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SCA/4195/2010 13/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4195 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? No
2
To be
referred to the Reporter or not ? No
3
Whether
their Lordships wish to see the fair copy of the judgment ? No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ? No
=========================================================
BABUJI
GANDAJI & 1 - THROUGH POA DIVYABEN PANKAJKUMAR PATHAK -
Petitioners
Versus
STATE
OF GUJARAT & 2 - Respondents
=========================================================
Appearance
:
MR
NEHAL R JOSHI for
Petitioners
MR AMIT P.PATEL, ASSISTANT GOVERNMENT PLEADER for
Respondents
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 23/04/2010
ORAL
JUDGMENT
Leave
to amend the cause-title of the petition is granted. The amendment
may be carried out forthwith.
Rule.
Mr.Amit P.Patel, learned Assistant Government Pleader, waives
service of notice of Rule on behalf of the respondents. On
the facts and in the circumstances of the case, and with the consent
of the learned counsel for the respective parties, the petition is
being heard and finally decided, today.
This
petition, under Article 226 and 227 of the Constitution of India,
has been preferred challenging order dated 04.02.2010, passed by the
Secretary, Revenue Department, in Revision Application No.17/1998
whereby, order dated 22.12.1997, passed by the District Collector,
Ahmedabad, has been confirmed.
The
brief facts of the case are that land bearing Survey No.424,
admeasuring 5808 square metres, situated at Village: Gota, Taluka:
Dascroi, District: Ahmedabad, is new tenure land, and is shown to be
in the occupation of the predecessors-in-interest of the
petitioners, as per revenue records. The petitioners Nos.1/1 and 1/2
are the heirs and legal representatives of
deceased Shantaben Gandaji Thakore. The said land has been granted
for agriculture use, with certain conditions. It appears that
without taking the prior permission of the State Government or
paying the requisite amount of premium, the petitioners started
using the said land for non-agricultural purposes, in contravention
of the conditions of grant. On the basis of the report of the Deputy
Collector, Viramgam Prant, the Collector, Ahmedabad, initiated
proceedings against the petitioners for breach of conditions of
grant. By order dated 22.12.1997, the Collector, Ahmedabad, came to
the conclusion that there was a breach of conditions of grant, and
directed the land to be forfeited to the State Government. Aggrieved
by the above-mentioned order of the Collector, the petitioners
approached the State Government by filing the above-mentioned
revision application, which has been dismissed by passing the
impugned order. In the above circumstances, the petitioners have
filed the present petition.
Mr.Nehal
R.Joshi, learned counsel for the petitioners,
has submitted that although there are concurrent findings of both
the authorities below against the petitioners, however, they are
ready and willing to pay the full amount of premium at the
prevailing market price.
It
is further submitted that as per Section 67 of the Bombay Land
Revenue Code, 1879 ( the Code for short), the Collector has the
power to grant permission, as per Rules. As the land in question
cannot be used by the petitioners for agricultural purposes, and as
the petitioners are doing the business of marble and granite on the
said land, the respondents may be directed to accept the amount of
premium and grant non-agricultural use permission in respect of the
said land, to the petitioners.
It
is contended by the learned counsel for the petitioners that in
fact, no opportunity of hearing has been given to the petitioners by
the Collector and even otherwise, the case of the petitioners has
not been properly defended by the learned advocate appearing for
them before the authorities
below, therefore, the petitioners should not be penalized for that.
On the basis of the above submissions, it is prayed that the
petition be allowed.
No
other submissions have been advanced by the learned counsel for the
petitioners.
On
the other hand, Mr.Amit Patel, learned Assistant Government Pleader
for the respondents, has supported the orders of the District
Collector and the State Government, respectively, by submitting that
ample opportunity of hearing has been granted to the petitioners,
which is obvious from a perusal of the impugned order. The request
of the petitioners in the proceedings before the State Government to
the effect that they are ready and willing to pay the full amount of
premium at the prevailing rate has been rejected and the order of
the Collector has been upheld. It is prayed by the learned Assistant
Government Pleader that the petition be dismissed.
