Gujarat High Court
State vs Kiritkumar on 13 May, 2010
Author: Anant S. Dave
Bench: S.J. Mukhopadhaya, Anant S. Dave
Gujarat High Court Case Information System
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LPA/2420/2009 20/ 20 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2420 of 2009
In
SPECIAL
CIVIL APPLICATION No. 29258 of 2007
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STATE
OF GUJARAT & 1 - Appellant(s)
Versus
KIRITKUMAR
AMRUTLAL DESAI & 1 - Respondent(s)
=============================================
Appearance :
MR PK JANI
Government Pleader with MS TRUSHA Patel AGP for
Appellants : 1-2
MR SI NANAVATI Senior Advocate with MRS VD
NANAVATI for Respondents :
1-2
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 13/05/2010
CAV
ORDER
(Per : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. The State of Gujarat, through the Secretary, Department of Revenue, has preferred this appeal under clause 15 of the Letters Patent with a prayer to set aside the oral judgment dated 2.7.2009 passed by learned Single Judge in Special Civil Application No.29258 of 2007. In the said judgment, learned Single Judge has directed the authority of the State of Gujarat to refund the amount of Rs.97,02,000/- within a period of 12 weeks from the date of the judgment, without waiting for even certified copy of the judgment and if the amount is not paid by within the stipulated period, interest @10% p.a. shall be paid. The above order of payment of refund to be paid to the respondent herein (original petitioner) is passed on the basis that premium paid by him for conversion of the land from new tenure to old tenure and for removal of restrictions under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "Tenancy Act, 1948"), was unreasonable and not warranted in view of subsequent deduction of the land in question by virtue of operation of provisions of the Gujarat Town Planning and Urban Development Act, 1976 (for short "TP Act, 1976").
2. The question involved in this appeal is whether the authority of the State Government is duty bound to refund the amount of premium charged for removing restrictions over the land under Section 43 of the Tenancy Act, 1948 when part of the land for which premium is charged is acquired or deducted for the purpose of development by virtue of provisions of TP Act, 1976. The original petitioner is the agriculturist and was inter alia holding land bearing survey No.101 Block No.146 of revenue village Dindoli, Taluka Choryasi, District Surat admeasuring about 26,249 square meters. The above land was subject to restrictions imposed under Section 43 of the Tenancy Act, 1948. Thus, the above land was new tenure land subject to restrictions, and therefore, if the above land was to be sold or transferred, previous sanction of the District Collector was to be obtained. Considering the above fact situation, the petitioner No.1 preferred an application dated 12.04.2004 under Section 43 of the Tenancy Act, 1948 seeking permission for change of tenure of the land on the ground that in the master plan of Surat Urban Development Authority, the area in which subject land was situated was earmarked as a residential zone, and therefore, the applicant was ready to pay whatever premium fixed by the authority for conversion of the land, as such. On 14.06.2006 a further request was made by the original petitioner that about 3600 square yards of the above land is to be deducted under development plan and further 3000 square meters of the land cannot be used. The above factor was considered by the authority before fixing premium for conversion of the land.
