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2016 DIGILAW 1391 (GUJ)

Simandhar Swami Aradhna Trust v. State of Gujarat

2016-07-20

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. The present petition filed by the petitioner Trust under Articles 226 and 227 of the Constitution of India is directed against the order dated 12.11.2010 passed by the respondent No. 2 Collector as also against the communications dated 6.7.2010 and 20.10.2010 made by the respondent No. 1. The petitioner has also challenged the corrigendum dated 11.5.2011 issued by the Revenue Department and also the intimation dated 3.8.2011 issued by the Collector, as also the order dated 28.3.2011 passed by the Collector pending the petition. 2. The chequered history of the case in nut-shell is that the petitioner, which is a religious charitable Trust was desirous of purchasing the lands bearing Survey No. 295/2 (Block No. 409/1) and Survey No. 295/1 and 295/3 (Block No. 409/2), for carrying on its charitable activities. The petitioner Trust had applied for necessary permission under Section 63 of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as "the Tenancy Act"), which was granted by the Collector, Gandhinagar vide the order dated 17.11.1999, subject to the conditions mentioned therein. The petitioner, therefore, purchased the said lands through the registered Sale Deed on 27.11.1999. Out of the said two lands, the land bearing Survey No. 295/2 (Block No. 409/1) was an old tenure land, however, the other land bearing Survey No. 295/1-3 (Block No. 409/2) being new tenure land, the petitioner had applied for the permission under Section 43 of the Tenancy Act on 11.2.2000 for converting the said land from new tenure to old tenure. The respondent No. 2 Collector allowed the said application for conversion of the land from new tenure to old tenure, subject to the payment of premium of Rs. 18,86,962/- as per the order dated 5.10.2000. The petitioner Trust had applied for the exemption from making payment of premium on the ground that the said lands were to be used for charitable purposes, however, the said application having been rejected, the petitioner Trust deposited the said amount with the respondent No. 2 on 31.12.2002. Since the said amount of premium was not paid within stipulated time, the State Government directed the Collector vide the communication dated 25.8.2003 to recover the amount of interest at the rate of 9% per annum for the delayed payment. Since the said amount of premium was not paid within stipulated time, the State Government directed the Collector vide the communication dated 25.8.2003 to recover the amount of interest at the rate of 9% per annum for the delayed payment. The Collector thereafter extended the time to deposit the said amount, and the petitioner paid the interest amount to the tune of Rs. 4,07,584/- on 13.1.2004. In the meantime, the petitioner Trust had applied for the development permission on 16.8.2001. However, the same was not granted by the Gandhinagar Urban Development Authority vide communication dated 30.12.2005, as the land was included in the agricultural zone in the Development Plan. It appears that thereafter on the representation having been made by the petitioner, the lands in question were put under the residential zone by the Government vide the Notification dated 7.7.2008. The petitioner therefore, again applied to the Collector for the extension of time qua the permissions granted under Section 63 of the Tenancy Act. 3. The respondent Collector thereafter vide the letter dated 22.12.2009 had called upon the petitioner to clarify as to whether the petitioner was ready and willing to pay the premium which would be calculated as per the Circular dated 4.7.2008. The petitioner was required to give consent in that regard to the Mamlatdar, Gandhinagar and, therefore, the petitioner vide the letter dated 31.12.2009 submitted the reply to the effect that the petitioner having already paid the premium with interest, the question of paying the premium again did not arise. It appears that thereafter the State Government in Revenue Department vide the Memorandum dated 6.7.2010 extended the time limit of the order granting permission under Section 63 of the Tenancy Act, for the period of one year, subject to the payment of premium and other conditions as mentioned in the said order. The Collector, therefore, called upon the petitioner vide the letter dated 31.7.2010 to pay the premium amount of Rs. 1,88,13,038/- accordingly. The said order was corrected by the Collector vide the letter dated 12.11.2010 by stating, inter alia, that the petitioner having deposited the premium amount earlier, the petitioner would be required to deposit Rs. 75,07,854/- only before the Talati-cum-Mantri, Adalaj. Being aggrieved by the said order dated 12.11.2010 the petitioner had filed the present petition on 17.1.2011. 4. 1,88,13,038/- accordingly. The said order was corrected by the Collector vide the letter dated 12.11.2010 by stating, inter alia, that the petitioner having deposited the premium amount earlier, the petitioner would be required to deposit Rs. 75,07,854/- only before the Talati-cum-Mantri, Adalaj. Being aggrieved by the said order dated 12.11.2010 the petitioner had filed the present petition on 17.1.2011. 