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Rajnikant J Raithattha vs State Of Gujarat &

High Court Of Gujarat|20 September, 2013
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================================================================ RAJNIKANT J RAITHATTHA....Petitioner(s) Versus STATE OF GUJARAT &
1....Respondent(s) ================================================================ Appearance:
MR ANSHIN H DESAI, ADVOCATE for the Petitioner(s) No. 1 MR VANDAN BAXI, AGP for the Respondent(s) No. 1 - 2 RULE SERVED for the Respondent(s) No. 1 - 2 ================================================================ CORAM:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 20/09/2013 CAV JUDGEMENT
1.. By this petition under Article-226 of the Constitution of India, the petitioner has prayed for an appropriate writ, order or direction to quash and set aside the order passed by the Collector, Rajkot, in Case No.JMN-1-Rajkot Taluka-25-1991 dated 21st November, 2003.
2.. The facts leading to the filing of the present petition may be summarized as under :
2.1) The petitioner was an owner of land bearing Survey No.120 ad measuring 15 acres situated at village Vajdi Virda, Taluka District: Rajkot. He preferred an application dated 21st January 1989 with the Taluka Development Officer, Rajkot, seeking permission to convert the land to the extent of 12 acres out of the aforesaid Survey No.120 for non-agricultural use and such non-agricultural use permission was granted by the Taluka Development Officer vide order dated 25th April 1990 subject to certain terms and conditions. Thereafter the petitioner preferred another application seeking permission to use the land for non-agricultural purpose with respect to another 3 acres of Survey No.120. The TDO, Rajkot, vide order dated 21st December 1990 granted such N.A. permission subject to certain terms and conditions.
2.2) It appears from the materials on record that the Collector, sometime in the year 1992-93, fixed the valuation of the assessment and the amount which was fixed was paid by the petitioner.
2.3) The State Government did not approve the procedure which was adopted by the Revenue authorities as it was of the opinion that before granting N.A. use permission, the State Government should have been consulted and its prior approval ought to have been obtained. It appears that the State Government directed the Collector to forward the proposal and accordingly the Collector forwarded the proposal in the year 1993 on which the decision was taken by the State Government in the year 2003.
2.4) The State Government directed the Collector to recover the premium from the petitioner considering the market price of the land as on 8-10-2003/20-10-2003.
2.5) Aggrieved by such decision of the State Government, the petitioner has challenged the same by way of this petition substantially on the ground that the Collector could have fixed the premium considering the market price on the date on which the application was submitted and/or the proposal was sent to the State Government, but the State Government could not have passed order of payment of premium considering the market price as on 2003.
2.6) It appears that on 9th August 2004 Rule was issued in this matter and interim relief in terms of the prayer as contained in Para-15-B was granted pending the final disposal of this petition.
3.. Mr.Anshin Desai, the learned counsel appearing for the petitioner, submitted that the Collector committed an error in determining the amount of premium at Rs.2,76,81,024/-, more particularly when his predecessor-in-office had already determined the amount of premium payable by the petitioner in the year 1990. Mr.Desai submitted that the relevant date for the purpose of fixing the amount of premium should be the date on which a party applies for conversion of land to N.A. use and not the date on which the authority passes the order granting such permission.
3.1) Mr.Desai submitted that the amount of Rs.2.5 crore fixed by the Collector towards premium is an exorbitant amount and is not within the capacity of his client as on today to deposit such amount. He submitted that failure on the part of his client to deposit such amount will entail forfeiture of the land to the Government without any authority of law.
4.. On the other hand, Mr.Vandan Baxi, the learned AGP appearing for the State respondents, opposed this petition and submitted that having regard to the new and restricted tenure of the agricultural land, the permission of non-agricultural use could not have been granted without the prior permission of the State Government. He submitted that although the Taluka Development Officer is the competent authority to grant such permission, but before granting such permission the TDO has to seek permission of the State Government for exemption from new tenure. Mr.Baxi submitted that since the State Government accorded the necessary permission in the year 2003, the amount of premium has been fixed @ Rs.570/- i.e. the market value of the land prevailing in the year 2003.
4.1) Mr.Baxi submits that there being no merit in this petition, the same may be rejected.
