Gujarat High Court
Ishwarbhai Mathurbhai vs State Of Gujarat on 21 March, 2022
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5930 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed NO
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 or any order made thereunder ?
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ISHWARBHAI MATHURBHAI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR SHITAL R PATEL(2166) for the Petitioner(s) No. 1.1,1.2
MR UTKARSH SHARMA, AGP GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 21/03/2022
ORAL JUDGMENT
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs:-
Page 1 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 15(A) Be pleased to issue a writ of mandamus or certiorari or any other appropriate writ, order or directions, and by way of issuance of such writ, be pleased to quash and set aside the order dated 29.11.2005 passed by the Collector, Vadodara; order dated 07.11.2007 passed by Secretary, Appeals, Revenue Department and delete the condition No.1 in the order dated 10.07.2000 in the proceedings No.CTS/VASI/1298/2000 and declare the land to be possessed by the petitioner without any restrictions.
(B) Pending admission, hearing and final disposal of this petition, be pleased to permit the petitioner to develop the land in question and reap the benefits towards the land in question subject to final outcome of this Special Civil Application. And also stayed the order dated 29.11.2005 passed by the Collector, Vadodara; order dated 07.11.2007 passed by Secretary, Appeals, Revenue Department and stay the Condition No.1 in the order dated 10.07.2000 in the proceeding No.CTS/VASI/1298/2000.
(C) Be pleased to grant any other and further relief/s in the interest of justice;
2. The facts giving rise to this writ-application may be summarized as under:-
2.1 An individual by name Sumanbhai Ranchhodbhai owned and possessed a parcel of new tenure land bearing Survey No.254 admeasuring 644.53 sq.mtrs. situated at mouje Karjan, Taluka & District Vadodara. As Sumanbhai was in need of money, he decided to sell the land in question. However, as he was holding a new tenure land, he could not have sold the land without valid permission from the Collector in accordance with the provisions of Section-43 of the Bombay Tenancy and Agricultural Lands Act, 1948.
2.2 Sumanbhai Ranchhodbhai preferred an application in the year 1995 seeking permission to sell the land in favour of the writ-Page 2 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022
C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 applicant herein. The Collector, Vadodara granted the permission to Sumanbhai Ranchhodbhai to sell the land to the writ-applicant subject to certain terms and conditions and upon payment of the premium amount. The order passed by the Collector dated 10.07.2000 granting permission to Sumanbhai Ranchhodbhai to sell the land subject to certain terms and conditions as as under.
Annexure - A No. CTS/VaShi/1298/2000 Collectorate, Vadodara.
10/07/2000 Read with:-
(1) The Review Applications dated 23/11/1995 and 29/12/1995 for obtaining permission to sell for the land admeasuring 644.53 square meter at Mauje Karjan City Survey No. 2540.
(2) Resolution No. 1970-45 dated 17/10/1947 of the Revenue Department.
(3) Resolution No. LND/3956-75117 B dated 07/08/1956 of the Revenue Department.
(4) Resolution no. JMN/1498-2566-A-1 dated 21/02/2000 of the Revenue Department of Government of Gujarat.
"ORDER"
The land measuring 644.53 square meter at Mauje Karjan City Survey No. 2540, located at Karjan village, had been conveyed on permanent basis in 1958 to Shri Ranchhodbhai Kuberbhai Sheth, the father of the applicant, on a condition of paying (illegible), by the Gayakwad Government. Pursuant to his death, it has been resolved that the name of applicant, i.e. Sheth Sumanbhai Ranchhodbhai be admitted in the records. Since then, the land has been under his possession. Because of his growing age, the land in question is to be conveyed through a sell transaction to Shri Ishvarbhai Mathurbhai Patel, a resident of Karjan.
(2) A proposal regarding the demanded land has been drawn and forwarded as per the rules along with his opinion by the City Survey Superintendent, Dabhoi at Karjan. In this regard, the Deputy Collector, Vadodara has also given opinion in favor of conveying the land.
