A Collector cannot impose a condition for payment of non-agriculture premium under Section 65-B when determining an application for land use without deciding the occupancy rights.

1. The matter is taken up for final hearing and disposal with consent of learned advocates for the parties. Hence, RULE. Learned Assistant Government Pleader Mr. Rakesh Patel waives service of Rule for the respondents.

2. Challenge made in the present petition is against the communication dated 9.3.2015 at Annexure - A issued by the respondent No. 2 - the Collector, informing the petitioner that as per the promulgation register, for the land bearing survey No. 334 admeasuring A.8.21 Gunthas (old Survey No.613-2 ad - measuring 7 Acre), since occupancy rights were granted to Rama Kumbha Virda under S.6 of the Bombay Inam (Kachchh Area) Abolition Act, 1958 (“the Act”) on payment of 6 pats (6 times) the amount of assessment as recorded by entry no. 158 in the record of rights, the land is of new tenure subject to payment of non agriculture premium and, therefore, further action on the application under S.65B of the Gujarat Land Revenue Code , 1879 ('the Code') shall be taken only after the petitioner submits undertaking on the stamp paper of Rs.100.00 for payment of the NA Premium.

3. The petitioner is the owner of the land in question as second successor in interest. The case of the petitioner is that after the entry No. 158 was made on 10.10.1961 to record that the land was granted to Shri Rama Kumbha Virda under S.6 of the Act but later on, in the year 1976, it was shown in the revenue record that Shri Rama Kumbha Virda held the land as per S.7(1)(a) of the Act. However, the Special Mamlatdar granted occupancy rights under S.6 of the Act to hold the land as new tenure impartible. It is further case of the petitioner that later on, the Mamlatdar issued amended order in the year 2004 observing that the occupancy rights shall be under S.7(1)(a) of the Act to hold the land as old tenure. However, the Collector just relied on entry No. 158 and committed serious error in treating the land as new tenure land. The prayers are therefore, made to quash and set aside the communication of the Collector and to direct the Collector not to insist for payment of premium by treating the land as of new tenure.

4. The petition is opposed by Affidavit - in - Reply filed by the Mamlatdar stating that it was clearly mentioned when entry No. 158 was made that the land was of new tenure and for that purpose, even payment of 6 pats amount was made by Shri Rama Kumbha Virda. It is further stated that no order is placed on record by the petitioner showing that the petitioner was ever considered to be 'BUTEDAR' under S.7(1)(c) of the Act. It is also stated that the Mamlatdar had no authority to pass rectification order dated 19.8.2004 to treat the land as of old tenure.

5. Learned senior advocate Mr. Mihir Thakore appearing with learned advocate Ms. Archana Acharya for the petitioner submitted that the Collector considered only entry No. 158 to treat the land as granted under S.6 of the Act ignoring subsequent Entry No. 208 and amended order passed by the Special Mamlatdar treating the land of old tenure as granted under S.7(1)(c) of the Act. Mr. Thakore submitted that while dealing with application of the petitioner filed under S.65(B) of the Code, the Collector is not to decide the question as regards status of the land but he is to consider whether the person submitting the application is owner or occupant of the land. Mr. Thakore would submit that even on consideration of the documents produced on record, it could not be said that the land was ever held by Shri Rama Kumbha Virda under S.6 of the Act and therefore, the Collector was not justified in treating the land as of new tenure simply on the basis of