Gujarat High Court
Maniben Mangalbhai Patel vs State Of Gujarat on 6 May, 2026
NEUTRAL CITATION
C/SCA/14703/2015 CAV JUDGMENT DATED: 06/05/2026
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Reserved On : 17/04/2026
Pronounced On : 06/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14703 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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Approved for Reporting Yes No
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MANIBEN MANGALBHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Petitioner(s) No.
1,2,3,4,5
NAJMUDDIN R MEGHANI(7834) for the Petitioner(s) No.
1,2,3,4,5
MR JAY TRIVEDI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule. Learned AGP Mr. Jay Trivedi waives service
of notice of Rule for the respondents.
2. By way of preferring present petition under
Article 226 of the Constitution of India, the
petitioners have sought for the following main
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relief:
“(A) to issue a writ of mandamus or any other
appropriate writ, order or direction in the
nature of mandamus, directing the respondents
to accept the premium considering the value
of land at the rate of Rs.2000/- as decided
on 18.09.2003 or at the rate of Rs.14,500/-
as decided on 29.03.2007 and to convert the
land bearing Block No.95 (Old Revenue Survey
No.77+7/2 and Final Plot No.114 of village
Althan, Taluka Choryasi, District Surat from
new tenure to old tenure on the basis of the
application dated 07.10.2002 (registered on
21.10.2002) and review/reminder application
dated 11.11.2003.
(B) to issue a writ of mandamus or any other
appropriate writ, order or direction,
declaring that the delay caused in deciding
an application for conversion of land from
new tenure to old tenure is due to negligence
or due to administrative reasons on the part
of the respondents and that would not entitle
the respondents to charge the premium at
higher rate of Jantri Price”
3. The facts of the case of the petitioners, as
mentioned in the petition, can be summarized in a
nutshell as under:
3.1. The petitioners are the joint owners of
ancestral property being land bearing Block No.95
admeasuring 11432 sq. mtrs. of village Althan, which
has been sub-divided into three separate Final Plots
i.e. Final Plot No.114 admeasuring 4272 sq. mtrs.,
Final Plot Nos. 35A and 35B admeasuring 962 sq. mtrs.
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and 1133 sq. mtrs., respectively. The issue involved
in the present petition is qua Final Plot No.114 i.e.
land admeasuring 4272 sq. mtrs. only (it shall
hereinafter be referred to as the ‘subject land’ for
short). The petitioners have given power of attorney
to one Mr. Mahendrabhai Chhotalal Doshi for the Final
Plot No. 114.
3.2. The petitioners were holding the land by way of
tenancy rights having restrictions u/s 43 of the
Bombay Tenancy and Agricultural Lands Act, 1948 (it
shall hereinafter be referred to as ‘the Act’ for
short). Thus the land was of ‘new tenure’ and
therefore, the petitioners have made an application
dated 7th October, 2002 to the Deputy Collector,
Choryasi Pranth, for conversion of the land in
question from new tenure to old tenure and the said
application was submitted in the office of the Deputy
Collector on 21.10.2002.
3.3. That the District Valuation Committee under the
Chairmanship of the District Collector, Surat, passed
a resolution dated 18.09.2003 in respect of as many
as 27 applications. So far as the application made by
the present petitioners is concerned, by way of
resolution No.6, it was unanimously decided to charge
premium at the rate of Rs.2,000/- for some portion of
subject land and at the rate of Rs.2,500/- for the
remaining part of the subject land. It is the case of
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the petitioners that they had no knowledge about
passing of the aforesaid resolution dated 18.09.2003
and they came to know about the said fact only when
they obtained the relevant papers under the Right to
Information Act along with the copy of one Resolution
dated 23.02.2006.
3.4. Thereafter, vide letter dated 20.03.2004, the
District Collector informed the Deputy Secretary,
Revenue Department, inter alia, stating that the
market value of the subject land is Rs.85,44,000/-
and the amount of premium would come to
Rs.59,80,800/- (70% of the market value) and since
the market value of the land is more than Rs.50 lacs,
the valuation of the land in question is required to
be fixed by the State Level Valuation Committee.
Therefore, the decision taken by the District
Valuation Committee is referred to the Secretary,
Revenue Department for approval. Thereafter, the
respondent No.1 – Revenue Department, vide letter
dated 17.08.2004 asked the Collector to submit
information qua the market value of the subject land
along with the map as per the guideline issued by the
Chief Town Planner and also to give information as to
whether the Town Planner has made valuation of the
land in question or not.
3.5. Thereafter, the Chief Town Planner, vide letter
dated 19.10.2004, forwarded the Valuation Report to
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the Revenue Department, which crystallizes the
position of fact that the Chief Town Planner had also
valued the land in question at the rate of Rs.2,000/-
per sq.mtr.
3.6. It is the case of the petitioners that though
the valuation report of the Chief Town Planner of the
State of Gujarat was forwarded to the respondent No.1
herein by letter dated 19.10.2004, the respondents
failed to communicate the amount of premium to the
petitioners even till today. Therefore, the
petitioners, through their power of attorney holder,
approached the office of respondent Nos. 1 & 2 on
number of occasions, however, it was informed that
final decision is not taken.
3.7. It is the case of the petitioners that upon
inquiry, only in the last week of January, 2006, the
petitioners came to know that the District Valuation
Committee has already fixed the market value of the
land in question by decision dated 18.09.2003 and,
therefore, petitioners have obtained the copy of the
communication under the Right to Information Act.
3.8. Thereafter, the petitioners have preferred
Special Civil Application No. 4869 of 2006, inter
alia, praying for direction against the respondents
to communicate the amount of premium to the
petitioners for conversion of the land in question
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from new tenure to old tenure. That during the course
of hearing of the petition, learned Assistant
Government Pleader submitted that appropriate
authority had already taken the decision and that the
same is pending before the State Government for its
approval. The Coordinate Bench of this Court,
therefore, vide order dated 25.04.2006, directed the
State Government to take an appropriate decision and
determine the amount of premium for the subject land
in accordance with law and on merits as early as
possible, preferably within a period of three months
from the date of receipt of the order and also
communicate the ultimate outcome to the petitioners.
3.9 As per the case of the petitioners, instead of
taking the final decision, the Revenue Department,
vide letter dated 26.07.2006, informed the Collector
that since two years have already been lapsed after
taking the decision by the District Valuation
Committee, a fresh decision may be taken immediately
after calling the meeting of the District Valuation
Committee. Thus, it is the case of the petitioners
that though specific direction was given by the
Coordinate Bench of this Court to the State
Government to determine the amount of premium
preferably within a period of three months, Revenue
Department had again asked the Collector to call the
meeting of the District Valuation Committee and again
asked him to decide the value of the land. The said
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action on the part of the Revenue Department is
against the statement made by the learned AGP and
only with a view to delay the entire proceedings.
3.10.As per the case of the petitioners, before
taking decision dated 26.07.2006, no opportunity of
hearing was afforded and it was not communicated to
the petitioners. As per the case of the petitioners,
after a period of three months, when the petitioners
inquired about the amount of premium, they came to
know about such communication and, therefore, they
obtained the copy under the RTI Act by making an
application dated 20.09.2006. That being aggrieved by
and dissatisfied with the order dated 26.07.2006, the
petitioners have preferred Special Civil Application
No.22164 of 2006 before this Court, inter alia,
praying to quash and set-aside the order dated
26.07.2006 and further prayed that the respondents
may be directed to fix the market value of the land
in question either as per the date of application
dated 07.10.2002 or at the most as per the date of
18.09.2003 on which the District Valuation Committee
has fixed the market value of the subject land for
calculating the amount of the premium. That by way of
several other petitions, even the validity of Section
43 and the validity of Government Resolution dated
04.07.2008 has been challenged before this Court.
Therefore, as the petition filed by the petitioners
was also remained pending and thereafter it was heard
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and decided along with the group of petitions by the
Division Bench of this Court vide order dated
03.05.2011, whereby, the Division Bench has upheld
the validity of Section 43 and circular dated
04.07.2008. It is the case of the petitioners and
also contended by learned advocate Mr. Shah for the
petitioners that though the subject matter of the
petition filed by the petitioners is altogether
different and petitioners have merely challenged the
communication/order dated 26.07.2006 issued by the
Revenue Department to the office of Collector to once
again carry out the exercise of revaluation of the
land in question, the said petition has wrongly been
clubbed along with other petitions and Letters Patent
Appeals.
3.11. As per the case of the petitioners, thereafter
also they waited for the decision of the respondents
on the basis of the circular dated 04.07.2008. But,
till date, no communication is received by the
petitioners. That by resolution dated 04.07.2008, the
State of Gujarat has resolved that the valuation of
the land of new and impartible tenure and of
restricted tenure, is to be done as per the rate of
Jantri (as per annual statements of rate 2006) and as
per the amendments made from time to time. It is the
case of the petitioners that even as per the said
circular, the petitioners were ready and willing to
pay the amount of premium to the Government, but,
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till date, either no decision is taken or
communicated to the petitioners. Thereafter, another
Government Resolution dated 03.05.2011 was issued by
the Revenue Department, whereby, it was decided to
charge the premium at the rate of 40% of the jantri
value.
