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2018 DIGILAW 253 (GUJ)

Satishbhai Keshavbhai Patel v. State of Gujarat

2018-01-25

SONIA GOKANI

body2018
JUDGMENT : 1. This petition preferred by the petitioner under Article 226 of the Constitution of India, concerns the land bearing Block/Survey No.18 paiki 8 admeasuring 934 sq.mtrs. situated at village Umara, Taluka and District Surat (hereinafter referred to as ‘the said land’). The petitioner is aggrieved by two orders dated July 01, 2013 and December 12, 2013, both passed by the respondent No.2, whereby the permission of revised Non-agricultural permission for commercial purpose in respect of the land in question has been denied. Therefore, seeking direction against the respondent No.2 for reconsidering the case of the petitioner for grant of Non-agricultural use permission for commercial purpose, this petition has been preferred under Article 226 of the Constitution of India. 2. Shorn off unnecessary details, the facts which are requisite to be stated are as under : 2.1 The owners of the land in question filled in Form under Section- 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘the said Act’), qua their holdings. The Competent Authority and Additional Collector (ULC) passed an order dated August 16, 1996, in respect of the land bearing Survey No.89 situated at village Piplod, Taluka Choryasi, District Surat, declaring that the land holders were not holding the land in excess than the permissible limit and, therefore, a notice under Section- 8 of the said Act came to be withdrawn. 2.2 The suo motu proceedings in Revision under Section- 34 of the Act had been initiated by the State Government against the said decision of the Competent Authority by issuing notice on February 26, 1998. After hearing the parties, the order dated August 16, 1996, passed by the Competent Authority came to be confirmed vide its order dated January 18, 1999. 2.3 The Surat Municipal Corporation approved the lay out plan qua the land bearing Survey No.89 situated at Piplod and granted requisite permission. After March 30, 1999, when the ULC Repeal Act came into force, the owners of the land bearing Survey No.89 sold the said land to one Kalpana Jitendra Jariwala and others. 2.3 The Surat Municipal Corporation approved the lay out plan qua the land bearing Survey No.89 situated at Piplod and granted requisite permission. After March 30, 1999, when the ULC Repeal Act came into force, the owners of the land bearing Survey No.89 sold the said land to one Kalpana Jitendra Jariwala and others. 2.4 A notice came to be issued by the Competent Authority to the effect that the land owners had committed fraud with the Government by obtaining an order dated August 16, 1996, under the said Act and, therefore, criminal proceedings were initiated against the owners of the said land situated at Village Piplod and the owners were restrained from selling, transferring, alienating or dealing with the said land in any manner till disposal of the criminal proceedings. 2.5 The said order came to be challenged by the owners of the said land by way of preferring a writ petition being Special Civil Application No.16581 of 2004 and allied matters before this Court, wherein this Court vide order dated December 22, 2004, granted ad interim relief and the status quo qua the lands which are described in the order dated August 16, 1996, was ordered to be maintained. On May 10, 2005, further orders came to be passed in the very petition with certain observations. 2.6 So far as the land in question is concerned, the petitioner and the other co-owners had applied to the Surat Municipal Corporation for development permission along with necessary lay out plan, which ultimately came to be granted on November 23, 2011 and thereby, it granted sanction for commercial use. Yet another application was made for refusing the commercial use in respect of the land in question in March, 2013. The respondent No.2 sought for opinion of the Deputy Collector (Land Reforms), Surat, qua such application. 2.7 The Deputy Collector opined on May 09, 2013, that no non –agricultural use revised permission for commercial use can be granted. Therefore, on July 01, 2013, the application came to be filed. A representation, therefore, was made on August 13, 2013 to the respondent Nos.2 and 3 for grant of revised N.A. permission for the said land in question. Thereafter, on December 12, 2013, the Collector, Surat, rejected the application/representation of the petitioner to reconsider his case. Therefore, on July 01, 2013, the application came to be filed. A representation, therefore, was made on August 13, 2013 to the respondent Nos.2 and 3 for grant of revised N.A. permission for the said land in question. Thereafter, on December 12, 2013, the Collector, Surat, rejected the application/representation of the petitioner to reconsider his case. On December 16, 2013, a representation was made to the respondent No.1 to direct the respondent Nos.2 and 3 to reconsider the case of the petitioner as aforesaid. 