Shashikant Labhshanker Dave vs State Of Gujarat
2022 Latest Caselaw 4123 Guj

    C/SCA/12025/2016                                      ORDER DATED: 12/04/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 12025 of 2016
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                       SHASHIKANT LABHSHANKER DAVE
                                   Versus
                         STATE OF GUJARAT & 1 other(s)
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Appearance:
MR VIMAL PATEL ADVOCATE WITH MR. ZALAK B PIPALIA(6161) for the
Petitioner(s) No. 1
NAJMUDDIN R MEGHANI(7834) for the Petitioner(s) No. 1
MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                               Date : 12/04/2022

                                ORAL ORDER

1. Being aggrieved and dissatisfied with the order dated 09.06.2016 passed by the District Collector, Junagadh in case of 02 of 2016 whereby, he has refused the application preferred by the petitioner to covert the land from new tenure to old tenure on the ground that the petitioner is not ready and willing to pay premium as per the Government Resolution dated 06.06.2003. The petitioner has preferred this petition under Article 226 of the Constitution of India for the following reliefs.

"(A) to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the order dated 09.06.2016 passed by the learned District Collector, Junagadh in Case No.2/2016 and thereby pleased to direct the learned District Collector, Junagadh to charge premium to convert the land bearing Survey No.371/p of Junagadh of the petitioner from new tenure to old tenure on the basis of the Jantri value of the land and not as per the value of the land decided by DLVC.

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(B) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to direct the learned District Collector, Jiinagadh, to calculate and decide the premium of the land bearing Survey No.371/p of Junagadh, on the basis of the Jantri value and not as per the value of the land decided by DLVC.

(C) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to direct the learned District Collector, Junagadh to decide the application forthwith and to convert the land from new tenure to old tenure by charging premium as per the Jantri value of the land declared by the Revenue Department, State of Gujarat vide Notification dated 18.04.2011.

(D) to pass such other and further order/s as may be just and necessary in the circumstances of the case."

2. The brief facts of the present petition are as under: 2.1. The land bearing survey no.371/paiki admeasuring 8000 square meters situated at Junagadh has been given to the petitioner for industrial purposes of stone crushing work by the Collector Junagadh. The petitioner was using the same since long for such purpose. Thereafter, in July 2014, he preferred an application to the Collector, Junagadh to convert the land from new tenure to old tenure on the basis of the circular of the revenue department dated 16.03.1982 and 11.03.1996 regarding the payment of premium.

2.2. That he was informed by the officer Junagadh City vide letter dated 12.03.2015 that as per the District Land Valuation Committee (hereinafter referred to as "DLVC") the value of the land was assessed at Rs.12,000/- per square meters and therefore if he is

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agreeable to pay the premium at that rate then, he may give consent to the Circle Officer within a period of one week. Accordingly, the petitioner by letter dated 11.04.2015 informed the Circle Officer that the DLVC has no authority to decide the value of the land as now the Government has declared the rates (Jantri Value) and accordingly he is ready and willing to pay premium according to jantri value published by the State Government. It is pointed out that before deciding the value of the land at Rs.12,000/- per square meters no hearing was afforded to him either by the DLVC or the Collector and therefore, such value is not binding to him. According to the petitioner he has also pointed out that as per the prevailing jantri value of the land Rs.2000 per square meters and therefore there is no justification in directing for higher rate of premium. On the basis of the value decided by the DLVC. The petitioner has also relied upon the Government Resolution (hereinafter referred to as "GR") dated 04.07.2008 and has submitted that the land is required to be converted to new tenure land from old tenure land by charging premium on the basis of jantri value he has also relied upon the another GR dated 03.05.2011. Learned District Collector ultimately rejected the application vide order dated 22.07.2015.

