1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.842 OF 2010 Ashok Dattatraya Kamate & Ors. ...Petitioners vs. The State of Maharashtra & Ors. ...Respondents Mr.T.S.Ingale for the petitioners Mr.Suresh Bhosale, A.G.P for respondent Nos.1 to 4 CORAM :A.S.OKA,J. DATE : AUGUST 23, 2010 P.C. 1 On 25 th June 2010, this Court directed that the petition shall be finally decided at the stage of admission. 2 The dispute relates to the land bearing survey no. 37 admeasuring 3 H 84 R situated at Kupwad, District Sangli. According to the case of the petitioners, the said land was allotted on 8 th July 1960 under the rules framed under the Bombay Land Revenue Code. Various terms and conditions were incorporated in the order of allotment. The petitioners are placing reliance on the G.R. Dated 8 th September 1983 by which the guidelines were laid down for disposal of the applications for permission for sale of land by the persons who were holding agricultural lands on restricted tenure. An application was made by the petitioners on 11 th August 1998 for grant of permission for sale of the said land. On 15 th March 2002, the Assistant Director of Town Planning, Sangli fixed the market value of the said land at the rate of Rs.55/- per square meter. Accordingly, on 4 th November 2003, the Constituted Attorney of the 2 petitioners was called upon to deposit by way of Nazrana 50% of the market value fixed at the rate of Rs.55/- per square meter by a communication issued by the Circle Officer. It appears that necessary amount was deposited by the petitioners. The petitioners had approached the Higher authority for challenging the valuation fixed by the Assistant Director of Town Planning. By communication dated 3 rd April 2006, the Deputy Director of Town Planning confirmed the valuation at the rate of Rs.55/- per square meter. 3 On 10 th July 2009, State Government issued a communication to the Divisional Commissioner, Pune stating therein that the market value of the land as per the ready reckoner at the time of granting permission for sale will have to be taken into consideration and the amount earlier deposited by the petitioners shall be adjusted towards the said amount and therefore, steps should be taken to grant permission in accordance with G.R. Dated 8 th September 1983. The petitioners filed a Writ petition no.8136 of 2009 for challenging the said communication. The petition was disposed of by this Court as premature by observing that it will be open for the petitioners to approach the appropriate forum after the application made by the petitioners was decided. By communication dated 9 th October 2009 issued by the Tahasildar, the Constituted Attorney of the petitioners was informed that the application made by the petitioners for grant of permission cannot be accepted. 4 Mr.Dinesh Page, Nayab Tahsildar has filed a reply. In the said reply reliance has been placed on the G.R dated 29 th May 2006. It is pointed out that for the purpose of determining the amount payable by the petitioners, the 3 market value on the date on which permission for sale is granted will have to be taken into consideration. There is an affidavit of Mr.Vikas Kharat, Tahasildar reiterating the said stand on the basis of the G.R. Dated 29 th may 2006. There is a rejoinder filed by the petitioners pointing out that the valuation at the rate of Rs.55/- per square meter was finally confirmed by the Deputy Director of Town Planning before the G.R. Dated 29 th May 2006 was issued. 5 The learned counsel for the petitioners pointed out that the application made by the petitioners is pending from 11 th August 1998. He pointed out that the valuation of the land was made by the Assistant Director of Town Planning on 15 th March 2002. On the basis of the said valuation, the petitioners were called upon to deposit a sum of Rs.10,56,000/- being the 50% of the market value. Accordingly, the said amount has been deposited. He submitted that apart from the fact that the G.R. Dated 29 th May 2006 will not apply to the application made in the year 1998, even before the said resolution was issued, the market value was already finally determined. The learned A.G.P invited the attention of the Court to the first G.R issued by the State Government. He pointed out that even the said G.R contemplates that the market value has to be determined on the date on which permission for sale is granted. He pointed out that subsequent G.R dated 29 th may 2006 will apply to the pending applications and in any event, the said subsequent G.R will apply as final valuation was not made before the said G.R came into force. He, therefore, submitted that no interference is called for. 6 I have given careful consideration to the submissions. When the application for grant of 4 permission to sell the land was made, G.R dated 8 th September 1983 was applicable. The conditions on which the permission for sale can be granted have been set out in the G.R. Condition (i) reads thus : (i)The holder (alienor) shall pay to Government an amount equal to 50% of the net unearned income i.e. 50% of the difference between current market value or the price realised by way of sale whichever is higher and the occupancy price at which the land was originally granted to the Applicant plus the structural and permanent improvement which will create assets and the same will influence the valuation of land; 7 It appears that the District Collector called upon the Assistant Director of Town Planning to submit the valuation of the said land. By a letter dated 15 th March 2002, the Assistant Director of Town Planning informed the Collector that the market value has been fixed at the rate of Rs.55/- per square meter. The said communication does not indicate that market value was fixed on Advoc basis. In fact, this appears to be final determination of the valuation as reflected from the communication dated 4 th November 2003 of the Circle Officer addressed to the Constituted Attorney of the petitioners. The said communication records that the market value has been fixed at the rate of Rs.55/- per square meter and the petitioners were called upon to deposit 50% of the said amount by way of Naznarana. There does not appear to be any dispute that the amount was deposited by the petitioners. 8 Thereafter comes the communication dated 10 th July 5 2009. The said communication directs that the market value as on the date of passing the order of grant of permission will have to be determined and Nazrana amount will have to be fixed on the basis of the said market value. The G.R dated 8 th September 1983 does not lay down that the market value on the date of passing the order of granting permission has to be considered. Obviously, the communication seems to be based on the G.R dated 29 th May 2006. Clause (a) of the said resolution notes that if earlier policy has been modified and valuation has to be made not on the basis of the opinion of the Town Planning Department but on the basis of the valuation shown in the ready reckoner on the date on which permission for sale is to be granted and the said valuation shall be treated as final valuation. Clause (b) of the said G.R specifically provides that the said modified decision will apply in a case where there is no valuation made as per the earlier policy or where there is no final valuation made. In the present case, final valuation was made by the Assistant Director of Town Planning way back on 15 th March 2002 and State Government acted upon the said valuation by accepting the amount paid by the petitioners on the basis of the said valuation. The communication dated 3 rd April 2006 issued by the Deputy Director of Town Planning, Pune shows that the valuation made by the Assistant Director of Town Planning has been confirmed. The said confirmation is prior to the date on which subsequent G.R was issued. Hence, the said G.R will have no application to the present case. The communication dated 10 th July 2009 (Exh.I) requires valuation of the said land to be made as per the ready reckoner on the date of granting permission. The requirement introduced by the G.R dated 29 th May 2006 has been incorporated in the said communication. It is obvious that the said G.R had no 6 application to the application made by the petitioners. Hence, the application made by the petitioners will have to be considered in accordance with the earlier G.R dated 8 th September 1983. 9 Hence, I pass the following order : (i) The impugned orders/communications dated 10 th July 2009, 27 th July 2009 and 9 th November 2009 are quashed and set aside. (ii)The authorities are directed to consider and decide the application made by the petitioners on 11 th August 1998 in accordance with law and in the light of the G.R dated 8 th September 1983. (iii) The authorities shall not apply the G.R dated 29 th July 2006 to the application made by the petitioners. The authorities are bound to consider that the requisite amount on the basis of the final valuation made at the rate of Rs.55/- per square meter has been already deposited by the petitioners. (iv)The application dated 11 th August 1998 shall be accordingly decided of afresh. (v) The order shall be passed on the said application within a period of eight weeks from the date on which an authenticated copy of this order is produced before the concerned authority. (vi)Writ Petition is partly allowed in above terms with no order as to costs. JUDGE