Mr.A. J. Patel, learned Counsel for the petitioners, is note present even in the second round. Hence, the matter stands dismissed for default. (Jayant Patel, J.)
1. Before the order is singed, Mr.Shital Patel, learned Counsel for Mr.A.J. Patel prays for recalling of the order and he states that he is ready to proceed with the matter.
2. Hence, restored. Mr.Shital, learned Counsel for the petitioners as well as Ms.Moxa Thakkar, learned AGP are heard on merits.
3. The only question to be considered is that the Government would be entitled to recover premium from which date, whether from the date when the application was decided for lifting of the restriction or from the date when actual payment was made ? Another aspect is that after payment of premium being full price whether any restriction as new tenure would continue or not ?
4. In order to appreciate the controversy, some facts may be relevant and the same are that on 20.2.1964, the land in question was allotted by the Government to one Sindhi Madhu on payment of occupancy price. Sanad was issued and it was a new tenure land for agricultural purpose. Thereafter, the petitioners purchased the land from the said occupant vide Sale Deed dated 7.3.1981. As the land was new tenure land and without permission it was transferred in favour of the petitioners, attempt was made for conversion of the land as old tenure land. The same was considered by the Deputy Collector and vide order dated 14.1.1981 for payment of 60 times revenue assessment, the land was converted as old tenure, but for agricultural purpose only. It is the case of the petitioners that such payment was made. However, there was some audit objection that the difference of the price at which the land was allotted and the price at which the land was sold was not considered and 50% premium was not collected. Therefore, the petitioners were called upon to make the payment of balance amount of Rs.1,140/-, which was already paid by the petitioners on 20.10.1990. It appears that thereafter the petitioners applied for converting the land for non- agricultural purpose and the permission was initially granted vide order dated 2.7.1997 for one year and thereafter the same was further granted for one year to establish service station of gypsum storage. It appears that in the meantime, the petitioners also applied for lifting of the restriction for use of the land for non-agricultural purpose to the District Collector. Thereafter, vide order dated 19.2.1999, the State Government, after taking into consideration that the permission was granted for use of the land for non-agricultural purpose in July 1997 as a special case, the restriction was lifted for use of the land as agricultural land, but the same was on condition that the petitioner pays premium of 100% at prevailing market price of Rs.58.50 per sq. mtrs., or the valuation, as may be assessed by the District Valuation Committee. In the said order, the State Government also provided that the land would remain as restricted tenure or new tenure. Thereafter, vide communication dated 22.3.1999, the petitioner was called upon to make the payment of Rs.7,16,157/- at the rate of Rs.58.50/- per sq. mtrs., by the District Collector and as per the petitioner, the said amount was ultimately paid on 3.6.1999. However, subsequently, vide communication dated 14.6.1999, the petitioner was intimated by the District Collector that as per the Valuation Committee, the valuation in June 1999 was found to be of Rs.17,13,880/-, but the petitioner has paid Rs.7,16,167/- and, therefore, he was called upon to pay the amount of Rs.9,97,723/- within 21 days. The petitioner thereafter made representation to the Secretary of the State Government as well as to the District Valuation Committee, but there was no decision. Hence, the petitioner preferred the present petition for the relief to quash and set aside the orders in question and for directing the respondents to grant N.A., on permanent basis without insisting for any additional amount or without insisting for any other condition and the petitioner has also prayed to declare that the recovery of the amount of Rs.7,16,187/- as illegal and is liable to be refunded by the respondents and further consequential direction for directing the respondent to refund the amount with interest.
5. Mr.Shital Patel, learned Counsel appearing for the petitioner, at the outset, submitted that the petitioner is not pressing for the relief of refund of the amount of Rs.7,16,157/- and he is restricting the petition for challenging the recovery of the amount of Rs.9,97,7234/- and further condition imposed by the State Government in the order dated 19.2.1999 to continue to provide the land as new tenure/restricted tenure only.
6. I have heard Mr.Patel, learned Counsel for the petitioner and Ms.Moxa Thakkar, learned AGP for the State.
7. It may be recorded that since in the affidavit- in-reply filed on behalf of the State Government no annexures were there, nor any details of the Valuation Report was there, the learned AGP, during the course of the hearing, has made the papers available received by the office of the Government Pleader from the office of the Collector, which includes the papers of the earlier remarks and the valuation made by the Valuation Committee. Such details shall be referred to appropriately hereinafter.
8. In view of the aforesaid declaration, two aspects may be required to be considered; one is the relevant date for the valuation and the payment of premium and the second is whether the Government is justified in continuing the land as restricted tenure after the recovery of the premium for lifting the restriction for non- agricultural purpose.
