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2019 DIGILAW 1097 (GUJ)

State of Gujarat v. Hilldeept Farm Pvt Ltd

2019-12-02

J.B.PARDIWALA, VIRESHKUMAR B.MAYANI

body2019
JUDGMENT : J.B. PARDIWALA, J. 1. This appeal under Clause-15 of the Letters Patent is at the instance of the State of Gujarat [original respondent] and is directed against the judgment and order passed by a learned Single Judge of this Court dated 16/08/2013 in the Special Civil Application No.891 of 2006 preferred by the respondent herein [original petitioner], whereby, the learned Single Judge allowed the petition preferred by the respondent herein. 2. The facts giving rise to this appeal may be summarized as under:- 2.1 The respondent herein is a company registered under the Companies Act, 1956. As a part of its activities, it has undertaken a project of constructing a star categorised hotel near the Apollo Hospital at Village Bhat, Taluka and District Gandhinagar. 2.2 The land bearing Revenue Survey No.76/2 admeasuring Acres 3-27 Gunthas of mauje Bhat, Taluka Gandhinagar (hereinafter referred to as the subject land) was originally owned, possessed and cultivated by one Chhaganlal Chhotalal Shah. By a registered sale deed dated 22nd September, 1947, the said land came to be sold to one Chamar Narsi Amtha and others and a corresponding entry being the Mutation Entry No.480 came to be posted on 8th January, 1948, which was certified on 15th April, 1948. One Bhoja Khoda was cultivating the subject land as an ordinary tenant since 1950-51, and therefore, his name came to be shown in the Village Form No.6 by Mutation Entry No.613 effected on 17th November, 1953 and came to be duly certified. It appears that in the year 1964, proceedings under section 32P of the Tenancy Act came to be initiated. In those proceedings, the tenant declared that he was not inclined to cultivate the land and that he had nothing to do with the subject land. After holding a full-fledged inquiry, an order dated 14th March, 1964 came to be passed by the Mamlatdar and Agricultural Lands Tribunal (hereinafter referred to as 'the Mamlatdar & ALT') directing the tenant to be summarily evicted from the subject land and that the land be restored to the landlord for personal cultivation. Mutation Entry No.829 came to be posted on 14th September, 1964 recording the aforesaid order and the same came to be certified on 28th September, 1964. Mutation Entry No.829 came to be posted on 14th September, 1964 recording the aforesaid order and the same came to be certified on 28th September, 1964. It appears that thereafter, the Mamlatdar & ALT initiated proceedings under section 32(O) of the Tenancy Act in respect of the subject land which came to be numbered as the Tenancy Case No.32-0/Bhat 5 of 1967 which culminated into an order dated 16th January, 1968 whereby it was held that the sale was ineffective under section 32G(3) of the Tenancy Act as the tenant was not willing to purchase the subject land. It was also directed that proceedings under section 32P of the Tenancy Act be initiated in respect of the subject land. Mutation Entry No.996 came to be made on 13th February, 1968 and was certified on 25th March, 1968. According to the respondent, the order dated 16th January, 1968 was passed by ignoring the earlier order dated 14th March, 1964 passed in the proceedings under section 32P of the Tenancy Act in relation to the subject land. Pursuant to the aforesaid order dated 16th January, 1968, the Mamlatdar and ALT, Gandhinagar initiated proceedings under section 32P of the Tenancy Act which culminated into an order dated 26th February, 1969 whereby the tenancy came to be terminated and it was directed that the land shall continue in the personal cultivation of the landlord subject to the conditions of section 32P(7) and (8) respectively of the Tenancy Act. According to the respondent, such order was passed by the Mamlatdar & ALT notwithstanding the fact that in the earlier proceedings initiated under section 32P of the Tenancy Act as it stood before its amendment and by the order dated 17th April, 1964 passed by the competent authority, the land was ordered to be surrendered to the landlord and no condition whatsoever was imposed in the said order, because at that time, sub-sections (7) and (8) of section 32P were not on the statute book. Pursuant to the said order, Mutation Entry No.1075 came to be posted in the Village Form No.6 and came to be certified on 26th April, 1969. Pursuant to the said order, Mutation Entry No.1075 came to be posted in the Village Form No.6 and came to be certified on 26th April, 1969. It may be pertinent to note that there was no mention about the restrictions imposed by the Mamlatdar and ALT in the aforesaid mutation entry and in the Village Form No.7/12 the names of the landlord and the tenant appeared in the relevant columns during the relevant years; and thereafter the names of the subsequent purchasers appeared in the relevant columns. However, significantly, there is nothing in the revenue record for the years 1951-52 to 2003-04 to show that the subject land was of new tenure. It is the case of the respondent that therefore, the