5.. Having heard the learned counsel appearing for the parties and having gone through the materials on record, in my opinion, the crucial date for calculating the conversion charges has to be the date of receipt of the application for conversion of the land used. In the present case the petitioner had applied in the year 1990 for such conversion and deposited the requisite amount towards the same. On 25th April 1990 the TDO, Rajkot, granted the permission subject to certain terms and conditions. On 26th June 1990, the petitioner was asked to deposit an amount of Rs.8,66,076.80 being the amount of premium @ 80% of the market value of the land with respect to 12 acres. On 21st December 1990, the petitioner once again sought permission for conversion with respect to the balance 3 acres and such permission was granted by the TDO, Rajkot. The petitioner deposited an amount of Rs.3,64,230/- towards the amount of premium fixed by the authority.
6.. It appears that thereafter between 19th September 1990 and 1st January 1992, the petitioner sold various plots to third parties by way of registered sale deeds. On 17th October 1993, the Collector, Rajkot, without giving any opportunity of hearing, restrained the petitioner from selling the plots. Thereafter on 21st November 2003, the respondent no.2 Collector, Rajkot, passed the impugned order after 13 years of payment of premium amount and directed the petitioner to pay an additional amount of Rs.2,76,81,024/- by way of premium @ 80% of the market value of the land.
7.. In such circumstances, I am of the view that the decision of the State-respondents to recover a further amount of Rs.2,76,81,024/- by way of premium @ 80% of the market value of the land prevailing in the year 2003 is unreasonable and contrary to law. I am fully fortified in taking this view by a decision of the Supreme Court in the case of Union of India & another Vs. Mahajan Industries Ltd. & another, reported in (2005)10 SCC 203.
8.. In the case before the Supreme Court, an application dated 23rd March 1981 was submitted to the Union of India for and on behalf of the original owner requesting for permission for change in the use of the land in question from residential to commercial. Permission was sought to put up a multi-storied complex. For certain reasons, the application for change of land use could not be considered by the authorities. In such circumstances, the respondents before the Supreme Court filed Writ Petition No.4695 of1996 in the High Court of Delhi. The High Court of Delhi formulated the following two questions for its consideration arising in the writ petition :
(a) What is the right point of time (crucial date) which should be considered as the basis for grant of permission, requested by the petitioner, for the change of user of the property in question from residential to multi-storied commercial building ? and
(b) On what terms and conditions the petitioner, in terms of the lease, can be granted the permission for the change of user (conversion) of the property in question from residential to multi-storied commercial building ?
9.. The High Court came to the conclusion that both the questions were concluded by a judgment of the Division Bench of the High Court of Delhi in the case of Ansal & Saigal Properties (P) Ltd. Vs. L. & D.O., reported in (1998)74 DLT 152. In the said case, it was held that the crucial date for calculating the conversion charge had to be the date of the receipt of the application for conversion. The High Court accordingly allowed the Writ Petition. The Union of India filed SLP before the Supreme Court. The Supreme Court while upholding the decision of the High Court, made the following observations in paras 12 and 13 :
12. Counsel for the appellant has not disputed the correctness of the law laid down by the High Court of Delhi in Ansal & Saigal Properties (P) Ltd. v. L.&D.O. in which it has been held that the crucial date for calculating the conversion charges has to be the date of receipt of application for conversion of land use. Since we have held that the application filed on 25-3-1981 for conversion of land use from residential to multi-storeyed complex is still pending, the appellant is bound to grant the permission for change of land use by charging the rates prevalent as on the date of the filing of the application i.e. 25-3-1981.
13. Accordingly, the appeal is dismissed. Stay granted by this Court on 10-5-1999 is vacated and the appellant is directed to take a final decision on the application for conversion of the use of land from residential to multi-storeyed commercial complex filed by Respondent 1 on 25-3-1981 as expeditiously as possible and in any case within a period of eight weeks from today. Respondent 1 shall deposit the amount of conversion charges demanded by the appellant within six weeks of the receipt of the communication demanding the conversion charges failing which the application will be deemed to have been dismissed.
For the foregoing reasons, the petition is allowed. The impugned order at Annexure-I passed by the Collector, Rajkot, in case No.JMN-1-Rajkot Taluka-25-1991 dated 21st November, 2003 is hereby set aside.
In the facts and circumstances of the case there shall be no order as to costs.
(J.B.PARDIWALA, J.) MOIN Page 10 of 10
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