2.3. The said order of the Collector came to be challenged by the petitioner by preferring Revision Application no.24 of 2015. before the learned Special Secretary Revenue Department (hereinafter referred to as "the SSRD") that while converting the land from new

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tenure to old tenure earlier DLVC was deciding the value of the land on the basis of the resolution dated 15.01.1998, but thereafter the Government has decided to apply jantri value of the land while deciding the premium of the land. After considering the evidence on record and considering the GR of 07.07.2008 learned SSRD has allowed the Revision Application and set aside the order dated 22.07.2015 passed by the District Collector, Junagadh and remanded the matter back to the learned Collector for fresh hearing.

2.4. The petitioner filed a detailed reply dated 03.02.2016 to the Collector in the remand matter showing his willingness to pay the amount of premium as per the GR dated 04.07.2008 and 03.05.2016, however, without considering the direction given by the learned SSRD and the GRs, the Collector vide its impugned communication has rejected the application of the petitioner. This order of the Collector has been challenged by the petitioner on the various grounds which includes that the Government has made the policy of recovering the premium on the basis of the jantri price for conversion of the new tenure land to old tenure land and now there is no scope for DLVC to decide the price of the land for conversion from new tenure to old tenure. It is also contended that the Collector ought to have considered the mandatory requirement of the GR dated 04.07.2008 and also had followed the direction issued by the learned SSRD.

2.5. Affidavit in reply has been filed by the Mamlatdar,

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Junagadh City resisting the present petitioner according to averments in the affidavit, the petitioner has applied for premium to sale the concerned land vide application dated 02.07.2012 and there was a breach of condition by virtue of order dated 26.12.2013 passed by the Collector, Junagadh. The petitioner was directed to approach the State Government as the power lye with the State Government for conversion of the new tenure land to the old tenure and as there was a breach of condition, penalty and fine to the tune of twenty times has been imposed upon the petitioner and after deciding the same with the competent authority, he has been permitted to move the State Government to the conversion of the new tenure land to the old tenure land.

2.6. It is also further averred that the petitioner has filed an application in the month of April 2014 whereby he requested the authority to convert the concerned land of new tenure land to old tenure land. Pursuant to the said application, the whole chapter was forwarded to the DLVC which had met on 06.01.2015, wherein different agendas were taken up and amount of Rs.12,000/- per square meters came to be decided qua the land in question. That the same was communicated to the petitioner by the communication dated 12.03.2015. That the same was replied by the petitioner and he has raised the point that before deciding the amount, he was not heard by the DLVC. Thus, the petitioner has relied upon the GR dated 30.05.2011 and that accordingly he is ready to pay the premium at the rat of Rs.40%. It is also averred that the petitioner did not shown his ready and

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willingness to pay the premium as per the valuation made by the DLVC.

2.7. It is also averred in the affidavit that as the petitioner was not ready and willing to pay the premium as per the value fixed by the DLVC, respondent no.2 has rejected the application and the same was communicated to the petitioner vide letter dated 22.07.2015. That the said communication was challenged by the petitioner before the learned SSRD. That the learned SSRD has quashed the communication- cum-order of the respondent No.2 and the matter was remanded back for the fresh consideration by the Collector, Junagadh. According to the deponent by the impugned communication-cum-order dated 09.06.2016, speaking order was passed after affording opportunity to the petitioner. It is also contended that by virtue of clause 30(1)(B)(2) of G.R. Dated 06.06.2013 it has been specifically made clear that the land can be converted into old tenure land after charging 100% premium of the difference amount of market trade and the original value and therefore, the order passed by the respondent No.2 is legal and valid.

3. Heard learned advocate Mr. Vimal Patel with Ms. Zalak B. Pipaliya for the petitioner and learned AGP Ms.Dhwani Tripathi for the respondent-State and perused the material on record and the decisions cited at Bar.

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4. Learned advocate for the petitioner submitted the same facts which are narrated in the memo of petition which are narrated hereinabove.