subject land was of old tenure and the landlord was entitled to deal with the said land in accordance with law. In view of the fact that the subject land was of old tenure, the landlord sold the same in equal shares to one Navinchandra Purushottamdas Patel and Vinodchandra Dharamchand Patel by two registered sale deeds dated 10th November, 1982 pursuant to which Mutation Entry No.1527 came to be effected in the Village Form No.6 on 2nd August, 1983 and came to be certified on 24th February, 1984. In connection with the aforesaid sale transactions, the Mamlatdar and ALT, Gandhinagar initiated two separate proceedings in respect of each transaction for violation of section 63 of the Tenancy Act being Tenancy Cases No.1164/90/2 and 3. By an order dated 14th September, 1992, the proceedings under section 84C of the Tenancy Act came to be dropped. On the basis of the said order, the Mutation Entries No.1932 and 1934 respectively came to be posted in the Village Form No.6 on 1st January, 1993 and came to be certified on 4th March, 1994. Subsequently, the Deputy Collector, Gandhinagar took the matter in suo motu revision under section 76A of the Tenancy Act in Tenancy/Revision/S.R.205 of 1992. By an order dated 30th December, 1993, the Deputy Collector set aside the order dated 14th September, 1992 passed by the Mamlatdar and ALT. Pursuant to the said order, the Mutation Entry No.1995 came to be posted on 7th March, 1994 which was certified on 8th June, 1994. Thereafter, two revision applications came to be filed before the Gujarat Revenue Tribunal challenging the said order of the Deputy Collector. Pursuant to the said order, the Mutation Entry No.1995 came to be posted on 7th March, 1994 which was certified on 8th June, 1994. Thereafter, two revision applications came to be filed before the Gujarat Revenue Tribunal challenging the said order of the Deputy Collector. By a common judgment and order dated 3rd December, 1998, the Tribunal rejected the revision applications. Subsequently, Navinchandra Purushottamdas Patel and Vinodchandra Dharamchand Patel filed a review application before the Tribunal being the Review Application No.TEN.C.A.10 of 1998 under section 17 of the Bombay Revenue Tribunal Act, 1957. By an order dated 21st December, 2000, the review application came to be allowed by setting aside the earlier order dated 3rd December, 1998, as well as the order dated 30th December, 1993 passed by the Deputy Collector, Gandhinagar and the order dated 14th September, 1992 passed by the Mamlatdar and ALT dropping the proceedings under section 84C of the Tenancy Act came to be restored. Based on the aforesaid order, the Mutation Entry No.2561 came to be posted on 12th January, 2001 which came to be certified on 1st March, 2002. 2.3. Thereafter, since the title of the subject land was clear and marketable, the respondent purchased the said land by virtue of a registered sale deed dated 1st November, 2001. Pursuant thereto, the Mutation Entry No.2596 came to be made on 6th November, 2001 which came to be certified on 29th December, 2001. It appears that in the meanwhile, the Government of Gujarat declared a policy of rendering the State as Vibrant Gujarat. The respondent also executed a Memorandum of Understanding dated 13th January, 2005 with the State Government for establishing a star categorised hotel on the subject land. 2.4 Subsequently, the respondent made an application dated 24th January, 2005 to the District Development Officer seeking N.A. permission in respect of the subject land. By a letter dated 31st May, 2005, certain clarifications were called for from the respondent. It appears that the District Development Officer also requested for the opinion of the Collector in respect of the application made by the respondent. The respondent also made an application dated 7th July, 2005 to the Collector to issue No Objection Certificate for grant of N.A. permission. By the impugned order dated 18th July, 2005 (Annexure Q), the application seeking No Objection Certificate came to be rejected. The respondent also made an application dated 7th July, 2005 to the Collector to issue No Objection Certificate for grant of N.A. permission. By the impugned order dated 18th July, 2005 (Annexure Q), the application seeking No Objection Certificate came to be rejected. Thereafter, the respondent submitted plans for development of the subject lands to the Ahmedabad Urban Development Authority (AUDA). The said plans came to be sanctioned by AUDA subject to fulfillment of conditions of N.A. permission. Subsequently, the respondent put up construction on 505 square metres of the subject land. On 19th April, 2008, Mutation Entry No.3257 came to be made recording the contents of the order dated 26th February, 1969. By a communication dated 9th July, 2009 of the District Development Officer, the respondent was informed that he should approach the Collector, Gandhinagar for N.A. permission. On 19th December, 2009, a notice came to be issued to the respondent under section 66 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as the Code) read with rules 100 and 101 of the Gujarat Land Revenue Rules, 1972 (hereinafter referred