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2016 DIGILAW 1451 (GUJ)

Motiben v. State of Gujarat

2016-07-22

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. Both the petitions pertain to the land bearing Survey No. 213 Final Plot No. 16 of village Ghatlodia, Taluka City Ahmedabad, and therefore, they were heard together, and this common order is being passed. 2. The petitioners of Special Civil Application No. 9790 of 1998 claiming to be the owners of the land in question through their Power of Attorney Holder Laxmanbhai Vaghela, have challenged the impugned order dated 26.10.1998 passed by the respondent No. 2 - Collector (Annexure 'M') under Section 211 of the Bombay Land Revenue Code (hereinafter referred to as 'the Revenue Code'), whereby the Collector has set aside the order dated 27.11.1997 passed by the City Deputy Collector, Ahmedabad. Whereas the Special Civil Application No. 2237 of 1999 has been filed by the petitioner society, who had allegedly purchased the land in question from the original owners by executing the agreements in the year 1981-82. The said society had challenged the impugned order dated 11.01.1999 passed by the respondent No. 2 - Collector, rejecting the application of the petitioner society to determine the amount of the N.A. Assessment in respect of the land in question. For the sake of convenience the facts of Special Civil Application No. 9790 of 1998 are taken into consideration. 3. The short facts giving rise to the present petitions are that the petitioners of Special Civil Application No. 9790 of 1998 were the owners and occupiers of land bearing Survey No. 213 admeasuring 2 acres 29 gunthas of village Ghatlodia, which they had inherited from their Predecessors in title. According to the said petitioners, a mutation entry being No. 809 came to be posted in the revenue record (Annexure 'H') on 02.06.1956 showing the certain lands including the land in question as the lands of new tenure. The said land was sought to be sold by the said petitioners to the New Shivam Co-operative Housing Society Ltd., the petitioner of other petition, by executing two agreements on 16.06.1981 and 07.05.1982. The Town Planning Scheme having been finalized, the said land was given Final Plot No. 16 covered under the residential zone. The said land was sought to be sold by the said petitioners to the New Shivam Co-operative Housing Society Ltd., the petitioner of other petition, by executing two agreements on 16.06.1981 and 07.05.1982. The Town Planning Scheme having been finalized, the said land was given Final Plot No. 16 covered under the residential zone. It is further the case of the petitioners that the petitioners having come to know that the said land was shown as the new tenure land in the revenue record, they made an application to the Collector on 22.10.1993 (Annexure 'E'), requesting him to remove the tag of new tenure, and delete the said entry, however, the Collector vide his communication dated 25.10.1994 (Annexure 'I'), informed the petitioners that their application was filed. The petitioners, therefore, challenged the said communication before this Court by filing the Special Civil Application No. 891 of 1995. It appears that the Talati-cum-Mantri of village Ghatlodia had also issued the notice dated 27.01.1994 calling upon the petitioners to pay the premium for conversion of land from agriculture to non-agriculture, and to show cause as to why the construction being carried on the land in question, should not be stopped, as the same was without permission under Section 65 and 66 of the Revenue Code. The said notice was challenged by the petitioners by filing the Special Civil Application No. 887 of 1995 before this Court. This Court vide order dated 19.03.1996, partly allowed the Special Civil Application No. 891 of 1995 directing the Collector to reconsider and reexamine the application of the petitioners for deleting the tag of new tenure, and to decide the same in accordance with Rules after holding necessary inquiry. The Special Civil Application No. 887 of 1995 came to be allowed by this Court vide the order dated 20.03.1996 by quashing and setting aside the show cause notice issued by the Talati-cum-Mantri holding that the petitioners having obtained the development permission under section 29 of the Town Planning Act, they were not required to obtain permission under Section 65 and 66 of the Revenue Code. 4. After the remand of the matter by the High Court, the Deputy Collector vide the order dated 27.11.1997 (Annexure 'K'), directed to delete the mutation entry No. 809 in respect of the land in question holding that the said entry regarding new tenure was not supported by any contemporaneous record. 4. After the remand of the matter by the High Court, the Deputy Collector vide the order dated 27.11.1997 (Annexure 'K'), directed to delete the mutation entry No. 809 in respect of the land in question holding that the said entry regarding new tenure was not supported by any contemporaneous record. However, the respondent No. 2 - Collector in exercise of the suo moto powers conferred under Section 211 of the Revenue Code, called upon the petitioners to show cause as to why the said order of Deputy Collector should not be set aside. The respondent No. 2 - Collector thereafter vide the order dated 26.10.1998 (Annexure 'M') set aside the said order dated 27.11.1997 passed by City Deputy Collector, which is under challenge in Special Civil Application No. 9790 of 1998. 5. It appears that an application was made by the petitioners through their Power of Attorney Holder Laxmanbhai Vaghela to the respondent No. 2 - Collector for fixing the N.A. Assessment, as according to the petitioners though no permission was required under Section 65 and 66 of the Revenue Code, the petitioners were required to pay the N.A. assessment charges. The said application came to be rejected by the Collector vide the impugned order dated 11.01.1999 (Annexure 'H'), which is under challenge in the Special Civil Application No. 2237 of 1999 filed by the petitioner society. 