Joitabhai Karsanbhai Patel vs State Of Gujarat
2021 Latest Caselaw 18173 Guj

     C/SCA/9275/2019                             JUDGMENT DATED: 07/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 9275 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER

==========================================================

1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                       JOITABHAI KARSANBHAI PATEL
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR. PANAM C SONI(7035) for the Petitioner(s) No. 1,2,3,4
MR. NIKUNJ KANARA, AGP (1) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
==========================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 07/12/2021

                            ORAL JUDGMENT

1. Rule. Mr. Nikunj Kanara, learned AGP waives service of notice of rule on behalf of respondent State and Mr. Sagar Gohel, learned advocate for Mr. H.S. Munshaw, learned advocate waives service of notice for the respondent No.4. With the consent of learned advocates for the parties, Rule

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

is fixed forthwith.

2. By way of present petition, the petitioners have challenged the orders dated 8.4.2019 passed by respondent No.2 SSRD confirming the order dated 19.10.2018 passed by the respondent No.3 Collector, Banaskantha, rejecting the prayer of the petitioners for change of purpose of Non- Agricultural use of land/ plots from residential to commercial and for sanctioning the revised lay-out plan for the land/ plots.

3. The brief facts of the case is as under:

3.1 The Taluka Development Officer- T.D.O. Dhanera vide order dated 28.7.1997 granted permission for non-agricultural user (N.A. permission) for residential purpose for the land bearing Survey No. 117/1, 117/2, 117/3, 117/4 and 117/5 admeasuring Acre 6-15 gunthas situated at Moje Samarwad, Ta. Dhanera, District: Banaskantha and sanctioned the lay-out plan accordingly. From the said land, the petitioner purchased Plot Nos. 13-27 admeasuring 10437.88 sq.mts by a registered sale-deed. Thereafter, the petitioners made representation to the District Panchayat [email protected] for change of purpose of Non- agricultural use of the land in question from residential to small centre/ commercial and for sanction of revised / new lay-out plan accordingly. The said representation came to be forwarded by the respondent Nos. 4 - District Development Officer, Banaskantha to the respondent No.3

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

- Collector, Banaskantha for necessary opinion. The Collector, Banaskantha gave negative opinion in respect of the application of the petitioners and against the said negative opinion, the petitioners made representation before the learned SSRD. The learned SSRD called for detailed opinion from the respondent No.3. In pursuance thereof, the respondent No.3 sent a detailed opinion on 25.5.2015 stating that the change of purpose of Non- Agricultural use from residential to commercial could not be allowed/ permitted without taking the difference of 'premium amount' as per prevailing Jantri. Accordingly, the SSRD directed the respondent No.3 to take necessary action in accordance with law.

3.2 Dis-satisfied with the aforesaid communication, the petitioners approached this Court by filing SCA No. 18118 of 2015 on 28.10.2015 praying to quash the negative opinion given by the respondent No.3 and to directed the concerned authority to allow their application for change of purpose of Non-Agricultural user of the land in question from residential to commercial and to sanction the revised lay-out plan. As per the provisions of the Gujarat Land Revenue Code, 1879 and the Rules made thereunder, only a 'conversion tax' in connection with the application of the petitioners could be levied and no further/ difference 'premium amount' could be levied and collected fro the land in question which was done in similar case of other plot holders in the same parcel of land. Since the application was pending, this Court disposed of the petition

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

directing the authorities to decide the same in accordance with law. Thereafter, respondent No.3 rejected the application on 19.10.2018 and directed the respondent No.4 not to sanction the revised lay-out plan for the land/ plot in question without taking the difference of 'premium amount' from the petitioners. Being aggrieved with the said order, the petitioners filed another SCA No. 19316 of 2018, which was withdrawn by the petitioners with liberty to approach the learned SSRD by way of filing revision application. Thereafter, the petitioners approached the SSRD which has finally rejected the revision application.

3.3 The main ground raised in the petition by the petitioners is that once Non-agricultural permission has been granted, there cannot be any question of raising premium for just change of use from residential to commercial purpose. While relying upon Section 67(A)(3) of the Code, it is contended that the only conversion tax could be levied for change of user from residential to commercial as once premium has already been recovered while granting Non- Agricultural permission originally. It is also contended that in other similar cases of other plot holders in the same parcel of land, the respondent No.4 has passed the orders granting the permission for change of purpose of Non- Agricultural use from residential to commercial and granting the revised lay-out plans by taking/ levying only the applicable 'conversion tax' and therefore, similar treatment ought to have been given to the application of the petitioners. It is contended that as per the settled law,

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

the title of the parties cannot be looked into while deciding the application of the parties for Non-Agricultural user/ permission and the respondent authorities have also relied upon the old notification/ circulars while the parties are not in consonance with law. It is also contended that the impugned orders suffers from misconception of facts and relevant provisions of the Act and therefore needs to be quashed and set-aside.