to as the Rules). In response to the said notice, the respondent filed a reply dated 17th February, 2010, inter alia, showing willingness to pay the premium etc. in respect of the subject land. By the impugned order dated 30th March, 2010, the Collector imposed penalty on the respondent and also ordered him to pay the revenue assessment in respect of the subject land. The Collector also issued a direction to initiate proceedings under sections 43 and 63 of the Tenancy Act. The said order has been challenged only to the extent the same directs initiation of proceedings under sections 43 and 63 of the Tenancy Act. Pursuant to the above order dated 30th March, 2010, the respondent paid the amount of penalty as well as the land revenue. On 16th February, 2010, the respondent made an application for N.A. permission showing willingness to pay premium in view of Mutation Entry No.3257 whereby the said land was shown to be of new tenure. By the impugned communication dated 4th May, 2010 (Annexure T) of the Collector, Gandhinagar, the respondent was informed that his application for N.A. permission was rejected. The said order was challenged by the respondent by filing Civil Application No.12531/2010 in the present proceedings. By the impugned communication dated 4th May, 2010 (Annexure T) of the Collector, Gandhinagar, the respondent was informed that his application for N.A. permission was rejected. The said order was challenged by the respondent by filing Civil Application No.12531/2010 in the present proceedings. The respondent also moved a Civil Application being 9783/2010 in the present petition seeking a direction to the respondents to consider his application for N.A. treating the subject land as new tenure. In the meanwhile, by the impugned order dated 24th September, 2010 (Annexure S) made in Tenancy Case No.7/2010, the Mamlatdar and ALT, Gandhinagar in exercise of powers under section 84C of the Tenancy Act held that the transfer of the subject land in favour of the respondent was in breach of the provisions of section 32P(7)(8) of the Tenancy Act and held that the same was invalid and ordered the subject land to be vested in the State Government free from all encumbrances. By an order dated 6th October, 2010 made in Civil Application No.9783/2010, this court directed the respondents to consider the application made by the respondent for payment of premium for N.A. permission as on 1st November, 2005 with interest at the rate of 12%. Subsequently, the said order came to be clarified by an order dated 8th October, 2010. By a communication dated 13th October, 2010, the respondent was informed that in view of the order dated 24th September, 2010 passed by the Mamlatdar and ALT, the order passed by the High Court cannot be complied with. Thereafter, the respondent moved a civil application being Civil Application No.12531/2010 for amendment seeking permission to challenge the orders dated 24th September, 2010 and 4th May, 2010. Against the above orders dated 6th October, 2010 and 8th October, 2010, the respondent authorities preferred a letters patent appeal being Letters Patent Appeal No.2570 of 2010 along with an application being Civil Application No.13161 of 2010. By an order dated 29th October, 2010, a Division Bench disposed of the letters patent appeal and the civil application in the following terms: 7. So far as consideration of case of respondent writ petitioner for non agricultural permission is concerned, we are not inclined to make any observation. By an order dated 29th October, 2010, a Division Bench disposed of the letters patent appeal and the civil application in the following terms: 7. So far as consideration of case of respondent writ petitioner for non agricultural permission is concerned, we are not inclined to make any observation. It is for the competent authority, i.e. Collector, who will consider the same in accordance with law taking into consideration the report submitted by the Mamlatdar and in light of the orders passed by this Court from time to time. On such consideration, the Collector will decide whether it is a fit case for grant of non-agricultural permission, and if such permission is refused, the Collector will communicate the grounds to the respondent writ petitioner. The decision be taken at an early date preferably within one month. The order dated 06.10.2010 and order dated 08.10.2010 passed by the learned Single Judge stand modified to the extent above. The Letters Patent Appeal and Civil Application stand disposed of with aforesaid observations and directions. 2.5 By the impugned order dated 27th November, 2010 (Annexure-Z5), the Collector rejected the application for grant of N.A. permission holding that as the sale transaction in favour of the respondent was contrary to the provisions of the Tenancy Act and the transfer in favour of the respondent has been held to be invalid and the subject land has been vested in the State Government, the respondent is not entitled to the grant of change of purpose for non-agricultural use under Section-65 of the Bombay Land Revenue Code by recovering premium under Section 43 of the Tenancy Act. 2.6 In the meanwhile, a notice dated 13th October, 2010 (Annexure-Z6) came to be issued to the respondent under Section 84C of the Tenancy Act calling upon the respondent to remain present before the Mamlatdar and ALT, Gandhinagar on 30th October, 2010 in respect of the subject land. 3. Being dissatisfied, the respondent herein [original petitioner] had to come before this Court by filing a Special Civil Application NO.891 of 2006. 