Dismissed

Umesh Ved Resolution Professional of Shree Ram Cement Limited v. State of Gujarat Notice Served Thro Collector Banaskantha

Gujarat HC1 Jul 2021LPA/2390/2017

Case brief

AI extract

What is this about?

The Gujarat High Court dismissed an LPA filed by a resolution professional who appealed against a Single Judge order allowing a stay on premium collection. The High Court held the appeal was based on a misconceived apprehension and upheld the Single Judge's direction that no premium could be charged.

What did the court decide?

The Letters Patents Appeal and Civil Application were dismissed; the District Collector directed to pass orders within four weeks.

Umesh Ved Resolution Professional of Shree Ram Cement… — Quashing and FIR | Gujarat HC (2021)

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED

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Versus

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STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 2390 of 2017

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R/SPECIAL CIVIL APPLICATION NO. 3693 of 2013

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With

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CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2020

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R/LETTERS PATENT APPEAL NO. 2390 of 2017

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UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED

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Versus

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STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR

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BANASKANTHA & 3 other(s)

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Appearance:

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MS SANGEETA PAHWA, Counsel for M/s. THAKKAR AND PAHWA ADVOCATES for the Appellant

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MS AISHWARYA GUPTA, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) Nos. 1,2,3

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MR. VARUN K.PATEL(3802) for the Respondent(s) No. 4

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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI

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and

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HONOURABLE MR. JUSTICE B.N. KARIA

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Date : 01/07/2021

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ORAL ORDER

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(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

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Page 1 of 11

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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Present Letters Patent Appeal has been filed against the order dated 05.05.2017 of the learned Single Judge allowing Special Civil Application No. 3693 of 2013 and Special Civil Application No. 2698 of 2016 – Shriram Cement Limited vs. State of Gujarat and Collector, Banaskantha . The operative order of the learned Single Judge in paras 22 to 25 are quoted hereinbelow for ready reference:

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“22. So far as the provisions of the Bombay Land Revenue Code are concerned, the learned AGP has failed to point out any provision, which would empower or authorize the Collector to charge the premium on the transfer of non-agricultural land, which is being used for industrial purpose. Undisputedly, the land was allotted to the original allottee Shri Suryakant Nanalal Gandhi on permanent basis after charging occupancy price as mentioned in the order dated 14.4.1981, and

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Page 2 of 11

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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thereafter the said land was permitted to be transferred in favour of M/s.Shriram Cement Limited (old) to be used for industrial purpose and then the said Company was permitted to be merged into the GMDC by virtue of the order of BIFR, and that at no point of time, the Collector had called upon any party to pay the premium amount. It is for the first time such a demand is made when the GMDC has agreed to sell the said land to the petitioner. Heavy reliance has been placed by the learned AGP on the Government Resolutions dated 28.3.1989 and 6.6.2003 to submit that the Collector had the authority to charge the premium at the time of granting the land to the original allottee as well as at the time of subsequent transfers in favour of the subsequent transferees, the Court can not accept the said submission. There is no explanation coming forth from the learned AGP as to why the said

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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Government Resolutions were not made applicable when earlier the said land was sought to be transferred twice. In the opinion of the Court, such Government Resolutions which are in the nature of executive instructions, not supported by any legal provision could not be treated as the “law” in view of the ratio of judgement laid down by the Supreme Court in case of State of Jharkhand and Ors. Vs. Jintendra Kumar Srivastava and Anr. (supra). From the bare reading of the said Government Resolutions dated 28.3.1989 and 6.6.2003, which as such are the compilation of all the earlier Government Resolutions, it appears that the said Government Resolutions were issued with regard to the guidelines to be followed, when the waste land of the Government is to be allotted for nonagricultural purpose. In the instant case, the Government had already allotted the land on permanent basis to Shri

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Page 4 of 11

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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Suryakant Nanalal Gandhi after charging the occupancy price way back in the year 1981 and thereafter no premium was charged on the said land though it had changed hands from time to time for being used for industrial purpose. Now when the entire cement factory with the land is being sold out by the GMDC to the present petitioner, it could not be said that the waste land of the Government was being sold out to the petitioner, entitling the Collector to charge the premium under the said Government Resolutions.

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23. It is true that the Collector had granted the land to the original allottee Shri Suryakant Nanalal Gandhi for establishing mini cement plant subject to the terms and conditions mentioned in the order dated 14.4.1981. It is also true that on the merger of M/s.Shriram Cement Limited (old) with GMDC, the Collector while granting permission to the GMDC to

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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purchase the said land from the said Company, had imposed a condition that the said land would be treated as new and impartible tenure land, and that the said order has remained unchallenged. However, in the opinion of the Court, by virtue of said condition, the GMDC was required to take permission of the Collector at the time of selling the land to any third party, but the said condition itself did not empower the Collector to charge premium when the GMDC is selling the land to the petitioner, more particularly when earlier at no point of time any such premium was charged.