4. It appears that after the notice was issued to the respondents in the present petition, the Deputy Collector dismissed the application dated 15.3.2011 filed by the petitioner seeking N.A. Permission, vide the order dated 22.3.2011 on the ground that the time limit to obtain the N.A. permission was not yet extended. According to the petitioner, the Revenue Department thereafter misinterpreting the oral order passed by the Court, issued corrigendum on 11.5.2011, directing the petitioner to pay the premium again as per the jantri prevalent in 2011, after deducting the amount of premium already paid by the petitioner. The Revenue Department by the said corrigendum extended the time limit for one year in respect of the condition No. 5 contained in the order dated 17.11.1999 passed under Section 63 of the said Act, and directed to make amendment in the earlier communications dated 6.7.2010 and 20.10.2010. Following the said corrigendum dated 11.5.2011 issued by the Revenue Department, the respondent Collector again passed the order on 3.8.2011, directing the petitioner to pay the premium as per the prevailing jantri rate. The petitioner, therefore, sought amendment in the petition, challenging the said corrigendum dated 11.5.2011 and the order dated 3.8.2011. 5. The respondents have filed as many as five affidavits in reply to the petition and the amended petition, justifying their demand of premium as per the impugned orders. 6. The learned Advocate Ms. Trusha Patel for the petitioner vehemently submitted that the impugned orders/communications passed by the respondents are not only arbitrary but are atrocious, inasmuch as though the petitioner had paid the premium with interest, the petitioner has again been called upon to pay the premium as per the prevailing jantri rate. Pressing into service the provisions contained in Rule 25-C(b) of the Tenancy Rules, she submitted that the petitioner was granted permission under Section 43 of the Tenancy Act as the transfer of land in favour of the petitioner was for charitable purposes. Pressing into service the provisions contained in Rule 25-C(b) of the Tenancy Rules, she submitted that the petitioner was granted permission under Section 43 of the Tenancy Act as the transfer of land in favour of the petitioner was for charitable purposes. She also submitted that there could not be any automatic cancellation of the permission granted under Section 63 of the Tenancy Act in view of the Rule 36 of the Tenancy Rules, more particularly when the petitioner had taken bona fide steps to fulfill the conditions imposed in the order granting permission under Section 63 of the Tenancy Act. According to her, as per the practice prevailing at the relevant point of time, the petitioner was required to obtain development permission prior to obtaining N.A. permission and, therefore, the petitioner had applied for the development permission in the year 2001, however, the same was not granted by the concerned authority as the land in question was covered in the agricultural zone in the development plan. Subsequently, the said zone having been changed to residential zone, the petitioner had again applied for the development permission, which remained pending with the respondent Authorities. 7. Relying upon the decision of this Court in the case of Nileshkumar Hargovindbhai v. A.K. Pradhan and Ors., reported in 1985 (2) GLR 865 , she submitted that the permission under Section 63 does not get automatically cancelled for breach of the conditions. She also relied upon the decision of this Court in the case of Dahyabhai Laldas (Deceased) through his heirs and legal representatives Bhikhubhai Dahyabhai Patel & Ors. Vs. State of Gujarat and Anr., reported in 1997 (2) GLH 633 to submit that the condition specifying the time limit for completion of the construction work was directory and not mandatory. Reliance was also placed on the various decisions of this Court as well as of the Supreme Court to submit that on the payment of penalty, in the form of interest in the instant case, the time limit to fulfill the condition gets automatically extended. 8. However, the learned AGP Mr. Reliance was also placed on the various decisions of this Court as well as of the Supreme Court to submit that on the payment of penalty, in the form of interest in the instant case, the time limit to fulfill the condition gets automatically extended. 8. However, the learned AGP Mr. Patel for the respondent authorities, relying upon the provisions contained in the Rule 25-C(3) of the Tenancy Rules submitted that if the person fails to comply with the conditions imposed for granting permission under Section 43 of the Tenancy Act, the sanction or the permission granted is deemed to have been cancelled and the transfer is deemed to have been made without the previous sanction of the Collector. He has also relied upon the Rule 36(1-A) of the Tenancy Rules to submit that the failure on the part of the person to comply with the conditions imposed while granting permission under Section 63 of the said Act, entails cancellation of permission. Mr. Patel has relied upon the judgment of the Division Bench in the case of Jivrambhai Vastabhai Desai and Ors. Vs. State of Gujarat and Ors., reported in 2010 (3) GLR 2094 to submit that the order converting the land to old tenure being conditional order, the deemed consequences as contemplated in the Rules are bound to follow. Taking the Court to the various orders passed by the Government and the Collector he submitted that the petitioner having failed to comply with the conditions imposed by the respondent Government, the permission granted under Section 63 of the Tenancy Act, was liable to be cancelled, however, considering the activities of the Trust, the respondents had called upon the petitioner to pay the premium at the prevailing jantri rate, giving deduction of the amount of premium already paid by the petitioner. 