Gujarat High Court
State Of Gujarat vs Rekha Subhash Sagar on 10 January, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 73 of 2024
In R/LETTERS PATENT APPEAL NO. 11 of 2024
With
R/LETTERS PATENT APPEAL NO. 11 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 9221 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 11 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 9221 of 2022
==========================================================
STATE OF GUJARAT
Versus
REKHA SUBHASH SAGAR
==========================================================
Appearance:
MR. KRUTIK PARIKH, AGP, for the Applicant(s) No. 1,2
MR. SHALIN MEHTA, SENIOR ADVOCATE WITH MR. PARTHIV B. SHAH
for the Respondent(s) No. 1,2,3,4,5,6,7,8
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 10/01/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
Order in Civil Application (for Condonation Of Delay) No.
73 Of 2024
The delay occurred in filing the instant Letters Patent
Appeal has been explained to the satisfaction of the Court.
Hence, delay is condoned. Present Civil Application is allowed.
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
The Appeal be treated to have been filed within time. Registry is
directed to give pakka number to the Appeal.
Order in Letters Patent Appeal No. 11 of 2024
1. The present intra-court appeal is filed against the
judgment and order dated 31.03.2023 passed by the learned
Single Judge, whereby the writ petition filed by the
respondents herein seeking to challenge the order dated
27.02.2019 passed by the Revenue Department and
consequential orders and communications of the Collector
have been held to be untenable in the eye of law and are,
accordingly, quashed and set aside.
2. We may note, at the outset, that by setting aside the
orders passed by the Revenue Department and consequential
orders of the Revenue Authorities, the learned Single Judge
has directed to pass necessary orders for change of use of the
land-in-question within a period of eight weeks from the date
of the order i.e. 31.03.2023.
3. It seems that no order came to be passed in
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
compliance of the order of the learned Single Judge and the
Misc. Civil Application (extension of time) No. 2 of 2023 in
Special Civil Application No. 18381 of 2017 had been filed
which was allowed vide order dated 26.05.2023, noticing the
statement of the learned Assistant Government Pleader and
the stand of the applicants in the application that the
Authority had received the copy of the judgment on
08.05.2023 and they needed few more weeks for passing of
the orders for change of use of land-in-question. In light of
the said fact, the learned Single Judge had granted six weeks
further time to pass necessary orders. Misc. Civil Application
filed by the State - appellants herein has been disposed of by
the learned Single Judge, accordingly.
4. It seems that the instant appeal has been filed as an
afterthought as it has been presented on 02.01.2024 after a
delay of 229 days. We may note that the explanation offered
by the State appellants seeking for condonation of delay has
already been accepted by us being satisfactory. We,
therefore, do not find any reason to deliberate on the issue as
pressed by the learned Senior Advocate Mr. Shalin Mehta
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
appearing for the respondents herein about the conduct of
the State appellants in proceeding to file the instant appeal.
5. Coming to the merits of the case, we may note that
certain facts in brief are relevant to be noted herein. The
petitioners herein are the purchasers of the land-in-question,
which was a restricted tenure land, after getting a permission
from the Collector under Section 63 of the Gujarat Tenancy
and Agricultural Lands Act, 1948 (for short 'the Tenancy Act',
1948). There is no dispute about the fact that by the order
dated 05.09.1997 permission was granted by the Collector
under Section 63 of the Tenancy Act, 1948, on the conditions
mentioned therein, for the sale of the land-in-question in
favour of the petitioner. One of the conditions of transfer as
indicated in the order of permission dated 05.09.1997 is
relevant to be noted hereinunder : -
"jmIn mhesUl kaydanI klm-ÎÍ he#5nI prvangI Aa hukm 4yajmIn mhesUl kaydanI klm-ÎÍ he#5nI prvangI Aa hukm 4ya
tarIq4I É masma> me5vI levanI rhexe. t4a 5 v8Rma> ba>6kam pu½
krvanu> rhexe.
Permission under Section 65 of the Land Revenue Code
shall be obtained within one month from the date of this
order and the construction has to be completed within
three years."
6. There is also no dispute about the fact that the
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
petitioners herein had fulfilled the conditions of transfer and
applied for conversion of the land-in-question from
agricultural purposes to non-agricultural purposes under
Section 65 of the Gujarat Land Revenue Code, 1879 as per
the above extracted condition of the order of the Collector.
