Important Point
Land cannot be converted from new tenure to old tenure and/or restrictions under Section 43 of Tenancy Act cannot be removed unless and until premium determined as per policy of Government is paid.

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 18.10.2011 passed by the learned Single Judge in Special Civil Application No. 7937/2011 by which the learned Single Judge has allowed the said Special Civil Application preferred by the respondent herein – original petitioner [hereinafter referred to as “original petitioner”], the appellants herein – original respondents [hereinafter referred to as “State”] have preferred the present Letters Patent Appeal.

2. The facts leading to the present Letters Patent Appeal in nutshell are as under:

2.1 That grandmother of the original petitioner became the owner of the land bearing survey No.72 by virtue of the proceedings under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 [hereinafter referred to as “Tenancy Act”], however subject to the restrictions under Section 43 of the Tenancy Act and as new tenure (restricted) land. That the grandmother of the petitioner – original owner died/expired in the year 1970. That on the demise of grandmother of the petitioner, the aforesaid land was mutated in the name of her three daughters viz. Jamnaben (mother of the original petitioner), Gangaben and Naniben. That the aforesaid land later on came to be partitioned and each of the sister received 1/3rd of the land. That on the demise of the mother of the petitioner – Jamnaben, the land in question came to be transferred and mutated in the name of the petitioner as per the Will executed by the mother of the petitioner. That part of the land bearing survey No.72 came to be acquired by the competent authority for Pala Yojna in the year 1979 which included entire land of the mother of the petitioner and part of Gangaben. That the Land Acquisition Officer declared the award under the Land Acquisition Act, 1879 [hereinafter referred to as “Act”] on 26.03.1979 determining the compensation for the lands acquired. That while awarding the compensation and/or actual payment of the compensation determined, 5% of the compensation came to be deducted as the land acquired was a new tenure land. That thereafter the mother of the petitioner – Jamnaben moved an application seeking re-grant of the land owned by her and which was acquired under the provisions of the Act and even for which the award was declared under the provisions of the Act and the amount of compensation [deducting 5%] was paid to the original land owner, as the land was not covered by the Flood Protection Scheme and therefore, the same was not required to be used for the purpose for which the same was acquired. It is required to be noted that the re-grant of the land after the acquisition under the Act was under Para 328 of the Land Acquisition Manual. That in the meantime and before any order for re-grant of the land acquired could be considered and granted, said Jamnaben – mother of the petitioner died in the month of October, 1987. That thereafter the land in question was bequeathed by Will executed by the said Jamnaben, in favour of the petitioner. That thereafter the application submitted by the original owner – Jamnaben for re-grant of the land came to be processed and after obtaining opinion from the Executive Engineer, Surat etc., the Collector, Surat sent a proposal to the State Government vide communication dated 01.01.1990. That thereafter after completing further formalities the proposal was sent to the Revenue Department, State of Gujarat. That thereafter the Revenue Department, State of Gujarat granted the permission to the Collector, Surat to re-grant the land on payment of market price prevailing as per Para 328 of the Land Acquisition Manual and communicated the Collector to pass a detail order of re-grant. That thereafter on payment of the market price prevailing, by detailed order dated 15.04.2004 the Collector, Surat re-granted the land to the petitioner on the terms and conditions mentioned in the said order dated 15.04.2004 including the condition that on