3. That in exercise of powers under Article 243Q of the Constitution of India and powers conferred under sub-section (2) of Section 3 of the Bombay Provincial Municipalities Act, 1949 (for short BPMC Act, 1949), the competent authorities issued notification dated 20.07.2006 deciding to include Dindoli Gram Panchayat within limits of city of Surat. That application of the original petitioners was forwarded by Deputy Collector, Surat and it was placed before the District Land Valuation Committee for fixing the land price on 25.07.2006 and on receipt of report of the Town Planner, Surat, initially the market value of the land was fixed at Rs.721/- per square meter. However, taking into consideration previous valuation, which was made on 10.02.2005 at Rs.1,000/- and considering escalation in the land price, valuation was fixed at Rs.1,100/-. Since the value of the amount of premium exceeded Rs.50 lakhs, as required by Government Resolution, the matter was referred to the concerned Department of the State of Gujarat and by virtue of the Government Resolution dated 20.12.2006 conversion price towards premium was required to be fixed at 80% of the market value of the land, and therefore, in the meeting dated 17.04.2007 State Level Valuation Committee determined market value of the land as Rs.1,540/- per square meter and vide order dated 01.06.2007 State approved the valuation of State Level Valuation Committee and in turn the District Collector, Surat passed order dated 15.06.2007 whereby the petitioners were directed to pay an amount of Rs.3,23,38,768/- within 21 days. By letter dated 19.07.2007 Director of Planning, Surat Municipal Corporation informed the petitioners that land admeasuring 5925 square meters of land is likely to be acquired under provisions of the TP Act, 1976. The petitioners deposited the amount of premium on three different dates under protest. Vide letter dated 06.11.2007 the petitioner was asked to obtain permission under Section 65 of the Bombay Land Revenue Code, 1879 (for short the Code, 1879) for development of land in question. The District Collector, Surat vide order dated 08.11.2007 granted permission for use of land for non-agricultural purpose by imposing penalty as required under Section 66 of the Code, 1879.
4. In the meanwhile, in the month of November, 2007 Special Civil Application No.29258 of 2007 was filed with a prayer to issue appropriate writ directing respondent to refund the consequential difference in premium paid by the petitioner for the land admeasuring 7874.70 square meters which was handed over to Surat Municipal Corporation. During pendency of the said petition application preferred by the petitioner before the authority concerned to refund such amount also came to be rejected on 27.05.2008. In the meanwhile, notification dated 15.03.2008 issued by the Commissioner of Surat Municipal Corporation came to be published in the Gujarat Government Gazette showing intention to prepare a draft town planning scheme under Section 41 of the TP Act, 1976.
5. The learned single judge after considering reply and rejoinder filed by the authorities directed the respondent to refund the amount of Rs.97,02,000/- within a period of 12 weeks from the date of the order.
6. Mr.P.K.Jani, learned Government Pleader, appearing with Ms.Trusha Patel, learned AGP for the appellant-State vehemently contended that the oral judgment of the learned Single Judge impugned in this appeal is per se illegal inasmuch as there is no provision either under the Bombay Tenancy and Agricultural Lands Act, 1948 or Bombay Land Revenue Code, 1879 or Gujarat Town Planning and Urban Development Act, 1976, to refund such amount of premium once fixed in exercise of powers under Section 43 of the Tenancy Act, 1948 and rules made there under and the Government resolutions passed from time to time fixing the price of premium for conversion of land from new tenure to old tenure and/or removing restrictions imposed under Section 43 of the Tenancy Act, 1948. It is further submitted that the learned Single Judge committed a serious error of law by directing refund of the amount of premium on the ground that part of the land in question belonging to respondent herein was included in a development plan and it was to be acquired under the provisions of Town Planning Scheme and to that extent of acquisition of land State authorities were duty bound to refund the premium. It is further contended that the learned Single Judge failed to appreciate that the petitioner had applied for conversion of total land including 7874.70 square meters and thereafter only the said land was acquired, and therefore, payment of premium had no relevance whatsoever with acquisition of the land for development purpose under TP Act, 1976, and therefore, no refund could have been ordered. It is next contended that Tenancy Act, 1948 and TP Act, 1976 are operating in different areas and when the subject land was governed by restrictions imposed under section 43 of the Act, even if such land is a part of acquisition, deduction for the purpose of development or any other purpose under TP Act, 1976, no duty is cast upon the State authorities to refund the amount of premium which was paid for removing restrictions under Section 43 of the Act. Learned Government Pleader next submitted that Government Resolution dated 05.08.2008 and even subsequent amended resolution dated 19.07.2009 had no retrospective effect, and therefore, the petitioners could not claim benefit of the above Government resolution. Lastly, it is submitted that petitioners cannot be permitted to take advantage of social and beneficial legislation particularly when such land is held by the holder who has purchased the land under Sections 32, 32F, 32-I, 32-O, 33C, 43-ID, or 32P or 64 of the Tenancy Act, 1948 and the at the most issue of compensation for the amount proposed to be deducted is to be considered under Section 52(3) of the TP Act, 1976.
