IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 611 of 2000 For Approval and Signature:
HONOURABLE MR.JUSTICE PARESH UPADHYAY =========================================
========================================= HARMANBHAI SOMABHAI VALAND Versus STATE OF GUJARAT AND ANOTHER ========================================= Appearance :
MR P. M. BHATT for the Petitioner MR RAHUL DAVE, LD. ASST. GOVERNMENT PLEADER for the Respondent ========================================= CORAM : HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 07/11/2012 CAV JUDGMENT
1. By way of this petition, the petitioner has challenged the order dated 24.02.1999 of Collector, Baroda, AnnexureC to the petition, whereby his new tenure land was permitted to be converted in old tenure land, at his request. For this purpose, premium amount of Rs.14,90,832/ being 70% of Rs.21,29,760/, which was determined to be the price, was ordered to be paid, which the petitioner had paid also. In this petition, challenge is also made to the Government Resolution dated 17.09.1984, whereby the premium rate, which was 90% of the price was liberalized by the Government by bringing it down to 70%. The petitioner has, as the consequential relief, also prayed that the amount of Rs.14,90,832/ paid by him as premium, be declared as illegal recovery and the same be refunded to the petitioner.
2. Heard learned advocate Mr. P. M. Bhatt for the petitioner and Mr.
Rahul Dave, learned Assistant Government Pleader for State authorities.
3. Learned advocate for the petitioner has contended that the amount recovered by the authorities was an unauthorized recovery and the petitioner should get back the said amount.
4. From record it transpires that Baroda Municipal Corporation had issued development permission to the petitioner on 12.02.1999. The said development permission was with regard to the land which was new, indivisible and restricted tenure land. Thereafter, the petitioner approached the Collector, Baroda to remove restrictions of the said new and indivisible and restricted tenure land. The petitioner also agreed that he is ready to pay premium for this purpose as per the policy of the Government. The said amount came to be calculated as Rs.14,90,832/, which was paid by him on 02.02.1999. In this background, Collector Baroda, after due process, issued order on 24.02.1999 and accepted the request of the petitioner. It is this order which the petitioner has challenged.
5. Learned counsel for the petitioner has vehemently submitted that after taking the development permission from the Municipal Corporation, Baroda, there was no necessity for the petitioner to obtain any other permission and therefore, it was unnecessary for the Collector to pass order dated 24.02.1999 and therefore even the amount of Rs.14,90,832/ paid by the petitioner was also unnecessary. In support of this contention, learned advocate for the petitioner has relied upon the judgment of the Division Bench of this Court recorded on Special Civil Application No.6691 of 1996 dated 12.03.2012.
6. So far the order dated 24.02.1999 passed by the Collector, Baroda, AnnexureB is concerned, the same was on the basis of the request application and consent of the petitioner. The challenge to this order, under these circumstances, must fail on more than one counts. Firstly, it was the order passed at the request of the petitioner and therefore the petitioner is estopped from challenging the same. On merits also, this challenge cannot survive for the reasons recorded hereafter.
7. It is on record that at the time of entertaining request for removal of restrictions of new tenure land, prescribed percentage of price as premium is recovered by the Government. In this case, the same was 70%. This 70% comes from Government Resolution dated 17.09.1984. This Government Resolution is also challenged in this petition, since the action of the Collector, Baroda of issuing the impugned order dated 24.02.1999 is a consequential order of the policy of the Government of recovering premium at the time of entertaining request for removal of restrictions of new tenure land. Therefore, it will have to be examined what exactly is decided by the Government, while issuing Government Resolution dated 17.09.1984. The plain reading of this resolution would show that by the said resolution, Government had liberalized the standard of recovering premium from 90% to 70%. Thus, in effect, the petitioner can be perceived, contending that, why the petitioner is required to pay premium @ 70%, it should have been 90%, however, the grievance of the petitioner can not be read to be that and therefore without being technical about this, even if it is treated to be the challenge to the main policy itself, then also the petitioner can not get any relief, since that point is already concluded by the judgment of Division Bench of this Court. Reference can be made to judgment in the case of Patel Kamalbhai Sharadbhai vs. State of Gujarat rendered in Special Civil Application No.10538 of 2008 and cognate matters dated 03.05.2011.
By the said judgment, in effect, the authority of the Government to recover certain percentage of the price as premium is upheld by this Court. On the face of this proposition of law, the challenge to the Government Resolution dated 17.09.1984 can not be upheld and the same deserves to be rejected.
8. On the face of rejection of the challenge of the petitioner to the Government Resolution dated 17.09.1984, no fault can be found to the consequential order passed by the Collector, Baroda dated 24.02.1999. The reliance placed by learned counsel for the petitioner on the judgment of the Division Bench of this Court in Special Civil Application No.6691 of 1996 dated 12.03.2012, in my view, will not have applicability in the facts of this case. In the said case, the petitioner was facing demolition of the construction put by him in consonance with the development permission granted by the competent authority and the question of removal of restrictions of the new and indivisible and restricted tenure land was not there, as is the case now.
9. For the reasons recorded above, this Court does not find any force in this petition. The same is required to be dismissed and is accordingly dismissed. Rule discharged.
amit (PARESH UPADHYAY, J.)