Gujarat High Court
Baluben Wd/O Somabhai Chhotabhai ... vs State Of Gujarat on 16 February, 2021
Bench: Vineet Kothari, Gita Gopi
C/LPA/784/2017 JUDGMENTDT.: 16.02.2021
BALUBEN WD/O SOMABHAI CHHOTABHAI SHRIMALI Vs. STATE OF GUJARAT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 784 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 1956 of 2003
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In
R/LETTERS PATENT APPEAL NO. 784 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
==============================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
BALUBEN WD/O SOMABHAI CHHOTABHAI SHRIMALI
Versus
STATE OF GUJARAT & 4 other(s)
==============================================================
Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1
Page 1 of 9
Downloaded on : Fri Feb 19 02:29:04 IST 2021
C/LPA/784/2017 JUDGMENTDT.: 16.02.2021
BALUBEN WD/O SOMABHAI CHHOTABHAI SHRIMALI Vs. STATE OF GUJARAT
MS MINI NAIR ADVOCATE FOR DARSHAN M VARANDANI(7357) for
the Respondent(s) No. 5
MR UTKARSH SHARMA ASSISTANT GOVERNMENT PLEADER(1) for
the Respondent(s) No. 1,4
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MR NILESH A PANDYA(549) for the Respondent(s) No.3
==============================================================
CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 16/02/2021
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This intra Court Appeal arises out of the order of the learned
Single Judge dated 21.03.2017, dismissing the Special Civil
Application No.1956 of 2003 filed by the Appellant - Baluben
W/o. Somabhai Chhotabhai Shrimali. The learned Single Judge
gave certain directions while remanding the case back to the
Competent Authority to decide the Amount of Premium payable on
the transfer of land in question in favour of the Appellant. The
operative part of the order of the learned Single Judge is quoted
below for ready reference:
"39. In the result, following order is
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BALUBEN WD/O SOMABHAI CHHOTABHAI SHRIMALI Vs. STATE OF GUJARAT
passed:-
[a] Having regard to the decision by this
Court in case of B.K.Jethva (supra), the order
dated 21.2.2013 is set aside.
[b] It is clarified that the said order is
set aside only on the limited ground viz. not
granting opportunity of hearing to the
petitioners as held in the decision in case of
B.K.Jethva (supra). However, the petitioners'
contention against the determination/
quantification of amount and/or the submission
that even now the rate of 2007 should be taken
into account, are not accepted and the said
submissions and demand or claim or request
are rejected.
[c] It is further clarified that present
order shall not be construed to mean that the
Court has accepted petitioner's contention that
the rate determined by the authority is
unreasonable or on higher side. This order
shall also not be construed to mean that the
Court has accepted and granted the submission
and the request that, now, while considering
the request under Section 43 of Tenancy Act
and under Section 65 of Gujarat Land Revenue
Code, the rates prevailing in 2007 should be
C/LPA/784/2017 JUDGMENTDT.: 16.02.2021
BALUBEN WD/O SOMABHAI CHHOTABHAI SHRIMALI Vs. STATE OF GUJARAT
considered. The said contentions and
submissions/requests are rejected.
[d] It is further clarified that the
authority shall pass fresh reasoned and
speaking order after taking into account
relevant and applicable guidelines or policy as
issued from time to time and applicable as on
date of decision.
[e] It is also clarified that the
application shall be processed in accordance
with all Rules, Regulations, Policies,
guidelines, etc. which are and may be in force
and applicable at the time of
consideration/hearing and decision.
At this stage, it will not be out of place to
mention that above discussed and above
mentioned aspects were clearly informed to the
learned counsel for the petitioners during the
hearing.
[f] It is also clarified that if the
respondent No.5 wants to make any submission
with regard to petitioner's application, then,
the said submissions may be considered subject
to petitioner's objection and the petitioners as
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BALUBEN WD/O SOMABHAI CHHOTABHAI SHRIMALI Vs. STATE OF GUJARAT
well as respondent No.5 will be entitled to raise
all such contentions and objections as may be
available in law.
With aforesaid observations and
clarifications, present petition stands disposed
of. Rule is made absolute to the aforesaid
extent."
