Shivam Shailesh Parikh vs State Of Gujarat
2021 Latest Caselaw 12885 Guj

    C/SCA/16525/2020                                  ORDER DATED: 31/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 16525 of 2020

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                        SHIVAM SHAILESH PARIKH
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1,2
MS. NISHA THAKORE, AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 31/08/2021

                                ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed for seeking directions to reconsider the decision of the Revenue Authorities and grant NA permission in relation to the old tenure agricultural land bearing Survey No.1030, Khata No.1129 admeasuring 10940 square meters at Village­Padra (Kasba), Taluka­Padra, District­Vadodara.

2. It is prayed that such NA permission be granted without payment of any premium. The petitioner also prays for quashing and setting aside the directions issued by the Deputy Collector to the Mamlatdar vide Communication dated 31­08­2020.

3. Learned Advocate for the petitioners submitted that the land was agricultural with restricted tenure, which was of restricted tenure pursuant to the order passed by the Deputy Collector was converting to the old tenure land after recovering conversion charges as per the Policy of the State and Mutation Entry No.4092 dated 28­03­1980 came to be posted and certified. The old tenure agricultural land changed hands from one Agriculturist to another and lastly the petitioners purchased the land from existing owner namely Patel Ketan Chhotabhai under

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registered Sale­deed dated 08­01­2008 and Mutation Entry No.12000 was posted on 02­04­2008.

4. It is submitted that on account of overall development surrounding the land in question, agricultural operations on the subject land became difficult and hence, application was made by the petitioners on 20­02­ 2020 to the Collector for converting the land for non­agricultural purpose (NA permission). In due course, the Report came to be submitted by the Mamlatdar and ALT on 26­02­2020 to the Deputy Collector (Land Reforms) Vadodara and the said Deputy Collector submitted negative opinion considering the land still to be of restricted tenure. Based on such negative opinion without calling for any explanation from the petitioners, application for NA permission was filed by the Collector.

5. When the petitioners came to know about his NA application being filed, he made a Representation to reopen his application and reconsider by keeping in view the Government Policies on the subject as the petitioners were advised by the Authorities to file a fresh application altogether an on­line application dated 06­04­2020 was filed along with all clarifications and supporting documents. Main contention being that the land being the old tenure land and premium has been once recovered at the relevant time, there should not be any restriction especially restriction for NA permission on the ground of non­payment of premium. Such application however, came to be filed once again by the Collector which fact was communicated to the petitioners vide letter dated 27­05­2020.

6. The petitioners once again made an attempt to reopen his application by making Representation dated 02­06­2020, but once again, they were advised to file another on­line application with all the details. Such application was filed on 07­06­2020 on­line and on 04­08­2020, written submissions were also submitted. NA application came to be decided by order dated 07­06­2020 and pursuant to the decision of 07­06­2020,

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Notice came to be issued to the petitioners for fixing hearing on 31­07­ 2020 and fixing the date for hearing on 06­08­2020. The petitioners were permitted to represent their case to support their contentions that land is of old tenure and therefore, there is no question of making payment of premium at the time of conversion from agricultural to non­ agricultural. The petitioners had pointed out the Government Resolution dated 01­02­1971 to indicate that the restrictions of Section­ 43 of the Tenancy Act would come to an end when the protected tenant had transferred the subject land with permission of the Revenue Authorities way back in the year 1980. It is submitted that application of the petitioners was turned down vide Communication dated 31­08­ 2020 and another Communication was issued on the same date by the Collector directing the Mamlatdar and ALT to mention the words "Bin kheti mate premium ne patra" in 7/12 abstract.

7. Learned Advocate for the petitioners submitted that while processing the NA application, the Revenue Authorities have lost sight of the order of the Deputy Collector dated 11­02­1980 converting the subject land into old tenure and at that time, recovering conversion charges as per the Government Resolution dated 20­05­1980 and thereafter, with the permission of the Revenue Authorities, the subject land had changed hands more than once, the petitioners being third purchaser. As the premium was charged by the Government at the first stage of conversion, there is no scope of recovering of premium again and as merely hands have changed, there is no loss of premium to the State Government.