I
have heard the learned counsel for the respective
parties, perused the averments made in
the petition, contents of the impugned order and other documents on
record.
It
is an admitted position that the land in question is of new tenure,
and has been granted for agricultural use to the
predecessors-in-title of the petitioners, subject to certain
conditions. It is also an admitted fact that the petitioners are
using said land for non-agricultural purposes, by running a marble
and granite business thereupon. Admittedly, no permission has been
obtained from the Collector, as required, before using the land for
non-agricultural purposes. This aspect is not disputed by the
learned counsel for the petitioners. As per the provisions of
Section 65 of the Code, breach of conditions of grant of new tenure
land would entail forfeiture to the Government, which order has been
passed by the Collector and confirmed in revision by the impugned
order.
A
submission has been advanced by the learned counsel
for the petitioners that under the provisions of Section 67 of the
Code, the Collector is empowered to grant permission on such terms
and conditions as may be prescribed. In order to deal with the said
submission, it would be necessary to look into the relevant
provisions of law, which are reproduced hereinbelow, for ready
reference:
65. Use
to which occupant of land for purposes of agriculture may put his
land —
1. Any
occupant of land assessed or held for the purpose of agriculture is
entitled by himself, his servants, tenants, agents or other legal
representatives, to erect farm-building, construct wells or tanks,
or make any other improvements thereon for the better cultivation of
the land, or its more convenient use for the purpose aforesaid.
Procedure
if occupant wishes to apply his land to any other purpose — But,
if any occupant wishes to use his holding or any part thereof for
any other purpose the Collector’s permission shall in the first
place be applied for by the occupant. The Collector, on receipt of
such application,
(a) shall
send to the applicant a written acknowledgment of its receipt, and
(b) may,
after due inquiry, either grant or refuse the permission applied
for:
Provided
that, where the Collector fails to inform the applicant of his
decision on the application
within a period of three months, the permission applied for shall be
deemed to have been granted; such period shall, if the Collector
sends a written acknowledgment within seven days from the date of
receipt of the application, be reckoned from the date of the
acknowledgment, but in any other case it shall be reckoned from the
date of receipt of the application.
Unless
the Collector shall in particular instances otherwise direct, no
such application shall be recognised except it be made by the
occupant.
(2) Notwithstanding
anything contained in sub-section (1) but subject to any terms and
conditions laid down by the State Government in this behalf where an
occupant has his holding in an area comprising a gram and such area
is not within an urban agglomeration or within a radius of five
kilometres from the limits of a municipal borough or notified area
or industrial estate and such occupant wishes to use his holding or
a part thereof only for the residential purpose, it shall not be
necessary for him to obtain permission of the Collector under
sub-section (1)….
65A.
Procedure if occupant wishes to apply his land from one
non-agricultural purpose to another non-agricultural purpose
Where the occupant of any land assessed or held for any
non-agricultural purpose wishes to use such land or part thereof for
any other non-agricultural purpose, the Collector’s permission shall
in the first place be applied for by him and the provisions of
section 65 shall, so far as may be, apply to such application….
66. Penalty
for using land without permission If any land referred to in
section 65 or section 65A be used for any purpose other than the
purpose for which such land is assessed or held without the
permission of the collector being first obtained, or before the
expiry of three months referred to in section 65 or despite refusal
of permission during the said period of three months, then, without
prejudice to the occupant’s liability to pay the new assessment
leviable under section 48 or the conversion tax leviable under
section 67A —
(a) the
occupant and any tenant or other person holding under or through him
shall be liable to be summarily evicted by the Collector from the
land so used and from the entire survey number or sub-division of
the survey number of which it may form part;
and
(b) the
occupant shall also be liable to pay for the period during which the
said land has been so used, such fine as the Collector may, subject
to the general orders of the State Government, direct.
