JUDGMENT
K.A. Puj, J.
Page 0616
1. The petitioner, a Co-operative Housing Society, registered under the provisions of Gujarat Co-operative Societies Act, has filed this petition under Article 226 of the Constitution of India through its Secretary, praying for quashing and setting aside the orders at Annexures A & F passed by the District Collector, Ahmedabad dated 24.04.1997 and 29.08.1991 respectively as well as the orders at Annexures G & H passed by the Section Officer, Revenue Department, State of Gujarat on 01.06.1995 and 10.06.1991 respectively. The petitioner has also prayed for interim relief against the execution, operation and implementation of these orders and further prayed for an injunction restraining the respondent Nos. 1 & 2 from taking possession of the houses belonging to the members of the petitioner Society situated at Survey No. 316 of village Ghatlodiya, Ahmedabad.
2. The petition was admitted and rule was issued on 10.08.1998. The Court has also granted ad-interim stay of the impugned order dated 24.04.1997 passed by the District Collector, Ahmedabad at Annexure A to the petition on condition that the petitioner Society shall, without prejudice to its rights and contentions in the petition, deposit with respondent No. 2 a sum of Rs. 9 Lacs within six months from the date of the order and on condition that the property constructed on the land shall not be transferred and if the amount as aforesaid is not deposited within aforesaid time, ad-interim stay shall stand vacated automatically.
3. The petitioner has challenged this order in LPA No. 1110 of 1998 and while disposing the said LPA on 30.06.1999, the Division Bench has observed that the appellant Society has not paid the amount and the period of deposit of the amount was over and the ad-interim stay was not operating in favour of the appellant. In view of this circumstance, the Court has not interfered with the impugned order passed by the Learned Single Judge of this Court on 10.08.1998. Though the Division Bench has accepted the request of the learned Counsel appearing for the appellant – petitioner Page 0617 for early disposal of the petition and though the petition was peremptorily fixed for final hearing on 12.07.1999, the same could not be disposed of till this date.
4. During the pendency of this petition, the petitioner has moved Civil Application No. 6891 of 1999 for amendment by inserting certain paragraphs in the memo of petition. The said amendment was granted by this Court vide order dated 26.10.1999 and the petitioner was directed to incorporate the amendment in the main petition within a week from the date of the said order. Despite this order, amendment was not carried out by the petitioner within the time granted by this Court. A request was, therefore, made by the learned advocate appearing for the petitioner when the matter has come up for final hearing on 31.07.2006 to permit the petitioner to carry out the said amendment. The Court, therefore, passed an order on 31.07.2006 observing therein that since the order is already passed directing the petitioner to carry out the amendment and there is no serious objection from the other side in carrying out such amendment, even now, request was granted and the petitioner was directed to carry out the amendment within one week from the date of the order i.e. 31.07.2006. Pursuant to this order, the petitioner has carried out the amendment in the main petition.
5. It is the case of the petitioner that the petitioner society held the land in question and has community of interest and unity of possession as the petitioner society has purchased the said land from the respondent Nos. 4 to 10, the original land owners who have purchased it from one Gandaji Thakor. The members of the petitioner Society have constructed their own houses in the said Society in the year 1980. The sale deed in respect of the land in question was executed in three parts between the petitioner Society and the respondent Nos. 4 to 10 on 21.01.1980. It is also the case of the petitioner that the respondent No. 2 i.e. District Collector, Ahmedabad has illegally and arbitrarily exercised the power not vested in him and passed an order dated 24.04.1997 vesting the said lands and buildings belonging to the petitioner and its members in favour of the State Government, without compliance of due process of law. The land bearing Survey No. 316 of Ghatlodiya – Tal. City of Ahmedabad admeasuring about 6904.60 Sq. Mtrs. was belonging to the petitioner Society and it was ordered to be vested in the State Government. The respondent No. 2 has passed the said order on the ground that the premium amount which was chargeable for the second / subsequent sale transaction for non-agriculture purpose was not paid. The land was sold by the original land owner to the petitioner in the year 1980 after obtaining only ULC Permission by the respondent Nos. 4 to 10 and no other permission was obtained. The land is of new tenure land and the land was sold without taking prior permission of the State Government. The land was utilised for non-agricultural purpose without taking prior permission of the State Government. The