3.12. Being aggrieved by and dissatisfied with the
decision of the Division Bench of this Court, some
similarly situated persons have filed Civil Appeal
before the Hon’ble Apex Court, challenging the
validity of Section 43 of the Bombay Tenancy and
Agricultural Lands Act, 1948 as also the validity of
Circular dated 04.07.2008. The Hon’ble Apex Court,
vide judgment and order dated 25.02.2014, upheld the
validity of Section 43 and the Circular dated
04.07.2008. However, the Hon’ble Apex Court has
specifically observed that application for deciding
premium cannot be kept pending indefinitely and
Collector has to decide such applications, as far as
possible, within 90 days from the date of receipt of
the application and in the event the application is
not being decided within 90 days, the Collector has
to record the reasons for the delay.
3.13 That after the decision of the Division Bench of
this Court, which was rendered on 03.05.2011, the
petitioners have made several inquiries with the
Collector, Surat about the determination of the
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amount of premium. However, it was informed to the
petitioners that since the matter is pending before
the Hon’ble Supreme Court, they could not take any
decision. Thereafter, even after the judgment of the
Hon’ble Supreme Court, which came to be passed in
February, 2014, the petitioners again inquired with
the office of the Collector as regards the
determination of the amount of premium. However, all
the attempts of the petitioners went into vain.
3.14. As per the case of the petitioners, again, by
preferring an application in March, 2015, the
petitioners through their power of attorney holder
sought information under the Right to Information Act
regarding the decision, if any, taken by the
respondents pursuant to the application made by the
petitioners in the year 2002. That the Revenue
Department, by letter dated 01.07.2015, forwarded the
copies of the internal correspondences to the power
of attorney holder. The copies of the correspondences
are appended along with the memo of the petition. It
appears that earlier, it was decided by the
respondents that the value of the subject land was
Rs.2000/- and it was sent for approval to the Revenue
Department. It also appears from the correspondence
that after the decision of the Coordinate Bench of
this Court in SCA No.4869 of 2006 dated 25.04.2006,
once again the revaluation was made and District
Valuation Committee had decided the value of the land
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at Rs.14,500/-. But thereafter, no final approval was
given by the Revenue Department. Thereafter, even
opinion was sought from the office of the Government
Pleader, and though five reminders were sent by the
Collector vide letter dated 15.12.2009, but, no
opinion appears to have been received by him. It
appears from the correspondence that even Revenue
Department sent reminders dated 25.06.2007,
19.11.2009, 11.09.2007, 23.11.2009, 29.11.2008,
05.11.2009, 08.01.2010, 28.06.2010, 07.11.2010, but
the Collector has not provided the details to the
Revenue Department. Thereafter, it appears that in
view of the decision in SCA No.22164 of 2006 dated
03.05.2011, the matter was sent back to the Collector
by the Revenue Department.
3.15. Thus, it is the case of the petitioners that
from the aforesaid communications, it is established
that though the decision is already taken by the
Collector in the year 2003 and again in the year
2007, no approval was accorded by the Revenue
Department and for the delay caused by the
respondents, petitioners cannot be penalized.
3.16 It is also the case of the petitioners that
though the application dated 07.10.2002 and
subsequent review application have been decided, the
decision has not been communicated to the
petitioners. That earlier decision was taken and
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value of the land was fixed at Rs.2000/-. Thereafter,
once again, in view of the order passed by this
Court, a decision was taken on 03.05.2007, whereby,
the value of the land was fixed at Rs.14,500/-.
However, the petitioners were never asked to deposit
the amount of premium, though they are ready and
willing to pay it at the rate of Rs. 14,500/- as
determined by the Collector as per order passed by
this Court. Thereafter also, till date neither the
application is decided nor any final decision is
communicated to the petitioners and petitioners came
to know about the internal correspondences by way of
information received under the Right to Information
Act. Hence, present petition is filed.
4. Heard learned advocate Mr. Mehul Sharad Shah for
the petitioners and learned AGP Mr. Jay Trivedi for
the respondents.
5. Learned advocate Mr. Mehul Shah for the
petitioners submits that the impugned inaction on the
part of respondents in not communicating the final
decision is causing great prejudice to the
petitioners and is also in violation of Articles 14,
19 and 21 of the Constitution of India. He further
submits that the delay which is caused at the
instance of the respondent authorities in fixing the
market value of the land in question, without there
being any fault on the part of the petitioners, is
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nothing but the procedural impropriety and lapse and
therefore for such a procedural lapse, the
petitioners cannot be penalized by asking higher rate
of jantri value. He further submits that the
petitioners have filed an application to convert the
land in question from new tenure to old tenure on
07.10.2002, 07.10.2003 and subsequent review
application. It appears from the record that decision
was taken by the Collector and the District Valuation
Committee on 18.09.2003, however as the 70% of the
market value of the land was more than Rs.50 lacs, it
was sent for approval to the Revenue Department. He
further submits that it is, therefore, incumbent
upon the Revenue Department to take appropriate
decision within a reasonable period, as observed and
held by the Hon’ble Apex Court as well as this
Hon’ble Court in numerous case laws. However, no
decision is taken by the revenue authorities.
6. Learned advocate Mr. Shah further submits that
thereafter the petitioners preferred a petition
being Special Civil Application No. 4869 of 2006
before this Court and vide order dated 25.04.2006,
the Coordinate Bench of this Court directed the
respondent authorities to determine the amount of
premium of the subject land as expeditiously as
possible preferably within a period of three months.
He submits that instead of complying with the said
directions issued by the Coordinate Bench of this
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Court and deciding the amount of premium within the
stipulated time, the Revenue Department once again
asked the Collector to make revaluation of the land
in question on the ground that two years period has
been passed by. He submits that once again, vide
decision dated 29.03.2007, the Collector, in
consultation with the District Valuation Committee,
had determined the price of the subject land at
Rs.14,500/- per sq. mtr. Thereafter, the minutes and
the decision of the District Valuation Committee was
sent to the Deputy Secretary, Revenue Department for
approval. However, for one or other reasons, till
date, no decision is taken nor it is communicated to
the petitioners.
7. Learned advocate Mr. Shah further submits that
even the Hon’ble Apex Court in the case of Gohil
Jesangbhai Raysangbhai & Ors., v. State of Gujarat &
Anr., reported in 2014(1) GLH 609 held that the
application cannot be kept pending indefinitely and
Collector has to decide such application within 90
days from the receipt of the application on the lines
of the judgment of the Hon’ble Apex Court in Patel
Raghav Natha’s case. He further submits that in the
present case, though application was made on
07.10.2002, till date, either it is not decided or
the decision is not communicated to the petitioners.
He further submits that petitioners have also sought
certain information from the concerned Revenue
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Authority through Right to Information Act, and in
turn, they received certain information from internal
correspondence entered into by and between the
concerned revenue authorities. Perusal of the said
correspondence makes it clear that firstly the
decision was taken in the year 2003 and thereafter
another decision was taken on 29.03.2007, whereby,
the value of the land has been determined. Therefore,
as per the ratio laid down by the Hon’ble Apex Court
in the case of Gohil Jesangbhai Raysangbhai & Ors.
(supra), though the jantri rate would be applicable
from the date of the sanction by the Collector, and
not from the date of the application made by the
party, the Collector has to decide the said
application within a period of 90 days and it cannot
be kept pending indefinitely. Thus, the ratio laid
down by the Hon’ble Apex Court in the aforesaid
decision is squarely applicable to the facts of the
present.
8. Learned advocate Mr. Shah further submits that on
29.03.2007, the value of the subject land was decided
at the rate of Rs.14,500/- per Sq. Mtr. and by letter
dated 03.05.2007 it was communicated to the Revenue
Department. Thereafter, in view of Government
Resolution dated 04.07.2008, the value of the land is
required to be considered as per the jantri value at
that relevant point of time. He submits that in view
of the Resolution dated 04.07.2008, price was already
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determined by the Government, however, the
respondents have caused unreasonable delay in
determining the amount of premium. Therefore, the
delay can be attributed only to the respondents and
not to the petitioners. He further submits that it is
the stand of the respondent authorities that due to
pendency of the petition before this Court as well as
before the Hon’ble Supreme Court, they could not take
any decision on the application of the petitioners.
However, under the said lame excuse, the respondents
cannot escape from their liability to decide the
amount of premium. He further submits that it is
obligatory on the part of the respondents authority
to communicate the decision of fixing the amount of
premium to the petitioners and if the petitioners
fails to make the payment of the said amount, in that
event, the delay can be attributable to the
petitioners.
