IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 15700 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE M.R. SHAH ======================================================== 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? --------------------------------------------------------- M.H. WADIA Versus STATE OF GUAJRAT --------------------------------------------------------- Appearance: 1. Special Civil Application No. 15700 of 2004 Mr. AH Desai, for Petitioner. Mr. PR Abichandani, AGP for Respondents. ---------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.R. SHAH Date of decision: 04/02/2005 ORAL JUDGEMENT Rule. Shri PR Abichandani, learned AGP waives service of Rule on behalf of respondents. With the consent of parties, the matter is taken up for final hearing today. 2. In this petition under Article 226/227 of the Constitution of India, the petitioner has challenged the legality and validity of the order passed by the Secretary (Appeals), Revenue Department, State of Gujarat, dated 28.8.2004/8.9.2004 in Revision Application No. 9 of 2004 in dismissing the same and confirming the order passed by the Collector, Porbandar dated 28.6.2004 in fixing premium for the purpose of renewal of lease considering the market price of the land in question prevailing on 28.6.2004. The original order passed by the Collector, Porbandar dated 28th June 2004 is also challenged in the present Special Civil Application. 3. It is the case of the petitioner that the petitioner partnership firm applied for grant of land for the purpose of petrol pump on 27th March 1969 and the land in question was given on lease to the petitioner firm by order dated 2.4.1969. The said order came to be amended by order dated 23.5.1969. By order dated 2.12.1969 the said land was granted for a period of 7 years from 1.8.1969 to 31.7.1976. Thereafter the said lease has been extended from time to time and lastly it was extended upto 31st July 1998. It is the case of the petitioner that before the expiry of the aforesaid lease on 31st July 1998 the petitioner moved an appropriate application dated 26.6.1998 for renewal of licence. It is the case of the petitioner that by virtue of the aforesaid application dated 26.6.1998 the petitioner had made two fold requests, one for granting the land on permanent basis and other for renewal of licence, and by communication dated 12th October 1998 the Collector, Porbandar informed the petitioner that the prayer of the petitioner for granting the land on permanent basis cannot be accepted. However, no decision was taken by the Collector, Porbandar with regard to renewal of the lease. It is the case of the petitioner that the petitioner was informed through impugned communication dated 28.6.2004, for the first time that considering the Government resolution dated 10th January 2003 the petitioner is required to pay the rent/lease amount considering the market price determined on the basis of the report of the District Valuation Committee and the price fixed by them, and according to the same it comes to RS. 2,52,227, and the petitioner was directed to deposit the same on or before 11th July 2004. Being aggrieved and dissatisfied with the aforesaid communication dated 28.6.2004, the petitioner preferred revision application before the Secretary (Appeals), Revenue Department, State of Gujarat, which was numbered as Revision Application No. 9/2004 and the same came to be dismissed by the Secretary (Appeals), vide his judgment and order dated 28.8.2004/8.9.2004 which has given rise to the present petition under Article 226/227 of the Constitution of India. 4. Shri Anshin H. Desai, learned advocate appearing on behalf of the petitioner made a statement earlier that the petitioner is ready and willing to pay the rent on the basis of valuation which may be assessed by the District Valuation Committee for the land in question in the year 1998 because as per the petitioner the renewal application was given in the year 1998 and that the petitioner is also ready and willing to pay reasonable amount of interest at the rate of 10 per cent p.a. from the date on which the amount becomes payable. On the basis of the aforesaid statement this Court issued the notice upon the respondents and the petitioner was directed to deposit the amount of Rs. 2,52,227 with the respondent No.2 within the period of 3 months from 7.12.2004 in 3 equal monthly installments. Without prejudice to his rights and contentions Shri Desai, ld. advocate has submitted that so far as 1st instalment is concerned the petitioner has already deposited the same on 27.12.2004 and the 2nd instalment is due by 7th February 2005. 5. Shri Desai, ld. advocate, relying upon the judgment of this Court in the case of Jayantibhai Naranbhai Amin and Others Vs. State of Gujarat and Others - AIR 2002 Gujarat 193 has submitted that the order passed by the Collector, Porbandar in considering the market price prevailing in the year 2004 is illegal and arbitrary and as such the Collector is required to consider the market price prevailed in the year 1998, more particularly the date on which the petitioner has moved the appropriate application for renewal of lease. It is submitted that when the petitioner has moved an appropriate application within the stipulated time there being no fault on the part of the petitioner the petitioner should not be penalised for that. 6. In response to the notice issued by this Court, Shri PR Abichandani, learned AGP appears on behalf of the respondents. It is submitted that as per the Government resolution dated 10th September 2003 the market price which was prevailing on the date of passing of the order, and not the price prevailing on the date of making an appropriate application, for the purpose of determination of rent and/or premium is required to be considered and accordingly the Collector, Porbandar has passed the order which is rightly confirmed by the Secretary (Appeals) and therefore it is requested to dismiss the present Special Civil Application. 7. Heard the learned advocates appearing for the parties. It is an admitted position that the petitioner's lease was to expire on 31.7.1998 and the petitioner moved the appropriate application on 26.6.1998. In the said application, the petitioner made two-fold prayers, one for permanently granting the land and second was with regard to renewal of the lease by communication dated 12th October 1998. The first prayer of the petitioner came to be rejected by the Collector, Porbandar, i.e., with regard to grant of the land on permanent basis. However, no decision was taken by the Collector, Porbandar with regard to renewal of the lease and for the first time the petitioner came to be informed by communication 28.6.2004 about the same. There is no fault on the part of the petitioner for the aforesaid delay for the period between 1998 to 2004. There is no justification and/or cause shown by even Shri Abichandani, learned AGP with regard to delay which had taken place between 1998 and 2004. The delay cannot be attributed on the part of the petitioner. Under the circumstances, considering the judgment of this Court in the case of Jayantibhai Naranbhai Amin and Others , the authority is required to consider the market price keeping in mind the market price then prevailing on the date of making of the application, i.e. 26.6.1998. 8. Under the circumstances, the impugned order/communication passed by the Collector, Porbandar dated 28.6.2004 directing the petitioner to pay the lease amount/rent considering the market price of the land as on 28.6.2004 is required to be quashed and set aside and is accordingly quashed and set aside. The matter is remanded to the Collector, Porbandar, to determine the rent/lease amount considering the market price then prevailing as on 26.6.1998/31.7.1998 and assessed by the District Valuation Committee for the land in question, after giving opportunity of hearing to the petitioner. It goes without saying that as submitted by the learned advocate appearing for the petitioner, the petitioner is also ready and willing to pay reasonable amount of interest at the rate of 10 per cent p.a. from the date on which the amount became payable and passing of the final order. The Collector, Porbandar may take into account the aforesaid aspect also and pass appropriate order with regard to interest also. The amount which is deposited by the petitioner pursuant to the order dated 7.12.2004 and which is yet to be deposited by the petitioner pursuant to the said order shall be subject to ultimate decision that may be taken by the Collector, Porbandar and the accounts may be reconciled after the decision of the Collector. 9. Rule is made absolute to the aforesaid extent rmr. [ M.R. Shah, J. ]