Page 3 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 (3) It has been resolved that the price of the land in question on the date of order shall be assessed by the District Level Committee vide the resolution of the Revenue Department of Government of Gujarat referred above at 'Read With Sr.No. (4)'. Further, it has been resolved that the land be conveyed on New and Impartible Restricted Tenure on a condition that out of the two prices, the higher price along with other levies shall be recovered in accordance with the provisions of the resolutions referred above at 'Read With Sr.no. (2) and (3)' and other prevalent orders.
(4) With regard to the land in question, the Chairman, Karjan Municipality has given the 'No Objection Certificate' dated 09/(illegible)/1997 in accordance with the norms and standards of the government.
(5) In the District Level Price Committee meeting, convened on 25/10/1999, the price of the land in question has been determined, unanimously, as Rs.350/- (Rupees Three Hundred Fifty) per square meter.
(6) The approval has been given to grant permission consequent to recovering the Possession Right amount as per the order referred above at 'Read with Sr.No.(4)'. On the basis thereof, the applicant has been informed vide a letter dated 07/(illegible)/2000 that Rs.2,25,586/- (Rupees Two Lakhs Twenty Five Thousand Five hundred Eight Six) is to be paid separately as the price of the land in question. The applicant has deposited the stated amount with the State Bank of India, Karjan Branch under the head of "0029 LRNT". The challan thereof has been produced before this office by the City Survey Superintendent, Dabhoi at Karjan, vide his letter dated 23/05/2000. The Sub Treasury Officer, Karjan has acknowledged receiving of the amount vide his acknowledgment dated 19/06/2000.
(7) On the basis of the above noted facts, the orders are issued to grant permission for conveying the land of Sumanbhai Ranchhodbhai measuring 644.53 square meter at Mauje Karjan City Survey No. 2540 on permanent basis qua sell to Patel Ishwarbhai Mathurbhai on below mentioned terms and conditions.
"Terms and Conditions"
(1) As the land is to be conveyed on New and Impartible Restricted Tenure, except with a permission of the competent Page 4 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022 C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 authority, it cannot be conveyed through a mortgage, sell, gift etc. (2) The land can be used only for the purpose for which it has been conveyed.
(3) The declaration is to be provided in the given format. (4) The applicant is required to obtain the possession of the land and get the assessment done at his own cost. Accordingly, he may obtain the gazette.
(5) Whatever Non-agricultural assessment is applicable to the land of the applicant is also required to be paid along with the special levies and cess.
(6) The land in question shall be subject to the terms and conditions of the resolutions referred above at 'Read with Sr.No.(2) and (3)'.
(7) On breach of any of the above noted conditions, the land shall be confiscated and in the records it shall be registered in name of the government and not any kind of compensation shall be paid therefor.
sd/-(Anil Mukim) Collector, Vadodara.
Dispatched:-
sd/- (illegible) For, the Collector, Vadodara.
To, (1) Shri Sumanbhai Ranchhodbhai Sheth Address: "Suvidha", Nr. Kirti Stambh, Rajmahel Road, Vadodara.
(2)Shri Ishwarbhai Mathurbhai Patel Address: Juna Bajar, Karjan, District - Vadodara. (3)(with relevant documents) sent to The City Survey Superintendent, Dabhoi at Karjan.
(4)The Deputy Collector, Vadodara. (5)Copy sent to: The District Inspector, Land Revenue Records, Vadodara.
(6)Copy sent to: The Section Officer, Revenue Department, Gandhinagar.
2.3 Thus, the plain reading of the aforesaid order would indicate that while granting permission to Sumanbhai Ranchhodbhai to transfer the land in favour of the writ-applicant upon payment of a particular amount towards premium, it was understood that the writ-applicant (transferee) would be holding new and impartible Page 5 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022 C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 tenure land and it would not be permissible for the writ-applicant to transfer the same without the prior permission of the authority concerned.
2.4 It appears that the aforesaid order was accepted by the writ- applicant with a clear understanding. Five years passed by. One fine day, the Collector, Vadodara realized that there was a mistake committed in the order dated 10.07.2000 referred to above and decided to rectify it. The Collector, Vadodara passed a rectification order dated 29.11.2005, which reads thus:-
No./CTS/VaShi/263641/2005 Office of the Collector, Chitnis Branch, Vadodara.