9. Learned advocate Mr. Shah has further submitted
that the Hon’ble Apex Court has, while upholding the
validity of the aforesaid G.R. dated 04.07.2008,
reduced the levy of premium from 80% (as prescribed
in G.R dated 04.07.2008) to 40% of the jantri value,
vide judgment dated 25.02.2014 rendered in the case
of Gohil Jesangbhai Raysangbhai & Ors. (supra). He
submits that during the interregnum period, the
Revenue Department has also issued one GR dated
03.05.2011, whereby, the levy of premium is fixed at
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40% of the Jantri value. He, therefore, submits that
it is the duty of the respondents to levy the premium
either considering the rate of the subject land at
Rs.2000/- as determined by the District Valuation
Committee on 18.09.2003 or at the rate of
Rs.14,500/-, which was determined on 29.03.2007.
10. Learned advocate Mr. Shah has drawn the
attention of this Court to an interim order dated
21.09.2017 passed by this Court in Civil Application
(For Direction) No. 12057 of 2017 in Special Civil
Application No.14703 of 2015 and submitted that as
per the policy of the Government prevalent at that
relevant point of time, vide aforesaid order, without
prejudice to the rights and contentions of both the
parties, the petitioners were directed to deposit an
amount of Rs.6,91,20,960/- as a premium with the
office of the Collector, Surat and the concerned
revenue authority was directed to accept the
aforesaid amount and pass an appropriate order as
regards the conversion of the land from new tenure to
old tenure within a period of four weeks from the
date of receipt of copy of the order. Learned
advocate Mr. Shah has submitted that despite the
aforesaid clear cut directions, the concerned revenue
authority has not complied with the said directions
and therefore, the Coordinate Bench of this Court has
once again passed an order dated 16.10.2018, whereby,
the Collector was directed to take an appropriate
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decision and place the same on record before the next
date of hearing of the petition i.e. 04.12.2018.
Despite that either the decision is not taken or it
is not communicated to the present petitioners.
Learned advocate Mr. Shah has further submitted that
thereafter, once again, the Coordinate Bench of this
Court has passed an order dated 20.01.2023, whereby,
directions came to be issued to the concerned revenue
authority to place on record the decision taken by
the concerned revenue authority and in case if the
decision is not taken then the reasons for not taking
the said decision shall be placed before the Court by
way of an affidavit. Learned advocate Mr. Shah
further submits that the aforesaid orders passed by
the this Court clearly show and suggest that the
concerned revenue authorities have shown total
disrespect towards the orders passed by the Court and
they sat tight over the issue which is pending since
last 24 years.
11. Learned advocate Mr. Shah has further submitted
that it is admitted by the respondent No.2 by way of
an affidavit that pursuant to the application dated
11.11.2003 filed by the petitioners through their
power of attorney holder Mr. Mahendrabhai Chhotalal
Doshi for conversion of land, considering the opinion
received from the Deputy Collector, Choryasi, Prant
Surat dated 25.02.2004, a proposal dated 22.03.2004
was forwarded to the State Government. However,
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before the aforesaid proposal is decided, the
petitioners have filed Special Civil Application
No.4896 of 2006. Learned advocate Mr. Shah,
therefore, submits that thus though the proposal was
sent on 25.02.2004 by the concerned revenue authority
to the State Government, till the filing of the
petition by the petitioners in the year 2006, the
said proposal has not been decided by the State
Government. Thus, as per the decision of the Hon’ble
Apex Court in the case of Gohil Jesangbhai
Raysangbhai & Ors., the concerned revenue authority
is expected to take a decision within a period of 90
days from the date of receipt of the said
application/proposal and if the concerned authority
failed to take any decision and sat tight over the
said application/proposal, in that event, the
petitioners cannot be penalized and they cannot be
compelled to pay the amount of premium as per the
prevalent policy of the State Government. He,
therefore, submits that appropriate directions may be
issued to the respondent authorities to accept the
premium considering the value of the subject land at
the rate of Rs.2000/- as decided on 18.09.2003 or at
the rate of Rs.14,500/- as decided on 29.03.2007 and
to convert the subject land from new tenure to old
tenure and after calculating the amount of premium
based on the aforesaid rate of either Rs.2,000/- or
Rs.14,500/-, remaining amount of premium deposited by
the petitioners before the concerned revenue
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authority after considering the price of the subject
land at Rs.40,262/- per sq. mtrs., may be refunded.
12. In support of his submissions, learned advocate
Mr. Shah has relied upon the following decisions.
1. The decision of Hon’ble Apex Court in case
of Gohil Jesangbhai Raysangbhai & Ors. v. State
of Gujarat & Anr., reported in 2014(1)GLH 609;
2. Common CAV Judgment dated 03.05.2011 of the
Division Bench of this Court rendered in Special
Civil Application No.10548 of 2008 and allied
matters;
3. The decision of this Court in case of
Karadia Meragbhai Kanabhai v. State of Gujarat,
reported in 2022 JX (Guj.) 43;
4. The decision of this Court in case of
Pravinkumar Keshavji Tank v. State of Gujarat,
reported in 2012(5) GLR 4211;
5. The decision of this Court in case of
Bharatbhai Kantilal Jethwa v. State of Gujarat &
Ors., reported in 2006(2) GLH 303.
13. On the other hand, learned Assistant Government
Pleader Mr. Jay Trivedi has objected present petition
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with vehemence and after referring the affidavit-in-
reply filed by the respondent – revenue authorities
submitted that by way of present petition, the
petitioners have prayed for direction upon the
respondents to accept the premium considering value
of land of Rs.2,000/- per Sq. Mtrs. as decided on
18.09.2003 or Rs.14,500/- per Sq. Mtrs. as decided on
29.03.2007 and to convert the subject land from new
tenure to old tenure on the basis of application
dated 07.10.2002 and reminder application dated
11.11.2003 made by the petitioners. He has submitted
that the present petition is required to be rejected
only on the preliminary objection that the petition
has been filed by the dead person. He submits that
petitioner Smt. Maniben Mangalbhai Patel passed away
on 26.11.2005. It is well settled that a dead person
cannot file a petition. He further submits that it is
well settled that upon the death of an executor of
the deed of power of attorney, the POA stands
cancelled automatically and therefore the present
petition, which is filed by the POA holder of
deceased Smt. Maniben M. Patel is also required to be
dismissed solely on that ground.
13.1.In rejoinder, learned advocate Mr. Shah for the
petitioners has submitted that it is true that one of
the persons, who has given power of attorney, i.e.
Maniben Patel passed away on 26.11.2005 but it is an
admitted fact that power of attorney executed in
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favour of Mahendrabhai Chhotalal Doshi is irrevocable
power of attorney coupled with interest and out of
five persons, if one person is passed away, then also
the irrevocable power of attorney would continue to
operate and would not cease to operate. He submits
that the Division Bench of this Court in the case of
Her Highness Shantadevi Pratapsinh Rao v. Savjibhai
H. Patel And Ors., reported in 1998(2) GLR 1521
observed and held that, “No doubt, in the case of
Garapati Venkanna (supra), the Madras High Court had
held that, where a power of attorney has been
executed by several principals in favour of a person
and one of the principals having distinguished
interest in subject-matter of power of attorney dies,
the death terminates the power of attorney. This view
was taken by the Madras High Court because, the Court
found that there was no authority coupled with an
interest and, therefore, the argument raised on the
basis of Section 202 of the Contract Act could not
prevail. Here is a case in which we have already held
as above that it was a case of an agency coupled with
interest. In our opinion, the position of law with
reference to Section 202 of the Contract Act is,
therefore, very clear that the cases in which the
agency is coupled with interest and there is no
express contract for termination, there cannot be any
termination even by death and, therefore, the factum
of death of the principal during the pendency of the
suit cannot lead to the termination of the agency.
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The necessary ingredients required under Section 202
of the Contract Act so as to hold that the agency
could not be terminated in the facts of the present
case are, therefore, clearly established and we also
find that even the factum of death of the principal
cannot bring about the termination of the agency.”
He, therefore, submits that the said contention
raised by the learned AGP would not be sustained.
14. Learned AGP Mr. Trivedi has further submitted
that the petitioners have not come with the clean
hands and they have suppressed the material fact
regarding the construction carried out by them over
the subject land, which was not converted from new
tenure to old tenure and thereby they have committed
breach of the provisions of the Bombay Tenancy &
Agricultural Lands Act, 1948. It is further submitted
that the subject land is of restricted tenure under
the provisions of the Bombay Tenancy and Agricultural
Lands Act, 1948 and the petitioners have not taken
prior permission from the competent revenue authority
for putting up any construction. It is submitted that
the first application dated 07.10.2002 was made by
the petitioners before the Deputy Collector,
Choryasi, Surat to remove the restrictions Under
Section 43. However, thereafter, the petitioner have
written a letter dated 15.09.2003 to the concerned
authority, inter alia, stating that since the
transaction with purchaser is cancelled, kindly file
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the above referred application dated 07.10.2002 and
accordingly the Deputy Collector, vide order dated
03.10.2003, filed the said application. He further
submits that thereafter another application dated
11.11.2003 was preferred by the petitioners through
their power of attorney holder viz. Mahendrabhai
Chhotalal Doshi for conversation of land and after
considering the opinion received from the Deputy
Collector, Choryasi, Prant Surat, a proposal was
forwarded to the State Government on 22.03.2004.
