grant of N.A. Permission within a period of 12 weeks from the date of receipt of this order without insisting for payment of additional amount of premium. Petition is, accordingly, allowed. Rule is made absolute.

11. In view of disposal of the main petition, civil application does not survive. Accordingly, civil application stands disposed of.

(VIPUL M. PANCHOLI, J) Jani Page 11 of 11 Downloaded on : Sat Oct 12 04:26:13 IST 2019

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