8. It is submitted that the restriction imposed were that on the tenant and once the tenant has sold the land to another person with the permission of the State Government, restriction under Section­43 would end and subsequent purchasers would not be bound by any restriction. This aspect is also evident as the Revenue Authorities at the time of conversion from new tenure to old tenure, have not inserted any further

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restriction. It appears that after long period when the petitioners being third purchaser moved an application for NA permission in the year 2020, directions are issued for mentioning the words being "Bin kheti mate premium ne patra". Such action of the Revenue Authorities is beyond the scope of the Revenue Laws. It is submitted that if the aspect of paying the premium for NA permission was known to the petitioners from the Revenue record, the petitioners would have reconsidered to purchase the land from its previous owner as the Revenue Authorities are now considering the prevalent Jantri while imposing premium.

9. Learned Advocate for the petitioners have placed heavy reliance upon the Government Resolution dated 01­02­1971 and submitted that for the purpose of sale of an agricultural land, the Government Resolution has prescribed the premium to be paid and according to such premium only amount has been recovered from erstwhile first purchaser upon conversion of tenure. Thereafter, there is no question of imposing any other restriction on conversion of land from agricultural to non­ agricultural.

10. As against this, learned AGP submitted that the argument of the petitioners that the State cannot levy any premium at the stage of conversion from agricultural to non­agricultural is fallacious argument. It is submitted that the Government Resolution on which the petitioners place reliance is pertaining to the change in occupancy rights as the land in question had come into occupation and ownership of the tenant under the Scheme of the Tenancy Act and that from the original owner (land lord) when the occupancy rights came in favour of the tenant, who was tilling the land under Scheme of the Act and as per the procedure prescribed under the Act. The tenant came into occupation along with suffering of restricted tenures and that to for continuing with the agricultural activities. When such occupancy rights are to change, at that time, conversion charges of new tenure to old tenure is taken by the Revenue Authorities. However, when the issue with regard to the

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converting of land from agricultural to non­agricultural purpose, the State has right to charge the premium before granting NA permission. It is submitted that the petitioners can not base their argument on the Government Resolution of 1971 or Government Resolution of 1980, both of which referred to prescription of premium at a particular rate for change in occupancy, but not with regard to the change in the nature of usage of the land question.

11. Learned AGP has placed reliance upon the decision of the Apex Court in case of Gohil Jesangbhai Raysangbhai v/s State Of Gujarat reported in 2014(5) SCC 199 and unreported decision in case of Bhogilal Dhanabhai Patel Versus State of Gujarat passed in Special Civil Application No. 1816 of 2009 dated 17­08­2010.

12. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the the land in question is agricultural land bearing Survey No.1030, Khata No.1129 ad measuring 10940 square meters of Village­Padra (Kasba), Taluka­Padra, District­Vadodara. Originally the subject old tenure agricultural land was tenanted land and standing in the name of one Veribhai Haribhai.

13. That, pursuant to the order passed under Tenancy Case No. 35/ 1952, dtd. Nil.July,1952, the physical possession thereof was handed over in favour of Bai Dahiben a Wd/o. Becharlal Virchand. That, mutation entry no.164 dtd. 18.07.1952 to that effect was posted in the record of rights, which was duly certified. That, said Bai Dahiben Wd/o. Becharlal Virchand, being protected tenant, the words "sarankshit ganotiyo" (protected tenant), has been mentioned in the 7/12 abstract. Another mutation entry no. 385 was posted on account of death of said Dahjben Wd/o. Becharlal Virchandbhai. Moreover, name of one Dodiyabhai Dhulabhai was posted in record of rights by way of succession entry no. 1536 dtd. 05.12.1958, which was duly certified. Thereafter, succession was carried out on the basis of Will executed by Decd. Dahiben Wd/o. Becharlal Virchandbhai, in favour of her daughters namely Maniben and

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Kamlaben.

14. Under order no. ALT/ 345/ Padra dtd. 17.10.1964, the tenure of the subject land was changed to new and impartible. Mutation entry no. 2350 dtd. 20.10.1964, to that effect was posted in record of the rights, which was duly certified. Moreover, mutation entry no. 3026 dtd. 05.10.1968 was posted in the record of rights, pursuant to the order no. SR/1235 dtd. 21.12.1962, passed by the Agricultural Dept. of Gujarat State in relation to the charge in the method of measurement.

