SCA/150/1989 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 150 of 1989 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== DALSUKHBHAI D PARMAR & 5 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ============================================================== Appearance : MR AJ PATEL for Petitioner(s) : 1 - 6. MR DA DESAI, AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 25/10/2005 ORAL JUDGMENT 1.Rule. Shri Dipan Desai, learned AGP waives service of rule on behalf of the respondent No.1. 2.With consent, the matter is taken up for final hearing today. SCA/150/1989 2/15 JUDGMENT 3.In this petition under Articles 226 and 227 of the Constitution of India the petitioners have challenged the legality and validity of the judgment and order passed by Addl. Chief Secretary, Revenue Department (Appeals), State of Gujarat dated 30th September, 1988 passed in Revision Application No.SRD/Jaman/VADAD/1/88 in dismissing the same and confirming the order passed by the Collector, Vadodara dated 28-4-87 by which Collector, Vadodara has rejected the application submitted by the petitioners for regularization of the construction and transaction. 4.The land bearing survey No.135 of village Vasna Saiyed, Tal & Dist: Vadodara was granted to the father of the petitioner as Vethia for their service and the said land was granted as a new and impartible tenure land meaning thereby they cannot transfer the land in question without prior permission and without payment of premium. It is also required to be noted that the said land was an agricultural land. It appears from the record that the petitioners not only started use of the land in question for non agricultural purpose but put up the construction of residential houses and even transferred without obtaining any prior permission and without payment of premium. It appears from the record SCA/150/1989 3/15 JUDGMENT that the petitioners submitted an application on 2-5-84 for granting permission to convert the land from new tenure to old tenure. However, as the petitioners started to put up the construction which is in breach of condition, the Collector, Vadodara by order dated 16-5-85 rejected the said application. Being aggrieved by and dissatisfied with the judgment and order passed by the Collector, Vadodara dated 16-5-85 in rejecting the application from converting the land from new tenure to old tenure, the petitioners preferred Revision Application No.SRD/Jaman/448/95,59/86 before the Secretary, Revenue Department (Appeals), State of Gujarat, which came to be partly allowed and the Secretary (Appeals) by its judgment and order dated 15- 5-86 remanded the matter to the Deputy Collector to consider the case of the petitioners for regrant as per the policy of the State Government. Being aggrieved by and dissatisfied with the judgment and order passed by the Secretary, Revenue Department (Appeals) dated 15-5- 86 passed in Revision Application No.SRD/Jaman/448/95, 59/86, the petitioners preferred Special Civil Application No.3343 of 1986 before this court and the learned Single Judge of this court directed that the Competent Authority Collector would consider the SCA/150/1989 4/15 JUDGMENT application filed by the petitioners for regularization of the construction on the basis on which he did in other cases and in view of the above direction, the petitioners withdrew the aforesaid Special Civil Application. Thereafter, the Collector, Vadodara passed an impugned order dated 28-4-87 rejecting the application submitted by the petitioners for regularization of construction on the ground that the petitioners have not stated correct facts before the Hon'ble Court to the effect that the construction which is regularized in other cases are with regard to old tenure land and not with regard to new tenure land and in none of the cases the illegal construction on the new tenure land has been regularized. Being aggrieved by and dissatisfied with the order passed by the Collector, Vadodara dated 28-4-87, petitioners preferred Revision Application No.SRD/Jaman/VADAD/1/88 before the Addl. Chief Secretary, Revenue Department (Appeals), State of Gujarat, who by its judgment and order dated 30-9-88 dismissed the said revision application and even directed the Collector to take back the possession of the land in question. Being aggrieved by and dissatisfied with the judgment and order passed by the Addl. Chief Secretary dated 30-9- SCA/150/1989 5/15 JUDGMENT 88, petitioners have preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India. 5.Shri AJ Patel, learned senior advocate appearing on behalf of the petitioners has submitted that the Collector, Vadodara as well as the Secretary (Appeals) both have materially erred in not regularizing the construction in question and have not properly appreciated that in view of the fact that the land in question was included in the Town Planning Scheme, it was not possible for the petitioners to continue to use the land in question for agricultural purpose. He has also further submitted that in fact they have obtained necessary development permission from the Competent Authority under the Gujarat Town Planning Act. The petitioners are not required to obtain any further permission, therefore, it is submitted that it cannot be said that the petitioners have put up the illegal and/or unauthorised construction. He has relied upon the judgment of the learned Single of this court rendered in Special Civil Application No.2325/88, wherein the learned Single Judge of this court had allowed the said Special Civil Application interpreting the condition in the grant that what is prohibited is SCA/150/1989 6/15 JUDGMENT not to transfer the land and not for using the land in question for any other purpose other than agricultural purpose without previous sanction of the concerned Collector or any other authority. Shri Patel has further submitted that even in the present case also, there is no condition that the petitioners cannot use the land in question for the purpose other than agricultural purpose without prior permission of the Collector. It is also further submitted that the petitioners submitted an application in the year 1984 and as the same was not replied to by the Collector for a quite long time and by virtue of the operation of provision of Section 65 of the Bombay Land Revenue Code (for short “the Code”) read with its proviso, permission was deemed to have been granted on the expiry of period of three months from the date of application for permission and therefore no permission for non agricultural use was required to be obtained by the petitioners once again. Therefore, it is requested to allow the present Special Civil Application. 