Date: 29/11/2005 Read:
1. Resolution No.JMN/1498/2566/A-1 dated 21/02/2000 of the Revenue Department of the Government.
2. Order No.CTS/VaShi/1298/2000 dated 10/07/2000 of this Office.
3. Letter No.JMN/1498/2566/A-1 dated 27/07/2005 of the Revenue Department of the Government.
REVISED ORDER It has been ordered vide the Government Resolution referred above at Sr. No.1 to allot B-1 tenured land admeasuring 644.53 Sq.M., of City Survey No.2540 of moje Karjan, Ta. Karjan, Dist. Vadodara to Shri Sumanbhai Ranchhodbhai Sheth under new and restricted tenure subject to the conditions therein. Whereas, "a permission has been granted to sell the said land to Patel Ishwarbhai Mathurbhai on permanent basis" through the order referred above at Sr. No.2 of this Office. Since the order is not in conformity with the approval given through the resolution dated 21/02/2000, the following revised order is passed deleting Para-7 of the order.
Description of the deleted Para-7:
"Considering all the facts mentioned above, it is hereby ordered to grant permission to Sumanbhai Ranchhodbhai to Page 6 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022 C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 permanently sell the land admeasuring 644.53 Sq.M., of City Survey No.2540 of moje Karjan to Ishwarbhai Mathurbhai under the following the conditions."
Description of the revised Para-7:
"Considering all the facts mentioned above, a permission is hereby granted to permanently sell the B-1 tenure land admeasuring 644.53 Sq.M., of City Survey No.2540 of moje Karjan, Ta. Karjan, Dist. Vadodara to Sumanbhai Ranchhodbhai Sheth under new and restricted tenure subject to the following conditions."
The other conditions of the order dated 10/07/2000 of this office shall remain unchanged.
Sd/-
(Rajeev Topno) Collector, Vadodara Forwarded, Sd/- (Illegible) for - Collector, Vadodara To,
1. Shri Sumanbhai Ranchhodbhai Sheth R/o. "Suvidha", Near Kirtistambh, Rajmahel Road, Vadodara-1.
2. Shri Ishwarbhai Mathurbhai Patel R/o. Juna Bazar, Karjan, Ta. Karjan, Dist. Vadodara.
Copy forwarded to:
1. The City Survey Superintendent, Dabhoi, At - Karjan for information and compliance of the order.
2. The Deputy Collector, Vadodara for information.
3. The District Inspector, Land Records, Vadodara for taking necessary action
- The Section Officer, revenue Department, A-1 Branch, Gandhinagar for information with respect to the letter referred above at Sr. No.3 of the Government.
2.5 The plain reading of the aforesaid order would indicate that nothing substantial came to be changed in the order dated 10.07.2000. I am saying so because there was no reason for the Collector to clarify that the permission to transfer the land was being granted to Sumanbhai Ranchhodbhai on the condition that Page 7 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022 C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 even after transfer, the tenure of land would remain as new tenure land. The Condition No.1 imposed in the order dated 10.07.2000 speaks for itself.
2.6 Since a rectification order came to be passed as above, the writ-applicant thought fit to challenge the same before the S.S.R.D. The S.S.R.D. rejected the revision application vide order dated 07.11.2007. The same reads as under:-
Government of Gujarat No.MVV/JMN/VDD/3/2006 The Principal Secretary, Revenue Department(Appeal), Hostel Building, Ground Floor, Polytechnic Compound, Ahmedabad.
Date: 07/11/2007.
Applicant: Pa. Ishwarbhai Mathurbhai Residing at - 4, Trikamlal Complex, Behind Haathibaug, Nawa Bazar, Karjan, Taluka - Karjan, District - Vadodara.
Vs.
Respondent: The Collector, Vododara.
Impugned Order: Order No. CTS/Vashi/2636-41/05 dated 29/11/05 of the Collector, Vadodara.