15. That pursuant to the order no. Ten/Lr/6179/Vashi/649/80, passed by the Ld. Dy. Collector, Vadodara, the tenure of the subject land was came to be changed from new and impartible to old tenure, after recovering conversation charges as per the policy of State Govt. Mutation entry no. 4092, dtd. 28.03.1980, to that effect was posted in the record of rights, which was duly certified. Since, the said Dhulabhai Fulabhai Dodiya, was protected tenant, no condition has been imposed. Said Dhulabhai Fulabhai Dodiya, has conveyed and sold said old tenure agriculture land in favour of Patel Harmanbhai Hirabhaj for the sale consideration of Rs. 1,03,000/­. Mutation entry no. 5065 dtd. 25.04.1980, to that affect was posted in the record of rights in favour of said purchasers, which was duly certified. Thereafter, said Harmanbhai Hirabhai Patel, has conveyed and sold the subjected land in favour of one Ketankumar Chhotalal Patel vide registered sale deed dtd. 30.05.1994, for sale consideration of Rs. l,70,000/­. Mutation entry no. 8543 dtd. 22.07.1994 to that effect was posted in the record of rights, which was duly certified. Vide registered sale deed dtd. 08.01.2008, the petitioners had purchased the subject land from said Patel Ketankumar Chhotabhai for the sale consideration of Rs.10,51,000/­. Mutation entry no. 12000, dtd. 02.04.2008, to that effect posted in the record of rights in favour of present petitioner, which was duly certified.

16. The Collector has taken into consideration the opinion given by the Deputy Collector which would indicate that upon examining 7/12

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extracts and mutation entries of the land in dispute from the year 1951­ 52, Shri Dhurabhai Fulabhai has got an entry vide Mutation Entry No.2350 dated 20/10/1964 to register the land in dispute from Mani and Kamla, daughters of Shah Bechardas Virchand and Shah Sureshchandra Chimanlal and Mahendrakumar Chimanlal Shah under new and impartible tenure and non­transferable right tenure for Rs.7524 on the basis of the certificate received vide A.L.T.345/Padra dated 17/10/1964. Thus, restrictions under section­43 have been applied to this land.

17. Thereafter, as an application vide Mutation Entry No.4092 dated 28/03/1980 was made to transfer the land of restricted rights in old tenure and the amount of Rs.1735.80 of its assessment for 60 units was paid on 11/02/1980, an entry was made on the basis of the order No. Tenancy/L.R./6179/Vashi649/80 of the Deputy Collector, Vadodara for converting the land from restricted rights to old tenure under a condition to proceed to sale the land for agricultural purpose within two months. Thus, the said order has not been recorded in the village office. But, it appears that the order vide the said entry has been passed to convert the land in dispute to old tenure for agricultural purpose. Therefore, premium for non­agricultural purpose is required to be paid for the land in dispute.

18. Further examination can be done on production of the said order. Further, the land in dispute has been sold to Shri Patel Harmanbhai Hirbhai vide Mutation Entry No.5063 dated 28/08/1980. Thereafter, it has been bought by Ketankumar Chhotalal Patel vide Mutation Entry No.8543 dated 22/07/1994. As the land in dispute is liable for premium of non­agricultural purpose and facts regarding the original agriculturist have not been produced for sale transactions, a negative opinion was given with respect to granting permission for non­ agricultural purpose.

19. It appears that from time to time, the petitioners had made an

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application for NA permission on­line and on each time, application of the petitioners has been filed and thereafter, also rejected by assigning reasons.

20. The crux of the arguments is that when the land which was of restricted tenure as the original owner of the land was being protected tenant was able to sale of this agricultural land only after seeking permission and making payment of premium as prescribed under various Government Resolutions more particularly Government Resolution dated 01­02­ 1971. In connection with this Entry No.4092 was posted on 28­03­1980 permitting the conversion from new tenure to old tenure by charging premium as prescribed in the aforesaid Government Resolution to the extent of 60 times valuation, which came to an amount of Rs.1735.80/­ and which was paid on 11­02­1980 and accordingly, by order dated 25­ 02­1980, restricted tenure on the land was lifted by the Collector. Such entry was also certified. Reliance is placed upon the Revenue record annexed at Annexure­D collectively to indicate that the land was thereafter recognized and sold from one person to another and the record indicates the land is of old tenure. There is no other mention of any other restriction more particularly with regard to the restriction of "Bin kheti mate premium ne patra". The Court is unable to accept such argument on the ground that while treating the restriction under Section­43 of the Tenancy Act, the premium charged was only for the purpose of change in occupancy. The language of the Government Resolution of 1971 or even the Government Resolution of 1980, which are for the same purpose, but modified later on, would indicate that charge of the premium prescribed was for the purpose of sale from one agriculturist to another agriculturist. Therefore, while change of occupancy is envisaged at that stage, there is nothing to indicate about the change in use / user of the land in question. In the facts of the present case, as it is evident that after the land was transferred by original owner (tenant), the land has changed hands only from one

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agriculturist to another agriculturist and that too for agricultural purpose.