6.The present Special Civil Application is opposed by Shri Dipan Desai, learned AGP and affidavit-in-reply has been filed on behalf of the respondent no.2 – Collector, Vadodara and it is submitted that inspite of SCA/150/1989 7/15 JUDGMENT the order of status-quo granted by this court in the present Special Civil Application during the pendency of the main Special Civil Application, the power of attorney holder of the petitioners has sold some property and has committed breach of the order of status-quo and therefore, it is requested to dismiss the present Special Civil Application on that ground alone. It is also further submitted by him that so far as the contention raised on behalf of the petitioners with regard to obtaining the development permission under the provision of Gujarat Town Planning Act (for short “the Act”) from the Competent Authority and therefore, the petitioners are not required to obtain any other permission from any other authority considering Section 117 of the Act is concerned, Shri Desai has submitted that in view of the fact that the petitioners withdrew the Special Civil Application No.3343/86 and the only question, which was required to be considered was with regard to the regularization of the construction, it is not open for the petitioners to make aforesaid above contention. Meeting with the contentions and submissions on behalf of the petitioners with regard to submitting an application in the year 1984 and not deciding the same within 90 days SCA/150/1989 8/15 JUDGMENT and therefore, considering Section 65 of the Code read with its proviso, there is a deem permission, Shri Desai has further submitted that as such, no application was submitted by the petitioners for granting non agricultural use permission under Section 65 of the Code and the application which was submitted in the year 1984 was for converting the land from new tenure to old tenure, which was rejected in 1985. Therefore, it is submitted that the contention on behalf of the petitioners with regard to the same, has no substance. Shri Desai has also further submitted that so far as the cited judgment of the learned Single Judge of this court rendered in the Special Civil Application No.2325/88 is concerned, it is submitted that in that case the question which is considered by the learned Single Judge is with regard to using the land in question for the purpose other than agricultural purpose and there was no question of breach of new tenure land i.e. with regard to transferring the property in question. It is also submitted by Shri Desai that in the present case, there is a breach of condition with regard to transferring the land in question also and by transferring the property that too in breach of the order of status quo, SCA/150/1989 9/15 JUDGMENT the petitioners have avoided the amount of premium and therefore, it is requested to dismiss the present Special Civil Application with cost. 7.In reply, Shri Patel has submitted that the petitioners have submitted unconditional apology by way of Affidavit-in-Rejoinder and has submitted that the petitioners are ready and willing to pay some reasonable cost. It is submitted that there were circumstances beyond the control of the petitioners in asmuch as the tenaments in question were already sold and possession of which was handed over prior to the possession of the State Government and transferee was insisting for the sale deed and therefore, they were pressuring to execute the sale deed. Shri Patel has also further submitted that, as such at present there are 22 persons residing in the tenaments on the land in question and they are residing there since more than 10 to 15 years and if the construction is demolished in that case, their family members will be affected and ruined. He has submitted that the petitioners are ready and willing to obtain ex post facto permission for regularization and granting the permission from converting the land from new tenure to old tenure on payment of premium prevailing as on today and necessary SCA/150/1989 10/15 JUDGMENT penalty and fine. Shri Patel has also submitted that the petitioners are also ready and willing to pray for grant of non agricultural use permission and even for regularization of construction and the petitioners are also ready and willing to pay penalty and fine. 8.Heard learned advocates for the parties. 9.On considering the order of grant dated 12/23-1-64, it is crystal clear that the land in question was alloted to the father of the petitioners as new and impartible tenure land meaning thereby the same could not have been transferred without prior permission of the Collector and that too on payment of premium as per the policy of the State Government. It is also required to be noted that the land in question was an agricultural land and even for the purpose of putting up the construction, non agricultural use permission was required to be obtained from the Collector as required under Section 65 of the Code. So far as the contention of the petitioners that as they have obtained development permission from the Competent Authority for putting up the construction, they are not required to obtain any other permission considering Section 117 of the Act is concerned, in view of the withdrawal of the Special Civil Application No.3343 of 1986, it is not SCA/150/1989 11/15 JUDGMENT open for the petitioners to make the said submission. So far as the contention on behalf of the petitioners with regard to deemed permission under Section 65 of the Code is concerned, it is required to be noted that the application of 1984, which is relied upon by the petitioners is concerned, the said application is not an application for non agricultural use permission but the said application was for converting the land from new tenure to old tenure and therefore, the said contention is required to be rejected. 