4. In the main matter, the respondent herein [original petitioner] raised the following questions for the consideration of the learned Single Judge. 3. Being dissatisfied, the respondent herein [original petitioner] had to come before this Court by filing a Special Civil Application NO.891 of 2006. 4. In the main matter, the respondent herein [original petitioner] raised the following questions for the consideration of the learned Single Judge. (1) Whether the impugned order passed by the District Collector suffers from the vice of total non-application of mind on the part of the Collector to the order dated 14-3-1964 passed by the Mamlatdar and ALT, Gandhinagar under section 32P(2)(b) of the Bombay Tenanch and Agricultural Lands Act, 1948 (hereinafter referred to as “The Tenancy Act”)? (2) Whether the District Collector committed an error in not appreciating that the order dated 14-3-1964 passed by the Mamlatdar and ALT, Gandhinagar under section 32P(2)(b) of the Tenancy Act was passed before the provisions of sub-sections (6) to (11) were inserted by Gujarat Act 36 of 1965 only 29-12-1965? (3) Whether the Collector committed an error in not properly appreciating that the order dated 26-2-1969 was passed by the Mamlatdar and ALT under section 32P(7) and (8) of the Tenancy Act ignoring the order passed by the Mamlatdar and ALT Gandhinagar on 14-3-1964 under section 32P(2)(b) of the Tenancy Act? (4) Whether the District Collector and the Joint Secretary, Revenue Department (Appeal), Ahmedabad (hereinafter referred to as “the authorities below”) committed an error in not properly appreciating that the surrender of land was made by the tenant in the year 1964 under the provisions of section 32P of the Tenancy Act as they stood before its amendment by Gujarat Act 36 of 1965 only on 29-12-1965? (5) Whether the action on the part of the authorities below in Rejecting the application for converting the land of the petitioner into Non-agricultural use amounts to depriving the petitioner of its fundamental right to carry on its business in any party of the country guaranteed under Article 19(1)(g) of the Constitution of India? (6) Whether the action on the part of the authorities below in Rejecting the application of the petitioner for converting the land of the petitioner in to N.A. use amount to depriving the petitioner of its property save by authority of law and thus, it is violative of the Constitutional right of the petitioner guaranteed under Article 300A of the Constitution of India? (7) Whether the authorities below committed an error in not properly appreciating that the Industries and Mines Department of the respondent State itself has entered into an Memorandum of Understanding with the petitioner pursuant to the recent policy declared by the respondent State of encouraging the Industrialist in the country and abroad to set up industries in the State of Gujarat as a part of Vibrant Gujarat? (8) Whether the authorities below committed an error in no properly appreciating that there is nothing in the revenue record for all these years to show that the land in question was ever a restricted land? (9) Whether the authorities below committed an error in not properly appreciating that the order passed on 26-2-1969 did not reflect in the revenue record at all till the Collector passed the impugned order, and therefore, the question of challenging the said order did not arise at all earlier? (10) Whether the authorities below committed an error in not properly appreciating that the petitioner has entered into a Memorandum of Understanding with the respondent State itself on the faith of the solemn promise contained in the policy of the respondent State of encouraging the industrialists of the country and abroad to invest money in the State of Gujarat so as to bring about Vibrant Gujarat? (11) Whether the authorities below committed an error in not properly appreciating that the petitioner has agreed to invest about 10 crores of rupees in putting up a Hotel and Banquet so as to provide facilities to the N.R.Es. Visiting Gujarat on the faith of the promise given by the State Government? 