However, before the above referred proposal is
decided, the petitioners have filed Special Civil
Application No. 4896 of 2006 before this Court and
vide order dated 25.04.2006, this Court had issued
directions to the concerned revenue authorities to
take a decision within a period of three months.
Thereafter, the Revenue Department addressed a letter
dated 26.07.2006 to the Office of the Collector,
Surat to the effect that since more than two years
period is passed by from the date of earlier proposal
dated 20.03.2004, exercise of revaluation of the
subject land is required to be carried out.
15. Learned AGP Mr. Trivedi further submits that
being aggrieved by and dissatisfied with the
aforesaid communication/order of the Revenue
Department, the petitioners herein had preferred a
petition being Special Civil Application No.22164 of
2006, inter alia, praying to quash and set aside the
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aforesaid communication/order of the Revenue
Department. However, during the pendency of the said
proceedings, the matter was referred to the Division
Bench to decide it in line with other similarly
situated matters. He further submits that so far as
the office of the Deputy Collector is concerned, vide
communication dated 03.07.2007, the proposal was once
again forwarded to the State Government after
revaluation. However, since the petition was pending
before the Division Bench of this Court, the issue
with respect to determination of market price in the
present matter could not be decided. He further
submits that the Division Bench of this Court has,
vide CAV judgment dated 03.05.2011 passed in the
aforesaid petition and allied matters, held that the
crucial date for determination of the premium is the
date on which the Collector grants such permission
and not the date when the petitioners have made an
application. He further submits that the said
decision of the Division Bench has been assailed
before the Hon’ble Apex Court and the Hon’ble Apex
Court has also uphold the said decision of the
Division Bench vide judgment dated 25.02.2014 passed
in the case of Gohil Jesangbhai Raysangbhai & Ors.
(supra).
16. Learned AGP Mr. Trivedi further submits that at
the time of first application dated 11.11.2003, the
policy of the State Government was based upon the
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Government Resolution dated 15.01.1998 issued by the
Revenue Department and at that relevant point of
time, while evaluating the premium on an application
preferred by the petitioners, the District Valuation
Land Committee was governed by the aforesaid GR dated
15.01.1998. He further submits that thereafter the
proposal was forwarded by the concerned revenue
authority on 22.03.2004 to the State Government for
its approval since the amount of the premium was
exceeding Rs. 50 Lacs. However, during the pendency
of the said proposal, the Revenue Department issued
another GR dated 22.11.2004, which was also made
applicable to the pending applications. He has read
the said GR, which is appended along with the
affidavit-in-reply filed by the respondent No.1.
17. Learned AGP Mr. Jay Trivedi further submits that
since the decision is not taken by the State Level
Committee, the petitioners have preferred a petition
being Special Civil Application No. 4869 of 2006
before this Court and pursuant to the directions
issued by this Court vide order dated 25.04.2006 and
taking into consideration the policy of the State
Government dated 22.11.2004, the Revenue Department,
vide communication dated 26.07.2006, has directed the
office of the respondent no. 2 to decide the issue
afresh in terms of the new policy of the State
Government. However, the said communication dated
26.07.2006 came to be challenged by the petitioners
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by preferring a Writ Petition being Special Civil
Application No. 22164 of 2006. He further submits
that during the pendency of the aforesaid petition,
the State Government through Revenue Department
issued another GR dated 04.07.2008, whereby the
method for determining the amount of premium has
substantially been changed. He further submits that
the aforesaid G.R. dated 04.07.2008 along with the
provision of Section 43 of the Tenancy Act came to be
challenged before the Division Bench of this Court
and the aforesaid petition preferred by the
petitioner is of similar in nature, it has been
tagged along with the group of matters challenging
the validity of the GR. He further submits that the
Division Bench of the High Court had, vide CAV
judgment and order dated 03.05.2011, upheld the
validity of the GR and the provision of the Tenancy
Act. Thus, the petition preferred by the petitioners
also came to be disposed of by the aforesaid common
judgment dated 03.05.2011. He further submits that
the aforesaid judgment dated 03.05.2011 of the
Division Bench of this Court came to be challenged
before the Hon’ble Apex Court by preferring Civil
Appeal No. 4121 of 2012 & other allied matters.
However, the said appeal also came to be dismissed.
18. So far as the contention of inaction on the part
of the respondent authorities is concerned, learned
AGP has submitted that the concerned revenue
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authority has already submitted the proposal to the
Revenue Department of the State for its approval and
before any decision is taken by the said authority,
the petitioners have preferred the petition before
this Court and during the pendency of the said
petition, the State Government had passed another GR
and therefore pursuant to the directions issued by
the Coordinate Bench of this Court and based upon the
said GR, the Revenue Department directed the
concerned revenue authority to carry out the exercise
of revaluation of the subject land since the period
of more than two years has been passed by from the
date of earlier proposal. Therefore, the petitioners
have preferred another petition before this Court
challenging the said communication and during the
pendency of the said petition, the Revenue Department
has passed another G.R. dated 04.07.2008 and said GR
and provisin of Section 43 have been challenged
before this Court by various petitioners and since
the said petition preferred by the petitioners is
also on the same line, it has been clubbed with those
petitions. The said group of petitions as well as
appeals including the petition of the petitioners
have been dismissed by the Coordinate Bench of this
Court and the said decision of the Division Bench of
this Court has been assailed before the Hon’ble Apex
Court and therefore on account of pendency of the
issue, the respondents could not be in a position to
take any decision on the application filed by the
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petitioners and therefore it cannot be said that the
respondents have sat tight over the issue and there
is inaction on the part of the revenue authorities
for not taking any decision on the application of the
petitioners. He further submits that during the
pendency of the present petition, petitioners have
also filed one application for determination of the
amount of premium and direction against the
respondent authorities to accept the said amount of
premium. The said application has been allowed by
this Court and petitioners were directed to pay the
amount of premium of Rs.6,91,20,960/- and the
concerned revenue authorities were directed to pass
an order to that effect. He submits that therefore
the concerned Collector has already taken a decision
on 22.01.2020 accepting the premium of
Rs.6,91,20,960/- from the petitioners and therefore
pendency of the petition is merely an empty
formality. He, therefore, submits that petition is
required to be dismissed.
19. In rebuttal, learned advocate Mr. Shah for the
petitioners submits that since the jantri rate of the
subject land has been changed frequently during the
pendency of this petition, the petitioners have, out
of an abundance of caution, preferred one application
before this Court for determination of the amount of
premium and direction against the respondents to
accept the amount of premium so fixed by the Court.
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The said application has been allowed by the
Coordinate Bench of this Court, whereby, petitioners
were directed to deposit an amount of
Rs.6,91,20,960/- by assessing the value of the
subject land as Rs.40,262/-per sq. mtrs. He submits
that the said order is passed on account of an
interim arrangement by specifically observing that
the said order is passed without prejudice to the
rights and contentions of both the parties which they
may raise during the course of hearing of this
petition. Thus, the said order is passed as an
interim arrangement and if the concerned revenue
authorities have taken a decision based upon that
interim order, it cannot be said that since the
concerned revenue authorities have already taken a
decision, the pendency of this petition is an empty
formality. He further submits that it is the specific
case of the petitioners that since the year 2002-2003
till date, the concerned revenue authorities have
either not taken any decision over the application
preferred by the petitioners or communicated the said
decision to the petitioners and therefore the amount
of the subject land is required to be fixed either at
Rs.2000/- i.e. the price of the land decided on
18.09.2003 or at the most it can be fixed at
Rs.14,500/- as decided on 29.03.2007. He submits that
excess amount of premium may be refunded to the
petitioners.
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20. Having heard the learned advocates appearing for
both the parties and having considered the materials
placed on record, it appears that the petitioners
were holding the subject land, which is of restricted
tenure under the provisions of Section 43 of the Act.
Thus, the subject land was of ‘new tenure’ and
therefore, the petitioners have made an application
dated 7th October, 2002 to the Deputy Collector,
Choryasi Pranth, for conversion of the land in
question from ‘new tenure’ to ‘old tenure’. It also
transpires from the record that by way of resolution
No.6, it was unanimously decided to charge premium at
the rate of Rs.2,000/- for some portion of subject
land and at the rate of Rs.2,500/- for the remaining
part of the subject land. The petitioners came to
know about the said fact only when they obtained the
relevant papers under the Right to Information Act.