9. In the instant case, it appears that the petitioner Trust was granted permission under Section 63 of the Tenancy Act vide the order dated 17.11.1999 (Annexure-B) in respect of the lands in question for using the same for non-agricultural, social and religious purposes, subject to the conditions mentioned in the order. As per Condition No.4 thereof, the petitioner had to obtain necessary permission under the provisions contained in the Gujarat New Capital (Periphery) Control Act, 1960 (hereinafter referred to as "Periphery Control Act"). As per Condition No.4 thereof, the petitioner had to obtain necessary permission under the provisions contained in the Gujarat New Capital (Periphery) Control Act, 1960 (hereinafter referred to as "Periphery Control Act"). As per Condition No. 5, the petitioner had to obtain necessary permission under Section 65 of the Land Revenue Act within six months of the permission granted to the petitioner under the Periphery Control Act. It was stated in Condition No. 11 that in case of breach of any of the conditions mentioned therein, the necessary action under Section 84C and Section 43 of the Tenancy Act would be taken against the petitioner. The petitioner thereafter purchased the said lands in question by executing the registered sale deed on 27.11.1999. The petitioner was also granted exemption in respect of part of Block No. 409 admeasuring 13622 sq. mtrs., from obtaining permission under the Periphery Control Act, vide the order dated 5.8.2000 (Annexure-E). Since the petitioner was required to convert the remaining land out of the Block No. 409 admeasuring 12253 sq. mtrs., from new tenure to old tenure, the petitioner had applied for the same and the said permission was granted, subject to the payment of premium of Rs. 18,86,962/- by the Collector vide the order dated 5.10.2000 (Annexure-F). The petitioner thereafter was granted permission under Section 43 of the Tenancy Act on 13.1.2004 (Annexure-G), subject to the conditions mentioned therein. As per the Condition No. 4 thereof, the petitioner was required to obtain necessary permission for using the said lands for non-agricultural purpose as per the zoning made by the Gandhinagar Urban Development Authority. The Condition No. 9 required the petitioner to obtain N.A. Permission under Section 65 of the Land Revenue Act within six months of the said order. It was stated in the Condition No. 22 thereof that breach of any of the conditions would entitle automatic cancellation of the said permission. 10. The Condition No. 9 required the petitioner to obtain N.A. Permission under Section 65 of the Land Revenue Act within six months of the said order. It was stated in the Condition No. 22 thereof that breach of any of the conditions would entitle automatic cancellation of the said permission. 10. At this juncture, it is required to be noted that as per Rule 25-C (3) of the Tenancy Rules, the permission under Section 43 could be granted, subject to the condition that the person in whose favour the transfer was made shall apply for N.A. permission before the competent authority under the Land Revenue Code for non-agricultural use of the land within six months from the date of such transfer and such period could be extended up to two years by the Collector and the said period could be further extended for a period of not exceeding five years in aggregate by the Collector, with the prior approval of the State Government. It is stated in the said Rule that if the person fails to comply with the condition within the period specified thereof, the sanction or the permission given under Sub-Section (1) of Section 43 shall be deemed to have been cancelled and the transfer shall be deemed to have been made without the previous sanction of the Collector. The proviso to the said Rule, however, states that the commencement of bona fide steps to use the land for the purpose for which the permission was granted shall be deemed to be compliance with the condition regarding the use of the land for non-agricultural purpose within the sanctioned period. Similarly, Rule 36 of the said Tenancy Rules lays down the conditions on which permission for sale etc., of land under Section 63 of the Act could be granted. Sub-rule (1-A) of Rule 36 provides for deemed cancellation of such permission, if the person fails to comply with the conditions within the specified time limit. However, again proviso to the said Sub-rule (1-A) states that commencement of bona fide steps to use the land for the purpose for which permission has been granted, shall be deemed to be compliance with the condition regarding the use of the land for non-agricultural purpose within the sanctioned period. 11. However, again proviso to the said Sub-rule (1-A) states that commencement of bona fide steps to use the land for the purpose for which permission has been granted, shall be deemed to be compliance with the condition regarding the use of the land for non-agricultural purpose within the sanctioned period. 