7. Mr.Sudhir Nanavati, learned senior counsel appearing with Mrs. V.D. Nanavati for respondent and original petitioners defended the impugned judgment and reasons contained therein for directing the State authorities to refund amount of premium to the extent of land acquired/deducted by virtue of operation of provision of TP Act, 1976. Learned senior counsel submitted that amount of premium was paid by him under protest and letter was also written by him to the authority that the land admeasuring about 5925 square meters was to be deducted under the Town Planning Scheme for development purpose, and therefore, there was no justification for the authority to charge the premium for such land, which had not remained with the land holder and upon which no further development was to take place. According to learned senior counsel, land holder and the citizens cannot be deprived of right to develop their land in accordance with law and compel them to pay premium for such development or conversion of the land which is already acquired and deducted under the TP Act, 1976. It is further submitted that the portion of the land which cannot be used by the petitioners and possession thereof is already given to Surat Municipal Corporation authorities should not be considered for the purpose of charging premium and admittedly around 5925 square meters of land was acquired for the road and subsequently resolutions are also issued by the government to follow such practice, as reflected in the Government Resolution dated 05.08.2008 and amended Government Resolution thereafter. It is also contended that certain pleas not advanced by the learned AGP at the hearing of writ petition cannot be permitted to be agitated in the appeal under clause 15 of the Letters Patent. Thus, according to learned senior counsel, reasoning contained in paras 6 and 7 of the impugned judgment of the learned Single Judge does not warrant any interference by this Court since no error is committed either on law or fact.
8. Having heard learned counsel for the parties and perusal of record and provisions of the relevant statutes and various government resolutions, following facts are noticed; (a) first application was made by the petitioner as early as on 12.04.2004 by which it was agreed to pay whatever premium that may be fixed by the authorities as early as possible with a request to remove the restrictions under Section 43 of the Tenancy Act, 1948 and to grant permission for conversion of the land from new tenure to old tenure; (b) the area of the subject land situated in village Dindoli was included within the limits of Surat city area by virtue of notification dated 20.07.2006 by the State of Gujarat; (c) final approval of conversion was granted by the State after considering Government Resolution dated 20.12.2006 by the Department of Revenue, State of Gujarat on 01.06.2007 on certain conditions and condition No.3 of the said order mentions that the order was to be made effective only after payment of premium so fixed and further condition No.5 also imposes further restriction that upon full payment of premium of the subject land the land will be free from restrictions of new tenure under Section 43 of the Tenancy Act, 1948 and the applicant will hold the land for non-agricultural purpose as old tenure land and thereafter the applicant shall seek permission for non-agricultural use by competent authority under Section 65 of the Code, 1879 and finally permission was granted only under Section 65 of the Code, 1879 after considering purpose of construction viz. residential and conversion charges and penalty; (d) intention to prepare draft town planning scheme was declared only on 15.03.2008 as required under the TP Act, 1976; and (e) decision referred by the learned Single Judge on Special Civil Application No.1918 of 2005 is of no relevance inasmuch as in that decision no view was expressed on merit and direction was given only in case if the petitioner of that case was entitled in view of order passed by the State Government on 05.09.2005.
9. For the adjudicating of the issue involved in this appeal, reference to Sections 43 & 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 is relevant, which read as under:
"43.
Restriction on transfer of land purchased or sold under this Act -
(1) No land or any interest there in purchased by a tenant under section 17B, 32, 32F, 32-I, 32-O, 32U, 43-1D or 88E or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall partitioned without the previous sanction of the Collector (1A) The sanction under sub-section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government (1AA) xxx (1B) Nothing in sub-section (1) [or (1AA) shall apply to land purchased under section 32, 32F, 32O, or 64 by a permanent tenant thereof, if prior to the purchase, the permanent tenant, by usage, custom, agreement or decree or order of a court, held a transfer right in the tenancy of the land" .