6. Learned Senior Counsel Mr. R.S. Sanjanwala appearing for the petitioners of both the petitions vehemently submitted that the land in question was inherited by the petitioners from their forefathers, and was never a new tenure land, however, in the year 1956, on the basis of some circular of the Government, the entry being No. 809 was made in the revenue record showing the said land along with their lands as a new tenure land. He further submitted that the said entry No. 809 was challenged by the land owners of the other land bearing No. 69 by filing Special Civil Application No. 7878 of 1996 before this Court, and the said writ petition was allowed by this Court vide the order dated 04.02.1997 holding inter alia that there was no basis for making such an entry treating the said lands as new tenure land. The said order of Single Bench was also confirmed by the Division Bench in the Letters Patent Appeal No. 109 of 1999. The said order of Single Bench was also confirmed by the Division Bench in the Letters Patent Appeal No. 109 of 1999. Hence, according to the learned Senior Counsel, in view of the said orders and there being no material to show that the land in question i.e. Survey No. 213 - Final Plot No. 16, was a new tenure land, the entry No. 809 qua the petitioners' land was required to be deleted or the tag of new tenure attached to the said land was required to be removed from the said entry. He further submitted that the concerned authority having granted the development permission, and the land having also been covered under the Town Planning Scheme, no permission under Section 65 and 66 of the Code was required to be obtained by the petitioners, however, since they were required to pay N.A. assessment charges, they had made an application to the Collector for fixing the N.A. assessment charges, which has come to be rejected by the Collector by the impugned order dated 11.01.1999. 7. However, the learned AGP Ms. Jyoti Bhatt for the respondents - State authorities relying upon the impugned order dated 26.10.1998 passed by the Collector submitted that the land in question was shown as new tenure land in the revenue record since 1929-30, and the petitioners themselves had submitted an application for converting the said land from new tenure to old tenure in the year 1972, which was granted by the competent authority. Hence, the petitioners were required to pay the premium as per the prevailing policy of the Government. 8. In the instant case, it appears that it is not disputed that the land in question was shown as a new tenure land along with the other lands as per the entry No. 809 made in the revenue record on 02.06.1956 as certified on 12.12.1957 (Annexure 'H'). It is also not disputed that the petitioners since 1956, had not raised any objection against the said entry showing the land in question as the new tenure land. Not only that, as transpiring from the impugned order dated 26.10.1998 passed by the Collector, petitioners themselves had submitted an application for converting the said land from new tenure to old tenure, and the said application was granted by the competent authority on 25.04.1972 subject to the conditions mentioned therein. Not only that, as transpiring from the impugned order dated 26.10.1998 passed by the Collector, petitioners themselves had submitted an application for converting the said land from new tenure to old tenure, and the said application was granted by the competent authority on 25.04.1972 subject to the conditions mentioned therein. As per the condition No. 2 of the said order, the petitioners were required to pay 50 per cent of the amount of difference between the amount of premium paid by them by way of occupancy price, and the amount of market price as prevailing on the date, when the petitioners wanted to use the land for non-agricultural purpose. It also appears that the entry being No. 1497 was also made in the revenue record with regard to the said order, which entry was certified on 05.07.1973, however, the petitioners had never raised any objection against the said entry or the said order. Under the circumstances, it does not lie in the mouth of the petitioners to say in the year 1993 that the said land was not new tenure land. The respondent No. 2 - Collector considering the said record of the case, therefore, has rightly held in the impugned order that the land in question could not be treated as an old tenure land. 9. Though much reliance has been placed by the learned Senior Advocate on the order passed in the Special Civil Application No. 7878 of 1996, the same is not helpful to the case of the petitioners. The said petition was allowed by the Single Bench as there was no material placed on record to show that the subject land in the said petition was a new tenure land, whereas in the instant case, the petitioners themselves had accepted the land in question as new tenure land, and applied for converting the same into the old tenure as back in the 1972. As stated earlier, the order converting the land from new tenure to old tenure subject to conditions mentioned therein was never challenged by the petitioners. The Court therefore does not find any illegality or infirmity in the impugned order dated 26.10.1998 passed by the respondent No. 2. 10. As stated earlier, the order converting the land from new tenure to old tenure subject to conditions mentioned therein was never challenged by the petitioners. The Court therefore does not find any illegality or infirmity in the impugned order dated 26.10.1998 passed by the respondent No. 2. 10. It further transpires that the said petitioners, who were the owners of the land in question had sought to transfer the said land to the society, which is the petitioner in the other petition, by executing agreements only. There is nothing to show that the said land was sold to the society by executing any sale deed. It further appears that the petitioners having carried out some illegal construction on the subject land without any permission from the competent authority, the Talati-cum-Mantri had issued a notice calling upon the petitioners to show cause as to why the construction should not be stopped. Of course the said show-cause notice has been set aside by this Court in Special Civil Application No. 887 of 1995 filed by the petitioners. Nonetheless the respondent No. 2 - Collector having refused to treat the land in question as the old tenure land in the impugned order 26.10.1998, he had rightly refused to determine the premium vide impugned order dated 11.01.1999, on the ground that the same cannot be granted without the sanction of the Government. As such, the owners of the said land in question have not executed any sale deed in favour of the petitioner society, and therefore, no legal right, title or interest could be said to have vested in the said society. The petitioner society therefore would not have any locus standi to challenge the order dated 11.01.1999 passed by the respondent No. 2 - Collector. 11. In that view of the matter, both the petitions being devoid of merits, deserve to be dismissed. However, since the petitioners were already granted permission to convert the land from new tenure to old tenure vide the order dated 25.04.1972, as transpiring from the impugned order dated 26.10.1998, it would be open for the respondent No. 2 - Collector to reconsider the application of the petitioners for determining N.A. Assessment in view of the said order dated 25.04.1972 or in view of the prevailing government policy that may be applicable to the case of the petitioners. 12. Subject to the aforesaid observations, both the petitions are dismissed. 12. Subject to the aforesaid observations, both the petitions are dismissed. Interim relief, if any, stands vacated. Rule is discharged.