11. Now, it appears that as per condition No. 5 of the order dated 17.12.1999 passed under Section 63 of the Tenancy Act, the petitioner had to obtain the permission under Section 65 of the Land Revenue Code, within six months of the payment of premium as directed and of obtaining permission under the Periphery Control Act. The said Periphery Control Act came to be repealed w.e.f. 1.7.2002. It is pertinent to note that as per the legal position prevailing at the relevant time, the petitioner was required to obtain development permission under Section 29 of Town Planning Act and not the permission under Section 65 of the Land Revenue Code. The petitioner, therefore, had applied for the development permission under Section 29 of the said Town Planning Act, in view of the fact that as per the relevant provision contained in Section 117 of the Town Planning Act, the permission for development under the said Town Planning Act had overriding effect over the permission granted under any other law for the time being in force. This Court in case of Karimbhai Kalubhai Belim and Ors., reported in 1996 (1) GLR 659 had held inter alia that once development permission was granted under Section 29 of the Town Planning Act, no other permission was required to be obtained under any other law. Relevant observations made therein are reproduced as under:- "4. It is difficult to countenance the submission urged before me by learned Assistant Government Pleader Shri Patel for the respondents relying on Condition No. 2 of the development permission at Annexure B to this petition to the effect that the grantees were required to obtain what is popularly known as the N.A. permission under Section 65 of the Code. The reason therefore is quite simple. Once the development permission is granted under Section 29(1) of the Act, Section 117 thereof comes into operation. It obliterates requirement of any other permission under any other law. The reason therefore is quite simple. Once the development permission is granted under Section 29(1) of the Act, Section 117 thereof comes into operation. It obliterates requirement of any other permission under any other law. In view of the aforesaid rulings of this Court, even permission under Section 65 of the Code would not be necessary with respect to a land if the development permission under Section 29 of the Act is obtained. In that view of the matter, no condition could have been imposed in the development permission for obtaining permission under Section 65 of the Code. To insist on such permission by means of such condition would tantamount to rendering nugatory or set at naught the effect of Section 117 of the Code. This cannot be permitted to be done. Such condition in the development permission at Annexure B to this petition will have to be ignored." 12. The said judgment was also followed in case of Motiben Somaji & Ors. v. State of Gujarat & Anr., reported in 1996 (2) GLR 286 . In view of the said legal position prevailing at the relevant point of time, the petitioner as such was required to obtain permission under Section 29 of the Town Planning Act and once that permission was granted, no other permission, much less permission under Section 65 of the Land Revenue Act was required to be obtained. The petitioner, therefore, had rightly applied for the permission under Section 29 of the Town Planning Act, however, the same was rejected by the Gandhinagar Urban Development Authority vide the order dated 30.12.2005 (Annexure-H) on the ground that the lands in question were covered under the agricultural zone. It is further required to be noted that the said application of the petitioner dated 16.8.2001 was rejected by the Gujarat Urban Development Authority on 30.12.2005 i.e. practically after about 3 1/2 years, though there was a deeming provision under Section 29(4) of the Town Planning Act, to the effect that if the appropriate authority failed to communicate its order to the applicant within three months from the date of receipt of the application, such permission was deemed to have been granted to the applicant on the expiry of the said period of three months. If the said deeming provision was made applicable to the facts of the present case, as there was no communication of the decision taken by the concerned authority under the Town Planning Act either granting or rejecting the application of the petitioner within the prescribed time limit, under Section 29 of the said Act, the said permission was deemed to have been granted, and as per the legal position prevalent at the relevant time, the petitioner was as such not required to obtain the permission under Section 65 of the Land Revenue Act, once such permission under Section 29 of the Town Planning Act was granted. 13. Be that as it may, from the said undisputed position, it clearly transpires that the petitioner Trust had made bona fide efforts and taken all necessary steps to comply with the conditions laid down in the order dated 17.12.1999 and also in the order dated 13.1.2004 and therefore, in the opinion of the Court, the petitioner was required to be granted the benefit of the proviso to Rule 25-C(3) and of the proviso to Rule 36(1-A) of the Tenancy Rules, which, inter alia, provided that the commencement of bona fide steps to use the land for the purpose for which the sanction was granted shall be deemed to be compliance with the conditions regarding the use of the land for non-agricultural purpose within the sanctioned period. Under the circumstance, it could not be said that the petitioner had committed any breach of the conditions mentioned in the said orders. 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 non-compliance 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 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 non-agriculturist. 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 non-agriculturist. 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 (Annexure-Y 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 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. 18. The petition stands allowed accordingly. Rule is made absolute to the aforesaid extent. No order as to costs.