JUDGMENT : V.M. Pancholi, J. 1. By way of this petition which is filed under Article 226 of Constitution of India, the petitioner has prayed that the order dated 9/14.3.2016 passed by respondent no. 2-Collector be quashed and set aside and direction be issued to the respondent no. 2 to grant non-agricultural permission in respect of the land bearing original survey no. 334 admeasuring 33,488 sq. mtrs. (old survey no. 613/2 admeasuring 7 acres/8 acres 21 gunthas) which is now amalgamated with survey no. 335 and new survey no. 334 admeasuring 63,738 sq. mtrs. Situated at mouje Mithirohar, Taluka and District Gandhidham. 2. Heard learned advocate Ms. Archana Acharya for the petitioner and learned Assistant Government Pleader Mr. Antani for the respondents. 2.1. The dispute in the present case is with regard to land bearing original survey no. 334 which was originally owned by Vasantray Maganlal. On 8.9.1959, said Vasantray Maganlal sold the land in question to Rama Kumbha. Said Rama Kumbha held the land in question under the Bombay Inams (Kutch Area) Abolition Act, 1958 (hereinafter referred to as 'the said Act') as 'Butadar' as contemplated under Section 7(1)(a) of the said Act. Thereafter, mutation entry no. 158 came to be mutated on 10.10.1961 in the revenue record. Upon payment of six pats to the government, name of Rama Kumbha was to be recorded in the second column as possession holder as per Section 6 of the Act. 2.2. It is stated that in the year 1976, all the lands of village were promulgated and accordingly old survey no. 613/2 was given new survey no. 334 admeasuring 8 acres 11 gunthas and thereafter necessary entry was mutated in the revenue record on 25.5.1976. Thereafter, on 30.7.1988, Special Mamlatdar issued a notice under Section 8 of the said Act to Rama Kumbha calling upon him to remain present on 11.8.1988. On the said date, the statement of Rama Kumbha was recorded wherein he has stated that he has purchased the land in question from Vasantray Maganlal. Even, Talati-cum-Mantri filed affidavit dated 11.8.1988 before the Mamlatdar by which it was declared that the land is running in the name of Rama Kumbha since 1958. on 15.12.1988, Special Mamlatdar passed order declaring to allot old survey no. Even, Talati-cum-Mantri filed affidavit dated 11.8.1988 before the Mamlatdar by which it was declared that the land is running in the name of Rama Kumbha since 1958. on 15.12.1988, Special Mamlatdar passed order declaring to allot old survey no. 613/2 which is of new tenure and impartible land and to hand over possession of the same to Rama Kumba on payment of pat before the state government. Necessary amount was paid by Rama Kumbha and therefore the said land was allotted to him. Entry no. 1156 was mutated on 3.3.1989 in the revenue record which was subsequently certified. 2.3. It is further stated that after the death of Rama Kumbha, the land in question was mutated in the name of legal heirs of Rama Kumbha and entry no. 2177 was mutated in the revenue record on 18.1.1999. On the very same day, there was a partition of various lands held by Rama Kumbha between his legal heirs and the subject land i.e. survey no. 334 came to the share of Bhacha Rama Virda for which entry no. 2178 was mutated in the revenue record. 2.4. It is further stated that Bhacha Rama Virda initiated the case no. 236 of 2004 before Special Mamlatdar, Inam Abolition Act. Special Mamlatdar passed an order on 19.8.2004, by which he revised/amended the order dated 15.12.1988 and declared the subject land as old tenure land under Section 7(1)(a) of the said Act. Entry no. 2930 was mutated in the revenue record about the said order in the year 2004. Thereafter, the sale deed was executed by Bhacha Rama Virda in favour of Sukhdevbhai Raichandbhai Acharya and Smt. Shilpaben Sukhdevbhai Acharya in respect of the said land. The mutation entry no. 2987 was mutated in the revenue record on the basis of the registered sale deed. Sukhdevbhai thereafter relinquished his right from the said land in favour of Smt. Shilpaben. 