7. The order of conversion of the land-in-question from
agricultural use to non-agricultural use was passed by the
District Development Officer of the concerned District
Panchayat, Vadodara on 29.06.1998 on the payment of Rs.
87,900/-, towards conversion tax. The copy of the order of
conversion dated 29.06.1998 is on record. It seems that
there was some mistake in the computation towards
conversion charges and as such a fresh computation was
intimated to the petitioners by the order dated 13-14.02.2002
of the District Development Officer, Vadodara, which is
appended at page No. '46' of the paper-book. It is the
specific case of the petitioners and there is no dispute about
the said fact that the revised conversion tax had also been
deposited by the petitioners. The use for which the
permission was granted in the year 1998, has been adhered
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
to and the land-in-question was being used for a film studio
uptil the year 2015, when the application dated 27.08.2015
was moved under Section 65A of the Gujarat Land Revenue
Code, 1879 seeking for conversion of the land-in-question
from commercial purpose to residential purpose.
8. It is the case of the petitioners that no decision had
been taken on the application under Section 65A for a period
of more than 90 days, prescribed in Section 65(1) of the Land
Revenue Code, 1879, which is applicable mutatis mutandis in
the case of the application moved under Section 65A of the
Gujarat Land Revenue Code, 1879. The submission is that
by virtue of the proviso to sub-section (1) of Section 65, the
permission applied for having not been granted within a
period of three months nor rejected, deemed provision in sub-
section (2) of Section 65 of the Revenue Code will come into
play.
9. It may further be noted that the petitioners have
filed writ petition being No. 18381 of 2017 seeking a
direction in the nature of mandamus to the respondent
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
authorities for declaration of the permission having been
granted by virtue of the deeming provision of Section 65(1) of
the Gujarat Land Revenue Code, 1879. Rule was issued to
the respondents in the said writ petition. However, during
the pendency of the said writ petition, the communication /
order dated 27.02.2019 came to be issued/passed by the
Revenue Department pursuant thereto the order dated
10.03.2022 was passed by the Collector, Vadodara, which has
led to the filing of the writ petition namely Special Civil
Application No. 9221 of 2022. Both the above noted petitions
were tagged and have been decided by the common judgment
against which the instant appeal is filed.
10. A perusal of the order dated 10.03.2022 passed by
the Collector, subject-matter of challenge before the Writ
Court, indicates that a reference has been made therein to
three Government Resolutions dated 07.03.2015, 05.05.2016
and 17.03.2017, which have been issued with reference to
Section 43 of the Tenancy Act, 1948.
11. A bare reading of the order passed by the Collector
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
indicates that premium was sought to be charged from the
petitioners on the premise that the petitioners were the bona
fide purchasers, but it was a case of violation of the
conditions of the statutory provisions under Section 43 of the
Gujarat Tenancy Act, 1948, and, as a result of it, the
petitioners are liable to pay premium as computed therein.
12. This order was challenged before the learned Single
Judge with the contention on the part of the petitioners that
with the passing of the order under Section 63 of the Tenancy
Act, 1948, permitting for sale of the land-in-question to a non-
agriculturalists, the land-in-question goes out of the purview
of the Tenancy Act, 1948. Moreover, none of the conditions
of the order of permission granted by the Collector under
Section 63 of the Tenancy Act, 1948 has been faulted. The
conversion tax liable to be paid under Section 65 of the Land
Revenue Code, 1879, has also been paid including the revised
conversion tax charged in the year 2002. Subsequent
permission for conversion of the usage of the land from one
non-agricultural use to another non-agricultural purposes is
governed by Section 65A of the Gujarat Land Revenue Code,
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
1879. The Government Resolutions as relied in the order of
the Collector dated 10.03.2022 are not attracted, insofar as,
the conversion of the land-in-question under Section 65A.
There is absolutely no assertion of violation of any of the
conditions of the Tenancy Act, 1948 in the matter of sale of
the land-in-question.