21. While dealing with the philosophy behind the restriction, the Apex Court in case of Gohil Jesangbhai Raysangbhai (supra) has referred to old decision of the Apex court in case of Shashikant Mohanlal Desai vs State Of Gujarat reported in AIR 1970 Guj 204, which can be usefully quoted in Para­16 as under:

16. We may at this stage refer to the judgment of the Division Bench of the Gujarat High Court in Shashikant Mohanlal (Supra) by P.N.Bhagwati, CJ as he then was in the High Court. With respect to this co­ relation between Sections 32 to 32R of this statute and Section 43, the Division Bench observed as follows:­

"7.The Act as originally enacted in 1948 was intended to regulate the relationship of landlord and tenant with a view to giving protection to the tenant against exploitation by the landlord but in 1956 a major amendment was made in the Act introducing a radical measure of agrarian reform. The Legislature decided that the tiller of the soil should be brought into direct contact with the State and the intermediary landlord should be eliminated and with that end in view, the Legislature introduced a fasciculus of sections from Section 32 to S. 32­R and S. 43. These sections came into force on 13th December 1956 and they provided for the tenant becoming deemed purchaser of the land held by him as tenant. Section 32 said that on 1st April 1957 every tenant shall, subject to certain exceptions which are not material for the purpose of the present petitions, be deemed to have purchased from him landlord, free from all encumbrances subsisting thereon on the said day, land held by him as tenant provided he was cultivating the same personally. If the landlord bona fide required the land either for cultivating personality or for any non­agricultural purpose, he could after giving notice and making an application for possession as provided in Section 31, sub­section (2), terminate the tenancy of the tenant subject to the conditions set out in Sections 31­A to 31­D but if he did not take steps for terminating the tenancy of the tenant within the time prescribed in Section 31, the tenant became the deemed purchaser of the land on 1st April 1957. If the landlord gave notice and made an application for possession within the time prescribed in Section 31, the tenant would not become the deemed purchaser of the land on 1st April 1957 but he would have to await the decision of the application for possession and if the application for possession was finally rejected, he would be the deemed purchaser of the land on the date on which, the final order of rejection was passed. Now if the tenant

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becomes deemed purchaser of the land, there would be no difficulty, for the intermediary landlord would then be eliminated and direct relationship would be established between the State and the tiller of the soil. But what is to happen if the tenant expresses his unwillingness to become deemed purchaser of the land? The Legislature said that in such a case the tenant cannot be permitted to continue as a tenant he would have to go out of the land. If the tenant is permitted to continue as a tenant, the object and purpose of the enactment of the legislation, namely, to eliminate the middleman, would be defeated. The Legislature therefore, provided in Section32­P that if the tenant expresses his unwillingness to become deemed purchaser of the land and the purchase consequently becomes ineffective, the Collector shall give a direction providing that the tenancy in respect of the land shall be terminated and the tenant summarily evicted. The land would then be surrendered to the landlord subject to the provisions of Section 15 and if the entire land or any portion thereof cannot be surrendered in accordance with the provisions of Section 15, the entire land or such portion thereof, as the case may be, shall be disposed of by sale according to the priority list. The priority list consists of persons who would personally cultivate the land and the sale of the land to them would ensure that the tiller of the soil becomes the owner of it and there is no intermediary or middleman to share the profits of his cultivation. Since the tenant is made the deemed purchaser of the land in order to effectuate the policy of agrarian reform to eliminate the intermediary landlord and to establish direct relationship between the State and the tiller of the soil so that soils of his cultivation are not shared by an intermediary or middleman who does not put in any labour, the Legislature insisted that the tenant must personally cultivate the land of which he is made the deemed purchaser. The tenant, said the Legislature, would continue to remain owner of the land only so long as he personally cultivated it; he must make use of the land for the purpose of which it was given to him as owner. If the tenant failed to cultivate the land personally either by keeping it fallow or by putting it to non­agricultural use, he would lose the land under Section 32B and the land would be given away to others for personal cultivation in accordance with the provisions of Section 84­C."