Any
tenant of any occupant or any other person holding under or through
an occupant, who shall without the occupant’s consent use any such
land for any such purpose, and thereby render the said occupant
liable to the penalty aforesaid, shall be responsible to the said
occupant in damages.
67. Permission
may be granted on terms Nothing in sections 65, 65A and 66
shall prevent the granting of the permission aforesaid on such terms
or conditions as may be prescribed by the Collector, subject to any
rules made in this behalf by the State Government.
Sections
65 and 65A, of the Bombay Land Revenue Code detail the uses to which
the recipient of land for the purpose of agricultural may put the
said land to, and the procedure required to be followed on an
application being made by the occupant if he wishes to apply the
land for any other purposes. Section 66 provides for penalty for
using the land without permission. Section 67 enumerates the terms
on which the Collector may grant permission. A conjoint reading of
the above provisions of law would go to show that if the occupant
wishes to use the granted land for any purpose, other than
agricultural use, then it is incumbent upon him to obtain the
permission of the Collector in the first instance. Section 67
empowers the Collector to grant permission as provided in the said
provision, subject to rules made in this regard by the State
Government. For the provisions of Section 67 to come into play, it
is necessary that the occupant of the land (in this case, the
petitioners) make an application as required in Section 65 of the
Code, for permission to apply the
land for any other purpose. It is only on an application being made
that the powers under Section 67 can be exercised. It is an admitted
position that such an application has not been made at all by the
petitioners or their predecessors-in-interest. In the above
circumstances, the provisions of Section 67 cannot be pressed into
service as permission can only be granted if it is prayed for by way
of an application, as provided by the above-mentioned provision of
law. As no permission has been sought by the petitioners,
appropriate proceedings have been initiated against them, leading to
the passing of the impugned orders. After passing of the order of
forfeiture of the land by the Collector, as confirmed by the State
Government in revision, it is not open to the petitioners at this
belated stage to submit, that the Collector should be directed to
consider the case of the petitioners for grant of permission under
Section 67 of the Code, without ever having applied for permission.
Regarding
the second submission advanced by the learned counsel for the
petitioners, to the effect that no opportunity of hearing has been
granted to them by the Collector, the same is stated to be rejected.
The impugned order of the State Government meticulously enumerates
the various dates on which adjournment was sought by the
petitioners. It is mentioned therein that notice regarding
initiation of proceedings for breach of condition by the occupants
of land was issued on 20.12.1995. The petitioners appeared on
02.01.1996 before the Collector and requested for time. Thereafter,
on 25.01.1996, 16.02.1996, 30.07.1996, 10.09.1996, 23.04.1996 and
13.05.1997, the petitioners themselves, and their advocate, have
prayed for adjournment. In the above circumstances, it is clear that
the petitioners have been given ample opportunity to plead their
case, and the submission to the contrary by the learned counsel for
the petitioners is not supported by the record. Nor is it borne out
from the record, as contended on behalf of the petitioners, that
their learned advocate did not represent their case.
It
has been repeatedly submitted by the learned counsel for the
petitioners that the petitioners are ready and willing to pay the
full amount of premium at the prevailing rate, as of today,
therefore, this Court should direct the concerned authorities to
accept the same. This submission cannot be accepted in view of the
reasons stated hereinabove. It was open to the petitioners to have
made an application as provided by law, to the Competent Authority,
at the relevant period of time, which has not been done, therefore,
directions such as those sought by the petitioners cannot be issued
by this Court. The impugned order does not suffer from any
illegality or infirmity, so as to warrant interference.
In
view of the above discussion, and for the afore-stated reasons,
there is no merit in the petition, which deserves to be dismissed.
It is, accordingly, dismissed. Rule is discharged. There shall be no
orders as to costs.
(Smt.Abhilasha
Kumari, J.)
(sunil)
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