SCA/1158/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1158 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= KANAIYALAL DHANSUKHLAL SOPARI-WALA - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR MIHIR THAKOR SR.ADVOCATE WITH MR DEVANG SHAH for Petitioner(s): 1, MR JK SHAH ASST GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 25/07/2008 ORAL JUDGMENT Draft amendment is allowed. Amendment to be carried out accordingly. The petition was filed initially challenging the order dated SCA/1158/2008 2/6 JUDGMENT 24.08.2007 passed by the Principal Secretary (Appeals), Revenue Department, Government of Gujarat, by which, the revision application of the petitioner against the order passed by the Collector, Surat on 15.07.2005 was confirmed. The issue pertains to fixation of the rate of premium that the petitioner is required to pay for regularizing use of the land of the petitioner. The short facts need to be noted at this stage. The petitioner is owner of the land admeasuring Acre 1 – 18 Gunthas of Block No.350 of village Kathodara, Taluka Kamrej, District Surat. In the year 1985, the original owner (not petitioner) was granted permission to convert the land from new tenure to old tenure. The erstwhile land owner was required to pay premium of Rs.21,256/- which was duly paid in the year 1988. The actual sale and development of the land, however, ran into several legal difficulties. The petitioner after acquiring the land, wanted to construct a go-down for storage and applied for such permission to the authorities. No objection was granted by the Collector, Surat in the year 1993. Since the petitioner wanted to store explosives, he was required to obtain permission from the Government of India and other authorities which were also duly granted. The petitioner had put up construction and go-down is constructed since long. It appears that the Collector, Surat took the order of Deputy Collector in suo motu revision under Section 211 of the Bombay Land Revenue Code on the ground that the Deputy Collector did not have power to grant permission for conversion of the land. Eventually, the SCA/1158/2008 3/6 JUDGMENT Collector had on 23.05.1996 set aside the order of the Deputy Collector granting conversion of the land from new tenure to old tenure. This order was challenged by the petitioner before the Revenue Secretary and after round of remand, ultimately, the Revenue Secretary by his order dated 17.01.2004 / 12-02-2004 (Annexure-L to the petition) concluded that the Collector committed no error. In fact, at the relevant time, the petitioner was not willing to pay premium for regularizing the non agricultural use of the land, therefore, such proposal was not accepted. It was observed that without permission from the competent authority, the godown has been constructed. It was also held that the Deputy Collector's order granting N.A. Permission was without authority and on this ground, the Secretary rejected the revision application of the petitioner. While doing so, however, it was observed that despite this, if the petitioner is willing to pay premium on the current market rate, he can apply to the Collector afresh. Pursuant to the said order of the Revenue Secretary, the petitioner wrote to the Collector, Surat on 23.02.2004 stating interalia that pursuant to the order dated 12.02.2004 of the Revenue Secretary, the petitioner is willing to pay premium on the current market price and the proceedings may therefore be initiated accordingly. It was requested that the amount paid pursuant to the Deputy Collector's order dated 21.04.1988 may be adjusted towards the liability. Pursuant to this representation of the petitioner, the entire process of fixing the premium on the prevailing market rate was undertaken. The District Level Committee considered all aspects of the matter and held that the petitioner is required to pay total sum of Rs.20,39,450 towards the premium, out of which, amount of Rs.21,556/-since was already paid by the petitioner, was to be given credit of. Pursuant to the order of the SCA/1158/2008 4/6 JUDGMENT Collector, full amount of premium was paid by the petitioner on 18.05.2005. This fixation of the market rate was challenged by the petitioner before the Revenue Secretary who examined the materials on record and turned down the revision application by order dated 24.08.2007. As stated earlier, initially it was this valuation which was challenged in the petition. Subsequently, by amendment sought and granted today, the petitioner has also sought to include challenge to the order dated 17.01.2004 passed by the Revenue Secretary. It is in this background the petition was argued before me. At the outset, learned AGP Mr.J.K.Shah for the Government raised preliminary objection that in view of the petitioner not having earlier challenged the order dated 17.01.2004 passed by the Secretary, and in fact, having applied for fresh valuation, under representation dated 23.02.2004, it is not open for the petitioner to re-open all the issues and challenge the action of cancellation of N.A. Permission. Having heard learned Sr. Advocate Mr.Mihir Thakor with Mr.Devang Shah for the petitioner and learned AGP Mr.J.K.Shah for the State, I find that the Revenue Secretary on 17.01.2004 put final lid on the challenge of the petitioner so far as the action of the revenue authorities in recalling the order of the Deputy Collector's granting conversion of land in the year 1988. As already noted, this process went through number of stages including the remand and ultimately, got culminated into the Revenue Secretary's order dated 17.01.2004. It perhaps was at that time possible for the petitioner to challenge the SCA/1158/2008 5/6 JUDGMENT same. The Revenue Secretary in his order noted that at one stage, Government in fact contemplated regularisation of unauthorised construction upon collection of premium. The petitioner was, however, not willing to pay premium. Due to which, the proposal failed. Be that may it may. While finally rejecting the revision application of the petitioner and upholding that the Deputy Collector was not authorised to grant conversion of land, the Revenue Secretary provided that despite the order if the petitioner is willing to pay premium at the current market price, it would be open to him to approach the Collector with such application. As already stated, it was open for the petitioner to challenge the entire order in question and its legality thereof. The petitioner, however, pursuant to the said order dated 17.01.2004 promptly applied to Collector on 23.02.2004 for regularisation of the construction and use of land. He, in fact, indicated in no uncertain terms that the application is being made pursuant to the above mentioned order of the Secretary. He also indicated willingness to pay premium at the current market price. The petitioner had thus acquiesced in the order passed by the Revenue Secretary. Consequently, his application was acted upon, processed and allowed. The Collector fixed the premium to be paid at the prevailing market rate. Therefore, at this stage, it would not be possible for the petitioner to resile from his stand before the Collector that he accepted the order of the Secretary and undertook to pay premium at the prevailing market price. His belated challenge to the order of Secretary in this factual background, cannot be examined. Had the petitioner, at the outset, not accepted the order of the Secretary and challenged the same in accordance with law, the situation would have been different. In the present case, however, he not only accepted the order, also got benefit thereunder by seeking regularisation of the unauthorised construction and change of use of the land. SCA/1158/2008 6/6 JUDGMENT So far as the quantification of the premium is concerned, the Collector as well as the Secretary have taken into account various factual aspects and no serious arguments were made before me to question such quantification at the prevailing market rate. The petitioner has also paid full premium way back in the in the year 205. Nearly three years thereafter, he seeks to challenge the authority of the Government to collect the premium. His petition cannot be entertained. The same is dismissed. Notice stands discharged. No order as to costs. ( Akil Kureshi, J. ) kailash