5. The learned Single Judge after due consideration of all the relevant aspects of the matter while allowing the petition held as under:- “8. By the impugned order dated 30th March, 2010, the Collector, Gandhinagar, has directed initiation of proceedings for breach of section 43 and section 63 of the Tenancy Act in view of the fact that the subject land is of new tenure. The facts as emerging from the record reveal that in the entire revenue record, right from the inception, there was nothing to show that the subject land was of new or restricted tenure. The facts as emerging from the record reveal that in the entire revenue record, right from the inception, there was nothing to show that the subject land was of new or restricted tenure. It is only very belatedly, that too, during the pendency of the present petition that by virtue of Mutation Entry No.3257 which was posted on 19th April, 2008 the contents of the order dated 26th February, 1969 declaring the rights of the tenant to have ceased and to continue the land under personal cultivation of the landlord subject to the restrictions under section 32P (7) and (8) of the Tenancy Act have been recorded in the revenue record. Thus, at the relevant time when the sale deed in favour of the petitioner came to be executed, there was nothing in the revenue record to show that the subject land was of new tenure. 8.1 On a perusal of the above order dated 30th March, 2010, it appears that the same has been made on the basis of a report made by the Mamlatdar, Gandhinagar, relating to certain unauthorised constructions put up on the subject land. While passing the order imposing penalty on the petitioner under section 66 of the Code read with rule 100 and 101 of the Rules in respect of the unauthorised construction put up on the subject land, the Collector, Gandhinagar has also directed the Deputy Collector, Land Reforms to initiate proceedings for breach of section 43 and section 63 of the Tenancy Act as the subject lands are of restricted tenure. In the light of the above discussion, it is apparent that there is no material on record to the effect that the subject lands are of restricted tenure. Under the circumstances, the direction issued by the Collector to initiate proceedings for breach of section 43 and section 63 of the Tenancy Act is without any legal basis. 9. In the light of the above discussion, it is apparent that there is no material on record to the effect that the subject lands are of restricted tenure. Under the circumstances, the direction issued by the Collector to initiate proceedings for breach of section 43 and section 63 of the Tenancy Act is without any legal basis. 9. A perusal of the impugned communication dated 4th May, 2010 of the Deputy Collector, Land Reforms (Appeals) reveals that he has stated that the application made by the petitioner for change of purpose of the subject land for residential farmhouse cannot be granted in view of the fact that proceedings under section 84C of the Tenancy Act are pending before the Mamlatdar and ALT in Tenancy Case No.7/2010 and the matter is pending before the High Court, as well as in view of the instructions dated 23rd February, 2010 of the State Government. In this regard, insofar as the pendency of the proceedings before the Mamlatdar and ALT is concerned, the same stood concluded by the impugned order dated 24th September, 2010 made by the Mamlatdar and ALT. The said order was also subject matter of challenge in the present petition and as discussed hereinabove has been held to be unsustainable. Insofar as pendency of the present petition is concerned, the same is being disposed of by this judgment. Under the circumstances, the reasons stated for rejecting the application for change of purpose would no longer survive. 10. By the impugned order dated 27th November, 2010, the application made by the petitioner for seeking permission for non-agricultural use under section 65 of the Code upon payment of premium under section 43 of the Tenancy Act has been rejected by the Collector in view of the fact that the Mamlatdar and ALT by the above order dated 24th September, 2010 has held that the transfer of the subject land in favour of the petitioner is in breach of the provisions of section 32P(7) and (8) of the Tenancy Act and has directed that the subject lands be vested in the State Government free from all encumbrances. According to the Collector, since the subject land has been vested in the State Government, the question of fixation of premium or granting permission under section 65 of the Bombay Land Revenue Code no longer arises. According to the Collector, since the subject land has been vested in the State Government, the question of fixation of premium or granting permission under section 65 of the Bombay Land Revenue Code no longer arises. This court as discussed hereinabove has held that the order passed by the Mamlatdar and ALT holding that the transaction in question is in breach of section 32P(7) & (8) of the Tenancy Act is unsustainable and liable to be set aside. Therefore, once the order passed by the Mamlatdar & ALT under section 84C of the Tenancy Act is quashed and set aside, as a necessary corollary, the subject land would no longer stand vested in the State Government. Under the circumstances, the reason stated by the Collector for refusing to consider the application of the petitioner for N.A. permission under section 65 of the Code by fixing the premium in respect thereof would no longer survive. 