13. The State, on the other hand, has relied upon the
averments made in the affidavit of the Collector, Vadodara
filed before the Writ Court, wherein it was sought to be
submitted that the land-in-question was sold in favour of the
tenant by the landlord on 01.10.1958 and even though the
land-in-question was later sold to the tenant and even
regularized by imposing penalty of Rs. 1/-, yet the conditions
of restricted tenure continued to remain upon the land-in-
question as per section 84C(4) of the Tenancy Act, 1948. It
was, thus, contended that the land-in-question which was a
restricted tenure land, even after it was sold by the landlord
to the tenant, could have been sold upon the requisite
permission being granted upon payment of premium and for
that very purpose, the office of the Collector has initiated the
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
proceedings to realize premium from the petitioners. The
reference has been made to the Government Resolution dated
07.03.2015, as noted hereinabove, in the affidavit of the
Collector to substantiate the computation of premium levied
upon the petitioners.
14. Learned Single Judge having noted the stand of the
respondents has recorded that the subject land was
converted into non-agriculture purposes to develop a Studio
and as the land was an agriculture land and the petitioners
were non-agriculturists, an application was made for granting
permission under Section 63. It was noted that the premium,
if any, was leviable at the time of grant of permission under
Section 63 of the Tenancy Act, 1948 and could have been
levied by the respondent authorities. They cannot be
permitted to levy premium at the time of seeking permission
to change the land use from one non-agriculture purpose to
another non-agriculture purpose. It was, thus, concluded
that the respondent authorities are not justified in levy of the
premium as if the land is converted from agricultural to non-
agricultural purposes, only because at two stages, when the
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
permission under Section 63 of the Tenancy Act, 1948 was
granted in the year 1997 as well as non-agricultural
permission which was granted by the District Development
Officer on 29.06.1998, the respondent authorities had not
charged premium by treating the land-in-question as an old
tenure land without any restriction.
15. Considering the findings returned by the learned
Single Judge, we may go through the provisions of Section 63
of the Tenancy Act, 1948, Rule 36 of the Bombay Tenancy
and Agricultural Lands Rules, 1956 made thereunder, as also
Section 65 and 65A of the Gujarat Land Revenue Code, 1879.
For ready reference, they are reproduced as under : -
Section 63 of the Tenancy Act, 1948 -
"63. Transfers to non-agriculturalists barred. -
(1) Save as provided in this Act,--
(a) no sale (including sales in execution of a decree of a
Civil Court or for recovery of arrears of land revenue or
for sums recoverable as arrears of land revenue), gift
exchange or lease of any land or interest therein, or
(b) no mortgage of any land or interest therein, in which
the possession of the mortgaged [or]
(c) no agreement made by an instrument in writing for
the sale, gift, exchange, lease or mortgage of any land
or interest therein.
shall be valid in favour of a person who is not an
agriculturist [or who being an agriculturist cultivates
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
personally land not less than the ceiling area whether as
an owner or tenant or partly as owner and partly as
tenant or who is not an agricultural labourer]:
Provided that the Collector or an officer
authorised by the [State] Government in this behalf may
grant permission for such sale, gift, exchange, lease or
mortgage, [or for such agreement] on such conditions as
may be prescribed:
[Provided further that no such permission shall be
granted, where land is being sold to a person who is not
an agriculturist for agricultural purpose, if the annual
income of such person from other sources exceeds five
thousand rupees.]
[(1A) The State Government may, by notification
in the Official Gazette, exempt from the provisions of
sub-section (1), for the transfer of any agricultural land
to any public trust established for the charitable
purpose and which is non-profitable in nature, for the
use of such land in the field of health and education,
subject to such conditions as may be specified therein.]
(2) Nothing in this section shall be deemed to
[prohibit the sale, gift, exchange or lease, or the
agreement for the sale, gift, exchange or lease, of] a
dwelling house or the site thereof or any land
appurtenant to it in favour of an agricultural labourer
or an artisan [or a person carrying on any allied
pursuit].
[(3) Nothing in this section shall apply or be
deemed to have applied to a mortgage of any land or
interest therein effected in favour of a co-operative
society as security for the loan advanced by such society
[or any transfer declared to be a mortgage by a court
under section 24 of the Bombay Agricultural Debtors'
Relief Act, 1947]].
[(4) Nothing in section 63A shall apply to any
sale made under sub-section (1).]"