It also transpires from the record that the Collector
informed the Deputy Secretary of the Revenue
Department that since the market value of the subject
land is more than Rs.50 lacs, the valuation of the
subject land is required to be fixed by the State
Level Valuation Committee. Therefore, the decision
taken by the District Valuation Committee has been
referred to the Secretary, Revenue Department for
approval. Thereafter, the Revenue Department sought
certain information qua the market value of the
subject land along with the map as per the guidelines
issued by the Chief Town Planner and also to give
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information as to whether the Town Planner has made
valuation of the land in question or not. Thereafter,
the Chief Town Planner forwarded the Valuation Report
to the Revenue Department, which crystallizes the
position of fact that the Chief Town Planner had also
valued the land in question at the rate of Rs.2,000/-
per sq.mtr. as on 18.09.2003. I have also perused the
contents of the said report, which is annexed with
the memo of the petition. It also transpires from the
record that on account of inaction on the part of the
respondent authorities, the petitioners have
preferred one petition being Special Civil
Application No. 4869 of 2006 before this Court,
wherein, the Court passed the following order:
“What is prayed for in the present
special civil application is for directing
the respondents to take an appropriate
decision to determine the amount of premium
for conversion of land in question from new
tenure to old tenure as early as possible.
Shri Dipen Desai, learned AGP has submitted
that the appropriate authority has already
taken an appropriate decision, however, the
same is pending before the State Government
for its approval. Under the circumstances,
the respondent No.2 is directed to take an
appropriate decision and determine the
amount of premium for the land in question
in accordance with law and on merits as
early as possible preferably within a period
of three months from the date of receipt of
the order of this Court and shall also
communicate the ultimate outcome of the same
to the petitioners.
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application is disposed of accordingly.
Notice is discharged. However, there
shall be no order as to costs.”
21. Thus, the aforesaid order clearly crystallizes
the fact that as per the submission made by learned
AGP, an appropriate authority has already taken an
appropriate decision, however, the same was pending
before the State Government for its approval and
considering the said submission of the learned AGP,
the Coordinate Bench of this Court directed the
concerned respondent authority to take an appropriate
decision and determine the amount of premium for the
subject land within a period of three months from the
date of receipt of the order. Thus, it clearly
transpires that even though the decision is taken by
the Collector, Surat on 20/22.03.2004 and sent for
its approval by the State Level Committee, the said
decision has not been approved by the said Committee
and therefore on account of the said inaction on the
part of the concerned revenue authority, petitioners
were constrained to file the aforesaid petition.
However, instead of taking a decision in compliance
of the aforesaid order, once again the issue has been
remanded by the Revenue Department to the concerned
revenue authority for carrying out the exercise of
revaluation of the subject land vide communication
dated 26.07.2006. It transpires from the record that
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pursuant to the aforesaid direction issued by the
Revenue Department, the office of the concerned
revenue authority has once again sent a proposal on
03.05.2007 to the Revenue Department after making the
revaluation of the subject land at Rs.14,500/- per
sq. mtrs. During the interregnum period, the
petitioners have preferred a petition assailing the
aforesaid communication dated 26.07.2006 issued by
the Revenue Department. However, during the pendency
of the said petition, the State Government, Revenue
Department had also issued one GR dated 04.07.2008.
Therefore, number of persons have assailed the said
GR dated 04.07.2008 as well as provision of Section
43 of the Act by way of preferring various petitions
before this Court. Accordingly, the petition
preferred by the petitioner also came to be tagged
along with those petitions since the petition filed
by the petitionrs is also on the same line and the
Division Bench of this Court has, vide common CAV
judgment dated 03.05.2011, dismissed all those
petitions and Letters Patent Appeals upholding the
validity of the aforesaid GR dated 04.07.2008. Being
aggrieved by the said decision, some persons have
assailed the said decision before the Hon’ble Apex
Court by preferring Civil Appeal No.4123 of 2012 and
allied matters. The said appeals also came to be
dismissed by the Hon’ble Apex Court vide judgment
dated 25.02.2014, inter alia, holding as under:
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“[23] As far as the levy of the 80 per cent
of the amount is concerned, it was submitted
that it was unconscionable, and it would
mean expropriation, and will be hit by
Article 300A of the Constitution. Once we
see the scheme of these provisions, in our
view, no such submission can be entertained.
In any case Mr. Nariman has pointed out that
after the impugned judgment, the State
Government has reduced the levy to 40 per
cent which is obviously quite reasonable.
[24] The last point which requires
consideration is with respect to the period
for considering the application, and
granting the sanction. There is some merit
in the submission of the appellants in this
behalf. Such application cannot be kept
pending indefinitely, and therefore we would
expect the Collector to decide such
applications as far as possible within 90
days from the receipt of the application, on
the lines of the judgment of this Court in
Patel Raghav Natha. In the event the
application is not being decided within 90
days, we expect the Collector to record the
reasons why the decision is getting belated.
[25] For the reasons stated above we do not
find any reason to interfere in the impugned
judgment rendered by the Division Bench,
approving the decisions rendered by the
Single Judges in the Writ Petitions. All
appeals are, therefore, dismissed with no
order as to costs.”
22. Thus, from the aforesaid observations made by
the Hon’ble Apex Court, while upholding the decision
of the Division Bench of this Court, wherein, the
Division Bench has held that the crucial date for
determination of the premium is the date on which thePage 35 of 58
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Collector grants such permission and not the date
when the petitioners have made an application, the
Hon’ble Apex Court has specifically held that the
Collector is expected to decide such application as
far as possible within 90 days from the receipt of
the application, on the lines of the judgment of the
Hon’ble Apex Court in Patel Raghav Natha and such
application cannot be kept pending indefinitely.
However, in the instant case, it is an admitted
position of fact that the office of the Collector had
sent the proposal twice to the Revenue Department for
its approval firstly on 20/22.03.2004 and secondly on
03.05.2007. However, the Revenue Department has sat
tight over the issue and not taken any decision over
the said proposals, despite the specific directions
issued by this Court to take a decision within a
period of three months from the date of receipt of
copy of the order dated 25.04.2006 passed in Special
Civil Application No. 4869 of 2006. It is pertinent
to note that the first proposal was sent by the
office of the Collector on 20/22.03.2004 and till the
filing of the petition in the year 2006, the Revenue
Department had not decided the said proposal for
almost more than 2 years. Thereafter, even after
passing of the aforesaid judgment by the Hon’ble Apex
Court on 25.02.2014, the respondents have not taken
any decision under the pretext of pendency of the
matter before this Court as well as Hon’ble Apex
Court.
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23. It is also pertinent to note that during the
pendency of this petition as the jantri rate of the
subject land has been changed frequently, the
petitioners have, as an abundant caution, preferred
one application being Civil Application No.12057 of
2017 before this Court for determination of the
amount of premium. The said application has been
allowed by the Coordinate Bench of this Court vide
order dated 21.09.2017, whereby, petitioners were
directed to deposit an amount of Rs.6,91,20,960/- by
assessing the value of the subject land as
Rs.40,262/-per sq. mtrs. The said order reads as
under:
“1 By this Civil Application, the applicants –
original petitioners have prayed for the
following reliefs:
“9 a) to direct the Collector to accept the
amount of premium at the current rate of
Jantri and to convert the land bearing Block
No.95 (Old Revenue Survey No.77+7/2) and
Final Plot No.114 of village Althan, Taluka
Choryasi, District Surat from new tenure to
old tenure within a period of one month
without prejudice to the rights and
contentions of the parties and subject to the
outcome of the petition;
b) Alternatively, direct the opponents to
accept the amount of premium at the current
rate of Jantri and to convert the land
bearing Block No.95 (Old Revenue Survey
No.77+7/2) and Final Plot No.114 of village
Althan, Taluka Choryasi, District Surat from
new tenure to old tenure on the basis of thePage 37 of 58
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application dated 07.10.2002 unconditionally
and be further pleased to direct that the
process of such decision may be expedited and
completed within a period of one month.
c) To pass such other and further reliefs as
Your Lordships may deem just, fit and
expedient be granted in favour of the
applicants.”
2 The State respondents have taken almost
thirteen years to yet take a decision as regards
the amount of premium to be paid by the
applicants for the purpose of conversion of the
restricted land to old tenure land. The
applicants are the joint owners of an ancestral
property being an agricultural land bearing
block No.95 admeasuring 11,432 sq. mtrs.
situated at village: Althan, which has been
reconstituted as the three separate final plots
i.e. (i) Final Plot No.114 admeasuring 4272 sq.
mtrs., (ii) Final Plots Nos.35A and 35B
admeasuring 962 sq. mtrs. and 1133 sq. mtrs.
respectively.
3 The issue involved in the main petition is qua
the Final Plot No.114 admeasuring 4272 sq. mtrs.
It appears that the applicants derived the land
in question in the tenancy proceedings, and
therefore, the restrictions of Section 43 under
the Tenancy Act are applicable to the land in
question.