The short facts of this case are that, the Order No. CTS/ Vashi/1298/2000 dated 10/07/2000 of the Collector, Vadodara was passed to grant permission to Sumanbhai Ranchhodbhai to sell the land of City Survey No - 2540 of Karjan, admeasuring 644.53 Sq.M. to Patel Ishwarbhai Mathurbhai on permanent basis subject to the conditions mentioned in the order. Thereafter, by passing a revised order through the impugned order of the Collector, Vadodara, the permission was granted to Sumanbhai Ranchhodbhai Sheth to sell the land in dispute on permanent basis with new, impartible and restricted tenure and subject to the conditions mentioned in the order. Being aggrieved by the Page 8 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022 C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 said order, the applicant filed the revision application dated 27/01/06 and prayed for the injunction order and therefore, by letter of even number dated 31/03/06 of this office, it has been ordered to maintain status-quo with respect to the impugned order of the Collector, Vadodara.
The hearing in person of this case was fixed on 10/09/07. As oral submissions were made by them, the case has been kept for judgment.
It has been mainly argued on behalf of the applicant that, the original owner of the land has sold the immovable property in his possession i.e. the land admeasuring 644.53 Sq.M. of C.S.No - 2540 of Sheet No - 33 of City Survey area of Karjan, to the applicant at Rs. 2,41,000/- (In Words - Two Lakhs Forty One Thousands only). The final sale deed of the same has been registered with Sr.No.1101/1.10.01 in the office of the Sub- Registrar, Karjan. The entire premium amount at Rs. 350/- per Sq.M. (Rs. 2,25,586/- only) for the land admeasuring 644.53 Sq.M. with City Survey No - 2540 has been deposited in the Government on behalf of the original owner of the land, Sumanbhai Ranchhodbhai. In this manner, the final sale deed has been executed after depositing the amount of the premium. The government is entitled to demand and recover the premium amount for once only. The applicant wants to build shops, offices, flats etc. at the ground-floor by constructing a multi- storey building, namely 'Ishwar Bhuvan' on the said land. The plan of construction has been prepared and produced in the Nagar Panchayat of Karjan for approval. The applicant wants to sell the remaining land of his ownership of City Survey No - 2540 and he wants to sell flats, shops, offices after carrying out construction as per the approved plan. Since the tenure of the property in the card is mentioned as 'B1', he requires to take permission of the respondent for the same. When the applicant purchased the said land, it was mentioned in the sale deed that the said land is in his ownership. Moreover, the entire premium amount to be paid to the government has been deposited. Therefore, the tenure of the land is required to be changed in the property card of the revenue department. When an application was submitted to the District Collector for the same, a 'Revised Order' dated 29/11/05 was passed by him. Since it is against the law and the principle of justice, it is liable to be quashed. In this regard, since the earlier order dated 10/07/2000 and the revised order dated 29/11/05 have been passed by the same authority, they are barred by the principle of natural justice. The name of applicant Patel Ishwarbhai Mathurbhai Page 9 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022 C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 cannot be deleted in the revised order. Moreover, it cannot be written as impartible and restricted tenure to Sumanbhai Ranchhodbhai Sheth. The applicant has not been given an opportunity for representation before passing the revised order. It has been stated that the impugned order should be quashed considering the above representation.
The facts of the report given by the Collector, Vadodara have been taken into consideration.
Thus, considering the representation made by both the parties and on examining the case papers, it appears that the land of City Survey No - 2540, admeasuring 644.53 Sq.M. had been given permanently on rent to Mr. Ranchhodbhai Kuberbhai Kalal(Sheth) in 1958 by Hon'ble Gayakwad Government. After his death, on the basis of the application of his son Mr. Sumanbhai R. Sheth with respect to the proposal for purchase of the said land on permanent basis, it was resolved vide Resolution No - JMN-1498-2566-A-1 dated 21/02/2000 of the Revenue Department that the land in dispute shall be granted to Mr. Sumanbhai Ranchhodbhai Sheth at impartible and restricted tenure for Rs.2,25,583/- at the rate of Rs.350/- per Sq.M. or the price assessed by the district level committee for the said land on the date of the order, whichever is higher, subject to the provisions dated 17/10/47 and 07/08/56 of the Revenue Department and other prevailing orders. Thus, in accordance with the approval of the government through above mentioned letter, Sumanbhai Ranchhod was ordered to sale the land in dispute to Patel Ishwarbhai Mathurbhai on permanent basis vide order dated 10/07/2000 of the Collector, Vadodara subject to the conditions mentioned in the order. The permission to sell the land in question was granted to Mr. Sumanbhai Ranchhodbhai Sheth vide the resolution dated 21/02/2000 of the Revenue Department of the Government.