22. Considering the facts of that case, in the light of observations made therein in case of Shashikant Mohanlal Desai (supra), the Court has held in Para­20 and Para­21 as under:

20. These two judgments answer the submission of the appellants that the amount which is being charged is not a tax but a fee. It is neither. It is a premium for granting the sanction. This is because under this welfare statute these lands have been permitted to be purchased by the tenants

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at a much lesser price. As held in Shashikant Mohanlal (supra), the tenant is supposed to cultivate the land personally. It is not to be used for non agricultural purpose. A benefit is acquired by the tenant under the scheme of the statute, and therefore, he must suffer the restrictions which are also imposed under the same statute. The idea in insisting upon the premium is also to make such transfers to non­ agricultural purpose unattractive. The intention of the statute is reflected in Section 43, and if that is the intention of the Legislature there is no reason why the Courts should depart therefrom while interpreting the provision.

21. It was submitted by the appellants that assuming that the valuation of the land is permitted to be done as per the Jantri rates, it must be so done on the basis of the rates as prevalent on the date of the application. The resultant injustice was highlighted in the case of Savitaben in Civil Appeal No. 4129/2012. The fact however, remains that the Section speaks of previous sanction. As noted earlier, Section 4(2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 also speaks about the previous sanction. Thus, this is the theme which runs through all such welfare agricultural enactments, and a similar provision in the said Act has been left undisturbed by the bench of three Judges of this Court. Therefore, the Jantri rate to be applied will be on the date of the sanction by the Collector, and not on the date of the application made by the party.

23. This Court while answering the identical issues of duplication of premium at the hands of the Revenue Authorities, first at the stage of converting from new tenure to old tenure and second at the stage of grant of NA permission, in case of Bhogilal Dhanabhai Patel (supra), the Court has held in Para­5 and Para­6 as under:

5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that the petitioners have challenged the action of the respondents in demanding premium while converting the land in question from agricultural use to non agricultural use. The contention on behalf of the petitioners that as earlier vide order dated 07/01/1987 when the application was submitted to convert the land from new tenure to old tenure and to transfer the occupancy rights, the original owner had paid the amount of premium, and, therefore, the petitioners are not required to pay the premium while converting the land from agricultural use to non agricultural use, the aforesaid cannot be accepted. It is to be noted that when earlier the permission was granted to transfer the occupancy rights vide order dated 07/01/1987 and premium was charged it was only for the purpose of transferring the occupancy right for agricultural

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purpose and the tenure of the land i.e. new tenure came to be continued and, therefore, when the tenure of the land came to be continued as new tenure land and when subsequently the petitioner applied for permission to covert the land from agricultural use to non agricultural use by removing the restrictions of new tenure, the petitioner is required to pay the premium and no illegality has been committed by the respondents insisting for premium.

6. Now so far as the contention on behalf of the petitioners that the petitioners are required to pay only that much amount/charge, which is required to be paid under Section 65 of the Bombay Land Revenue Code is concerned, the aforesaid cannot be accepted. Only, in a case were a person is holding agricultural land as old tenure and/or without any restriction and he wants to use the land for non agricultural purpose and he submits an application for non agricultural use he is required to pay the amount/charge under Section 65. So far as the restricted new tenure land is concerned, even while getting the land converted from agricultural use to non agricultural use, owner of the land is required to pay the premium to remove the restriction of new tenure land. The amount of premium, which is charged, is for removing the restrictions as new tenure and necessary charges, which are required to be paid for converting the land from agricultural use to non agricultural use is required to be paid. It is to be noted that in the present case the petitioners have submitted an application for determination of the premium and to grant permission to convert the land from agricultural use to non agricultural use by removing the restriction as new tenure land. Under the circumstances, the contention on behalf of the petitioners that the petitioners are not required to pay the premium while converting the land from agricultural use to non agricultural use and to remove the restriction as new tenure, cannot be accepted.

24. In view of the aforesaid, the Court does not find any fault in the interpretation by the Revenue Authorities while dealing with the application for NA permission under Section­65 of the Land Revenue Code. The Court does find any reason to interfere with the decision and the Communication dated 31­08­2020 of the Collector. Therefore, this petition deserves to and is hereby dismissed. Notice is discharged.

(A.Y. KOGJE, J) PARESH SOMPURA