4 The record reveals that the applicants
preferred an application dated 7th October 2002
addressed to the Deputy Collector, Choryasi
Prant for conversion of the land from ‘new
tenure’ to ‘old tenure’. The application filed
in the year 2002 was taken into consideration,
and the District Valuation Committee, by way of
the resolution No.6, fixed the price at
Rs.2,000/ per sq. mtr. for part of the land of
Final Plot No.114, and at the rate of Rs.2,500/
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per sq. mtr. for the remaining part of the land.
By letter dated 20th March 2004, the Collector,
Surat informed the Deputy Secretary, Revenue
Department that the market value of the land in
question is of Rs.85,44,000/, and the amount of
premium would come to Rs.59,80,800/ (70% of the
market value), and as the market value of the
land exceeds Rs.50 Lac, the value of the land in
question would be determined by the State Level
Valuation Committee.
5 Without going into any further details in this
regard, it appears that no decision was taken at
the end of the State Government in this regard.
I am given to understand that as no decision
could be taken within a period of two years as
regards the proposal forwarded to the State
Government, the proposal was treated to have
lapsed. With the lapsing of the proposal,
everything had to be undertaken a fresh. It
appears that the very same exercise was
undertaken, and in the year 2007, the value of
the land was assessed at Rs.14,500/ per sq.
mtr., and the amount of premium was determined
at Rs.4,95,55,200/. Once again, the same
exercise was undertaken, and I am given to
understand that no decision was taken by the
State Government in this regard. At both the
stages, the applicants were ready and willing to
deposit the amount, as determined.
6 After a period of thirteen years, the
Government has now assessed the value of the
property at Rs.40,262/ per sq. mtr., and
according to the prevailing policy, the
applicants will have to deposit 40% of the total
amount of the value of the property. If we
calculate the value of the property at the rate
of Rs.40,262/ per sq. mtr., then the value of
the land in question i.e. the Final Plot No.114
admeasuring 4272 sq. mtrs. is assessed at
Rs.17,28,02,400/. The 40% of this amount would
come to around Rs.6,91,20,960/ (in words: Rupees
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Six Crore Ninety One Lac Twenty Thousand Nine
Hundred Sixty only).
7 The applicants are ready and willing to
deposit the amount of Rs.6,91,20,960/ as on
date. But, it appears that the State Government
is yet to take any final decision in this
regard. The apprehension expressed by the
applicants is that within the next few months,
the Jantri rate may be revised again, and if it
so happens, then the value of the property will
be assessed accordingly, and the amount of
premium will be much higher than the amount due
and payable today.
8 I fail to understand why no final and
appropriate decision is taken past thirteen
years. Ms. Thakore, the learned A.G.P. appearing
for the State respondent tried her best to
explain me as to what happened during the
interregnum period of thirteen years. The
learned A.G.P. brought to my notice the filing
of the two petitions in between by the
applicants and the disposal of the same. I shall
consider the explanation which is sought to be
offered by the State Government at the time of
hearing of the main matter.
9 I am inclined to pass some interim order today
which would protect the interest of both i.e.
the applicants as well as the State. I direct
the applicants to deposit the amount of
Rs.6,91,20,960/ with the office of the
Collector, Surat at the earliest. The authority
concerned shall accept the amount and pass an
appropriate order as regards conversion of the
land from ‘new tenure’ to ‘old tenure’. This
deposit of the amount by the applicants shall be
without prejudice to their rights and
contentions that they may raise in the course of
the hearing of the main matter. This would also
apply qua the State Government. It is understood
that the authority concerned shall accept the
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same subject to their rights and contentions.
10 It is brought to my notice by Mr. Shah, the
learned counsel appearing for the applicants
that in the past, an identical order was passed
by a learned Single Judge of this Court in the
case of Madhu Developers vs. State of Gujarat
and others [Special Civil Application No.18936
of 2015 decided on 10th December 2015]. The
order reads as under:
“1. The prayer made in the petition is to
direct the Collector to grant revised N.A.
permission by charging necessary conversion
charges as per the provisions of Gujarat
Revenue Code. It appears that the Gujarat
Revenue Tribunal passed order dated
31/08/2015 setting aside the order dated
12/02/2015 passed by the Deputy Collector and
remanded the matter to pass amended order by
holding that since the land was already
converted for N.A. purpose, the petitioner is
required to pay premium only for commercial
use of the land.
2. The grievance of the petitioner is that
though such order of the Tribunal has become
final and that the petitioner is not required
to pay any other premium under Section 43 of
the Tenancy Act, the Collector still insisted
for payment of such premium for the purpose
of conversion of the land under Section 43 of
the Tenancy Act, and on such insistence, the
application of the petitioner for revised
N.A. permission is not being considered.
3. This Court on 6.11.2015 passed following
order:
“Notice returnable on 23rd November,2015.
Learned AGP Ms. Thakore appearing for
respondent No.1 on advance copy waives
service of notice for respondent No.1.
Direct Service for rest of the respondentsPage 41 of 58
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is permitted.
Learned Advocate Mr. Shah states that the
petitioners are agreeable to deposit the
amount of premium as stated in the
impugned order dated 12.2.2015 without
prejudice to the rights of the petitioners
and subject to the rights and contentions
of the parties. Therefore, on returnable
date, respondent No.2 Collector may state
on affidavit as to whether the amount from
the petitioner as required by the impugned
order could be accepted for considering
the application of the petitioner for
revised permission.”
4. The Collector then filed affidavit inter
alia stating that the State would be entitled
to get premium as on the date of the
decision, that by filing the undertaking by
the petitioner to deposit of amount of
premium, the petitioner wants to secure
advance rates and wants to avoid deposit of
the premium as on the date of actual
decision. Pending the petition, the
petitioner has now filed application being
Civil Application No. 13023 of 2015, seeking
permission to deposit the premium amount as
demanded by the Collector for grant of N.A.
permission for land in question without
prejudice to the rights and contentions of
both the parties and subject to final outcome
of the proceedings of the main petition.
5. Learned advocate Mr. Shah submitted that
since the order of the Tribunal is not
challenged, the Collector was required to
grant the revised N.A. permission by
accepting the amount of N.A. premium for
commercial use. Mr. Shah submitted that the
petitioner however in order to avoid any
delay in developing the land wants to deposit
the premium amount even under Section 43 of
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the Tenancy Act so that the application for
revised N.A. permission could be granted and
the petitioner could develop the land.
6. Learned AGP Mr. Patel on the other hand
submitted that till the question involved in
the matter as to whether the petitioner is
liable to pay premium on conversion under
Section 43 of the Tenancy Act is decided, the
petitioner in advance could not be permitted
to pay the amount as the relevant date for
such premium will be date of decision, and
therefore by permitting the petitioner to
deposit such amount in advance, the interest
of the State to collect appropriate revenue
shall be affected.
7. The Court having heard learned advocates
for the parties finds that the petitioner has
already succeeded before the Gujarat Revenue
Tribunal in Revision Application No. 26 of
2015, which was filed against the order dated
12/02/2015 passed by the Deputy Collector,
whereunder the application of the petitioner
for N.A. permission for commercial use was
disposed of on the ground that the petitioner
did not give consent to deposit the amount of
premium under Section 43 of the Tenancy Act
as per the prevailing jantri.
8. The Collector, however, is of the view
that the petitioner would still be required
to pay premium under Section 43 over and
above the premium paid for change of use
under Section 65, as the permission which was
granted under Section 65 lapsed because of
noncompliance of the condition of the order
passed under section 65. However, the Court
finds that as per the communication dated
12/02/2015 of the Deputy Collector, if the
petitioner had given undertaking, his
application for change of use could be
considered. The petitioner has then succeeded
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before the Tribunal. In such facts situation,
now when the petitioner is ready to deposit
such premium subject to his rights and
contentions in the main petition, the Court
finds that there should not be any objection
on the part of the State Authority.
9. In view of the above, Rule returnable on
27/06/2016. Learned AGP Mr. Patel waives
service of Rule for the respondents.
10. By way of interim relief, it is directed
that the petitioner shall be permitted to
deposit the amount of premium as required
under Section 43 of the Tenancy Act. However,
such deposit of the premium by the petitioner
shall be without prejudice to the rights and
contentions of the parties and subject to the
final outcome of the main petition.
11. Learned Advocate Mr. Shah states that the
petitioner shall deposit of such premium
within 15 days from today with the office of
Collector. On such deposit made by the
petitioner, the collector shall take further
action on the application preferred by the
petitioner for revised N.A. permission.
12. It is directed if the petitioner succeeds
in the present petition, the petitioner shall
be entitled to refund of amount, deposited by
the petitioner in pursuace of the present
order with interest.
Order in Civil Application No. 13023 of 2015.
Since the Court passed an interim order in
main petition, no order is required on the
civil application. Hence, it is disposed of.”