2.8 It is the grievance on the part of the petitioner that so far as the land in question is concerned, it is an old tenure land and the N.A. permission has already been granted on November 07, 1966. Considering the provisions of Section- 65-A of the Bombay Land Revenue Code, only conversion amount is to be paid by the petitioner. The petitioner has also carried out construction in a lawful manner and in consonance with the construction permission (Raja Chiththi) granted/approved by the Surat Municipal Corporation. The petitioner is also ready and willing to pay the amount for change of user from one N.A. to another N.A. as may be required, but in no circumstances, the authority could have denied the change of user and may not have compelled him to pay the premium at the rate of Jantri. The petitioner had also preferred a petition being Special Civil Application No.2082 of 2015 and had challenged the said order and the action of the authority. 3. An affidavit-in-reply on the part of the respondent No.2-Additional Collector, Surat, states inter alia that the petition is not maintainable since an alternative efficacious remedy is available and, therefore, in the wake of the decision of the Apex Court rendered in the case of CA No.9394 of 2014, arising out of S.L.P. (Civil) No.39122 of 2013, the petition under Article 226 may not be exercised. It is further his say that the order dated July 01, 2013 and December 12, 2013, passed by the Collector, Surat, with reference to the application made by the petitioner seeking revised N.A. for commercial use in respect of the land in question after the petitioner purchased it from one Amratbhai Jaykishandas and others on February 02, 1969, by way of registered sale deed. The revenue record was also mutated by posting an entry No.806 and the land in question has been converted from Agricultural use to residential purpose in the year 1967 and accordingly, the revenue entry was mutated in the revenue record being Entry No.735. It is further his say that the Additional Collector and Competent Authority, ULC, Surat, passed orders dated June 09, 1982 and June 28, 1985, and sanctioned the schemes under Section- 21(1) for the lands bearing Survey Nos.15 and 32 paiki admeasuring 40913 and 35005 sq.mtrs. respectively qua the land situated at village Umra, District Surat. The Additional Collector declared the land admeasuring 112.43 sq.mtrs. as surplus land with the land owners viz. Balwantbhai Keshavbhai Patel, Satishbhai Keshavbhai Patel (the petitioner herein) and Rameshbhai Keshavbhai Patel jointly. 3.1 The respondent-State reviewed the order dated July 19, 1990 passed by the Additional Collector and Competent Authority under Section- 34 of the said Act and quashed and set aside the order dated June 29, 1996, and declared 999 sq.mtrs. of land as surplus and though the notices have been issued under Section- 9 of the said Act, the land owners have not cared to file any reply to the same. 3.2 It is further the say of the respondent that the mother of the petitioner had preferred Special Civil Application No.5669 of 1996 before this Court and this Court (Coram : S.D. Dave, J.) had passed an order dated January 21, 1997, and remanded the matter to the concerned authority. A copy of the order dated January 21, 1997, is has also been annexed with the reply affidavit to reflect that the competent authority had passed an order on August 14, 1996, for taking possession of the surplus land admeasuring 999 sq. mtrs., against which the said petition had been preferred. 3.3 In pursuance of the order of this Court in the said petition, the Deputy Secretary, Revenue Department, had passed an order dated June 16, 1997, and declared 418 sq.mtrs. of land as surplus instead of 999 sq.mtrs. of land. It also observed in the said order that for 10% marginal exemption, the petitioner can approach the State Government. 3.3 In pursuance of the order of this Court in the said petition, the Deputy Secretary, Revenue Department, had passed an order dated June 16, 1997, and declared 418 sq.mtrs. of land as surplus instead of 999 sq.mtrs. of land. It also observed in the said order that for 10% marginal exemption, the petitioner can approach the State Government. 3.4 In that view of the matter, a representation was made on August 14, 1996, and it has been submitted by the land owners to process the form considering the land situated at mauje Piplod bearing Survey No.89 as exempted for the agricultural holding. 