11. Lastly, by the impugned notice dated 13th October, 2010 proceedings under section 84C of the Tenancy Act are sought to be initiated against the petitioner. A perusal of the impugned notice reveals that no grounds have been stated therein as to what is the breach in respect of which such proceedings under section 84C are sought to be initiated. Presumably, such proceedings may have been initiated pursuant to the order dated 30th March, 2010 made by the Collector directing the Deputy Collector (Land Reforms) to initiate proceedings under section 43 and section 63 of the Tenancy Act in view of the fact that the land is of new tenure. In this regard, it may be pertinent to note that such notice under section 84C of the Tenancy Act has been issued on 13th October, 2010 in respect of a transaction which had taken place in the year 2001. Thus, the proceedings have been initiated after a period of about nine years from the date of the sale transaction. At this stage reference may be made to the decisions on which reliance has been placed by the learned advocate for the petitioner. Thus, the proceedings have been initiated after a period of about nine years from the date of the sale transaction. At this stage reference may be made to the decisions on which reliance has been placed by the learned advocate for the petitioner. In State of Gujarat v. Patil Raghav Natha (supra), the Supreme Court in the context of exercise of suo motu powers of revision under section 211 of the Code held that even if no period of limitation has been prescribed for exercise of powers under section 211, this power must be exercised in reasonable time and the length of the reasonable time must be determined on the facts of the case and the nature if the order which is being revised. In State of Punjab v. Bhatinda District Cooperative Milk Producers Union Ltd. (supra) the Supreme Court held that even in the absence of any statutory limitation period, the power of suo motu revision is exercisable only within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors. In Shambhuram Videshram Morya v. State of Gujarat (supra), a Division Bench of this court has held that powers under section 84C of the Tenancy Act has to be exercised within reasonable time. In the facts of the said case, there was a delay of fifteen years which was held to be unreasonable. In Mohammad Kavi Mohamad Amin v. Fatma Ibrahim, (1997) 6 SCC 71 , the Supreme Court was dealing with a case where the sale had taken place in December, 1972 and the suo motu inquiry by the Mamlatdar under section 84C of the Tenancy Act was started in September 1973. The Supreme Court following its earlier decision in the case of State of Gujarat v. Patil Raghav Natha, held that suo motu power under section 84-C had not been exercised within reasonable time. Thus, it is settled legal position that powers under section 84C of the Tenancy Act have to be exercised within a reasonable time. In the opinion of this court, the period of nine years in initiating proceedings under section 84C of the Tenancy Act can by no stretch of imagination be said to be a reasonable time. Under the circumstances, the very initiation of proceedings by the Mamlatdar is without jurisdiction and cannot be sustained. In the opinion of this court, the period of nine years in initiating proceedings under section 84C of the Tenancy Act can by no stretch of imagination be said to be a reasonable time. Under the circumstances, the very initiation of proceedings by the Mamlatdar is without jurisdiction and cannot be sustained. Besides, from the facts noted hereinabove, it is apparent that the Mamlatdar and ALT had already initiated proceedings under section 84C against the petitioner for breach of the provisions of section 32P (7) & (8) of the Tenancy Act and by an order dated 24th September, 2010 had held that in view of the breach of the above provision the transfer in favour of the petitioner is bad in law and has vested the subject land in the State Government. Therefore, there was no cause or reason for the Mamlatdar & ALT to initiate proceedings under section 84C of the Tenancy Act, in respect of land which, at the relevant time, already stood vested in the State Government. For the same reason as has been advanced by the Collector, Gandhinagar for not making any order on the application made by the petitioner under section 65 of the Code seeking N.A. permission by fixing premium under section 43 of the Tenancy Act, the question of initiating proceedings under section 84C in respect of lands which according to the State authorities already stood vested in the State Government would not arise. As observed in the preceding paragraphs, action in breach of provisions of section 32P(7) & (8) of the Tenancy Act ought to have been taken at the time of the first purchase, however, the respondent State authorities having failed to initiate any proceedings at the relevant time, it was not permissible for them to contend that the restrictions under section 32P(7)(8) of the Act would apply in the case of subsequent transfer in favour of the petitioner. Apart from the aforesaid, as noticed earlier, in the entire revenue record, there is no material whatsoever to show that the subject lands are of new tenure. The only entry recording that the land is of new tenure has been made during the pendency of the present petition in the year 2008. Apart from the aforesaid, as noticed earlier, in the entire revenue record, there is no material whatsoever to show that the subject lands are of new tenure. The only entry recording that the land is of new tenure has been made during the pendency of the present petition in the year 2008. Thus, it appears that the respondents have been making one attempt or the other to frustrate every application made by the petitioner for change of tenure of the land and change of use of the land from agricultural to non-agricultural. 