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2010 DIGILAW 332 (GUJ)

Nathabhai Prabhudas Patel v. State of Gujarat

2010-08-03

M.R.SHAH

body2010
Judgment M.R. Shah, J.—Rule. Shri Mengdey, learned AGP waives service of notice of Rule on behalf of respondent State. With the consent of the learned Advocates for the respective parties and in the facts and circumstances of the case, matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners-subsequent purchasers of the land in question have prayed for an appropriate writ, direction and order quashing and setting aside the impugned judgment and order dated 18.8.2009 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN. BA. 02 of 2009 as well as the order dated 23.1.2009 passed by the Collector, Gandhinagar passed in Revision Application No. 121 of 2007. 3. That the disputed land in question was a new tenure restricted land. That the original land owner approached the Mamlatdar and ALT to remove the restriction as new tenure and convert it into old tenure, under Section 70 (o) of the Bombay Tenancy Act and the Mamlatdar and ALT by an order dated 19.10.1989 removed the restriction imposed on the land in question. That, it so happened that after passing the order passed by the Mamlatdar and ALT removing the restriction and even before the order passed by the Mamlatdar and ALT is taken under suo motu revision, petitioners purchased the land in question by registered sale deed dated 4.4.2006. That the Collector, Gandhinagar took the order passed by the Mamlatdar and ALT dated 30.11.1961 into suo motu revision and by order dated 23.1.2009 quashed and set aside the order passed by the Mamlatdar and ALT dated 19.10.1989 removing the restriction imposed on the land in question meaning thereby restoring the status of the land in question as new tenure restricted land. That being aggrieved and dissatisfied with the order passed by the Collector, Gandhinagar dated 23.1.2009 passed in suo motu Revision Application No. 121 of 2007, respondent No. 1 herein-original land owner preferred Revision Application No. 02 of 2009, which came to be dismissed by the Gujarat Revenue Tribunal by impugned judgment and order dated 18.08.2009 confirming the order passed by the Collector, Gandhinagar dated 23.1.2009 in Tenancy Case No. 121 of 2007. Being aggrieved and dissatisfied with the aforesaid orders passed by the Collector, Gandhinagar as well as Gujarat Revenue Tribunal, petitioners being purchasers of the land in question have preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Shri Patel , learned Advocate for the petitioner has submitted that without further entering into the larger controversy whether the impugned order passed by the Collector , Gandhinagar dated 23.1.2009 passed in Tenancy Revision Case No. 121 of 2007 and the impugned order passed by the Gujarat Revenue Tribunal are legal or not and without further entering into the question with respect to legality and validity of the aforesaid two orders, in the peculiar facts and circumstances of the case when the petitioners have purchased the land in question and are bona fide purchasers, they are ready and willing to pay the premium treating the land in question as new tenure land. It is submitted that they are ready and willing to pay the premium considering the market price prevailing in April 2006 with 12% interest and they are also ready and willing to pay the penalty which can be determined by this Court and / or Collector. It is submitted that the petitioners are ready and willing to submit an appropriate application before the Collector, Gandhinagar for regularization of that sale on payment of premium considering prevailing market price as on April 2006 and the penalty. It is further submitted that suitable directions be issued directing the Collector to determine the premium after giving an opportunity to the petitioners and it is also stated at the bar that after giving an opportunity to the petitioners whatever the amount of premium is determined, that shall be binding to the petitioners. In support of his above submissions, he has relied upon the decisions of the learned Single Judge in the case of Subhashbhai Premaji vs. State of Gujarat & Ors. reported in 2003 (4) GLR 3457. 5. In support of his above submissions, he has relied upon the decisions of the learned Single Judge in the case of Subhashbhai Premaji vs. State of Gujarat & Ors. reported in 2003 (4) GLR 3457. 5. Shri Mengdey, learned AGP has submitted that as such when it was found that the land in question was a new tenure land and the order dated 19.10.1989 passed by the Mamlatdar and ALT converting the land from new tenure to old tenure or treating the land as old tenure was found to be absolutely illegal and being set aside by the Collector any transaction after the order passed by the Mamlatdar is a nullity. Therefore, it is submitted that as such it cannot be said that orders passed by the Collector as well as Gujarat Revenue Tribunal are in any way illegal. However, he has submitted that as the petitioners are ready and willing to regularize their sale and submit an appropriate application before the Collector and they are ready and willing to pay the premium treating the land in question as new tenure land with interest at the rate of 12% and also ready and willing to pay the penalty. Therefore, it is requested to pass an appropriate order in the peculiar facts and circumstances of the case and without citing the order as a precedent. 6. Heard the learned Advocates for the respective parties and considered the order passed by the learned Single Judge in the case of Subhashbhai Premaji (Supra). At the outset, it is required to be noted that as such the land in question was a new tenure land however Mamlatdar and ALT converted the said land as old tenure which came to be set aside by the Collector, Gandhinagar vide order dated 23.1.2009. Therefore, prima facie it appears that impugned judgment and order passed by the learned Tribunal is not erroneous. Therefore, prima facie it appears that impugned judgment and order passed by the learned Tribunal is not erroneous. However, without further entering into the aforesaid question, when the petitioners are ready and willing to submit an appropriate application before the Collector for regularization of their sale treating the land in question as new tenure land and are ready and willing to pay the premium considering the market price prevailing as on April 2006 with 12% interest and they are also ready and willing to pay the penalty which shall not be less than of amount of the premium, the case of the petitioners in the facts and circumstances of the case can be considered. Shri Patel, learned Advocate appearing on behalf of the petitioners has also agreed that whatever the amount of premium is determined by the Collector after giving the opportunity to the petitioners, shall be binding to the petitioners and same shall be paid by the petitioners with 12% interest with penalty which may be determined by the Collector. 7. In view of the above and without citing the present order as a precedent and in the aforesaid facts and circumstances, present Special Civil Application is disposed of. Let the petitioners submit an appropriate application before the Collector, Gandhinagar for regularization of their sale, with a request that they are ready and willing to pay the premium considering the market price which was prevailing in the month of April 2006 with 12% interest and they are ready and willing to pay penalty which may be determined by the Collector, within a period of three weeks from today. On such application, Collector, Gandhinagar is to consider the said application for regularization of the sale in favour the petitioner and determine the amount of premium considering the market price as on April 2006, after giving the opportunity to the petitioners and petitioners to pay the said amount of premium determined by the Collector with 12% interest from 2006 till actual payment of premium and on payment of penalty determined by the Collector and on payment of aforesaid amount within a period of four weeks of such determination, the Collector, Gandhinagar to pass formal order of regularization of the sale in favour of the petitioners. As agreed by the learned Advocate for the petitioners whatever the amount of premium determined by the petitioners, after giving an opportunity to the petitioners the same shall be binding to the petitioners and same shall be paid by the petitioners with 12% interest from April 2006 till actual date of payment and that petitioners are also ready and willing to pay penalty that may be determined by the Collector. Rule is made absolute to the aforesaid extent. No costs.