Gujarat High Court Case Information System
Print
SCA/1816/2009 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1816 of 2009
=========================================
BHOGILAL
DHANABHAI PATEL & 3 - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================
Appearance :
MR
ASHISH H SHAH for
Petitioner(s) : 1 - 4.
MR NEERAJ SONI, AGP for Respondent(s) : 1 -
5
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 17/08/2010
ORAL
ORDER
1. By
way of this petition under Article 226 of the Constitution of India
the petitioners have prayed for the following reliefs;
(b) The
Hon’ble Court be pleased to issue an appropriate writ, order or
direction interalia declaring the action of the respondents in
demanding premium for transfer of ownership of land bearing Survey
No. 984 paiki admeasuring Hec. 4 Acres and 27 Gunthas situate at
Anjar District Kutch is ex-facie illegal, unlawful, without
jurisdiction and authority of law and violative of Articles 14 &
300A of the Constitution of India;
(c) This
Hon’ble Court be pleased to issue an appropriate writ, order or
direction interalia, permanently restraining the respondents from
demanding any amount of premium for grant of permission to transfer
the land bearing Survey No. 984 paiki;
(d) This
Hon’ble Court be pleased to issue a writ of mandamus and/or any other
appropriate writ, order or direction in the nature of mandamus
commanding the respondents and more particularly respondents nos. 2
and 4 to forthwith grant the permission envisaged under Section 73B
of the Bombay Land Revenue Code read with condition stipulated in the
order dated 07/01/1987 within such time as may be deemed just, fit
and expedient and fixed by this Hon’ble Court.
In
the alternative, this Hon’ble Court be pleased to issue a writ of
mandamus and/or any other appropriate writ, order or direction in the
nature of mandamus directing the respondents herein and more
particularly the respondents no. 2-Collector from fixing the amount
of premium as on the date of making of the application dated
03/04/2006 and to further grant necessary permission as envisaged
under Section 73B of the Bombay Land Revenue Code read with the
condition contained in the order dated 07/01/1987 within such time as
may be deemed just, fit and expedient and fixed by this Hon’ble
Court.
(e) This
Hon’ble Court be pleased to issue an appropriate writ, order or
direction declaring the action on the part of the respondents in
demanding the premium on the basis of the current market price on the
date of decision of the application to be without jurisdiction and
authority of law, arbitrary, discriminatory and violative of Article
14 of the Constitution of India.
(f) Pending
admission, hearing and/or final disposal of this petition, this
Hon’ble Court be pleased to issue interim directions to the
respondents more particularly the respondents nos. 2 and 4 to grant
necessary permission for transfer of the land by the petitioner no. 1
to petitioners nos. 2 to 4 on payment of premium on the basis of
market value of the land existing on the date of the application i.e.
30/04/2006 subject to such terms and conditions as may be deemed
just, fit and expedient and imposed by this Hon’ble Court.
2. Though
number of reliefs have been prayed, Shri A.V Nair, learned advocate
appearing on behalf of the petitioners has restricted the prayer of
the petitioners with respect to the action of the respondents in
demanding premium while considering the application of the
petitioners to convert the 4 Acres 27 Gunthas of land situated at
Anjar from agricultural use to non agricultural use, and, therefore,
this Court is at present required to consider only the question
whether while considering the application of the petitioners for
converting the land in question from agricultural use to non
agricultural use, respondents are justified in demanding the premium
or not.
3. Shri
A.V. Nair, learned advocate appearing on behalf of the petitioners
has vehemently submitted that earlier vide order dated 07/01/1987
while converting the entire land in question from new tenure to old
tenure the amount in question was paid by the original owner and
thereafter the petitioners had purchased the said land and,
therefore, for converting the very land in question from agricultural
to non agricultural, the amount of premium is not required to be
paid. It is further submitted that as such the petitioners were not
required to submit an appropriate application for determination of
premium under Section 73A of the Bombay Land Revenue Code and
whatever amount is required to be paid under Section 65 of the Bombay
Land Revenue Code is required to be paid and no other amount of
premium is required to be paid. In the alternative it is submitted
that if this Court comes to the conclusion that the petitioners are
required to pay the amount of premium for converting the land into
non agricultural use, it is requested to issue appropriate direction
directing the concerned respondents to decide and dispose of the
application submitted by the petitioners for converting the land in
question from agricultural use to non agricultural use and to
determine the premium at the earliest within the stipulated time.