"63. Transfers to non-agriculturists barred - (1) Save as provided in this Act
-
(a) no sale including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenues or for sums recoverable as arrears of land revenue, gift, exchange or lease of any land or interest therein, or
(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, or
(c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein.
Shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer;
Provided that the Collector or an officer authorized by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage or for such agreement, on such conditions as may be prescribed;
Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees.
(2) Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease, or the agreement for the sale, gift, exchange or lease, of a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan or a person carrying on any allied pursuit.
(3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors' Relief Act, 1947 (Bom.XXVIII of 1947) (4) Nothing in section 63A shall apply to any sale made under sub-section (1)".
Sections 65 and 66 of the Bombay Land Revenue Code, 1879 reads as under:
"65.
Uses to which occupant of land for purposes of agriculture may put his land - (1) Any occupant, of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.
But, if any occupant wishes to use his holding or any part thereof for any other purpose the Collector's permission shall in the first place be applied for by the occupant.
The Collector, on receipt of such application,
(a) shall send to the applicant a written acknowledgment of its receipt, and
(b) may, after due inquiry, either grant or refuse the permission applied for;
Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three moths, the permission applied for shall be deemed to have seen granted; such period shall, if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application.
Unless the Collector shall in particular instances otherwise direct, no such application shall be recognized except it be made by the occupant.
(2) xxx"
"66. Penalty for using land without permission. If any land referred to in section 65 or section 65A be used for any purpose other than the purpose for which such land is assessed or held without the permission of the Collector being first obtained, or before the expiry of three months referred to in section 65 or despite refusal of permission during the said period of three months, then, without prejudice to the occupant's liability to pay the new assessment leviable under section 48 or the conversion tax leviable under section 67A -
(a) the occupant and any tenant or other person holding under or through him shall be liable to be summarily evicted by the Collector from the land so used and from the entire survey number or sub-division of the survey number of which it may form a part; and
(b) the occupant shall also be liable to pay for the period during which the said land has been so used, such fine as the Collector may, subject to the general orders of the State Government, direct.
Any tenant of any occupant or any other person holding under or through an occupant, who shall without the occupant's consent use any such land for any such purpose, and thereby render the said occupant liable to the penalty aforesaid, shall be responsible to the said occupant in damages"
10. If a bird's eye view to TP Act, 1976 is taken, Chapter-II contains about development area and constitution of area development authorities. Section 3 is for the purpose of acquiring planned development of areas within the State, declared, by notification, any area in the State to be a development area and under Section 5 area development authority can be constituted after the declaration of the development area under Section 3. Under Section 6 powers have been conferred to designate a legal authority as area development authority and section 7 prescribes powers and functions of area development authority. After the constitution of an area development authority for any development area under Section 5, the area development authority is authorized to declare such area as a development area and prepare and submit to the State Government a draft development plan and such draft development plan is open for public inspection as provided under Section 10 of the Act. Section 11 is about manner of preparation of draft development plan and section 12 prescribes functions of draft development plan and section 13 provides method and manner and particulars to be published along with draft development plan and suggestions or objections to draft development plan to be considered under section 14 and section 15 is about modifications made after publication of draft development plan. Thus, after submissions of draft development plan to the State Government for sanction as required under Section 16, the State Government may exercise powers conferred under section 17 by according sanction to such draft development plan and variation, if any, in the final development plan can be undertaken as prescribed under section 19 of the Act. Section 20 is about acquisition of land. Chapter-III provides for declaration of urban development areas and constitution of urban development authorities. Chapter-IV is for control of development and use of land included in development plans and section 26 imposes restrictions on development after publication of draft development plan under section 13 and without obtaining permission in writing of the appropriate authority and without obtaining certificate from the appropriate authority no person is entitled to carry on any development in any building or any land within limits of the area of development as such published. Section 27 permits a person to prefer an application of permission for development and an appropriate authority after after making inquiry as it thinks fit, subject to the provisions of the Act, may pass order in writing of granting the permission with or without condition or pass any specific order or may refuse to grant the permission as provided under section 29 of the Act. So far as other sections under Chapter-IV are concerned, we are not concerned with them, at this stage. Chapter-V is pertaining to town planning scheme and Section 40 empowers the appropriate authority to make one or more town planning schemes for development area or any part thereof and while doing so regard being had to the proposal in the final development plan if any and the above factor is to be taken into consideration. The town planning scheme is to be prepared in respect of any land which is in the course of development and the land which is likely to be used for residential or commercial or industrial or for building purpose or of any land upon which construction is already made. Section 41 prescribes power of appropriate authority to resolve on declaration of intention to make scheme and Section 42 is about making and publication of draft schemes and section 43 is about power of State to require appropriate authority to make scheme. Section 44 contains draft schemes. Section 45 is about reconstitution of plots, which took place as provided under Section 45 and as per Rules prescribed under Rules of 1979. Section 48 is about power of State Government to sanction draft scheme and thereafter land vest in appropriate authority under Section 48A and town planning authority is appointed as per section 50 and after preparing contents of preliminary and final schemes, as provided under Section 52, decisions of town planning officers are final as under section 53 of the Act and as per Section 65, scheme becomes part of the Act.