Section 36 of the Bombay Tenancy and
Agricultural Lands Rules, 1956
"36. Conditions on which permission for sale etc.
of land under section 63 may be granted.- (1) The
Collector or other officer authorized under the proviso
to sub- section (1) of section 63 shall not grant
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
permission for sale, gift, exchange, lease or mortgage of
any land in favour of a person who is not either an
agriculturist or an agricultural labourer or who, being
an agriculturist, cultivates personally land not less than
the ceiling area whether as owner or tenant or partly as
owner and partly as tenant unless any of the following
conditions are satisfied:-
(a) such a person bona fide requires the land for a non-
agricultural purpose; or
(b) the land is required for the benefit of an industrial or
commercial undertaking or an educational or charitable
institution; or
(c) such land being mortgaged, the mortgagee has
obtained from the Collector a certificate that he intends
to take the profession of an agriculturist and agrees to
cultivate the land personally, or
(d) the land is required by a Co-operative Society, or
(e) no agriculturist in the village in which the land is
situated who holds lands less than the ceiling area or no
agricultural labourer in such village is prepared to take
the land on lease from the owner, or
(f) the land is required for cultivating it personally by a
person, who not being an agriculturist, intends to take
to the profession of agriculture and whom the Collector
after having regard to the order of priority mentioned in
clause (c) of sub-section (2) of section 32P, has given a
certificate that such person intends to take the
profession of agriculture and is capable of cultivating
land personally, or
(g) the owner of the land has complied with the
provisions of section 64; or
(h) such land is being sold-
(i) in execution of a decree of a Civil Court, or
(ii) for recovering arrears of land revenue or any
sums recoverable as arrears of land revenue under the
provisions of the Bombay Land Revenue Code, 1879,
and
no agricultural labourer or agriculturist holding land
less than the ceiling area is prepared to bid at such sale;
or
*[(ha) such land is required bonafide by a cattle breeder
for the purpose of clattle breeding or.]
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
(i) such land is being given in gift whether by way of
trust or otherwise, and such gift is made bona fide by
the owner in favour of a member of his family.
[(1-A) Where permission is granted on the condition
specified in clause [(a), (b) or (d) of sub-rule (1)], such
permission shall be subject to a further condition that
the person in whose favour the sale, gift, exchange,
lease or mortgage, as the case may be, of the land is
made shall use the land for the purpose for which the
permission has been granted within three years from the
date on which he takes possession of the land in
accordance with the provisions of the Act. or within such
further period not exceeding five years in the aggregate
as the Collector for reasons to be recorded in writing
may from time to time fix or within such further period
exceeding five years as aforesaid as the Collector may
fix with the prior approval of the State Government. If
the person fails to comply with the conditions within the
period so specified the permission given under sub-
section (1) of section 63 shall be deemed to have been
cancelled and the sale, gift, exchange, lease or
mortgage, as the case may be, shall be deemed to have
been made without the previous sanction of the
Collector or the Officer concerned authorised to grant
such sanction (hereinafter referred to in this sub- rule as
"the authorised officer:]
Provided that commencement of bona fide steps
to use land for the purpose for which permission has
been granted shall be deemed to be compliance with the
condition regarding the use of the land for non-
agricultural purpose within the sanctioned period:
Provided further that if the Collector or the
authorised Officer is satisfied that the person in whose
favour the transfer is made is unable to make use of the
land within the specified period for the purpose for
which the permission has been granted on account of
genuine reasons, he may allow him to use the land for a
different purpose including agricultural use after
specifying such conditions as may be considered
necessary and thereupon the person concerned shall use
the land for the said purpose within the sanctioned
period.
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
Explanation.- Where a question arises whether
the steps taken for the purpose of the first proviso were
bona fide or not, the decision of the Collector or, as the
case may be, authorised officer shall be final.]
(2) Where permission is granted on any of the
conditions specified in [clauses (b) and (f)] of sub-rule
(1), such permission shall be subject to a further
condition that the person in whose favour the sale, gift,
exchange, lease or mortgage, as the case may be, of the
land is made, shall use the land for the purpose for
which the permission has been granted within one year
from the date on which he takes possession of the land
in accordance with the provisions of the Act or within
such further period not exceeding five years in the
aggregate as the Collector for reasons to be recorded in
writing may from time to time fix. If the person fails to
comply with the condition within the period sanctioned
by the Collector, the permission given under sub-section
(1) of Section 63 shall be deemed to have been cancelled
and the sale, gift, exchange, lease or mortgage, as the
case may be, shall be deemed to have been made
without previous sanction of the Collector.