2.5. On 12.6.2012, said Shilpaben executed the registered sale deed in favour of the present petitioner. The petitioner, before purchase of the said land, sought permission under Section 89 of the Bombay Tenancy Act from the Deputy Collector which was granted on 18.2.2012. On 16.11.2012, Gandhidham Development Authority also granted permission under Section 8(2) of the Gandhidham (Development and Control on Erections of Buildings) Act of 1957 for development of the site. 2.6. The petitioner, before purchase of the said land, sought permission under Section 89 of the Bombay Tenancy Act from the Deputy Collector which was granted on 18.2.2012. On 16.11.2012, Gandhidham Development Authority also granted permission under Section 8(2) of the Gandhidham (Development and Control on Erections of Buildings) Act of 1957 for development of the site. 2.6. Thereafter, on 29.1.2013, the petitioner submitted an application under Section 65B of the Gujarat Land Revenue Code ('the Code' for short) for grant of non-agricultural permission of the land in question. The respondent no. 2 Collector passed the order on 9.3.2015 wherein it was observed that only after the petitioner gives an undertaking on stamp paper of Rs. 100/- declaring to pay premium amount in respect of the subject land, respondent no. 2 will take out further proceedings in pursuance to the said application. The petitioner, therefore, filed Special Civil Application No. 12184 of 2015 before this Court. The said petition was partly allowed by this Court and the communication/order dated 9.3.2015 passed by respondent no. 2-Collector was quashed and set aside. The Collector was directed to take necessary action on the application of the petitioner under Section 65B of the Code in accordance with law within stipulated period. 2.7. It is further stated that now the impugned order dated 9/14.3.16 has been passed by the respondent no. 2 whereby the respondent no. 2 has held that non-agricultural permission shall be granted on production of documentary evidence in respect of payment of premium for non-agricultural land as per the prevailing rate, conversion charges, taxes of non-agricultural assessment etc. The petitioner has, therefore, preferred this petition. 3. Learned advocate Ms. Acharya has, at the outset, referred to the order dated 23.12.2015 passed by this Court in Special Civil Application No. 12184 of 2015 and from the said order, it is pointed out that this Court has specifically observed that if the person who applies for such permission under Section 65B is otherwise required to pay premium under the statute or the resolution of the government for treating the land as of old tenure, it is always open to the concerned authority to take separate proceedings to recover such premium or to take any other action available under law but such action cannot be wrapped with powers to be exercised under Section 65 or 65B of the Code. It is further observed that what is required under Section 65B is to find out whether the concerned person is occupant of the land for which the permission is asked for and satisfies the requisite conditions for grant of permission. It is further submitted that in the first round of litigation, the respondent no. 2 Collector passes an order by which the petitioner was asked to file undertaking on the stamp paper of Rs. 100/- to pay non-agricultural premium and when this Court has quashed and set aside the said order of directing the petitioner to file undertaking for the payment of premium, now the impugned order is passed by which once again the condition is imposed by respondent no. 2 Collector that non-agricultural permission can be granted after the premium is paid by the petitioner. It is, therefore, urged that the impugned order is required to be quashed and set aside. 4. At this stage, learned advocate Ms. Acharya has also pointed out from the record that the order dated 23.12.2015 was challenged by the respondent state by filing Letters Patent Appeal before the Division Bench of this Court along with civil application for condonation of delay. However, the Division Bench of this Court has rejected the civil application filed for condonation of delay vide order dated 3.5.2016, copy of which is produced at page 74 of the compilation. It is, therefore, urged that the impugned order passed by respondent no. 2 be quashed and set aside. 5. On the other hand, learned Assistant Government Pleader Mr. Antani has referred to the affidavit-in-reply filed on behalf of the respondent. Learned Assistant Government Pleader has more particularly, referred to the averments made in paragraphs 8, 9 and 11 of the said reply. After referring to the same, it is submitted that the respondent no. 2 Collector has now filed application before the Gujarat Revenue Tribunal with a request to take the order passed by the Special Mamlatdar, Bhuj in revision. It is further submitted that the proceedings are filed in the year 2017 before the GRT which are pending for deciding issue with regard to condonation of delay in filing revision application. Learned Assistant Government Pleader has therefore urged that this petition be dismissed. 6. This Court has examined the material placed on record and considered the submissions canvassed by learned advocates for the parties. Learned Assistant Government Pleader has therefore urged that this petition be dismissed. 