4. The
petition is opposed by Shri Neeraj Soni, learned AGP appearing on
behalf of the respondents. It is submitted that the contention on
behalf of the petitioners that as earlier the original owner paid the
premium while converting the land in question from new tenure to old
tenure and/or transferring the occupancy rights vide order dated
07/01/1987, while converting the land from agricultural use to non
agricultural use, no amount of premium is required to be paid, cannot
be accepted. It is submitted that even while permitting the transfer
of occupancy rights vide order dated 07/01/1987, on payment of
premium, permission was granted to transfer the occupancy rights as
new tenure land and for agricultural purpose only and, therefore,
when the land in question continued to be new tenure land for
agricultural purpose, as and when the land is to be converted from
agricultural use to non agricultural use, petitioners are required to
pay the amount of premium, and, therefore, no illegality has been
committed by the concerned respondents in demanding the amount of
premium and, therefore, it is requested to dismiss the present
petition.
5. Heard
the learned advocates appearing on behalf of the respective parties
at length. At the outset it is required to be noted that the
petitioners have challenged the action of the respondents in
demanding premium while converting the land in question from
agricultural use to non agricultural use. The contention on behalf
of the petitioners that as earlier vide order dated 07/01/1987 when
the application was submitted to convert the land from new tenure to
old tenure and to transfer the occupancy rights, the original owner
had paid the amount of premium, and, therefore, the petitioners are
not required to pay the premium while converting the land from
agricultural use to non agricultural use, the aforesaid cannot be
accepted. It is to be noted that when earlier the permission was
granted to transfer the occupancy rights vide order dated 07/01/1987
and premium was charged it was only for the purpose of transferring
the occupancy right for agricultural purpose and the tenure of the
land i.e. new tenure came to be continued and, therefore, when the
tenure of the land came to be continued as new tenure land and when
subsequently the petitioner applied for permission to covert the land
from agricultural use to non agricultural use by removing the
restrictions of new tenure, the petitioner is required to pay the
premium and no illegality has been committed by the respondents
insisting for premium.
6. Now
so far as the contention on behalf of the petitioners that the
petitioners are required to pay only that much amount/charge, which
is required to be paid under Section 65 of the Bombay Land Revenue
Code is concerned, the aforesaid cannot be accepted. Only, in a
case were a person is holding agricultural land as old tenure and/or
without any restriction and he wants to use the land for non
agricultural purpose and he submits an application for non
agricultural use he is required to pay the amount/charge under
Section 65. So far as the restricted new tenure land is concerned,
even while getting the land converted from agricultural use to non
agricultural use, owner of the land is required to pay the premium to
remove the restriction of new tenure land. The amount of premium,
which is charged, is for removing the restrictions as new tenure and
necessary charges, which are required to be paid for converting the
land from agricultural use to non agricultural use is required to be
paid. It is to be noted that in the present case the petitioners
have submitted an application for determination of the premium and to
grant permission to convert the land from agricultural use to non
agricultural use by removing the restriction as new tenure land.
Under the circumstances, the contention on behalf of the petitioners
that the petitioners are not required to pay the premium while
converting the land from agricultural use to non agricultural use and
to remove the restriction as new tenure, cannot be accepted.
7. However,
the alternative prayer of the petitioners to direct the Collector to
determine the premium and to consider the application of the
petitioners to convert the land from agricultural use to non
agricultural use and to remove the restriction as new tenure land
and to determine the amount of premium within the stipulated time can
be considered.
8. So
far as the prayer of the petitioners to quash and set aside the
action of the respondents to charge premium while considering the
application of the petitioners for converting the land from
agricultural use to non agricultural use and to remove the
restrictions as new tenure land is hereby dismissed.
9. However,
in the facts and circumstances of the case, the Collector, Kutch is
hereby directed to decide and dispose of the application submitted by
the petitioners for converting the land from agricultural use to non
agricultural use and to remove the restriction as new tenure and to
determine the premium after following the due procedure at the
earliest and preferably within a period of four months from the date
of receipt of the present order.
10. With
this, the present petition is dismissed. Notice is discharged. No
cost.
(M.R.
SHAH, J.)
siji
Top