5. According to him, when the learned SSRD has set aside the order of the learned Collector which was based upon the valuation of the land by the DLVC and the matter was remanded back to the collector for considering the GR. The learned collector ought to have followed the government policy of charging a premium as per Jantri Value and ought not to have insisted for the premium at the rate fixed by the DLVC. He has submitted that in the present case the only question is regarding what would be the premium needs to be recovered for conversion of a new tenure land to the old tenure land. According to him, whether the collector has to have applied the Jantri Value of the land as decided by the revenue department vide its various notifications which includes notification dated 18.04.2011 or the value decided by the DLVC. According to him, in the present case, the GRs of charging premium on the basis of the Jantri needs to be followed. He has submitted that as per GR dated 04.07.2008, the government has decided to charge the premium as per Jantri Value for conversion of the new tenure land to the old tenure land.(GR is at Page No.41 of the paperbook) He has also submitted that the said GR has been amended by the resolution dated 03.05.2011 which is at page 52 of the paperbook, which also provides for charging of premium on the basis of Jantri Value.

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5.1 He has submitted that reliance placed by the District Collector and the GR dated 06.06.2003 for charging of premium at the rate of 100% on the basis of the market value and possession value is concerned, the same is not applicable in the present case as the petitioner has applied in the year 2014 when the said GR has already been amended by the government in the year 2008 as well as 2011. He has submitted that GR dated 06.06.2003 has become redundant in view of the GRs of 2008 as well as 2011. He has submitted that the entire exercise undertaken by the learned Collector based upon the GR of 2003 is blatantly illegal. He has submitted that the impugned order of the collector needs to be quashed and set aside. He has submitted that in the matter learned SSRD has directed the collector to decide the matter afresh in accordance with the GRs, by setting aside collector's earlier order, the collector instead of following the directions of the learned SSRD has adhered to its earlier decision and therefore, the availability of alternative remedy must come in the way of the petitioner in preferring the present petition. He has prayed to allow the present petition. He has relied upon the following decisions in support of his arguments which are as under:-

1. In case of Patel Kamalbhai Sharadbhai V. State of Gujarat reported in 2011 JX (Guj.) 679 in para 40 has observed thus:-

"40. So far as the jantri is concerned, though challenge has been made in some of the writ petitions,

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but in non of them they have enclosed copy of the jantri which came into effect from 1.4.2008. The learned counsel for the petitioners could not show how such jantri is illegal except a bald statement that has been made that it is unscientific in nature, do not provide any mechanism to oppose the valuation.

The respondent - State in its affidavit at para 9 filed in Special Civil Application No. 10832 of 2008, has stated as under :-

"9. It is submitted that so far as the new Jantry (Annual Statement of Rates-2007) is concerned. The same is decided after scrupulously followed all the procedure and also considered the objection raised by the concerned person. It is submitted that the authority has also taken assistance/guidance of technical agency. It is submitted that before finalizing the new Jantry, the State Authority had undertaken sitewise survey and lso considered the sale transactions of last 3 years as well as considered the market value fixed by the District Level Valuation Committee and State Land Valuation Committee. It is submitted that initially the authority has prepared draft Jantry and the same was published in local daily and the authority has invited objections/suggestions from the affected persons. It is submitted that in view of the advertisement published by the authority, the authority has received more than 4,000 objections and the authority has appointed expert committee to consider such objections in view of the draft Jantry. Thereafter, ultimately, the final Jantry was prepared and the same was made applicable since 1.4.2008. It is required to be clarified that the Jantry (ASR-2006) is prepared subject to further modification in future. It is submitted that the petitioner has not challenged the Jantry introduced on 1.4.2008 and therefore, I refrain myself for commenting further on that issue. However, it is submitted that the authority has taken due care before preparing new Jantry."

The aforesaid fact has not been disputed by the petitioners. The Court was informed by the learned Advocate General that they are going to change the Jantry with effect from 1.4.2011. In this background also, no interference is called for against the jantri."

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2. In case of Gohil Jesangbhai Raysangbhai & Ors. Vs. State of Gujarat and Anr. reported in 2014 (1) G.L.H. 609 in para 6 and 9 has observed as under:-

"6. As we have noted earlier the Tenancy Act was passed as a part of the agrarian reform. The Act as such does not permit transfer of agricultural land for non- agricultural purpose, and the same is barred under Section 63 of the Act. That section permits such a transfer only in certain contingencies as provided under that Section. Section 43 with which we are concerned in the present matter and which appears in Part III of Chapter III of the Act. Chapter III provides for Special rights and privileges of tenants, and contains provisions for distribution of land for personal cultivation. Part III, thereof, provides for restrictions upon holding of land in excess of ceiling area. Section 43 has to be seen in this context.