premium amount was fixed at 41,42,760/- at the rate of Rs. 600/- per Sq. Mtr. and the State Government has passed the order to this effect on 01.06.1995 for Page 0618 cancellation of the order of regularizing the land without hearing the petitioner. The petitioner Society has applied for N.A. Permission on 07.05.1981 and the same was granted by the District Development Officer, Ahmedabad on 06.07.1981 after fixing an adhoc premium of Rs. 37,398.15 ps. The said amount of premium was paid by the petitioner to the State Government in the year 1981 itself. Inspite of the aforesaid payment of adhoc premium was made by the petitioner Society, the District Collector, Ahmedabad has passed the order surprisingly after 11 years on 29.08.1991 to pay an amount of Rs. 41,42,760/- as premium of the total amount of Survey No. 316 admeasuring about 6904.60 Sq. Mtrs. This order was passed by the District Collector without issuance of notice to the petitioner and without giving any opportunity of hearing to the petitioner or to the original occupiers/respondent Nos. 4 to 10. The petitioner, therefore, made an application to the District Collector for quashing and setting aside the said order. The respondent No. 2 has passed an identical order on 01.11.1991 regarding payment of premium to regularize the land.
6. Being aggrieved by the said order of the respondent No. 2, the petitioner filed Revision Application before the Special Secretary, Revenue Department, Ahmedabad on 13.12.1991 which was rejected on 29.01.1994 by holding that the order at Annexure F was passed on the basis of ‘yadi’ passed by the State Government and hence, the order is not revisable under Section 211 of the Bombay Land Revenue Code as the jurisdiction is not vested with him.
7. It is also the case of the petitioner that the proceedings conducted by the State Government during the period from 1991 to 1995 are behind the back of the petitioner and the petitioner was never informed by issuance of show-cause notice nor the petitioner was heard by the respondent Nos. 1 & 2. The proper inquiry was also not made by the State Government before passing the orders at Annexure F & G.
8. Mr. Kirit I. Patel, learned advocate appearing for the petitioner Society has submitted that the land bearing Survey No. 316 of Ghatlodiya belonging to the petitioner is old tenure land and it was never subjected to the prior permission of making sale in favour of the petitioners by the original land owners. He has, therefore, submitted that the basis of the order of the respondent Nos. 1 & 2 stating that the prior permission was not taken before execution of the Sale Deed in favour of the petitioners on 21.01.1980 and it was subsequently taken which was granted on 21.07.1980 and thereby committed a breach of the terms and conditions, are erroneous and not tenable at law. He has submitted that despite the fact that prior permission was not required, the same was sought for by the respondents No. 4 to 10 as a matter of caution. He has further submitted that the finding of the respondent No. 2 that the land in question is a new tenure land is contrary to the fact and evidence on record. A copy of the entry of property register card of village panchayat regarding entry of re-grant of land by the State Government to the predecessor-in-title Shri Gandaji Chelaji Thakor annexed at page 102 of the petition as Page 0619 Annexure I makes it clear that the land in question was an old tenure land. Mr. Patel has further submitted that the land of Survey No. 316 of village Ghatlodiya was originally belonging to Thakor Gandaji. He has sold the said land to respondent Nos. 4 to 10 in the year 1972. At the time of first sale, no objection was raised by respondent Nos. 1 & 2 as previous sanction was not taken prior to sell as new tenure land. He has further submitted that such objection was raised only on subsequent transaction when the respondent Nos. 4 to 10 have sold the said land to the petitioner as new tenure land and prior permission was not taken before the execution of the Sale Deed. In support of his contention that land in question is of old tenure land, Mr. Patel relied on the decision of this Court in the case of Chhotabhai Dahyabhai Thakore v. State of Gujarat and Ors. 38 (3) G.L.R. 2016, wherein it is held that though there was entry in the revenue record that the land in dispute was new tenure land, it was not sufficient to call for action on the part of the respondents for forfeiture of the land. In absence of any further mention of ‘inalienability’ or ‘impartibility’, of new tenure, how a person will come to know that the land is not transferable ? It becomes more important, when admittedly, neither in the Land Revenue Code nor in the Land Revenue Rules, new tenure has been defined. Conditions can be attached to the grant and these conditions may be ‘inalienability’, ‘impartibility’ or both. But merely on the mention of ‘new tenure’, it is difficult to expect from a person to person that the land is inalienable or impartible or both. The entry upon which strong reliance has been placed to pass the order against the petitioner is of no substance and value.