Thus, Since the order dated 10/07/2000 of the Collector, Vadodara is not fair and in conformity with the Resolution No - JMN/1498/2566-A-1 dated 21/02/2000 of the Government, a revised order was passed through the impugned order dated 29/11/05 of the Collector, Vadodara. As the order of the Collector, Vadodara was passed in accordance with the approval of the Revenue Department, it is not liable to be intervened. In this manner, the representation made by the applicant is not acceptable. Therefore, following order is passed.
Order:
Page 10 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 The revision application of the applicant is rejected. The Order No - CTS/Vashi/2636-41/2005 dated 29/11/05 of the Collector, Vadodara is hereby upheld.
I put my signature and seal today on 03/11/2007.
By the order and in the name of the Governor of Gujarat.
Sd/-(Illegible) (Haresh Patra) Principal Secretary(Appeal) To All the parties.
Copy to:
(1) The Collector, Vadodara with relevant case papers. (2) The City Survey, Superintendent, Dabhoi, Karjan, District -
Vadodara with relevant case papers.
Dispatched (Illegible) Mamlatdar, Revenue(Appeal) Ahmedabad.
3. I have heard Mr. Venugopal, the learned counsel appearing for the writ-applicant and Mr. Utkarsh Sharma, the learned AGP appearing for the State.
4. Mr. Venugopal, the learned counsel appearing for the writ- applicant has raised the following questions for the consideration of this Court.
(a) Whether under the provisions of the Bombay Land Revenue Code, would it be open for the State Government to demand premium again at the time of second transfer, when once the premium is paid by the holder?
(b) Whether the Collector was right in law in imposing a new tenure condition in the order dated 10.07.2000 upon the holder, particularly when the holder has already paid the premium Page 11 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022 C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 amount equivalent to 100% of the market price at the relevant time?
(c) Whether the Collector was right in law to sell the land to the petitioner on payment of the premium amount equivalent to 100% of the market price and also impose restrictions upon the petitioner to hold the land as a new tenure?
(d) Whether the imposition of the condition of new tenure after payment of 100% market price of the land in question by way of premium would violate Article 300A of the Constitution of India in the facts and circumstances of the present case?
5. The principal argument of Mr. Venugopal, that once the amount of premium came to be determined and the same was deposited by Sumanbhai Ranchhodbhai before executing the sale- deed, the tenure of the land could be said to have automatically changed from new tenure to old tenure, is devoid of any merit. Way-back in 2000, the writ-applicant had accepted the order passed by the Collector, wherein, it had been clarified that the permission to transfer the land has been granted subject to the condition that the land shall remain of restricted tenure. For five years, the writ- applicant never thought fit to challenge such a condition. He could have immediately questioned the condition on the ground, which is now sought to be raised for the first time before this Court.
6. It appears from the materials on record that the original land being a new tenure land, Sumanbhai Ranchhodbhai prayed for permission to transfer the said land and permission was granted subject to the condition that Sumanbhai Ranchhodbhai shall pay the Page 12 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022 C/SCA/5930/2008 JUDGMENT DATED: 21/03/2022 amount towards premium that may be fixed by the District Valuation Committee. If Sumanbhai Ranchhodbhai had anything to say as regards such a condition, he could have objected to the same at the relevant point of time.
7. Today also, the land remains of a restricted tenure. If the writ-applicant wants to develop the land by putting up construction, he will have to pray for necessary permission from the Collector in accordance with the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.
8. I do not find any error much less an error of law in the two orders passed by the revenue authorities.
9. This writ-application is accordingly rejected. Rule is discharged.
(J. B. PARDIWALA, J) A. B. VAGHELA Page 13 of 13 Downloaded on : Fri Mar 25 21:04:49 IST 2022