12. In the light of the aforesaid findings recorded by this court, it is apparent that there is no material to show that the subject land is of new tenure. Nevertheless, the petitioner has stated that he is ready and willing to pay the premium in respect thereof at the prevailing market rate. Earlier, this court had directed the respondent authorities to decide the application made by the petitioner to pay premium, however, the same had been turned down for the reasons as already noted hereinabove. Under the circumstances, with a view to obviate any further litigation in the matter, since the petitioner is ready and willing to pay the premium in respect of the subject land as per the existing market policy, though prima facie, the subject land does not appear to be governed by the provisions of the Tenancy Act, the petitioner shall be held to his statement and be liable to pay premium in terms of the prevailing policy. 13. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order dated 24th September, 2010 (Annexure S to the petition) is hereby quashed and set aside. Consequently, the reasons stated in the order dated 18th July, 2005 and 4th May, 2010 for not granting No Objection Certificate to the petitioner and not considering petitioners application for change of purpose no longer survives. The order dated 30th March, 2010 (Annexure Y) is hereby quashed and set aside to the extent the same directs initiation of proceedings for breach of section 43 and 63 of the Tenancy Act. The order dated 30th March, 2010 (Annexure Y) is hereby quashed and set aside to the extent the same directs initiation of proceedings for breach of section 43 and 63 of the Tenancy Act. The order dated 27th November, 2010 made by the Collector rejecting the application made by the petitioner for non-agricultural permission under section 65 of the Code by fixing the premium under section 43 of the Tenancy Act as well as the impugned notice dated 13th October, 2010 issued by the Mamlatdar and ALT under section 84C of the Tenancy Act are hereby quashed and set aside. The respondent Collector is directed to do the needful pursuant to the application made by the petitioner for grant of non-agricultural permission under section 65 of the Code by fixing the premium in respect of the subject land as per the existing policy of the State Government at the earliest and not later than a period of three months from the date of receipt of a copy of this judgment. Rule is made absolute accordingly with no order as to costs.” 6. Thus, the finding of fact recorded by the learned Single Judge after due consideration of materials on record is that the subject land is not of a restricted tenure. 7. We have heard the learned AGP appearing for the appellants and Mr. Mihir Joshi, the learned senior counsel assisted by Ms. Roma Fidelis, the learned counsel appearing for the respondent. 8. The only question that falls for our consideration is whether the learned Single Judge committed any error in passing the impugned judgment and order. 9. This litigation is nothing, but an erroneous assumption on the part of the State authorities that the subject land is of a restricted tenure i.e. the new tenure. As noted above, the finding of fact recorded by the learned Single Judge is that there is nothing on record to indicate that the subject land was of a new or a restricted tenure. 10. The concept of new tenure land has been explained by a Division Bench of this Court in the case of Kanaiyalal Dhansukhlal Sopariwala Vs. State of Gujarat and Another; Letters Patent Appeal No.1137 of 2008; decided on 07/01/2008. We quote the Paragraph-10 as under:- “10.…....The issue of tenure of land under the Bombay Land Revenue Code arises from the nature of occupancy. State of Gujarat and Another; Letters Patent Appeal No.1137 of 2008; decided on 07/01/2008. We quote the Paragraph-10 as under:- “10.…....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 States 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 States 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.” 11. We are of the view that no error not to speak of any error of law could be said to have been committed by the learned Single Judge in passing the impugned judgment and order. The impugned judgment and order passed by the learned Single Judge is very exhaustive and deals with all relevant aspects of the matter as raised by the appellants in the present appeal. No interference is warranted on any of the grounds as urged by the appellants. 12. In the result, this appeal fails and is hereby dismissed. ORDER IN THE CIVIL APPLICATION:- In view of the order passed in the main appeal, the civil application, if any, would not survive and the same is disposed of accordingly.