11 It further appears that the order passed by
the learned Single Judge referred to above was
carried in appeal by the State by filing the
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Letters Patent Appeal No.137 of 2016. With some
modifications, the order of the learned Single
Judge was affirmed. I may quote the order passed
by the Division Bench in the Letters Patent
Appeal No.137 of 2016 dated 15th March 2016 as
under:
“1. This appeal is filed under Clause 15 of
the Letters Patent by the respondent in
Special Civil Application no.18936 of 2015
aggrieved by order of the learned Single
Judge dated 10.12.2015 passed in Special
Civil Application No.18936 of 2015.
2. As the matter is pending before the
learned Single Judge, it is not necessary at
this stage to give the detailed facts. In the
petition being Special Civil Application
No.18936 of 2015, the respondent-petitioner
prayed for direction to the Collector to
grant revised NA (nonagricultural) permission
by charging necessary conversion charges as
per the provisions of Gujarat Revenue Code.
Gujarat Revenue Tribunal has passed an order
dated 31.8.2015 by setting aside an order
dated 12.2.2015 passed by Deputy Collector
and remanded the matter by holding that land
was already converted for nonagricultural
purpose and the respondent is required to pay
the premium only for commercial use of the
land. It is the case of the respondent that
the order has become final and in view of the
order of the Tribunal, the respondent is not
required to pay any other premium as
contemplated under Section 43 of the Tenancy
Act. Learned Single Judge in the order dated
10.12.2015 has passed the following order:
“10. By way of interim relief, it is
directed that the petitioner shall be
permitted to deposit the amount of premium
as required under Section 43 of the
Tenancy Act. However, such deposit of thePage 45 of 58
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premium by the petitioner shall be without
prejudice to the rights and contentions of
the parties and subject to the final
outcome of the main petition.
11. Learned Advocate Mr.Shah states that
the petitioner shall deposit of such
premium within 15 days from today with the
office of Collector. On such deposit made
by the petitioner, the collector shall
take further action on the application
preferred by the petitioner for revised
N.A. permission.
12. It is directed if the petitioner
succeeds in the present petition, the
petitioner shall be entitled to refund of
amount, deposited by the petitioner in
pursuance of the present order with
interest.”
3. Heard learned Government Pleader Ms.Shah
for the appellant and learned counsel
Mr.Mehul Sharad Shah for the respondent. It
is revealed that while the Special Civil
Application is pending, the learned Single
Judge has permitted the respondent-petitioner
to deposit the premium without prejudice to
the rights and contentions of the parties,
however, further observed that in the event
of success by the respondent-petitioner, he
is entitled for refund of the deposit made by
him towards the premium amount along with
interest. Primarily, the order to the extent
of observing that the respondent is entitled
to refund of premium amount with interest is
under challenge in this appeal. But the
learned counsel appearing for the respondent
fairly conceded that in the event of success
in the main petition, he will not claim any
interest on the premium amount.
4. In view of the statement made by learned
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counsel for respondent, this Letters Patent
Appeal is allowed partly by setting aside the
direction to the extent of return of the
premium amount with interest but in all other
respects the order is confirmed. At the same
time, we request the learned Single Judge to
dispose off the Special Civil Application as
expeditiously as possible. It is open for the
petitioner to move an application before the
learned Single Judge for expeditious disposal
of the petition. It is made clear that it is
open for the respondent to raise all
contentions in Special Civil Application.
Letters Patent Appeal is allowed to the
extent indicated above. No order as to costs.
5. Civil Application No.1859 of 2016 is
disposed off in view of the order passed in
Letters Patent Appeal No.137 of 2016.”
12 Let this exercise be undertaken at the
earliest and needful be done in accordance with
law within a period of four weeks from the date
of receipt of this order.
13 With the above, this Civil Application is
disposed of. Direct service is permitted.”
24. It is pertinent to note that the aforesaid
interim order came to be passed on 21.09.2017,
whereby, without prejudice to the rights and
contentions of both the parties, the petitioners were
directed to deposit an amount of Rs.6,91,20,960/-
with the office of the Collector, Surat at the
earliest and concerned revenue authorities were
directed to accept the said amount and pass an
appropriate order as regards conversion of the land
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from new tenure to old tenure. Despite the specific
direction issued to the concerned revenue authorities
to undertake the aforesaid exercise at the earliest
and within a period of four weeks from the date of
receipt of the order, the concerned revenue
authorities have not accepted the amount of premium
and passed any order. Therefore, the Coordinate Bench
of this Court has passed the following order on
16.10.2018:
“1. xxx xxx xxx
2. Above such prayers are made in the context of
the application made by the petitioners before
the concerned authority seeking conversion of
the land in question from new tenure to old
tenure.
3. The petition was filed in the year 2015 and
pending the petition, the petitioners moved one
Civil Application No.12057 of 2017 for following
reliefs:-
“a) to direct the Collector to accept the
amount of premium at the current rate of
Jantri and to convert the land bearing Block
No.95 (Old Revenue Survey No.77+7/2) and
Final Plot No.114 of village Althan, Taluka
Choryasi, District Surat from new tenure to
old tenure within a period of one month
without prejudice to the rights and
contentions of the parties and subject to the
outcome of the petition;
b) Alternatively, direct the opponents to
accept the amount of premium at the current
rate of Jantri and to convert the land
bearing Block No.95 (Old Revenue SurveyPage 48 of 58
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No.77+7/2) and Final Plot No.114 of village
Althan, Taluka Choryasi, District Surat from
new tenure to old tenure on the basis of the
application dated 07.10.2002 unconditionally
and be further pleased to direct that the
process of such decision may be expedited and
completed within a period of one month.
c) To pass such other and further reliefs as
Your Lordships may deem just, fit and
expedient be granted in favour of the
applicants.”
4. The civil application was disposed of vide
order dated 21.9.2017 by issuing directions as
contained in para 9 with further order as
contained in para 12 thereof. Para 9 and 12 of
the said order read as under:-
9. I am inclined to pass some interim order
today which would protect the interest of
both i.e. the applicants as well as the
State. I direct the applicants to deposit the
amount of Rs.6,91,20,960/ with the office of
the Collector, Surat at the earliest. The
authority concerned shall accept the amount
and pass an appropriate order as regards
conversion of the land from ‘new tenure’ to
‘old tenure’. This deposit of the amount by
the applicants shall be without prejudice to
their rights and contentions that they may
raise in the course of the hearing of the
main matter. This would also apply qua the
State Government. It is understood that the
authority concerned shall accept the same
subject to their rights and contentions.
12. Let this exercise be undertaken at the
earliest and needful be done in accordance
with law within a period of four weeks from
the date of receipt of this order.
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5. After the above order was made, the
petitioner had made grievance that the
directions issued by this Court in the above-
referred Civil Application were not being
complied with. At the earlier hearing of the
petition, it was submitted by learned Assistant
Government Pleader Ms. Thakore that under the
said directions, the petitioners were required
to deposit Rs.6,91,20,960/-, however the
petitioners did not deposit the said amount and
therefore, no further action pursuant to the
directions issued by this Court could be taken.
However, it was the submission of learned
advocate Mr. Shah appearing for the petitioners
that the office of the Collector was
deliberately not accepting the above amount.
But, then, as per the oral instructions from
learned Assistant Government Pleader Ms.
Thakore, the amount was accepted by the office
of the Collector from the petitioners. After
deposit of the above amount, the respondents
were to take further steps as per the directions
issued by this Court vide order dated 21.9.2017
passed in the above-referred Civil Application.
6. However, since no further action was being
taken, Mr. Shah made serious grievance on non-
compliance of the directions issued by this
Court.
7. Before the last two dates of hearing, when
the Court inquired from learned Assistant
Government Pleader Ms. Thakore as to what steps
were being taken to comply with the directions
issued by this Court, she tendered copy of the
letter dated 9.7.2018 addressed by the Section
Officer, Revenue Department, Gujarat State to
the petitioner No.2, wherein it is stated that
land bearing Survey No.79, admeasuring 25503 Sq.
Mtrs. was declared surplus and possession
thereof was taken on 27.7.1990 and since such
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possession was with the State Government till
the ULC Act was repealed, in view of the Repeal
Act, 1999, ownership of the land would be
considered of the State Government, and
therefore, request for issuing No Objection
Certificate for the land of Survey No.79 Paiki
admeasuring 25503 Sq. Mtrs. is not granted.
However, learned advocate Mr. Shah instantly
drew the attention of the Court to one order
dated 24.4.2002 passed by the competent
authority and Additional Collector, ULC, Surat,
wherein the competent authority has observed
that the order declaring the above land as
surplus was set aside vide order dated 12.1.1999
in the Appeal No.18 of 1998 filed under Section
33 of the ULC Act by the landholder and all the
subsequent proceedings were declared non est and
the matter was remanded to decide it afresh and
thereafter, since the ULC Act was repealed, all
proceedings pending were automatically rendered
ineffective. It is further stated that till
30.3.1999, i.e. the date of repeal of the ULC
Act, since the above land did not remain as
surplus land, the question of taking possession
of the above land did not arise.