6. This Court has examined the material placed on record and considered the submissions canvassed by learned advocates for the parties. It appears from the record that when the petitioner submitted an application under Section 65B of the Code for grant of non-agricultural permission with regard to the land in question, respondent no. 2 initially passed an order on 9.3.2015 by which the petitioner was directed to file affidavit on stamp paper of Rs. 100/- that he will pay non-agricultural premium. The petitioner has challenged the order/communication by filing Special Civil Application No. 12184 of 2015. The said petition was partly allowed by this Court vide order dated 23.12.2015. This Court has observed in paragraphs 12, 13 and 14 of the said order as under: "12. If the person who applies for such permission is otherwise required to pay premium under Statute or the resolution of the Government for treating the land as of old tenure, it is always open to the concerned authority to take separate proceedings to recover such premium or to take any other action available under law but such action cannot be wrapped with powers to be exercised under Section 65 or 65B of the Code are to be exercised. What is required for the purpose of Section 65 or 65-B of the Code is to find out whether a person is occupant of the land for which the permission is asked for, and satisfies requisite conditions for grant of permission. 13. Present is a case where the Collector considered only entry No. 158. However, under subsequent entry No. 208, the land in question with other lands of Rama Kumbha Virda are shown as per Section 7(1)(c) of the Act in the record of rights of the year 1976. In the year 1988, the occupancy rights were conferred to Rama Kumbha Virda by the Special Mamlatdar, vide order dated 15.12.1988. As stated above, in such order, Rama Kumbha Virda was shown to be the tenant and the Government as Inamdar of the land in question. In the year 1988, the occupancy rights were conferred to Rama Kumbha Virda by the Special Mamlatdar, vide order dated 15.12.1988. As stated above, in such order, Rama Kumbha Virda was shown to be the tenant and the Government as Inamdar of the land in question. It appears that the predecessor in title of the petitioner had purchased the land of survey No. 335 which was adjacent to the land in question and the land in question was then consolidated with Survey No. 335 and consolidated Survey No. 334 for both the lands was given and both the lands under consolidated survey no. 334 were purchased by the petitioner by registered sale deed dated 12.6.2012 after obtaining permission under Section 89 of the Bombay (now Gujarat) Tenancy and Agricultural Lands (Vidarbh and Kachchh Area) Act, 1958 as stated above. In the affidavit in reply, it is stated that the mutation entry no. 208 and 254 were erroneously made to record status of the land as falling under section 7(1)(a) of the Act. It is stated that the land was granted to Rama Kumbha Virda as new tenure under order dated 15.12.1988 passed by the Special Mamlatdar and, therefore, subsequent order dated 19.8.2004 was without authority of law. However, the fact remains that after the amended order was passed by the Mamlatdar, the land was first sold to the predecessor in title of the petitioner and in respect of such first sale, no action was taken. If the Special Mamlatdar has no jurisdiction to pass the amended order, or that the land when was sold to the predecessor in title of the petitioner in the year 2004 was of new tenure for which necessary conversion premium was required to be paid to the State Government, it was always open to the concerned authority to take appropriate permissible action in law in this regard. But, Section 65 or Section 65-B of the Code cannot be utilized by the Collector to indirectly take action for recovery of non agricultural premium. But, Section 65 or Section 65-B of the Code cannot be utilized by the Collector to indirectly take action for recovery of non agricultural premium. If the Collector is so permitted for recovery of such NA Premium while exercising powers under section 65 or 65-B of the Code, person like the petitioner may be deprived of his legitimate right to oppose the action or represent against the action which is to be taken independently for holding that the land is of new tenure and for recovery of conversion premium for N.A. Use of the land. At the stage when such independent action is taken, such person may contend and establish that the land is granted under section 7(1)(c) of the Act as partible and of old tenure. It is required to note that whether the Special Mamlatdar had jurisdiction to pass amended order to treat the land as granted under Section 7(1)(c) and of old tenure could not be the issue to be considered by the Collector when the Collector is to take action under sec. 65 or 65-B of the Code. 14. In above such view of the matter, the Court finds that the condition imposed by the Collector by the impugned communication to file undertaking on the stamp paper of Rs. 100 to pay NA Premium by the petitioner is neither germane nor permissible in law for taking action under Section 65-B of the Code. The Collector is, therefore, required to decide the application of the petitioner under Section 65-B of the Code without insisting for filing of such undertaking by the petitioner." 