4. Heard Mr. Hriday Buch, learned advocate for Mr. Panam Soni, learned advocate for the petitioners who has reiterated the aforesaid facts and has submitted that the authority concerned has not considered the provisions of Section 67(A)(3) of the Code. While referring to the material placed on record, he has submitted that in case of similarly situated persons and plot holders, after levying conversion tax, the permission has been granted, and therefore, similar treatment ought to have been given to the petitioners. He has relied upon the following decisions:

(i) Adambhai Sulemanbhai Desai, Chairman, Desai Co-op.

Housing Society Ltd., Dhandhuka v. State of Gujarat and Ors, reported in 2004 (1) GLR 906;

(II) Pravinkumar Keshavji Tank V. State of Gujarat and Anr., reported in 2012 (5) GLR 4211.

He has prayed to allow the present petition.

5. Per contra, Mr. Nikunj Kanara, learned AGP for the State

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

has supported the impugned order of the learned Collector as well as learned SSRD. He has relied upon the affidavit-in- reply of respondent No.3 (Page 77 onwards of the compilation).

6. Mr. Sagar H. Gohel, learned advocate for Mr. H.S. Munshaw, learned advocate for the respondent No.4 has submitted that in view of the order of the learned Collector, respondent No.4 could not grant any such permission. He has supported the order of the Authorities. He has also relied upon the affidavit-in-reply filed by the District Development Officer (Page-114 of the Compilation). He has also submitted that in view of the latest Government Resolution dated 7.12.2018, the entire records pertaining to present proceedings is transferred to District Collector, [email protected] on 18.12.2018 and, therefore, now the power vests under the District Collector.

7. The main contention raised by the Revenue authorities in its affidavit-in-reply is that for the land in question at the relevant point of time, each square meter rate of Rs.8-0 was fixed as a premium and total amount of Rs. 2,06,387/- as premium was recovered. However, currently the prevailing Jantri rate for each sq. mtr is Rs.2585/- and 40% amount of the Jantri is required to be considered and this would come to Rs.2,66,76,166/- . It is also contended that after adjusting the previously paid amount, now final amount payable is Rs.2,64,69,779/-. It is further contended that though Non-Agricultural was granted by the Taluka

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

Development Officer earlier in 1997, the use of land for Non-agricultural is yet not started by the petitioners and land in question is still open. It is contended that as per the Government Circular dated 17.2.2012, as per Section 43 of the Tenancy Act, read with 25(g) of the Tenancy Rules, the permission has only effected for one year only and thereafter, as per the prevalent Jantri rate, the premium is to be recovered and such new premium rate to be paid out of which he old premium paid amount would be required to be deducted. It is contended that in view of this Circular, the order passed by the authorities is proper. It is further contended that the land in question was originally new tenure land the premium amount was recovered for residential purpose and Non-agricultural permission was granted. While referring to the Government Resolution dated 4.7.2008 bearing NO. NSHJ-102006-571-J (Part-2), it is contended that in view of Para-5(b) thereof in the Rural area the purpose for which non-agriculture use is to be made then particularly that purpose required to be considered and valuation needs to be considered thereof. It is contended that the impugned order passed by the authority is in consonance with the Government Resolution and no error has been committed by the authority in passing the impugned order.

8. In case of Adambhai Sulemanbhai Desai, Chairman, Desai Co-op. Housing Society Ltd., Dhandhuka v. State of Gujarat and Ors (Supra), this Court in Para-24 has held as under:

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

"24. The last contention regarding non applicability of provisions of the Act to a land which is permitted to be converted into non agricultural land by a competent Court also merits acceptance in light of settled legal position enunciated by the aforesaid two decisions of this Court. It is apparent that once the land is declared to be non agricultural one on the basis of N.A. Permission granted by the competent authority the said land loses its characteristic of agricultural land and would not be a 'land' within the meaning of Section 2(8) of the Act. If this be the position, the provisions of the Act would not apply to the land in question and the Deputy Collector could not have entertained the statutory power under the Act including entertaining of appeal under Section 74 of the Act".

9. In case of Pravinkumar Keshavji Tank V. State of Gujarat and Anr. (Supra) while dealing with the point as to relevant date for assessment of premium for grant of non-agricultural permission, it was observed in Para-11 as under:

"11. ....... In my view, the relevant date is the day on which the sanction is granted for lifting of the restriction and for permitting the land to be used for nonagricultural purpose and at the most, the Government may be entitled to the interest by way of compensatory measure for the delay in making the payment of premium and the reason being that the order for lifting of the restriction not altered or set aside. ....."

9.1. Further, in Para-14, the Court has observed as under:

"14. The aforesaid leads me to examine the question as to whether the Government is justified in examining the condition to treat the land as restricted tenure even after collection of premium being 100% of the market price of the land in question.