8. Learned Assistant Government Pleader Ms.
Thakore however submitted that since the
decision was taken by the concerned ULC
Committee not to issue No Objection Certificate,
the application of the petitioner for conversion
of the land from new tenure to old tenure was
rejected. The Court however asked learned
Assistant Government Pleader Ms. Thakore whether
when the ULC Committee took decision, the order
dated 24.4.2002 of the competent authority was
considered, she under the instructions of the
officer present in the Court stated before the
Court that when the decision was taken not to
issue No Objection Certificate for the land in
question, the order dated 24.4.2002 of the
competent authority was not brought to the
notice of the concerned committee. It is in such
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context, the Court finds that the Collector
should place the order dated 24.4.2002 of the
competent authority before the concerned ULC
Committee and invite fresh decision of the ULC
Committee thereafter, the Collector should
reconsider the application of the petitioner for
conversion of the land from new tenure to old
tenure.
9. In view of the above, the Collector is
directed to place the copy of order dated
24.4.2002 passed by the competent authority and
Additional Collector, ULC, Surat in connection
with the land bearing Survey No.79 Paiki
admeasuring 25503 Sq. Mtrs. before the concerned
ULC Committee for its fresh consideration and
decision within a period of ONE WEEK from the
date of receipt of this order and the concerned
ULC Committee then shall take fresh decision
after considering the above order of the
competent authority within a period of TWO WEEKS
thereafter and shall immediately communicate its
fresh decision to the Collector. Such fresh
decision shall be taken by the concerned ULC
Committee irrespective of the decision taken for
non-grant of No Objection Certificate for the
above land as intimated to the petitioner No.2
vide communication dated 9.7.2018 by the Section
Officer of the Revenue Department, Gujarat
State. It is directed that on receipt of fresh
decision from the concerned ULC Committee, the
Collector shall reconsider the application of
the petitioner for conversion of the land from
new tenure to old tenure and take appropriate
decision thereon. Such decision shall be placed
on record of the present petition before the
next date of hearing.
S.O. to 4th December 2018.
Direct Service is permitted.”
25. It is also pertinent to note that the aforesaid
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order came to be passed on 16.10.2018, whereby, the
Collector was directed to reconsider the application
of the petitioner for conversion of the land from new
tenure to old tenure and take appropriate decision
thereon and the said decision shall be placed before
the next date of hearing and thereafter the matter is
adjourned to 04.12.2018. However, on 04.12.2018 also,
the respondents have not placed any decision on
record. The aforesaid approach on the part of the
respondents clearly shows and suggests that they have
shown total disrespect to the directions issued by
this Court by various orders; firstly the order
passed on 25.04.2006, secondly the order dated
21.09.2017 and thirdly the aforesaid order dated
16.10.2018. Therefore, the Coordinate Bench of this
Court passed the following order:
“1. Learned advocate Mr.Mehul Sharad Shah, has
pointed out the order dated 16.10.2018, wherein
and whereby this Court after passing a
comprehensive order had directed the respondent
authority to take appropriate decision and place
the same on record before the next date of
hearing i.e. on 04.12.2018.
2. Learned advocate Mr.Shah, has submitted that
as on today, such decision is not placed on
record of the petition.
3. Learned Assistant Government Pleader requests
for some time.
4. In case, it is found that no such decision is
taken, as directed by this Court vide order
dated 16.10.2018, the reason for not taking suchPage 53 of 58
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decision shall be incorporated by way of an
affidavit. If any decision is taken, the same
shall also be produced before this Court.
5. It is clarified that if no decision is taken,
this Court would be constrained to impose
exemplary cost on the Officer, who is handling
the file.
6. The matter is kept on 25.01.2023, at top of
the Board.
7. Learned Assistant Government Pleader shall
communicate the present order to the concerned
Officer forthwith.”
26. Thus, after the aforesaid order, the Deputy
Collector, Land Reforms, Surat filed further
affidavit on behalf of respondent No.2, inter alia,
stating that pursuant to the order dated 16.10.2018,
the concerned respondent authority had passed an
order for conversion of subject land from restricted
tenure to old tenure. A copy of the order dated
22.01.2020 is appended along with the said affidavit.
Thus, only after the aforesaid order passed by the
Coordinate Bench of this Court, inter alia, observing
to impose exemplary cost on the officer, who is
handling the file, for the first time, the copy of
the order dated 22.01.2020 has been placed on record.
Thus, the aforesaid undisputed facts show the
adamancy on the part of the respondent authorities.
27. Thus, in view of the aforesaid overall facts and
circumstances of the case, so far as the contention
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raised by learned AGP Mr.Trivedi for the respondents
that on account of pendency of the petition before
the Division Bench of this Court and thereafter
before the Hon’ble Apex Court, the respondent
authorities could not be in a position to take any
decision over the application of the petitioners is
concerned, the same would not be sustainable.
28. Another contention raised by learned AGP Mr.
Trivedi for the respondents is that since the
decision is taken by the Collector, Surat on
22.01.2020 in compliance of the directions issued by
this Court and therefore pendency of the petition is
merely an empty formality. However, it is pertinent
to note that the order dated 21.09.2017 passed by the
Coordinate Bench of this Court in Civil Application
No.12057 of 2017 is an interim order and petitioners
were directed to deposit an amount of
Rs.6,91,20,960/- before the Collector, Surat subject
to their rights and contentions that they may raise
at the time of final hearing of this petition. Thus,
based on that interim order, petitioners have
deposited an amount of Rs.6,91,20,960/- with the
Collector, Surat and therefore the said contention of
the learned AGP is also not sustainable.
29. It is pertinent to note that the first proposal
was sent by the office of the Collector to the
Revenue Department on 20/22.03.2004 by assessing the
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market value of the subject land at Rs.2000/-.
However, as any decision is not taken by the Revenue
Department on the said proposal for more than 2
years, the petitioners were constrained to file a
petition before this Court, wherein, the Coordinate
Bench of this Court has passed an order based upon
the statement made by the learned AGP to the effect
that ‘an appropriate authority has already taken an
appropriate decision, however, the same is pending
before the State Government for its approval’ and
therefore the Court issued direction to the Revenue
Department to take an appropriate decision and
determine the amount of premium for the land in
question within a period of three months from the
date of receipt of the order. However, instead of
taking any decision, as directed by this Court, the
Revenue Department has once again directed the office
of the Collector to carry out the exercise of
revaluation of the market price of the subject land.
It is also pertinent to note that thereafter also the
office of the Collector had forwarded second proposal
to the Deputy Secretary, Revenue Department on
03.05.2007 by assessing the market value of the
subject land at Rs.14,500/-. However, the Revenue
Department had also not taken any decision on the
said second proposal. Thus, it transpires that though
the Collector had taken decision twice and forwarded
the proposal twice to the Revenue Department for its
approval, the Revenue Department had not taken any
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decision. Thus, it appears that all these exercises
have been carried out by the concerned revenue
authorities before coming into force the G.R. dated
04.07.2008 and the concerned revenue authority sat
tight over the issue till the issuance of G.R. dated
04.07.2008.
30. As observed earlier, the office of the Collector
had submitted the proposal twice to the Revenue
Department since the market price of the subject land
is more than 50 lakhs and therefore the decision is
required to be approved by the State Level Valuation
Committee. The first proposal was sent on
20/22.03.2004 and at that time the price of the
subject land was assessed at Rs.2,000/- per sq. mtr.
and secondly when the proposal was sent on
03.05.2007, at that relevant point of time, the price
of the subject land was assessed at Rs.14,500/-. The
ratio laid down by the Hon’ble Apex Court in the case
of Gohil Jesangbhai Raysangbhai & Ors. (supra) would
be squarely applicable in the instant case and as
held in the said decision, the Collector is expected
to take a decision within 90 days from the date of
receipt of the application and therefore if the
decision taken by the Collector at the time of second
proposal is to be accepted, in that event, the
petitioners are required to make the payment of
premium at the rate of Rs.14,500/- per sq. mtr.
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31. In view of the aforesaid discussion, the
petition is partly allowed. The order dated
22.01.2020 passed by the Collector as well as Deputy
Collector, Surat is hereby quashed and set aside. The
respondents are directed to accept the amount of
premium by considering the value of the subject land
at the rate of Rs.14,500/- as decided unanimously on
29.03.2007 (a reference of which is given in the
second proposal dated 03.05.2007 sent to the Deputy
Secretary, Revenue Department by the office of the
Collector, Surat) as per the policy of the State
Government, prevalent as on 03.05.2007 and to convert
the subject land from new tenure to old tenure on the
basis of the application submitted by the
petitioners. The differential amount of premium
already deposited by the petitioner with the office
of the Collector, Surat shall be refunded to the
petitioners within a period of 8 weeks from the date
of receipt of copy of this order. The respondent
authorities shall carry out and conclude the
aforesaid exercise within a period of 8 weeks from
the date of receipt of copy of this order. Rule is
made absolute accordingly.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
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