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24. In that view of the matter, the decision, if any

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of the Collector fixing the premium without hearing the petitioner and the GMDC, and the communication dated 6.12.2012 of the respondent GMDC (Annexure-A) calling upon the petitioner to deposit the land premium amount of Rs.41.95 crore

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Page 6 of 11

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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supplementing the execution of the sale deed deserve to be quashed and set aside. The Collector is required to be directed to decide the matter afresh in the light of the observations made by the Court herein above , and after granting reasonable opportunity of hearing to the petitioner as well as to the respondent Corporation, in respect of the permission sought by the respondent Corporation to sell the land in question to the petitioner. The petition being SCA No.3693 of 2013 deserves to be allowed to the said extent.

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25. So far as the other petition being SCA No.2698 of 2016 is concerned, it appears that the M/s. Shriram Cement Limited had defaulted in making repayment of the loan taken from the petitioner Bank. In the opinion of the Court, it is always open for the petitioner Bank to take appropriate action

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against the defaulter Company as may be

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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permissible under the law. If the name of the petitioner Bank is not being entered in the revenue record, in that case also the petitioner Bank has the alternative remedy available under the Gujarat Land Revenue Code and the Rules made thereunder. In that view of the matter, no such direction as prayed for by the petitioner Bank could be granted. Hence, the Special Civil Application No.2698 of 2016 is dismissed. Rule is discharged.”

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Ms. Sangeeta Pahwa, learned Counsel for the Appellant urged before us that while holding that the District Collector, Banaskantha could not charge any premium when the GMDC is selling the land to the Petitioner / Appellant, since the learned Single Judge remanded back the matter in view of above quoted observations, the Petitioner became apprehensive that the District Collector, Banaskantha may charge again the premium and therefore, the present Letters Patent Appeal was filed by the Appellant.

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Page 8 of 11

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED

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Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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In pursuance of the direction of this Court in the order

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dated 27.01.2021 , the District Collector, Banaskantha Mr.Anand Babulal Patel, IAS has filed his Affidavit dated 03.03.2021 expressing therein that in pursuance of the order of the learned Single Judge dated 05.05.2017 , several notices were given to the parties, but they failed to appear before the District Collector and that is why the proceedings could not be concluded.

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Ms. Aishwarya Gupta, learned Assistant Government Pleader submitted that the said Affidavit has been filed in pursuance of the Court’s direction and the advice of the Revenue Department has been sought by the District Collector vide paras 4.4 and 4.5 of the said Affidavit.

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Having heard learned counsel for the parties, we are a bit surprised about the very filing of this Letters Patent Appeal by the Appellant in whose favour the learned Single Judge has clearly held that no premium could be charged on the transfer of the land in question by GMDC in its favour. Para 24 quoted

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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above clearly says that the communication dated 06.12.2012 of the Respondent GMDC calling upon the Petitioner to deposit the land premium amount of Rs.41.95 crore supplementing the execution of the Sale Deed deserve to be quashed and set aside. The mere further direction to the District Collector to decide the matter afresh ‘ in the light of the observations made by the Court hereinabove’ , and after granting reasonable opportunity of hearing to the Petitioner as well as to the Respondent Corporation, we do not think that the District Collector had any option to still charge the premium in respect of the said transfer.

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The direction of the learned Single Judge in favour of the Petitioner is very clear that the Appeal itself is based on a misconceived apprehension of the Petitioner. The mere fact that this Letters Patent Appeal was filed in the year 2017, has kept back the District Collector to finally decide the matter in accordance with the directions of the learned Single Judge and conclude the matter.

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We do not find any merit in the present Appeal and

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Page 10 of 11

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C/LPA/2390/2017 ORDER DATED: 01/07/2021 UMESH VED RESOLUTION PROFESSIONAL OF SHREE RAM CEMENT LIMITED

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Versus STATE OF GUJARAT NOTICE SERVED THRO COLLECTOR BANASKANTHA & 3 others

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therefore, the same is liable to be dismissed and is accordingly dismissed.

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We expect that the District Collector, Banaskantha will pass appropriate order in accordance with the directions given by the learned Single Judge as expeditiously as possible, but not beyond a period of Four Weeks from today. The parties, if any, may appear before the District Collector, Banaskantha in the first instance on 13.07.2021 at 11.00 a.m.

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Letters Patent Appeal dismissed. Civil Application is also accordingly disposed of. No costs.

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(DR. VINEET KOTHARI,J)

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(B.N. KARIA, J)

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Bharat

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Umesh Ved Resolution Professional of Shree Ram Cement Limited v. State of Gujarat Notice Served Thro Collector Banaskantha

Case brief

What is this about?

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Umesh Ved Resolution Professional of Shree Ram Cement Limited v. State of Gujarat Notice Served Thro Collector Banaskantha

Case brief

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