3.5 On the strength of the documentary evidence produced by Rameshbhai Keshavbhai Patel, the Additional Collector and Competent Authority, ULC, passed an order dated August 16, 1996, and held that the land owners are entitled to hold 22500 sq.mtrs. of land and it was ordered to drop the notice issued under Section- 8(4) of the ULC Act. It is further the say of the respondent that the order dated January 18, 1999, was passed under Section- 34 of the Act and accordingly, the proceedings under the ULC Act had been dropped. It is alleged that the land owners also produced the false and forged documents and, therefore, the order dated August 16, 1996, was passed. It is contended that since they misled and cheated the State Government and played fraud with the Government, the first information report also came to be lodged on September 28, 2002. The competent authority passed an interim order dated June 13, 2002 and injuncted to issue construction and N.A. permission. 4. An undertaking has been filed by the petitioner inter alia averring that he has challenged the order dated July 01, 2017, passed by the Collector, Surat by way of present petition, by which the permission to carry out change of user from residential to commercial use in respect of the subject matter has been turned down. He has undertaken that in respect of the land bearing Survey No.18 paiki 8 admeasuring 934 sq.mtrs. situated at village Umra, Taluka City, District Surat, he will not sell such land to any one or to any third party. He has undertaken that in respect of the land bearing Survey No.18 paiki 8 admeasuring 934 sq.mtrs. situated at village Umra, Taluka City, District Surat, he will not sell such land to any one or to any third party. He further undertakes that upon the said land, the construction of a commercial building has been carried out, however, he will not sell the said building or a part thereof to anyone till the criminal case No.10084 of 2005 which is pending before the Court of the Judicial Magistrate, First Class, Surat. He has further undertaken that the first information report and the charge sheet filed against the concerned accused in respect of the allegations leveled against the present petitioner and other persons, was in respect of the land bearing Survey No.89 situated at Piplod. The High Court has passed an order not to proceed for framing of the formal charges in a quashing petition being Cr.M.A. No.18737 of 2014, pending before this Court. Till criminal case is pending before the Court at Surat, the subject matter of the land forming a part of the land bearing Survey No.18 paiki 8 situated at village Umra, shall not be sold. 5. This Court heard extensively learned Advocate Shri N.K. Majmudar and learned Assistant Government Pleader who have both pressed into service their respective submissions fervently. 6. On hearing learned advocates for both the sides and also on perusal of the record, it emerges that what is being sought is the quashment of the orders dated 1.7.2013 and 12.12.2013 passed by respondent No.2, wherein it has rejected the request of conversion of residential use to the commercial use in respect of the land bearing Survey No.18/8 admeasuring 934 sq.meters situated at Umra Taluka and District : Surat. It is not in dispute that the land is already subjected to Non-agricultural residential use in the year 1967. The petitioner and others who are the owners of the land, according to the say of the petitioner, have already complied with the order, which came to be passed in the year 1967 making the use of the land for Non-agricultural purpose. 6.1 It is the case of the petitioner that he has not asked for fresh Non-agricultural permission nor is it for the first time that N.A. Permission is sought. 6.1 It is the case of the petitioner that he has not asked for fresh Non-agricultural permission nor is it for the first time that N.A. Permission is sought. It is emphasized that the land was already used as old tenure land and, therefore no restriction would apply to it. It is only the change of use from residential purpose to the commercial purpose. 7. What emerges from record is that the rejection is essentially on the ground that the Criminal Case was pending before the Athwa Lines police Station being Criminal Case No.16065 of 2009, which is pending before the learned 3rd Joint Civil Judge and 3rd Judicial Magistrate, First Class, Surat. This is the land on which the petitioner has carried out the construction of the residential bungalow where it has sought the conversion into the commercial use of the same. The petitioner being exclusive owner of the property situated at Village Piplod for which there were alleged irregularity and in the ULC proceedings and the Criminal Case also was pending. What is emphasized by the petitioner is that the land in question is situated at Survey No.18/8 admeasuring 934 sq.mtrs. having Town Planning Scheme No.5 at Umra and has nothing to do with the property which is situated at village : Piplod. Even otherwise, this Court (Coram: Bela M. Trivedi, J.) in the case of Kalpana Jitendra Jariwala and others v. Competent Authority and Additional Collector (Co-Ordination) (ULC) and others, while dealing with Special Civil Application No. 16581 of 2005, without entering into the order and without expressing any