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

It is hardly required to be stated that the Government when transfers its land to any citizen it cannot recover the amount more than prevailing market price from any citizen. If the policy provides for recovery of the lesser amount than the market price by way of concession or otherwise, it may be permissible, subject to such policy meeting with the test of Article 14 of the Constitution of India, but in any case, the amount or the price to be calculated would not exceed the market price of the land. If any citizen is to buy the property from the market, he would be required to pay the market price prevailing then. Same will be the condition for the Government, if the Government is to sell the property to any citizen at the most it may recover the full market price prevailing. The order dated 19.2.1999 shows that the premium is collected to the extent of 100% of the market price for lifting of the restriction and for using the land for non- agricultural purpose. The market price is also assessed at Rs.58.50. Accordingly, the premium is fixed and 100% premium is recovered, subject to the addition of the amount at 10% p.a., for the period from May 1997 to June 1999 as observed herein above. Therefore, if the amount is accordingly paid, the resultant effect is that the State Government has recovered full market price prevailing from the petitioner by way of premium. If such is the situation, Government cannot contend that the land shall be new and restricted tenure land. As such when full premium is collected and the land is converted as an old tenure land, it would mean that any restriction of the Government would no more remain and the occupier will get the property as being purchased from the market by paying the market price. Therefore, it appears that the condition No.7 imposed in the order dated 19.2.1999 is not only arbitrary, but is unreasonable and would not meet with the test of Article 14 of the Constitution of India. No seller of a property can continue to hold the interest in the property after having recovered 100% price of the property. If such is the situation, for any seller in capacity as

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

the citizen, the Government in holding its own property cannot have a better right than that of a citizen in the purchase/sale of a property. Under these circumstances, the condition No.7 imposed in the order dated 19.2.1999 - Annexure-I being violative of Article 14 of the Constitution of India, cannot be maintained in the eye of law".

10. Considering the submissions made on behalf of both the sides and the material placed on record, there is no dispute that the land bearing Survey No. 117/1, 117/2, 117/3, 117/4 and 117/5 admeasuring Acre 6-15 gunthas situated at Moje Samarwad, Ta. Dhanera, District: Banaskantha has been converted into Non-agricultural residential purpose vide order dated 28.7.1997 passed by the TDO, Dhanera. It is also not in dispute that out of these lands, the petitioners have purchased Plot No.13 to 27, having area admeasuring 10437.88 sq. mts. It is also not in dispute that the petitioners have approached the authorities concerned for change of use for complete land from residential purpose to commercial purpose. The main dispute is regarding the assessment of the premium for the change of use of purpose from residential to commercial. It is an admitted fact that at the time of Non-agricultural permission, appropriate premium has already been recovered with regard to the land in question. According to the petitioners, under Section 67(A) of the Code, Government can only recover conversion tax and not fresh premium. At this juncture it is worthwhile to reproduce Section 67(A) of the Land Revenue Code, which reads as under:

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

"67A. (1) Where any land assessed or held for the purpose of agriculture or non-agriculture is permitted or deemed to have been permitted under Section 65, 65A or 65B to be used for any other non-agricultural purpose, the occupant of such land shall be liable to pay to the State Government, a conversion tax at such rate as specified by notification in the Official Gazette, which shall be payable by the occupant to such authority, in such manner and at such times as may be prescribed".

11. The provision regarding the rate of converting tax is appended as a Table below Section 67(A). Thus, considering the provisions of Section 67(A) which clearly provides that if any land tried to be used for any other purpose, then the occupant has to pay conversion tax as per the Table attached therein. Now, admittedly, in this case, Non- Agricultural permission was already granted at the relevant time, the premium has already been recovered. The revenue authority has not even considered the applicability of Section 67(A).

11.1 Further, the stand of the petitioners that the adjoining owner has also been granted permission to change of use of residential to commerce small units, has not been controverted by the revenue authorities. Further, once Non-agricultural permission is granted, as observed by this Court in case of Pravinkumar Keshavji Tank V. State of Gujarat and Anr. (Supra) , the provisions of Tenancy Act would not be applicable. This fact has also lost sight by the concerned authorities.

C/SCA/9275/2019 JUDGMENT DATED: 07/12/2021

12. Thus, the impugned order of both the revenue authorities are not in consonance with the legal provisions and the same deserves to be set-aside and the authority needs to be directed to decide the same in accordance with law and as per the observation made hereinabove.

13. In view of the above, the impugned orders dated 8.4.2019 passed by respondent No.2 SSRD confirming the order dated 19.10.2018 passed by the respondent No.3 Collector, Banaskantha, are hereby quashed and set-aside. The concerned authority is directed to decide the application for conversion of change of purpose of residential to commercial of the petitioners' plot in question, keeping in mind the observations made in the various decisions of this Court, referred to above, as early as possible, preferably within 3 months from the date of receipt of copy of this Order.

With these observations, the petition stands disposed of. No order as to costs. Rule is made absolute to the aforesaid extent. Direct Service is permitted.

(DR. A. P. THAKER, J) SAJ GEORGE