(3) Where permission is granted on the conditions
specified in clause (f) of sub- rule (1) such permission
shall be subject to a further condition that as soon as the
person in whose favour the sale, gift, exchange, lease or
mortgage, as the case may be, of land is made, ceases to
cultivate the land personally or transfers his interest in
the land by sale, gift, exchange, lease or mortgage
without the previous sanctions of the Collector, the
permission given under sub-section (1) of section 63
shall be deemed to have been cancelled.
Section 65 and 65A of the Gujarat Land Revenue
Code, 1879
65. Uses 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-buildings,
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].
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
Procedure if occupant wishes to apply his land t
any other purpose [or for other different non-
agricultural purposes]. - But, if any occupant [wishes
to use his holding or any part thereof for any other
purpose [or for other different purposes] 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
acknowledgement 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 acknowledgement 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
recognized 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 a residential purpose, it shall not be necessary
for him to obtain permission of the Collector under sub-
section (1).
Explanation.--For the purposes of this section--
(i) "gram" means a gram within the meaning of the
Gujarat Panchayats Act, 1961;
(ii) "industrial estate" means an industrial estate within
the meaning of the Gujarat Industrial Development Act,
1962;
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
(iii) "municipal borough" or "notified area" means
respectively, a municipal borough or a notified area
within the meaning of the Gujarat Municipalities Act,
1963;
(iv) "urban agglomeration" means an urban
agglomeration within the meaning of the Urban Land
(Ceiling and Regulation) Act, 1976.]
65A. Procedure if occupant wishes to apply his
land from one non-agricultural purposes to
another non-agricultural purpose [or for other
different non-agricultural purposes]. - 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 [or for
other different non-agricultural purposes], 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.
Explanation:--In this section, and in section 67A "non-
agricultural purpose" means any of the purposes
specified in clauses (b) to (e) of sub-section (1) of
section 48.]"
16. Reading of Section 63(1) with the first proviso to
sub-section (1) of Section 63 indicates that the Collector or
any officer authorized by the State Government in this behalf
is empowered to grant permission for sale, gift etc., on such
condition as may be prescribed, to transfer a land of
restricted tenure to a non-agriculturalist. On the permission
being granted by the Collector on the conditions as may be
prescribed under Rule 36 of the Rules, 1956, the transfer
would be a valid transfer. Rule 36 provides the condition
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
which can be prescribed by the Collector at the time of
granting permission under the first proviso to sub-section (1)
of Section 63 for such sale or transfer or an agreement to
transfer or alienation.
17. It is not the case of the respondents that any of the
conditions prescribed in the order of permission granted by
the Collector on 05.09.1997 under Section 63 of the Tenancy
Act, 1948 has been violated by the petitioners - respondents
herein. It was, thus, not the case of the violation of the
provisions of Tenancy Act, 1948. In this view of the matter
itself, we find that the provisions of Tenancy Act, 1948 would
not be attracted, insofar as, the land-in-question after the
permission under Section 63 of the Tenancy Act, 1948 had
been granted by the Collector for sale of the land-in-question
to a non-agriculturalist.
18. However, for conversion of the land-in-question from
agricultural to non-agricultural purposes, the provisions of
Section 65 of the Land Revenue Code, 1879 would be
attracted. Section 65A of the Land Revenue Code, 1879
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
provides for change of user of an agricultural land to non-
agricultural purposes and states that if an occupant wishes to
use or holding any part thereof for any other purpose, the
Collector's permission in the first place shall be applied for by
the occupant. On receipt of such application, the Collector is
required to pass order either to grant or refuse the
permission applied for, after due inquiry. Proviso to sub-
section (1) of Section 65 further states that if 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.
19. Section 67A of the Gujarat Land Revenue Code, 1879
provides for payment of conversion tax by occupant for
change of use of land, where the land held for the purpose of
agriculture or non-agriculture purposes is permitted or
deemed to have been permitted under Section 65, 65A or 65B
to be used for any other non-agricultural purposes. It states
that the occupant of such land shall be liable to pay the State
Government the conversion tax at such rate as may be
specified in the notification or Official gazette, which shall be
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
payable by the occupant to such authority, in such manner,
and at such time, as may be prescribed.