9. As per the provisions contained in Section 84-C of the Gujarat Tenancy and Agricultural Lands Act, no such permission for subsequent sale is necessary and it is not hit by Section 64 of the Act. Reliance is placed on the decision of this Court in the case of Natha Mohan v. Bai Shanta, Wd/o Gordhandas Damodar and Ors. VIII G.L.R. 1967 wherein it is held that Section 64 of the Bombay Tenancy and Agricultural Lands Act applies only to a sale by a landlord. The second respondent in that case was not a landlord at the time when the second sale took place. The second respondent prior to the first sale was tenant and the moment, the first sale took place, he became the occupant of the land. No tenant was introduced between the first and the second sales. Therefore, Section 64 is not attracted to the facts of the said case and the second sale also cannot be said to have been vitiated under Sub-section (8) of Section 64 of the Act. Mr. Patel has further relied on the decision of this Court in the case of State of Gujarat v. Shree Sachin Udyognagar Sahkari Mandli Limited it was held that the tribunal has rightly taken the decision considering the provisions of Section 64-A of the Act. It refers to transactions by or in favour of a co-operative society and makes it abundantly clear that the Legislature has accorded exemption to a Co-operative Society, whether the co-operative society happens to be a vendor or vendee in respect of agricultural lands. When the transaction in question was taken place, Section 64-A was on the statute book as it was deleted by Gujarat Act XXI of 1987. The sale deeds in question were executed in 1980. Page 0620 It is, therefore, contended that when the petitioner Society was vendee and it being a co-operative society, provisions contained in Sections 63 & 64 are not applicable. Mr. Patel has further submitted that the impugned orders passed by the respondent Nos. 1 & 2 are arbitrary and passed in high-handed manner and they are also barred by law of limitation as gross delay was caused in passing such orders. The land was re-granted in the year 1962 and the predecessor-in-title was the owner prior to 1940 under the grant as ‘Inamdar’ and the order demanding premium passed in the year 1991 is hopelessly barred by the period of limitation.
10. Mr. Patel has further submitted that as per the provisions contained in Bombay Town Planning and Urban Development Act, permission was granted by the Senior Town Planner, Ahmedabad Urban Development Authority on 16.01.1980 and when permission is granted by the Town Planning Authority, no other permission is required as per the settled legal position. The respondent Nos. 1 & 2 have passed the order for payment of 100% of the market value of Rs. 600/- per Sq. Mtr. which was never in existence in the surrounding area in the year 1980. The Government has paid Rs. 12/- per Sq. Mtr. compensation to the occupier of land i.e. Respondent Nos. 4 to 10 while finalizing the Town Planning Scheme. The land was purchased by the petitioner at the rate of Rs. 15/- per Sq. Mtr. from the respondent Nos. 4 to 10 in the year 1980 and hence, the order fixing the premium of Rs. 600/- per Sq. Mtr. from occupiers is exorbitant, arbitrary and ex-facie illegal. Mr. Patel relied on the decision of this Court in the case of Bharatbhai Kantilal Jethwa v. State of Gujarat and Ors. 2006 (2) G.L.H. 303 wherein it is held that whenever the valuation of the land is fixed by the concerned authority, the opportunity of being heard ought to have been provided to the person, who is made liable to make the payment of the money. The fixation of market value, of any land, is a complex phenomina. Always the applicant should be heard so that he will have an opportunity to provide latest value of the lands situated in the near vicinity for arriving at correct market price of land in question. The respondent Nos. 1 & 2 have passed the order regarding payment of whole Survey No. 316 admeasuring about 6904 Sq. Mtrs. whereas the petitioner had purchased only 5258 Sq. Mtrs. and, therefore, the order demanding premium for 6904 Sq. Mtrs. of land from the petitioners is absolutely illegal and misconceived.
