Lakhdhisinh Mahipatsinh Jadeja vs State Of Gujarat
2023 Latest Caselaw 22 Guj

     C/LPA/847/2019                                    JUDGMENT DATED: 02/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 847 of 2019
                                    In
               R/SPECIAL CIVIL APPLICATION NO. 2688 of 2018
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
                                     In
                R/LETTERS PATENT APPEAL NO. 847 of 2019
==========================================================
                      LAKHDHISINH MAHIPATSINH JADEJA
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR JINESH H KAPADIA(5601) for the Appellant(s) No. 1
MR. K.M. ANTANI, AGP, for the Respondent(s) No. 1,2,3,4
==========================================================

 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                              Date : 02/01/2023

                              ORAL JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. In this Appeal, challenge is laid to the order dated

16.03.2018 passed in Special Civil Application No.

2688 of 2018, whereunder the learned Single Judge

has refused to interfere with the order dated

25.07.2017, passed by the Secretary, Revenue

Department (Appeals) (for short S.S.R.D.).

C/LPA/847/2019 JUDGMENT DATED: 02/01/2023

2. In this Appeal, dispute revolves around the land

bearing Survey No. 121 admeasuring 1 Acre 16

Gunthas situated in Village Lakhapar, Taluka Rajkot,

which was granted originally in Santhani by order

dated 28.10.1986 to one Aalabhai Bhikhabhai, which

was a new and restricted tenure land granted on terms

and conditions specified under the letter of allotment.

The said allottee entered into an agreement to sell the

said land in favour of petitioner and same was sold

under registered sale deed dated 17.02.2000, which

was preceded by permission for non-agricultural use

being granted to an extent of 16 gunthas on

11.01.2001. Thereafter, Jurisdictional Panchayat by

permission dated 20.01.2001 also accorded its approval

to the applicant for putting up construction. In the

meanwhile, the subject land in its entirety namely

admeasuring 1 acre 16 gunthas was converted to old

tenure to new and restricted tenure vide order dated

02.02.2000, which was subject to the conditions

mentioned thereunder. However, permission which the

C/LPA/847/2019 JUDGMENT DATED: 02/01/2023

petitioner had to obtain by filing an application from

agricultural use to non-agricultural use had not been

obtained, though application had been submitted on

29.06.2000. On account of there being restricted

tenure and applicant was liable to pay premium, if the

land were to be utilized for non-agricultural purposes

and same having not been done. On the other hand,

construction was put up and hotel business had been

commenced in the said land in an area measuring 16

gunthas without paying premium and without obtaining

permission, which resulted in Deputy Collector, Rajkot

initiating proceedings and it culminated in an order

being passed by Deputy Collector on 05.06.2010,

whereby the subject land in its entirety was ordered to

be forfeited to the Government. Petitioner

unsuccessfully challenged the said order before the

Collector, who by order dated 25.10.2012 dismissed

the same, which came to be affirmed by the learned

Single Judge on the ground of concurrent findings

having been recorded and also on the ground that

C/LPA/847/2019 JUDGMENT DATED: 02/01/2023

petitioner had commenced the hotel business, without

payment of premium and without permission.

3. Undisputedly, in the instant case, N.A. Permission

was granted on 11.01.2001. The Jurisdictional

Panchayat had also granted permission to put up

construction vide order dated 20.01.2001. The

proceedings for forfeiting the land has been initiated

after six years from the date of sale namely by issuance

of notice on 21.02.2007, though petitioner had

purchased the land on 17.02.2000 and N.A. permission

had been obtained on 11.01.2001 and permission to put

up construction had also been obtained 20.01.2001.

Infact petitioner had also submitted an application on

29.06.2000 for determining premium for conversion of

land to non-agricultural land (commercial purpose). On

account of non-determination of premium payable, as

already noticed hereinabove, the proceedings for

forfeiture of land had been commenced.

4. Learned counsel appearing for appellant would

C/LPA/847/2019 JUDGMENT DATED: 02/01/2023

submit that appellant is ready and willing to pay

premium prevailing as on date.

5. In view of said statement made and also taking into

consideration that an application has already been

submitted by appellant - petitioner on 29.06.2000 for

determining the premium for conversion of land to non-

agricultural purpose (commercial purpose), we are of

the considered view that State should be directed to

consider the said request and determine the premium

payable by petitioner for conversion of land to non-

agricultural land.

6. Yet another fact which has swayed in our mind to

issue such direction is the fact that petitioner had

obtained N.A. permission and permission from

Panchayat for putting up construction, apart from

having submitted an application on 29.06.2000, for

determination of premium by the competent authority.

Undisputedly, no steps have been taken on the

application by the said authority. As such, the

C/LPA/847/2019 JUDGMENT DATED: 02/01/2023

impugned order of the Deputy Collector forfeiting the

entire land for utilization of 16 gunthas of land namely

forfeiture of 1 acre 16 gunthas of land was not

warranted.

7. In view of the peculiar circumstances which has

obtained in the facts of the present case, namely the

N.A. permission having been granted by the very same

authority which is required to consider the application

of petitioner dated 29.06.2000 and the Jurisdictional

Panchayat also having granted permission for putting

up construction and application of petitioner for

payment of premium having been submitted on

29.06.2000, which has not yet been disposed of, and

also the fact that proceedings for forfeiture of land

having been initiated after six and half years if

reckoned from the date of granting permission for

putting up construction which undisputedly was on

20.01.2001, the direction to consider the application

dated 29.06.2000 is being issued.

C/LPA/847/2019 JUDGMENT DATED: 02/01/2023

8. In view of aforesaid discussion, impugned order

deserves to be quashed with a direction to respondent

authority to consider the application dated 29.06.2000

submitted by petitioner for payment of premium (as per

the value prevailing today) and it would meet ends of

justice. Hence, following :

ORDER

(i) Appeal is ALLOWED.

(ii) Order dated 16.03.2018 passed in

Special Civil Application No. 2688 of 2018

by the learned Single Judge is set aside.

(iii) Special Civil Application No. 2688 of

2018 is allowed in part and impugned order

dated 25.07.2017, passed by Secretary,

Revenue Department (Appeals) in Revision

Application No. 1 of 2013 and the order

dated 01.11.2012 passed by Collector,

C/LPA/847/2019 JUDGMENT DATED: 02/01/2023

Rajkot are hereby quashed.

(iv) Collector, Rajkot is directed to

consider the application of petitioner dated

29.06.2000 for payment of premium to be

determined (as on today) expeditiously and

at any rate within an outer limit of six

weeks from the date of receipt of copy of

this order.

9. Pending application(s), if any, stands consigned

to records.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) AMAR SINGH