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Judgment
D.A. Mehta, J.—The petition was originally preferred with the following prayers:
(A) This Honourable Court would be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the increase of the land value by 40% as decided at its meeting held on 17.4.2007 as communicated by letter dated 21st July, 2007 by the Respondent No. 2 at Annexure ''K'' and would further be pleased to direct the Respondents to refund the consequential difference in premium paid by the Petitioners.
(B) This Honourable Court would be pleased to issue a writ of certiorari or any other appropriate writ order or direction quashing and setting aside inclusion of 7874.70 sq.mtrs. of land handed over to the Surat Municipal Corporation by the Petitioners for calculating the premium amount and consequential refund of the excess amount recovered by the Respondents.
(C) This Honourable Court would be pleased to issue a writ of certiorari or any other appropriate writ order or direction directing the Respondents to consider the premium payable by the Petitioners at the rate of 70% instead of 80% and to arrange for the refund of the differential amount recovered by the Respondents.
(D) To grant such other and further relief or reliefs as this Honourable Court may deem fit and proper.
At the time of admission of the petition, the Court noted that the premium was paid by the petitioners under protest and the said fact has remained undisputed. It has further been found by the Court as referred in order dated 6.10.2008 that after the payment of premium under protest, land in question as per the provisions of Gujarat Town Planning and Urban Development Act, 1976 came to be deducted from the total area for which premium was received by the State.
Subsequent to the admission of the petition Civil Application No. 4225 of 2009 came to be preferred wherein following prayers were made:
(a) This Hon''ble Court may be pleased to pass appropriate order fixing an early date of hearing of Special Civil Application No. 29258 of 2007.
(b) Pending the admission, hearing and final disposal of the present application, this Hon''ble Court may be pleased to direct the Respondents to forthwith refund Rs. 97 lakhs or any other amount that may be determined by this Hon''ble Court to the Petitioners.
Or in the alternative
This Hon''ble Court may be pleased to direct the Respondents to deposit Rs. 97 lakhs (or any other amount that may be determined by this Hon''ble Court) in this Hon''ble Court forthwith.
(c) This Hon''ble Court may be pleased to pass such other and further order as this Hon''ble Court may deed fit and proper in the circumstances of the case.
The basic facts are that on 12.4.2004 petitioner No. 1 made an application for conversion of the tenure of land bearing survey No. 101 Block 146 of Village Dindoli admeasuring 26249 square meters from new to old tenure for the purpose of non-agricultural use. Vide communication dated 15.6.2007, the District Collector, Surat, informed petitioner No. 1 to pay premium of Rs. 3,23,38,768/-. On 21.7.2007, a sum of Rs. 65,59,200/- came to be paid under protest as the first installment. Subsequently, by 01.10.2007 the entire premium of Rs. 3,23,38,738/- was paid up under protest.
On 6.11.2007, the Town Development Officer of Surat Municipal Corporation approved development plan specifically indicating that 7874.70 sq.mtrs of land was acquired under the Town Planning Scheme and development permission was thus given only for 18,373.99 sq.mtrs of land. As a consequence on 08.11.2007, the District Collector granted permission for non-agricultural use for residential purpose in relation to 18373.99 sq.mtrs of land.
Petitioner No. 2 therefore made an application to the District Collector to refund the amount of premium in relation to 7874.70 sq.mtrs of land which amount is worked out at Rs. 97,02,000/-. The petitioner was not informed the fate of application and hence the petition was filed. Upon notice having been issued, vide affidavit-in-reply dated 04.09.2008, Under Secretary, Revenue Department, Gujarat State submitted that the application of the petitioner for refund of the amount has been rejected on 27.5.2008 as there was no policy in existence to refund the payment. The decision dated 27.5.2008 has come on record for the first time by way of Annexure-RIV to the affidavit-in-reply dated 04.09.2008.
On behalf of the petitioner learned senior advocate has placed reliance on two unreported decisions of this Court i.e. (i) in the case of Chimanbhai Budhiyabhai @ Chhaganbhai v. Deputy Collector (Choryasi), Surat and Ors. decided on 27.9.2005 in Special Civil Application No. 3127 of 2008 and, (ii) in the case of Parvatiben Becharbhai Bhagwanbhai and Ors. v. Dy. Collector (Choryasi) and Ors. decided on 14.10.2005 in Special Civil Application No. 1918 of 2005. It was submitted that in similar circumstances the High Court has held that the State can not retain the amount of premium collected when the land is not available to the petitioner.
On behalf of respondent-State learned Assistant Government Pleader submitted that as per the decision as is appearing with affidavit-in-reply there was no policy to refund the amount in such circumstances. That in the circumstances no such refund can be granted.
The facts are not in dispute. The petitioners made an application seeking change of the nature of holding of land from new tenure to old tenure, and for carrying out such a conversion and granting the sanction, respondent-State called upon the petitioners to make payment of premium at the specified rate. The land in question had already been included in the master plan prepared by Surat Urban Development Authority and this fact was made known to the respondent Authority by the petitioners, despite which respondent authority insisted for payment of premium. The stand of respondent authority that in absence of any policy refund cannot be granted to the petitioners has to be appreciated in light of averments made in paragraph Nos. 13 and 14 of the affidavit-in-reply. It is an accepted fact that vide Government Resolution dated 5.8.08 bearing No. Ganot/1108/474/Z a policy decision has been arrived at to charge premium as per the area of the final plot and not as per the area of the original plot. The only contention raised by the respondent authority is that the said resolution has no retrospective effect and as the payment had already been made as per premium fixed on 17.4.2007 and the application was made as far as back on 12.4.2004 no refund can be granted.
It is true that the application had been made in April, 2004 and the amount of premium was fixed on 17.4.2007 but at the same time, one can not overlook the fact that the land in question was already included in the master plan prepared by Surat Urban Development Authority and this fact was known to the respondent authority. In fact, proceedings under the Town Planning Act had already commenced and this becomes apparent when one considers the fact that on 6.11.2007 the Town Planning Officer had categorically approved the development plan after deducting area of 7874.70 sq.mtrs of land. In the circumstances the State Government cannot be heard to state that though the land of the citizen shall be acquired under the T.P. Scheme yet for the very same land premium also shall be levied and collected in absence of any policy. The premium that is charged by the State Government can be considered to be in the nature of a payment for granting permission, and if the permission is granted for lesser area of land, such amount cannot be collected for a larger area.
In the two decisions of this Court the Court has held that once an amount is fixed, revaluation is not permissible and any larger amount cannot be collected. Applying the ratio of the said decisions it becomes apparent that if the area of land, for which the amount is fixed, stands reduced a citizen cannot be put to loss at both ends.
Accordingly respondent is directed to refund the amount of Rs. 97,02,000/- within a period of 12 weeks from today, without waiting for a certified copy of the judgment. The amount, if not paid by the end of the said period of 12 weeks, shall be payable with interest at the rate of 10% per annum for the period thereafter.
The petition is accordingly allowed in aforesaid terms to the aforesaid extent and the remaining prayers are not granted.
Rule is made absolute with no order as to costs.
Civil Application is accordingly disposed of in light of the judgment rendered in the main petition.