opinion on the merit directed the amount to be deposited by respondent pursuant to the interim order passed by this Court subject to the final outcome of the criminal proceedings initiated against respondent No.1. It is to be noted that the petitioner in those matters along with other 22 persons were claiming to be owners and possessors of the subject plot in the land bearing Revenue Survey No.89 of village: Piplad, District: Surat, which has been reconstituted under the Town Planning Scheme (Piplod) Surat Municipal Corporation). The present petitioners were respondents No.3 to 29 who were the original owners of the land who declare that the did not hold any vacant land in excess of the ceiling limit. The State Government had taken suo motu Revision. The present petitioners were respondents No.3 to 29 who were the original owners of the land who declare that the did not hold any vacant land in excess of the ceiling limit. The State Government had taken suo motu Revision. The said order under Section- 34 of the ULC Act and confirmed the order passed by the competent authority. 8. The Surat Municipal Corporation sanctioned the lay out plan of the land in question and granted permission to the original owner to specially divide the land vide order dated 21.9.1999. The original owners had sold out the said subject plots to the petitioner of those matters and the respondent authority noticed the fraud committed by the original owners in ULC proceedings and initiated criminal proceedings against them. The impugned order dated 13.6.2002 passed by the respondent authority was directing the concerned authority not to grant development permission, NA permission or registering any sale deed in respect of the land in question. By way of interim order, this Court (Coram : Smt.Abhilasha Kumari, J.) vide order dated 19-20th January, 2017, while dealing with Special Civil Application No.16296 of 2015 in the case of Rameshbhai Keshavbhai Patel and others v. State of Gujarat and others, had stayed the impugned order on a condition that power of attorney holders of the original owners shall deposit the full consideration of sale deed executed by them in respect of the land in question with District Collector, Surat, which would be subject to the finalization of the criminal prosecution. In respect of the land in question as and in the event of the prosecution being terminated or finalized the concerned authority was permitted to move this Court for modification of the order. It was also clarified that such an order would not prejudice the case of other side in the criminal prosecution against the parties. This Court held thus : “4. The petitioners and their deceased father Keshavbhai, were joint owners and occupants of the land bearing Survey No.89/paiki admeasuring 2-Hectare 29-Aare and 67-Sq. mtrs. situated in village Piplod, District Surat (the land in question, for short). After the coming into force of the Urban Land (Ceiling and Regulation) Act, 1976 (the ULC Act, for short), the petitioners filled up the form under Section-6 of the said Act. mtrs. situated in village Piplod, District Surat (the land in question, for short). After the coming into force of the Urban Land (Ceiling and Regulation) Act, 1976 (the ULC Act, for short), the petitioners filled up the form under Section-6 of the said Act. A joint inquiry was held by the Competent Authority under the provisions of the ULC Act and, by its order dated 16.08.1996, the Competent Authority held that the petitioners were not holding any surplus land from Survey No.89, along with other lands. The State Government, in exercise of powers conferred under Section-34 of the ULC Act, took the order dated 16.08.1996 of the Competent Authority in revision and, ultimately, by its order dated 18.01.1999, closed the inquiry under Section-34, holding that the order of the Competent Authority was not required to be interfered with or amended. In the meanwhile, the land in question was included in the preliminary Town Planning Scheme No.6 (Piplod) and Survey No.89 was given Original Plot No.42, admeasuring 23368 sq.mtrs. It has now been given Final Plot No.110 admeasuring 17757 sq.mtrs. Final Plot No.110 was situated in the residential zone. Thereafter, the petitioners obtained development permission to develop Final Plot No.110 from the Surat Municipal Corporation, on 21.09.1999. The petitioners have divided Final Plot No.110 into thirty-four different Subplots. Out of the said thirty-four Subplots, thirty-one plots have been transferred by the petitioners in favour of different plot-holders, by executing separate, registered Sale Deeds. 5. It so transpired that the Competent Authority and Additional Collector under the ULC Act, suspecting that some fraud had taken place and some illegality had been committed by the petitioners by submitting false certificates of age and School Leaving Certificates before the ULC authority, passed an order dated 13.06.2002, issuing an injunction and restraining the petitioners from developing the land, obtaining NA permission or transferring the land, till the criminal case is not finally decided. 