9. As far as the determination of this amount is concerned, the same was earlier entrusted to the District Level Committee or the State Level Committee as per the Government Resolution dated 15.1.1998. However, the Government found that much time used to be consumed for determination of this price at different stages. Besides, uniformity had to be brought in with respect to determination of valuation in particular areas. Therefore, the State Government decided to adopt the approach of valuation based on Jantri, i.e. the list of rates containing the minimum valuation of land as per the Government Resolution dated 20.12.2006. It is for this purpose that the aforesaid resolution dated 4.7.2008 was passed. As can be seen from paragraph 4 of this Resolution, now the premium is required to be recovered on the basis of the Jantri, and all the powers concerning the transfers in the entire District are vested in the Collector. The Jantri contains the rates which are fixed for the purpose of valuation of the land for levying the stamp duty under the Bombay Stamp Act. Those rates in the Jantri are incorporated by virtue of this Resolution for the purpose of permitting these transfers."

3. In case of Gujarat Heavy Chemicals Ltd. Textile Division V. State of Gujarat Through Additional Chief Secretary reported in 2011 JX (Guj) 1276 in para 6.3 has observed as under:-

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"6.3 The matter is hereby remanded back to the Committee, who shall decide the price and premium as per the ratio laiddown by the Division Bench's judgment, particularly observations made in paragraph No.44 within a period of 90 days, after giving opportunity of personal hearing within a period of 30 days from the date of receipt of any request for personal hearing from the petitioner. The petitioners are under obligation to remove the bank guarantee."

4. Learned advocate has also relied upon the judgment of Shri Bhulabhai Desai Park Cooperative Housing Society Ltd. V.s State of Gujarat reported in 2021 JX (Guj) 92.

6. Per contra, learned AGP Ms. Dhwani Tripathi, for the state has vehemently submitted that considering the commercial purpose the GR of 2008 could not be applicable and GR of 2003 would apply. She has also submitted that the collector has properly applied provisions of GR of 2003 and has not committed any error of facts and law. She has also submitted that the alternative remedy of approaching learned SSRD is available and unless and until this alternative remedy exhausted by the petitioner, the petition may not be allowed. She has submitted that the order of the learned Collector is just and proper and does not require any interference by this Court.

7. In rejoinder, learned advocate for the petitioner has submitted that since the government has passed composite resolutions in relation to charging premium on the basis of Jantri price the earlier GR of 2003 would be deemed to be merged in the new policy of

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government and therefore, the exercise undertaken by the learned Collector on the basis of the resolution of 2003 is illegal. He has also submitted that in all the subsequent GRs, the government has also bifurcated the land for use of residential as well as other residential purpose and premium amount has been prescribed therein on the basis of the Jantri Value. He has submitted that even in this matter, as the petitioner has applied in the year 2014, the GR would be applicable is that of the prevalent time i.e. of the year 2014 and not of 2003. He has submitted that when the learned Collector has not obeyed the order of learned SSRD, which has set aside the earlier order of the collector, availability of the alternative remedy would be exercised in futility and it will only delay the proceedings. It is submitted that when the order of the learned Collector is per say illegal as he has relied upon the redundant GR, considering the peculiar facts and circumstances of this case, this Court be pleased to allow the petition.