2. The learned Counsel for the Appellant, Mr. Sharvil Majmudar
submitted before us that while remanding the case back to the
Competent Authority, the learned Single Judge ought not to have
observed that the Premium could not be decided as per the rate
prevailing in 2007, because the same were decided in pursuance of
the directions of the learned Single Judge in the Interim Order dated
25.04.2007 in Civil Application No.5671 of 2007 and the order
dated 30.10.2012 in Civil Application No.11881 of 2011, although
they were decided in 2013. These orders are quoted in Para 6 of the
impugned order of the learned Single Judge.
3. Mr. Sharvil Majmudar, learned counsel submitted that though,
the time period of only Three Months was given to the said
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BALUBEN WD/O SOMABHAI CHHOTABHAI SHRIMALI Vs. STATE OF GUJARAT
Competent Authority to decide the Quantum of Premium, the same
was decided much thereafter on 21.02.2013 determining the amount
of premium at Rs.8 Crores and Odd, which the Appellant -
Petitioner did not pay. Even though Para-3 of the order in Civil
Application No.5671 of 2007, quoted in Para 6 by the learned
Single Judge, clearly stipulated that the Appellant - Petitioner shall
pay the amount of Premium / Conversion Charges that may be
determined by the concerned Authority in pursuance of the order
dated 25.04.2007, but the Appellant - Petitioner challenged the said
Determination Order dated 21.02.2013 by amending the Writ
Petition which was finally disposed of with the aforequoted
directions by the learned Single Judge.
4. The learned Counsel for the appellant Mr. Sharvil Majmudar,
therefore submitted that the contentions of the Appellant - Petitioner
with regard to the year with reference to which the Premium Rates
could have been decided, should have been kept open by the learned
Single Judge and the argument of the Appellant - Petitioner before
the Competent Authority in this regard could not be partly
foreclosed by the learned Single Judge.
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BALUBEN WD/O SOMABHAI CHHOTABHAI SHRIMALI Vs. STATE OF GUJARAT
5. The learned Counsel for the Appellant Mr. Sharvil Majmudar
also submitted that the Appellant - Petitioner, Baluben W/o.
Somabhai Chhotabhai Shrimali, has since expired, however, the
copy of the Death Certificate and proper Application in this regard
are not on record.
6. Learned Counsel Ms. Mini Nair, appearing for the Respondent
no.5 - Shri Shankarbhai Virabhai Mali, submitted that a part of
land is in possession of the Respondent no.5, therefore, her client
should also have a right of say before the Competent Authority while
these proceedings are being decided upon remand.
7. We have heard learned Counsel Mr. Sharvil Majmudar for the
Appellant, learned Government Counsel Mr. Utkarsh Sharma for
Respondent nos.1 and 4 and learned Counsel Ms. Mini Nair for the
Respondent no.5. We are of the opinion that the issue with regard to
Premium to be decided under Section 43 of the Tenancy Law while
was being remanded to the Competent Authority, any findings on
the merits of the contentions, which could be possibly raised before
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the Competent Authority, were not required to be decided by the
learned Single Judge and the Competent Authority should have been
left free to decide the case on determining the Amount of Premium
in accordance with law. The rates, as on which date or year, will be
applicable to decide the said Amount of Premium, should have been
left free to be decided by the said Competent Authority himself,
whether for the years 2007, 2013 or 2017, or rates prevailing now
when the Competent Authority decides the said Amount of
Premium.
8. Therefore, we are of the opinion that the Order of the learned
Single Judge deserves to be modified to the extent that upon remand
to the Competent Authority, he will be free to decide the Amount of
Premium in accordance with law in his own discretion uninfluenced
by the observations made by the learned Single Judge. The
concerned parties as well as the proper Legal Representatives to be
brought on record, may have the right of say before the said
Competent Authority and the Competent Authority is expected to
decide the proceedings afresh, in accordance with law, as
expeditiously as possible, preferably within a period of Six Months
C/LPA/784/2017 JUDGMENTDT.: 16.02.2021
BALUBEN WD/O SOMABHAI CHHOTABHAI SHRIMALI Vs. STATE OF GUJARAT
from today. The concerned parties, without any further notice, may
appear before the said Competent Authority i.e. District Collector at
the first instance on 15.03.2021.
9. With these Observations and Directions and slight
Modification of the order of the learned Single Judge, the present
Letters Patent Appeal is disposed of. No order as to cost.
Consequently, connected Civil Application also stands disposed of.
(DR. VINEET KOTHARI, J.)
(GITA GOPI, J.)
Pankaj