6. Since thirty-one plots had already been transferred to different persons, those plot-holders preferred petitions, being Special Civil Application No.16581/2004 to Special Civil Application No.16602/2004 with Special Civil Application No.16211/2004, challenging the order of the Competent Authority and Additional Collector, Surat, dated 13.06.2002, whereby the injunction had been granted, preventing them from making any construction, development or transferring the land. The present petitioners were joined as respondents Nos.27, 28 and 29 in the said petitions, respectively. The present petitioners were joined as respondents Nos.27, 28 and 29 in the said petitions, respectively. Notice was issued in the petitions and, ultimately, a common interlocutory order dated 10.05.2005 was passed after hearing the parties. By way of the said order, the present petitioners (respondents Nos.27, 28 and 29 in those petitions) were directed to deposit the full sale consideration with the District Collector, Surat, within a period of six months from the date of the said order. It was further directed that the amount deposited by the present petitioners would be subject to the final outcome of the criminal proceedings. xxx xxx xxx 17. It is, no doubt true that certain criminal proceedings are pending against the petitioners. However, those proceedings would have nothing to do with the grant of NA permission under Section-65 of the Code, which is an independent provision. By the judgment dated 12.07.2016, passed by this Court in Special Civil Application No.16211/2016 and connected matters, it has been stated that the amount has been deposited by the petitioners (respondents Nos.27, 28 and 29 in those petitions) as directed by the Court. There is no dispute regarding the fact that the parties had agreed that the amount would be subject to the final outcome of the criminal proceedings initiated against the petitioners. This position cannot be disputed or varied. It is further recorded in the said judgment that thirty-one plot-holders have been granted NA permission by the concerned authority vide order dated 05.05.2009. It has further been noted that the denial of NA permission to the petitioners has been challenged in the present petition.” 9. In the above matter, this Court quashed and set aside the order passed by the Collector, Surat refusing the Non-agricultural use permission/NA permission to the petitioner of Plot No.31, 32, 34A and 34B situated in final plot NO.) of the Town Planning Scheme situated at Piplad, Surat. 10. On account of the pendency of the petition being Special Civil Application No. 16211 of 2004, Special Civil Application No. 16581 of 2004 and Special Civil Application No. 16602 of 2004, the authority concerned had not granted NA permission on the ground that the breach of petitions filed by 31 plot holders during the pendency before this Court (Coram : Bela M. Trivedi, J.). The order for refusal of NA permission was made. The order for refusal of NA permission was made. However, in wake of the order dated 12.7.2016 passed by this Court (Coram : Bela M. Trivedi, J.) in a group of petitions being Special Civil Application No.16211 of 2004 and allied matters, the order passed by the Collector, Surat, was quashed and set-aside by this Court and the Collector was directed to consider the grant of NA Permission to the petitioners for Plot No.21, 31, 34 and 34B situated at the concerned Final Plot of the Town Planning Scheme situated at Piplod, Surat. On the same ground, the permission is granted to 31 plot holders within the same Final Plot. 11. The question that has arisen for consideration of this Court in the present petition is as to whether in wake of the order passed by this Court in two different sets of petitions in relation to the land situated at Piplod, where the land which belong to the very owners and situated at Umra should also be permitted to be converted into the commercial use as already the Non-agricultural use has been permitted to the petitioner in the past. Pursuant to such permission, the petitioners have already constructed society of residential bungalows. The petitioner has also insisted that with the permission of Surat Urban Development Authority, the commercial construction has come up on the property and, therefore, need for converting once granted NA permission for residential property into the commercial property. 