ORDER
D.G. Karia, J.
1. The petitioners are the owners and occupiers in respect of the land bearing survey Nos. 608+609+610/11 admeasuring 0 acre 11 gunthas situated in the town of Palanpur, District Banaskantha. The petitioners are permanent tenants of the said land since former State of Palanpur. The said land was awarded to the petitioners under the provisions of the Bombay Tenancy & Agricultural Lands Act, 1948. On an application by the petitioners to convert the land admeasuring 1161-05 sq. metres out of the said land to non-agricultural one, the Collector by his order dated May 2, 1989 granted N.A. permission in respect of the said land, on the terms and conditions set out in that N.A. permission order. The Special Secretary, Land Revenue Department (Appeals) invoking the provisions of Section 211 of the Bombay Land Revenue Code, issued notices dated August 23, 1989 to the petitioners to show cause why the N.A. permission granted in their favour should not be cancelled. The petitioners showed cause contending, inter alia, that the N.A. permission order by the Collector was just and legal. The learned Additional Chief Secretary, Revenue Department (Appeals), Government of Gujarat, however, by the impugned order, quashed and set aside the order for N.A. permission. The petitioners have challenged the legality and validity of the impugned order in this petition.
2. Mr. M. C. Bhatt, learned advocate for the petitioners, contended that under Section 65 of the Bombay Land Revenue Code, the petitioners were entitled to apply for necessary permission to convert the land into one for non-agricultural use and the Collector having got processed and after considering the relevant aspects, has granted the application of the petitioners. Mr. Bhatt further submitted that the learned Additional Secretary (Revenue) could not have invoked the provisions of Section 43 of the Bombay Tenancy Act, inasmuch as the petitioners did not intend to transfer the land in question. Section 43 of the Bombay Tenancy Act provides for restriction on transfer of the land purchased under the Act. Under that provision, no land or any interest therein purchased by a tenant under the various sections mentioned therein or sold to any person under Section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine, and no, such land or any interest therein, shall be partitioned without the previous sanction of the Collector. In the instant case, it is none of the cases of the petitioners to transfer the land by sale, gift, exchange, mortgage, etc. There was, therefore, no question of obtaining previous sanction of the Collector, as contemplated under Section 43 of the Bombay Tenancy Act. In this connection, Mr. Bhatt relied upon the case of Shanabhai v. Collector of Kheda, 1989 Guj LT 29. The facts and the ratio of the said case squarely apply to the present case.
3. Mr. Dhaval Dave, learned Assistant Government Pleader, appearing for the respondents, submitted that if the agricultural land is permitted to be converted into non-agricultural use, the entire object of the Bombay Tenancy Act would be frustrated and Section 43 of the said Act is attracted in the facts of the present case. I am afraid, I cannot accept the submission of Mr. Dave. It is not the case of transfer of the land. Section 43 of the Bombay Tenancy Act imposes restriction on transfer of land purchased or sold under the Bombay Tenancy Act. Mr. Dave could not point out that a small piece of land has not been converted by the petitioners with a view to transfer the same. There is no material on record to suggest it.
4. Mr. Dhaval Dave, the learned Asstt. Government Pleader, also invited my attention (to) Section 32R of the Bombay Tenancy Act contending that on the petitioners’ failure to cultivate the said land personally, he is liable to be evicted from- the said land. The petitioners, after having the occupancy rights under the provisions of the Bombay Tenancy Act, including Section 32R of the Act, becomes an occupant of the land in question for all legal purposes. He is, therefore, entitled to convert the land for non-agricultural use. The Collector, on passing necessary orders, for converting the land into non-agricultural one, the land does not remain agricultural land any longer. Section 32R of the Bombay Tenancy Act cannot therefore have any application in the facts of the case. Section 32R and Section 43 of the Bombay Tenancy Act contemplate the restriction on transfer of the agricultural land and that the tenant, on failure to cultivate the agricultural land personally would be liable to be evicted from the said land. In my opinion, the said provisions are not attracted in the facts of the present case. It is not in dispute that the petitioners were permanent tenants in respect of the land in question.
5. The petitioners recited two instances at Annexure “E” and at Annexure “F” to the petition to show that the other occupiers of some of the plots of the entire land have been granted N.A. permission in respect of the land occupied by them. There is no reason to discriminate the petitioners as far as the N.A. permission and use of the land are concerned.
6. In the above view of the matter, the impugned order cancelling the Collector’s order in respect of the N.A. permission cannot be sustained. The order dated 11-2-1990 passed by the Additional Chief Secretary in proceedings SS.RD-Ba.Kh, Pa-Ba-Na. Sa. Suo Motu-4/1989 is quashed and set aside. Rule is made absolute with costs.