11. Therefore, the above provisions of TP Act, 1976 will govern various fields of land development of areas within the State or part thereof and declaration of such area, draft development plan, inviting objections from the people at large and affected persons, finalization of such draft and also manner and method in which development and use of land included in such development plan can be controlled. As we have seen in Chapter-V town planning schemes are prepared which ultimately become part of the statute, and therefore, any person who is desirous and intending to carry out any development of any building or land within the limits of a development area after publication of draft development plan, has to prefer an application in writing to the appropriate authority for permission for such development in a prescribed form, accompanied by relevant documents and such permission can be granted as provided under section 29 of the TP Act. Thus, application seeking permission to convert a new tenure land to old tenure so as to remove restrictions under Section 43 of the Tenancy Act and charging of premium over such land by the authorities have no relevance whatsoever with the development of the area in the State and control and regulation imposed under section 26 of Chapter IV of the Act and if under planned development a standard deduction is to be carried out and land is used for such public purpose, no advantage or benefit accrues to purchaser of a restricted tenure land under Tenancy Act and no refund can be claimed on that ground much less to be granted or ordered. Section 43 of the Tenancy Act and nature of restriction imposed therein and conversion charges prescribed by various government resolutions for fixing premium is only for removal of restriction under Seton 43 of the Act, which cannot be considered in juxtaposition to various provisions of TP Act and by virtue of operation of statutory provisions of the TP Act, if the very land is deducted or used for a public purpose, consequences will follow as provided under the TP Act.
12. That the learned Single Judge ordered refund of the premium on the premise that actual area available to a developer and/or applicant will be less than the area granted under Section 43 of the Act, the Government cannot charge premium for the land deducted for development under the TP Act, 1976 and more so when applicant seeking NA permission cannot be deprived of his original area of the land. The above premise and the reasoning as analyzed in preceding paragraph reveal that a tiller or tenant is granted a land under the Scheme for beneficial piece of legislation as part of land reform measures and such grant of ownership to a tenant is subject to certain restrictions as found in Sections 43 and 63 of the Act, 1948 and Sections 65 and 66 of the Bombay Land Revenue Code, 1879. Thus, the land which is made available for cultivation and agricultural purpose is to be converted as non-agricultural land and will be subjected to commercial or industrial development and also will be regulated by market forces, the very purpose of land reforms will be frustrated and will result into profiteering.
13. That declaration of intention to prepare Town Planning Scheme is under section 41 of the TP Act and by virtue of various provisions of TP Act, land is to be acquired by the authority for the purpose of development of area for which the Town Planning Scheme is prepared and if any deduction takes place of the land situated in such area irrespective of the fact whether any permission for removal of restrictions granted under Section 43 of the Tenancy Act, 1948 or permission is granted to sale or transfer such land for use of such agricultural land or for any other purpose other than agriculture under Section 65 of the Code, 1879, no duty is cast upon the State authorities under either of the statutes to refund the amount of premium so fixed and paid by the holder/occupant of the land governed by restrictions of Section 43 of the Tenancy Act, 1948 and section 65 of the Code, 1879. That premium is paid by the holder of the land governed by restrictions under Section 43 of the Tenancy Act, 1948 has no nexus with acquisition or deduction that takes place by virtue of declaration of intention of preparation of Town Planning Scheme or deduction of land for development of such land since both statutes operate in different areas.