11. On the basis of the amendment made in the petition, Mr. Patel has submitted that one of the co-owners of Survey No. 316 of village Ghatlodiya has preferred Special Civil Application No. 947 of 1999 for fixing the premium by the respondents. In the said petition, an affidavit-in-reply was filed on behalf of respondent No. 2 in which it was stated in paragraph 4.2.1 that the order at Annexure A of that petition is not the copy of the order passed by the Competent Authority with regard to the permission under Section 43 for converting the land from old tenure to new tenure as stated in that petition. Annexure A was the copy of entry 989 made in village Form No. 6 with respect to Survey No. 316. This land was earlier running in the Page 0621 name of Head of Watan land and upon Bombay Inferior Village (Watan) Abolition Act, 1958 coming into force, the lands were resumed by the State Government and entered in the name of the State Government above the name of the land holder. It was further stated that Shri Gandaji who was the predecessor-in-title was the legal possessor of the land and he had paid the occupancy price as assessed by the order dated 12.01.1961. The lands were granted as old tenure land subject to the restrictions that if the lands are to be converted into non-agricultural land then the amount at the rate of 50% of the market price as assessed by the Government shall have to be paid to the State Government. In view of the aforesaid order, the name of the State Government was deleted and the name of Gandaji Chelaji Thakor was entered as owner of the land. The Government has merely relied upon the entry which was annexed at Annexure I at page 102 of this petition and there was no supporting order passed by the Government or any subordinate Officers of the Government for charging the amount of premium from the petitioner. The concept of premium as per Bombay Land Revenue Code and as also given under the Bombay Tenancy and Agricultural Lands Act was incorporated with a view to safeguard the interest of the tenancy land and thereby the restrictions were imposed upon the possessor to discourage them from selling the land for non-agricultural purpose with a commercial motive. The concept of sharing 50% of the profit is to discharge the possessor from not taking the total benefits. Only the difference of the amount paid by the possessor at the time of granting the land as occupier price and the price at which the land was sold, was to be charged. As per the admitted facts, the predecessor-in-title has paid the occupancy price as assessed by the order dated 17.01.1961 as 13 time of the assessment of the land (13 pats). After Gandaji has sold the land to the respondent Nos. 4 to 10 in the year 1972, the second Sale Deed was executed in the year 1980 and in the second Sale Deed, consideration of Rs. 31,445/- each was paid for every 1/3rd of the land on the basis of the Banakhat dated 30.09.1975 for the land admeasuring 6289 Sq. Yds. Three sale deeds were executed by the petitioner Society with respondent Nos. 4 to 10 as per the Regd. Deed dated 21.01.1980. Therefore, total price paid by the petitioner Society was about Rs. 94,000/-. Hence, the profit was less than the amount which was received by the seller. The petitioner society has paid at the time of converting the land into N.A. use as per order dated 06.07.1981, the premium of Rs. 37,399.15 ps. He has, therefore, submitted that the ex-parte order without hearing the petitioner passed by the Section Officer, Revenue Department on 10.01.1991 holding the petitioner liable to pay the current price prevailing in the year 1991 at Rs. 600/- per Sq. Mtr. and 100% of that is totally arbitrary, unjust and it amounts to nullity.