9. It is an admitted position that on 2.7.1997, the permission came to be granted for the use of the land for non-agricultural purpose by the competent authority of Taluka Panchayat. The said factum is taken into consideration by the State Government while passing the order – Annexure-I dated 19.2.1999. At the relevant point of time, as stated in the order, the valuation was Rs.58.50 per sq. mtrs., or the assessment, as may be made by the District Valuation Committee. The contention of the learned Counsel for the petitioner is that once the prevailing market price was fixed at Rs.58.50 it is not open to the State Government or the District Collector to contend that the valuation of a subsequent date is to be considered and the premium is to be calculated accordingly.
10. Whereas, the learned AGP contended that the petitioner did not pay the amount of Rs.7,16,157/- within a period of 21 days as communicated to him and he rather paid the amount on 3.6.1999 and, therefore, the valuation is to be considered in June 1999 of the land in question for the purpose of calculation of premium not the date on which the permission was granted for non-agricultural purpose. She also during the course of the hearing made available papers of the Valuation Report made by the Valuation Committee in June 1999. It was, therefore, submitted that the petitioner is required to pay the premium accordingly and the Government is justified in demanding the balance amount from the petitioner.
11. Had it been a case where the restriction was not lifted and the permission for converting the land for non-agricultural use was not granted earlier than June 1999, the matter may stand on a different footing, but in the present case, it is an admitted position that in 1997, the permission was granted for using the land for non- agricultural purpose and based on the same, the State Government in the year 1999 has passed the order for lifting of the restriction on calculation of premium. The language used is that the prevailing market price is of Rs.58.50 per sq. mtrs. In the papers of the District Collector, which has been made available by the learned AGP during the course of the hearing shows that on 1.5.1997, the Valuation Committee had also assessed the valuation at Rs.52.50 and the same was thereafter communicated by the District Collector vide order dated 12.5.1997. It is on account of the said assessment made by the District Valuation Committee at the relevant point of time, it was mentioned in the order of the State Government that the prevailing market price is Rs.52.50. Once the relevant date and the valuation is assessed on the relevant date of 1997 is decided and the premium is fixed on the same, merely because there is delay in payment of premium is no valid ground for Government to contend that now the premium is to be calculated on the basis of the valuation on the date on which the payment is made. 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 non- agricultural 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. The delay cannot be said to be a valid ground for making revaluation of the property once again and then to calculate the premium accordingly. Further, it is not a case where no valuation was made by the District Valuation Committee at the relevant point of time, but is rather a case where the District Valuation Committee did make the valuation of the land at Rs.58.50 and based on the same, the Collector recommended to the State Government and ultimately, the State Government accepted the same. Therefore, once the valuation was made by the Valuation Committee and the Collector having accepted the same, the premium would be as per the valuation made at the relevant date, which is Rs.58.50 and accordingly the amount of Rs.7,16,157/- was called upon to be paid and the same is accordingly paid by the petitioner. It is true that the valuation was made in 1997 and thereafter the actual payment was made in June 1999. Therefore, the Government would be entitled to recover reasonable interest by way of compensatory measure and , in my view, appropriate rate, under such circumstances, would be 10% p.a., on the principle amount of Rs.7,16,157/- from May 1997 to June 1999. However, the fresh valuation and the premium as sought to be calculated on the basis of fresh valuation in June 1999 can be said to be arbitrary, inasmuch as the relevant date is the date on which the permission was so granted for using the land for non-agricultural purpose and not the date on which the payment is made.
12. Even on the aspect of valuation made in June 1999, the papers shown to the Court by way of report of the valuation committee are not satisfactory and the average price worked out in the statement is Rs.64.08 per sq. mtrs., by the Town Planner. As against the same, the valuation opined is of Rs.140/-, which also shows that the valuation made by the Valuation Committee is without there being any proper material. But the said aspect may not assume much importance, because the valuation of the land is made, in any case, in June 1999, whereas the relevant date is made 1997.
13. Therefore, it can be said that the District Collector of the State Government was not justified in calculating the premium even if paid in June 1999 on the basis of the valuation as made in June 1999, but he would be entitled to recover the premium as per the valuation made in May 1997 and thereafter, the interest from May 1997 till June 1999 i.e. the date on which the amount is actually paid at the rate of 10% per annum.
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. 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 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.
15. In view of the aforesaid observations and discussion, it is held that the respondent shall not be entitled to recover the amount of Rs.9,97,723/- by way of premium from the petitioner, but would be entitled to recover interest at the rate of 10% p.a., from May 1997 till 3.6.1999 and further interest at the rate of 10% per annum from June 1999 till the amount of all arrears of interest is actually paid or deposited by the petitioner with the District Collector, Bharuch. It is also directed that the said amount shall be paid or deposited by the petitioner within a period of four weeks from today.
16. Upon payment made as directed earlier, the condition No.7 in the order dated 19.2.1999 (Annexure-I) shall be inoperative having no force in the eye of law.
17. The petition is partly allowed to the aforesaid extent. Rule is made absolute accordingly. No order as to costs.
(Jayant Patel, J.) vinod