8. Having considered the submissions made on behalf of both the sides coupled with the material placed on record and the decisions cited at Bar, it emerges that there is no dispute regarding the facts that the petitioner is in possession of the land in question and he has applied for Non-agricultural permission before the Collector. It is also undisputed facts that at the relevant time, on the basis of GR of 2003, exercise of fixing the premium came to be undertaken by the Collector and on that basis the petitioner was informed to pay the

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premium at the rate of Rs.12,000/- per square meters. It is also admitted facts that the petitioner has filed a representation before the Collector stating that before fixing such date no opportunity of being heard was given to him and the GRs were not followed. That the petitioner has also shown his willingness to pay the premium as per the GR prevalent at that time on the basis of the jantri price. It is admitted facts that the said prayer of the petitioner came to be rejected by the Collector, upon which he has preferred revision application before the learned SSRD. It is also admitted facts that the learned SSRD has quashed the order of the learned Collector and has remanded the matter back to the Collector, observing therein that there was consolidated GR pertaining to the recovery of premium on the basis of Jantri price. It is admitted facts that even thereafter the Collector has instead of relying upon the consolidated and subsequent GRs which were passed after 2003, have not considered the same and merely reiterated the earlier order of payment of premium as per the price fixed by the then DLVC. Thus, the reliance by the Collector on the provisions of GR of the year 2003 seems to be unjustified. It is admitted facts that the petitioner has applied in the year 2014, therefore, it was incumbent upon the part of the learned Collector to take decision in accordance with the latest GR which were prevalent at the time of the application.

9. It is pertinent to note that various GRs are part and parcel of this matter. The GR of 06.06.2003 has been passed by the government consolidating earlier

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resolution beginning from 23.03.1989 till 05.04.2003, wherein, provisions for charging the premium came to be enumerated. It appears that vide resolution dated 04.07.2008, the government has issued a fresh resolution simplifying the procedure for conversion of new tenure land to the old tenure land and charging premium. The said GR is at page No.41 of the compilation. In the said GR there is specific averment that the new procedure is being implemented for the simplification of all earlier instructions. It is also provided therein that for the purpose of conversion of land for agricultural purpose to agricultural purpose the rate is zero whereas, from agricultural purpose to non- agricultural purpose for other vicinity there is 50% thereof and for all other non-residential purposes the premium has been shown as per the situation of the land. There is also various conditions made in the said GR regarding time period to be taken by the authority for deciding the application of conversion of land and for recovery of premium. It is specifically provided therein that charges are to be based upon the Jantri. Not only that, but, in Para No.6 there is specific averments that all the matters which may be listed after 01.04.2008 are to be decided in accordance with the terms of this GR. Thus, there was no question of reliance being placed on GR of 2003 in the present matter as admittedly when the GR of 01.07.2008 was passed by the government, there was no application filed by the petitioner for conversion of land.

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10. It is also pertinent to note that even in the year 2011 the government has issued another resolution dated 03.05.2011 (Page No.52 of the paperbook) wherein also changes have been made regarding the premium charges.

11. Under the aforesaid circumstances, it is crystal clear that the exercise undertaken by the learned Collector is not on the GRs which were prevalent at the time of filing of the application and instead he has, on his own, relied upon the GR of 2003 which has been already culminated in the passing of the GRs in the years 2008 and 2011. Thus, the base of the impugned order is totally irrelevant. The learned Collector ought to have appreciated the dictum of the learned SSRD to considered the GRs of the year 2008 and thereafter, however for best reasons known to the learned Collector, instead of following those resolutions he has adhered to his own earlier order based upon the GR of 2003.

12. Therefore, considering the facts and circumstances of the case, the impugned order of the Collector is not sustainable in the eyes of the law. Hence, it needs to be quashed and set aside and learned Collector needs to be directed to decide application afresh in accordance with law after following the GR as may be applicable in the year 2016 and not on the basis of GR of the year 2003.

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13. In view of the aforesaid discussion, the present petition is hereby allowed. The impugned order-cum- communication dated 09.06.2016 passed by the learned District Collector, Junagadh in Case No.2/ 2016 is hereby quashed and set aside. The learned Collector is hereby directed to decide afresh the application of the petitioner and decide the same in accordance with law and on the basis of Government Policy as may be applicable in the year 2016 and not on the resolution of the year 2003. Such exercise be completed by the learned Collector as early as possible, preferably within a period of three months from the date of receipt of copy of this order. With this direction, the petition stands disposed of. No order as to costs. Direct service is permitted.

(DR. A. P. THAKER, J) URIL RANA