12. Mr. Patel has further submitted that the said affidavit also states that by an order dated 26.07.1979, Annexure B at page 20 of the petition, the State Government granted agricultural exemption for 9915 Sq. Mtrs. of land of Survey No. 316 as the same was situated in the residential zone. Hence, the said land was exempted from the provision of Chapter III of the Page 0622 Urban Land (Ceiling and Regulation) Act, 1976 for the purpose of using the same for agriculture. He has further submitted that 6904.60 Sq. Mtrs. of land was permitted to be sold to the petitioner Society for construction of residential houses and the remaining land continued to enjoy benefit of agricultural exemption. He has further submitted that in the said affidavit, it was also admitted that the land holders have made an application under Section 20 of the Land Ceiling Act to the State Government seeking exemption from the provisions of Section 3 of the Urban Land Ceiling Act in order to sell 8258 Sq. Yds. (6904.60 Sq. Mtrs.) of land to the petitioner Society for the purpose of construction of residential buildings for its members. It is further stated that the State Government by an order dated 26.04.1979 granted the said permission under Section 20(1) of the said Act subject to several conditions. It was further stated in para 4.7 of the said affidavit that the petitioner of that petition has made an application dated 04.09.1998 stating that an application for fixing up the premium was made on 10.05.1979 and that the premium should be assessed with regard to the said application. Mr. Patel has, therefore, submitted that the premium is required to be assessed in the context of the application dated 10.05.1979. It was subsequently stated that the said application was made in respect of the land admeasuring about 6904.60 Sq. Mtrs. which was sold to the petitioner and hence, the application for fixing the premium of the subject matter of the land of Survey No. 316 of village Ghatlodiya dated 10.05.1979 was made to the respondents on behalf of the petitioner and hence, if any delay is made by the State Government for fixing the amount of premium, the petitioner cannot be held responsible and the petitioner cannot be punished by way of more amount of premium as claimed by the respondents. The rate which was prevailing in the year 1979 in the nearby vicinity in Swami Akhandanand Society, Kendriya Karmachari Co. Op. Housing Society and Madhuvrand Society and others was between Rs. 18 to 25 per Sq. Yd. as per the Sale Deed made by those parties. Therefore, the order at Annexure I fixing the amount of premium at Rs. 600/- in the year 1991 is highly arbitrary and amounting to total non-application of mind and the same is also without evidence.
13. Special Civil Application No. 947 of 1999 which was preferred by one of the original land owners was disposed of by this Court on 12.05.1999 with a liberty to the petitioners to file fresh application for converting the land in question into old tenure as well as non-agriculture use within a period of two weeks from the date of the decision. It was further directed that in case, such application is made by the petitioners along with the certified copy of this order, the respondents were directed to decide the said application after fixing the amount of premium within a period of three months thereafter. It appears that pursuant to the said order, the respondent authorities have fixed up the premium in respect of Survey No. 316 and 3 sub-plots of F. P. No. 173 and it comes to about Rs. 33,77,605/-. A statement was produced on behalf of the District Collector, Ahmedabad pursuant to the direction given by this Court during the course Page 0623 of hearing. This amount has also been recovered by the respondent authorities. The total amount of premium demanded for the entire land was Rs. 41,42,760/-. The respondent authorities have already recovered an amount of Rs. 33,77,605/-. It is, therefore, contended that the petitioner is at the most liable to pay the premium amount of Rs. 7,65,155/-. In view of this subsequent development, the interim order passed by this Court on 10.08.1998 directing the petitioner to deposit an amount of Rs. 9 Lacs, at the time of admission of the petition appears to be just and proper.
14. Based on the aforesaid facts and the relevant statutory provisions as well as the authorities and the latest development by way of recovery of the substantial amount of premium by the respondent authorities, it has been submitted by Mr. Patel that no further amount be paid by the petitioner by way of premium or even at the most, as per the interim order, the petitioner may be directed to pay Rs. 9 Lacs.
15. Mr. K.T. Dave, learned Additional Public Prosecutor appearing for the respondent authorities, on the other hand, has submitted that the present petition is under Article 227 of the Constitution of India and is not maintainable. There is concurrent finding given by the authorities below and hence, this Court should not interfere. The respondent Nos. 4 to 10 have filed revision which is still pending before the Revisional Authority. Since these very orders are under challenge before the authorities, this Court should not interfere in the orders and the petitioners be also relegated to the revisional authority. Even otherwise, the present petitioner is also a party – respondent in the said revision and all these issues can be raised before the revisional authorities. He has, therefore, submitted that the relief prayed for in the present petition may not be granted. Despite the fact that this Court has passed an interim order, the amount has not been deposited. Even Letters Patent Appeal preferred against the said order has been dismissed by the Division Bench of this Court and still the amount has not been deposited. He has, therefore, submitted that before relegating the petitioner to the revisional authority, the amount which was directed to be paid may be insisted upon from the petitioner along with the interest and thereafter appropriate order may be passed.