20. Noticing the above provisions, we may record that
the conversion tax at the time of conversion of the land-in-
question from agricultural to non-agricultural purposes, i.e.
from agricultural to commercial purposes for the purpose of
setting up Studio, pursuant to the order dated 29.06.1998,
had already been paid by the petitioner. The revised rate of
conversion tax had also been paid pursuant to the order
passed on 13/14.02.2002. There is no dispute about the
payments liable to be made by the petitioners upto that
extent. The only dispute remains is with regard to the
conversion of the land-in-question from commercial purposes
to residential purposes as per the provisions of Section 67-A
in light of the application dated 27.08.2015 moved by the
petitioners.
21. There is also no dispute that the Collector did not
convey its decision on the application dated 27.08.2015
moved by the petitioners for a long time. The order to levy
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
the premium as per the Government Resolutions dated
07.03.2015, 05.05.2016 and 17.03.2017, has been passed on
10.03.2022 ignoring the above noted aspects of law. The only
payment which was required to be made by the petitioners in
case of deemed permission having been granted by the
Collector by operation of the proviso to sub-section (1) of
Section 65 is the conversion tax, which can be levied in
accordance with Section 67A of the Gujarat Land Revenue
Code, 1879. The Collector has, thus, committed a glaring
illegality in applying the Government Resolutions dated
07.03.2015, 05.05.2016 and 17.03.2017 in levying the
premium on the premise of the violation of the provisions of
the Tenancy Act, 1948, that too under Section 43 of the
Tenancy Act, 1948, that the nature of the land being
restricted tenure land remains as such even after the
permission having been granted by the Collector under
Section 63 of the Tenancy Act, 1948 by order dated
05.09.1997.
22. For the above reasoning, in addition to the reasons
given by the learned Single Judge, we are of the considered
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
opinion that the order passed by the Collector dated
10.03.2022 pursuant to the decision of the Revenue
Department dated 27.02.2019, cannot be sustained. No
interference is required in the order passed by the learned
Single Judge to the above extent. ]
23. However, on the directions issued by the learned
Single Judge, we leave it open for the respondent authorities
to compute the conversion tax for conversion of the land-in-
question from commercial purposes to residential purposes
as per the provisions of Section 67A of the Gujarat Land
Revenue Code, 1879 pursuant to the application dated
27.08.2015 moved by the petitioners under Section 65A of
the Land Revenue Code, 1879. We may make it clear that it is
not open for the respondent authorities to take any decision
about the permission for conversion under Section 65A, as
the permission for conversion of the land-in-question from
commercial to residential purpose shall be deemed to have
been granted in view of the proviso to sub-section (1) of
Section 65, which applies to the case of conversion under
Section 65A of the Land Revenue Code, 1879. The only
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
matter left with the respondent authorities is to compute the
conversion tax in accordance with Section 67A, as is
applicable as on 27.11.2015, i.e., the date of expiry of three
months from the date of the application under Section 65A
moved by the petitioners. However, at this stage, a
concession has been given by Mr. Parthiv Shah, learned
advocate appearing for the respondents, under the
instructions received by him from the respondents, that the
respondents are ready and willing to pay the conversion tax
on the rates as applicable as on date, on the premise that
deemed permission for conversion has already been granted
by virtue of provision of Section 65(1) of the Land Revenue
Code, 1879, in view of the order passed by the learned Single
Judge in allowing both the writ petitions.
24. The appellants herein are, therefore, directed to
make computation of the conversion tax, strictly in
accordance with the provisions of 67-A, as per the applicable
rate as on today, i.e., the date of the passing of this order,
within a period of four weeks from the date of the receipt of
copy of this order and duly communicate the same to the
NEUTRAL CITATION
C/CA/73/2024 ORDER DATED: 10/01/2024
undefined
petitioners, forthwith. The petitioners shall be liable to make
payment within the time granted by the appellant authorities.
25. With the above observations and directions, the
Letters Patent Appeal stands disposed of. All pending Civil
Application(s), if any, shall also stands disposed of.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
AMAR SINGH