14. However, Division Bench of this Court (Coram : Hon'ble Mr. Justice M.S.Shah and Hon'ble Ms. Justice H.N.Devani) vide order dated 07.10.2008 rendered in Letters Patent Appeal No.1137 of 2008 in Special Civil Application No.1158 of 2008 while dealing with a case arising out of breach of provisions of Section 68 of the Code, 1879 held that the land in question be vested in the State Government free from all encumbrances, when the land holder was not ready to pay premium as determined by the State Government and found that concept of development and permission for such development with regard to Section 117 of the TP Act, 1976 and payment of premium for regularization of breach of condition of tenure towards development permission are different aspects and change of tenure under the Code and obtaining development permission under TP Act, 1976 are different. Para 10 of the of the above judgment reads as under:
"10. As the appellant has tried to mix up two issues namely change of tenure and obtaining development permission as envisaged under the TP Act, it would be pertinent to examine the concept of new tenure land. The issue of tenure of land under the Bombay Land Revenue Code arises from the nature of occupancy. Lands which have accrued to the occupant, without any concession from the State, or have devolved on an occupant not as a consequence of operation of various Land Reform Legislations, are treated as Old Tenure lands. Contrarily, those lands which have been assigned to an occupant by waiving a portion of the State's claim, either in the form of a remission or waiver of land revenue or as a consequence of operation of any land reform legislation, devolve upon the occupant as "New Tenure"
lands i.e., tenure that subsumes some interest of the State. Such New Tenure lands are subject to certain restrictions as to their use. It is the policy of the State that should any occupant of such a land desire to put it to any alternate use, then he is duty bound to approach the Collector of the District who would grant such permission after the occupant pays a premium as fixed from time to time. The premium that is due to the Government is charged in lieu of waiving the State's interest in a particular new tenure land and permitting the occupant to put it to non-restricted use i.e. old tenure. Such restrictions are also placed to ensure that lands acquired under some beneficial legislation or under some welfare scheme are not transferred for profit, thereby defeating the very purpose of the grant. Thus the removal of restrictions attached to the land, has nothing to do with development permission as envisaged under the provisions of the Town Planning Act."
Thus, removal of restrictions as envisaged under Section 43 of the Tenancy Act, 1948 and development permission and land that may be acquired by virtue of operation of the provision of the TP Act, 976 are two different aspects and being mutually exclusive and governed by different provisions of the Act, and therefore, premium charged for removal of restrictions under Section 43 of the Tenancy Act has no relevance or nexus with the land that may be acquired for development or permission sought for development under the TP Act.
15. In the present case, the appropriate authority has declared its intention to make a town planning scheme under Section 41 of TP Act only in the month of August, 2008 and the petitioners had applied for conversion of land and removing the restrictions under Section 43 of the Code, 1879 in the year 2004 with an undertaking that they would pay the total amount of premium as and when demanded. Even, the Government Resolution dated 05.08.2008 relied upon by the leaned counsel for the original petitioners, has no relevance inasmuch as such resolution cannot have retrospective effect and otherwise also the resolution is applicable in a case where reconstitution of plots are determined under Section 45 of the Act and not prior to that. The original petitioners-respondents herein cannot take advantage of the above resolution for claiming any refund of the premium which they have paid for removing restrictions and change of tenure of land from new to old one under section 43 of the Tenancy Act.
16. In view of the above discussion, this appeal is allowed and order dated 2.7.2009 passed by the learned Single Judge in Special Civil Application No.29258 of 2007 is hereby quashed and set aside.
[S.J.Mukhopadhaya, CJ.] [Anant S. Dave, J.) *pvv Top