12. Shri N.K. Majmudar, learned counsel appearing for the petitioner, on seeking instructions from the petitioner, has urged that no transfer of the said land shall be effected in any mode or manner of the said land situated at village Umra, till pendency of the criminal case and further, he has relied upon the decision of this Court in the case of Hindustan Brown Bovery Ltd. v. Ashok Chavla, Collector of Baroda and others, reported in 1998(1) GLR 336 , wherein this Court has held as under : “17. The underlying object of sub-Section- (2) of sec.67A of the Code, 1879, is that where the land assessed or held for any Non-agricultural purpose is used for any other Non-agricultural purpose i.e. other than for which it has been converted then only the question to levy conversion tax arises and not otherwise. To understand this, I may given an illustration. The underlying object of sub-Section- (2) of sec.67A of the Code, 1879, is that where the land assessed or held for any Non-agricultural purpose is used for any other Non-agricultural purpose i.e. other than for which it has been converted then only the question to levy conversion tax arises and not otherwise. To understand this, I may given an illustration. There are four Non-agricultural purposes enumerated in sub-clauses (b) to (e) of sub-Section- (1) of Section- 48. So if the land is assessed or held by the holder thereof say for the purpose of residence and if he uses the same for Non-agricultural purpose, say for industry, then only the provisions of sec.67A would have been attracted and not otherwise. The underlying scheme of the provisions of Sections-48, 65, 65-A and 67A of the Code, 1879, is that once the land has been converted for any Non-agricultural purpose, it has to be assessed or retained for the same purposes and it cannot be used for any other Non-agricultural purposes (context of sec.48 of the Act), and if it is so desired after 1-8-1976 then certainly the question of levy of conversion tax would have been there.” 13. This Court is conscious of the fact that the only ground for not allowing the transfer from residential use to commercial use by the Collector, is that the criminal case is pending qua the land situated at village Piplod, wherein the present petitioner is one of the accused, who is facing criminal trial and accordingly, the above cited decisions of this Court would entitle the present petitioner to get his case considered by the Revenue Authorities with a specific undertaking of not transferring or assigning or selling or alienating the land in question in any mode or manner and with these decisions of this Court, the main reason for non-grant in the impugned order collapses and, therefore, the impugned order deserves to be quashed and set aside. 14. Such conversion, of course, shall have to be in accordance with existing Rules and/or circulars/notifications/resolutions, etc. on the subject. The circular dated February 01, 2012, referred to hereinabove in this Judgment issued by the Revenue Department authorising the Collector to transfer the land for the change user shall need to be regarded by the respondent-authority. 15. For the foregoing reasons, the present petition is partly allowed. on the subject. The circular dated February 01, 2012, referred to hereinabove in this Judgment issued by the Revenue Department authorising the Collector to transfer the land for the change user shall need to be regarded by the respondent-authority. 15. For the foregoing reasons, the present petition is partly allowed. The impugned orders dated July 01, 2013 and December 12, 2013, passed by the respondent No.2 are quashed and set aside. 15.1 As per Section- 67(A) of the Act, when the land has already been converted into N.A., conversion tax shall be made applicable as per the decision of this Court in the case of Hindustan Brown Bovery Ltd. (supra) and therefore, the respondent-authority shall calculate and charge the conversion tax from the petitioner in accordance with prevalent rules and the same shall be paid by the petitioner within a period of 30 (thirty days) from the date of receipt of a copy of this order, if otherwise not prohibited under any other law/rules. If such tax is paid by the petitioner, the respondent-authority shall accept the same in accordance with law to permit commercial use. 15.2 The petitioner has already filed an undertaking before this Court to the effect that he will not dispose of the property/land in question till the criminal case in relation to Survey No.89 situated at mauje Piplod, as narrated herein above in this judgment, is over and he shall abide by the same in letter and spirit. 15.3 The petitioner would continue to keep the property/land in question intact and conversion from residential to commercial use will be permitted in accordance with rules. Further, till the criminal case is over finally, no transfer, alienation or sale will be effected qua the said land. The Sub-Registrar shall also be intimated qua such undertaking and, therefore, if any transfer is made, the same shall be notified to the authority which shall be within its right to initiate action for breach which shall include cancellation of such permission. Rule is made absolute accordingly. Direct Service is permitted. There shall be, however, no order as to costs.