16. So far as the merits of the matter is concerned, Mr. Dave has submitted that the premium amount was fixed in the year 1991. Subsequently, it was merely a reminder and the petition was filed in the year 1997. The petition is, therefore, hopelessly barred by limitation. Since the original terms of the permission were violated, the exemption was rightly forfeited and the amount of premium was determined considering the prevailing market rate of Rs. 600/- per Sq. Mtr. in the year 1991 and because of the breach of condition, 100% amount of premium was demanded. He has, therefore, submitted that the Court should not interfere in the impugned orders and the petition be dismissed with costs.
17. After having heard Mr. Kirit I. Patel, learned advocate appearing for the petitioner Society and Mr. K. T. Dave, learned Assistant Government Pleader appearing for the respondent Nos. 1 to 3 and after having gone through the Page 0624 contents of the petition as well as the documents attached therewith and after having perused the authorities cited before the Court, the question which arose before this Court for its consideration is as to whether 100% premium amount at the rate of Rs. 600/- per Sq. Mtr. demanded from the petitioner vide Section Officer’s Memorandum dated 10.06.1991 produced at Annexure H on page 101 of the paper book is just and proper. Though this letter refers to earlier two letters of the Collector dated 25.03.1991 and 06.05.1991, the same have not come on record. The Collector has demanded Rs. 41,42,760/- by way of premium on the land admeasuring about 6904.60 Sq. Mtrs. Thus, the petitioner is aware about its liability since 1991 and yet the petition is filed as late as in 1997 and that too, when the Collector passed an order forfeiting the land for non-payment of the premium amount, which order is again an appealable order. In this background of the matter, the Court is obviously very reluctant or slow in interfering with the matter.
18. The record itself reveals that there is no dispute about the fact that the original land owners have committed breach of conditions of order granting N.A. Permission. N.A. Permission was granted on 21.07.1980 whereas sale deed was executed on 21.01.1980. This Court, in its recent decision in the case of Shiv Shakti Co-operative Housing Society (proposed) and others, being Special Civil Application No. 9170 of 1994 decided on 19.01.2007, has taken the view that condition No. 5 in that case has been violated because undisputedly it would clearly appear that the land has been transferred in favour of the persons and number of others, either by sale or by charging some money though the sale or transfer could be effected only after seeking permission from the competent authority which would be the Collector in that case. This was one of the reasons for dismissal of the said petition. Here in the present case also, sale deed was executed before N.A. permission was granted by the competent authority i.e. District Collector, Ahmedabad.
19. Records and proceedings of this Court reveal that interim relief was granted on condition that the petitioner should deposit an amount of Rs. 09 Lacs within six months from the date of the order i.e. 10.08.1998. The petitioner society has not deposited this amount after dismissal of LPA No. 1110 of 1998 preferred against the interim order. It is very unfortunate that the LPA was dismissed on 30.06.1999 and there is no stay of this Court from that date onwards and yet, the respondents have not taken any action till this date. Pendency of this petition before the Court is no ground for any inaction on the part of the respondent authorities.
20. It is also very sorry state of affairs on the part of the petitioner society that Civil Application No. 6891 of 1999 moved by the petitioner for amendment in the petition was allowed by the Court on 26.10.1999 and the petitioner was permitted to carry out the amendment within one week. The said amendment was not carried out till 31.07.2006 and it was carried out only when the time was extended by this Court on 31.07.2006 on petitioner’s request.
Page 0625
21. It is further revealed from the record that present respondent Nos. 4 to 10 have filed revision application under Section 211 of the Bombay Land Revenue Code before the Additional Chief Secretary (Appeals) challenging this very order of the Collector dated 24.04.1997 which is under challenge in the present petition. The petitioner is a party as Opponent No. 3 in the said revision application. This revision application was admitted and order of status-quo was passed on 31.07.1997. It is stated at the bar that the said revision application is still pending before the Additional Chief Secretary (Appeals). It is very unfortunate that almost all parties are common in both these proceedings and even the Additional Chief Secretary (Appeals) is a party – respondent before this Court and is supposed to be aware about the conditional order passed by the Court in the present petition and the disposal of LPA and yet he continued the order of status-quo and not decided the said revision application. But for the collusion and connivance of the respondent Governmental authorities, this could not have happened. Once the stay granted by this Court is vacated for non-fulfillment of the condition, how the order of status quo passed by the Additional Chief Secretary (Appeals) remains in operation when the subject matter of both proceedings remains same.