7. From the aforesaid observations made by this Court, it is clear that this Court has specifically observed that if a person applies for permission under Section 65 or 65B of the Code is otherwise required to pay premium as per the statute or under the resolution of the government, for treating the land as old tenure, it is always open to the concerned authority to initiate proceedings or to recover such premium or to take other action available under the law. However, while exercising powers under Section 65 and 65B of the Code, direction cannot be issued to pay the premium. It is further observed that Section 65 or 65B of the Code cannot be utilized by the Collector to indirectly take action for recovery of non-agricultural premium. However, while exercising powers under Section 65 and 65B of the Code, direction cannot be issued to pay the premium. It is further observed that Section 65 or 65B of the Code cannot be utilized by the Collector to indirectly take action for recovery of non-agricultural premium. If the Collector is so permitted for recovery of non-agricultural premium while exercising the powers under Section 65 or 65B, the person may be deprived of his legitimate right to oppose action or represent against the action which is to be taken independently for holding that the land is of new tenure and for recovery of conversion premium for non-agricultural use of the land. 8. It is also observed by this Court that it is required to be noted that whether the Special Mamlatdar had jurisdiction to pass amended order to treat the land as granted under Section 7(1)(C) of the Act and of old tenure could not be issued to be considered by the Collector when the Collector is to take action under Section 65 or 65B of the Code. 9. This Court, after making the aforesaid observations, quashed and set aside the condition imposed by the Collector by which the petitioner was directed to file undertaking on the stamp paper of Rs. 100/- to pay non-agricultural premium. 10. Keeping in view the aforesaid order passed by this Court, now if the impugned order dated 9/14.3.2016 passed by respondent no. 2 is carefully examined, it is revealed that though the respondent no. 2 Collector has referred to the oral order dated 23.12.2015 passed by this Court, now he has observed that after the payment of premium by the petitioner, non-agricultural permission would be granted to him. 11. At this stage, it is further required to be noted that though the order passed by the Collector is under challenge in the present petition, the Mamlatdar, Gandhidham has filed affidavit-in-reply by which he has tried to defend the order passed by the Collector. It is very surprising that the Mamlatdar has defended the order of the Collector. The Collector has independently not filed any affidavit or defended his order. In paragraph 11 of the affidavit, the concerned Mamlatdar has said that the order dated 19.8.2004 passed by the Special Mamlatdar, Bhuj is bad in law because the Special Mamlatdar has no authority to pass said revision/rectification of his own order. The Collector has independently not filed any affidavit or defended his order. In paragraph 11 of the affidavit, the concerned Mamlatdar has said that the order dated 19.8.2004 passed by the Special Mamlatdar, Bhuj is bad in law because the Special Mamlatdar has no authority to pass said revision/rectification of his own order. It is also required to be noted that till today, the order dated 19.8.2004 is not set aside by any superior authority and therefore it is not open for the concerned Mamlatdar who has filed affidavit to say that the order passed by Special Mamlatdar is bad in law. 12. In view of the aforesaid facts and circumstances of the present case, the impugned order dated 9/14.3.2016 passed by the respondent no. 2 is hereby quashed and set aside. The respondent no. 2 shall decide the application submitted by the petitioner for grant of non-agricultural permission within a period of six weeks from the date of receipt of this order without insisting for payment of premium. With the aforesaid observation and direction, this petition is partly allowed. Rule is made absolute to the aforesaid extent.