10.From the facts and circumstances emerging from the record, it appears that the petitioners had put up the construction of residential tenaments and have transferred and sold the same without prior permission of the Collector, Vadodara and that too without obtaining any non agricultural use permission and therefore, admittedly there is a breach of condition of the grant. It also emerges from the record that the petitioners had transferred and/or entered into the sale deed in breach of order of status quo mentioned by this court for which the petitioners have already tendered unconditional apology. The petitioners have also further submitted that they are ready and willing to go for ex post facto permission for converting the SCA/150/1989 12/15 JUDGMENT land from new tenure to old tenure as well as for non agricultural use permission. The petitioners have also submitted that they are ready and willing to pay the premium on the basis of the market price prevailing as on today along with necessary penalty and fine so that 22 families, who are residing in the tenaments since many years may not have to suffer. It is also further submitted that on getting necessary permission from the Collector, the land could have transferred but unfortunately in the year 1985, their application for converting the land from new tenure to old tenure came to be rejected and thereafter, petitioners withdrew the aforesaid Special Civil Application for making an appropriate application before the Collector for regularization of the construction. 11.Under the circumstances and in the peculiar facts and circumstances of the case and without considering the same as precedent, if the petitioners are permitted to apply for ex post facto permission for converting the land from new tenure to old tenure on payment of premium on the basis of the market price prevailing as on today, it will meet the ends of justice. Similarly the petitioners can also be permitted to apply for ex post facto permission for NA use permission and SCA/150/1989 13/15 JUDGMENT regularization of the construction on payment of fine, penalty etc., so that construction of 22 tenaments in which 22 families are residing since many years, their property can be saved. 12.For the reasons as stated above, the petition succeeds partly. The impugned judgment and order passed by the Addl. Chief Secretary dated 30th September, 1988 as well as the order passed by the Collector, Vadodara dated 28-4-87 are hereby quashed and set aside and the petitioners are directed to make an application for ex post facto permission for converting the land from new tenure to old tenure within a period of 6 weeks from today and on receipt of the said application, the Collector, Vadodara is directed to consider the same and grant ex post facto permission for converting the land from new tenure to old tenure on payment of premium on the basis of the market price prevailing as on 1st October, 2005 and on determination of the said premium, the petitioners are directed to pay the said amount within a period of one month from the date of such determination and communicating the order passed by the Collector to that effect. The petitioners are also directed to make an application for ex post facto permission for NA use permission also and for SCA/150/1989 14/15 JUDGMENT regularization of the construction and the Collector, Vadodara is directed to consider the same and regularize the same on payment of necessary penalty even and/or any other charges which the petitioners have agreed to pay. Such an application should be made within a period of six weeks from today. On receipt of the aforesaid two applications as stated above, within a period of six weeks from today, the Collector, Vadodara is directed to pass appropriate orders as stated above within a period of 3 months thereafter and the petitioners are directed to comply with the order that may be passed by the Collector Vadodara and pay the amount of premium as determined by the Collector and also pay the fine, penalty etc. within a period of 4 weeks thereafter, failing which it will be open for the Collector to resume the land and take back the possession of the land in question. As stated above, the present order is passed in the peculiar facts and circumstances of the case and the same cannot be treated as a precedent. 13.Rule is made absolute to the aforesaid extend. As there is a breach of status quo granted by this court for which the petitioners have already tendered unconditional apology and have already stated that they SCA/150/1989 15/15 JUDGMENT are ready and willing to pay the reasonable cost. The petitioners are directed to pay/deposit Rs.50,000/- towards exemplary cost within a period of six weeks from today with the Registry of this court and the Office is directed to notify this matter for compliance report after a period of six weeks from today. The petitioners are also directed to pay an amount of Rs.7500/- towards cost of the respondents which the petitioners are directed to pay/deposit directly with the Collector within a period of 6 weeks from today and submit the receipt along with applications for ex post facto permission and the Collector is directed to consider the aforesaid two applications only on receipt of the cost, which is quantified at Rs.7500/-. (M.R.SHAH,J) Shekhar/-