22. During the course of hearing of this petition, a statement showing the recovery of the premium amount from the land owners in respect of remaining land bearing Survey No. 316 is produced by the District Collector. There are three different parcels of land of Survey No. 316. The land is valued at Rs. 3,100/-, Rs. 3,500/- and Rs. 3,500/- per Sq. Mtr. and premium is recovered @ 70% of the amount so determined vide orders passed on 18.04.2000, 24.04.2000 and 22.08.2000 respectively. If the land is valued at Rs. 3,100/- per Sq. Mtr. or so on 18th April 2002, the premium as determined and demanded @ Rs. 600/- per Sq. Mtr. in 1991 on breach of condition does not seem to be absolutely unjust or improper. However, it is to be viewed in light of other factors and circumstances pointed out by the petitioner.
23. The points raised by the petitioner are that the land in question is of an old tenure land, that premium amount is already paid by the petitioner in 1981, that the belated order passed on 29.08.1991 demanding premium of Rs. 41,42,760/- is unjust, illegal and improper, that once permission under Section 20 of the ULC Act is granted, there is no need to ask any other permission, that valuation of land to be made with reference to the date in April 1979 when the application seeking N.A. Permission was made, etc. are required to be taken into consideration for the purpose of exercising its plenary, prerogative, equitable and discretionary jurisdiction under Article 226 & 227 of the Constitution of India for granting any relief in favour of the petitioner or outrightly allowing or dismissing this petition.
24. Rule of equity, fair play and justice demands that the Court should strike the balance between the parties. Neither the state-exchequer should loose its legitimate share either because of not taking any timely action or Page 0626 because any collusion or connivance between the State officials and unscrupulous litigants, nor the petitioner society and its members should be burdened with any more liability to which they are not under any obligation to discharge. Considering this aspect in mind and looking at the interest of all those members of the Society who are not directly before the Court, it would be just, proper and equitable to direct the petitioner to pay premium of Rs. 9 Lacs as directed by this Court by way of an interim relief with 12% interest thereon, from the date of the said order i.e. 10.08.1998. Payment of interest on premium amount at the rate of 12% p.a. is adopted only because in one of the recent decision of this Court in the case of Desai Maganbhai Lilabhai v. The District Collector and Ors., being Special Civil Application No. 17826 of 2006 dated 29.01.2007, the Court directed to calculate the interest on the amount of premium @ 12% p.a. from the date of the transaction till the actual payment. Interest is not ordered to be charged on the premium amount from the date of transaction as the transaction is of January, 1980. Final valuation is not determined on that date. Premium amount is demanded in 1991 considering the valuation of land at Rs. 600/- per Sq. Mtr. However, there is no basis for that valuation and it is seriously challenged in this petition. Considering the interim order passed by this Court on 10.08.1998, which seems to be quite just and proper, interest is ordered to be charged at 12% on Rs. 9 Lacs from 10.08.1998. It is also important to note that Mr. K. I. Patel, learned advocate appearing for the petitioner society has agreed to pay this amount by way of premium for regularisation of the petitioner’s use of the land in question for residential purpose.
25. In the above view of the matter, the impugned orders which are under challenge are hereby quashed and set aside on the condition that the petitioner society shall pay to the District Collector an amount of Rs. 9 Lac with 12% interest thereon with effect from 10.08.1998, within 30 days from today, by way of premium, failing which the District Collector, Ahmedabad is hereby directed to take possession of the land in question with superstructure standing thereon. The District Collector, Ahmedabad is further directed to file compliance report before this Court within one week from the date of payment of the amount by the petitioner as indicated above or on its failure to pay such amount, to take possession forthwith and report to this effect be filed within one week thereafter.
26. Subject to the aforesaid directions and observations, this petition is accordingly allowed and rule is made absolute to the aforesaid extent.