Gujarat High Court
State Of Gujarat vs Tejuben Lakhmanbhai Chavda on 25 November, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
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C/LPA/190/2022 JUDGMENT DATED: 25/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 190 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 1666 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 190 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
✔
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STATE OF GUJARAT & ORS.
Versus
TEJUBEN LAKHMANBHAI CHAVDA & ORS.
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Appearance:
MR. MITESH AMIN, LD. ADDL. ADVOCATE GENERAL WITH MR. KANVA
ANTANI ASST.GOVERNMENT PLEADER for the Appellant(s) No.
1,2,3,4,5
MR BHARAT T RAO(697) for the Respondent(s) No. 1,3,4,5
RULE SERVED for the Respondent(s) No. 2.1,2.2,2.3,2.4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 25/11/2024
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
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1) Heard learned counsels for the parties and perused the
record.
2) The present appeal filed by the State Appellants is directed
against the judgment and order dated 09.09.2019 passed by the
learned Single Judge in holding that the land in question initially
allotted to late Lakhmanbhai Hirabhai Harijan on 01.09.1981 was
converted from new tenure to old tenure subject to premium being
paid for non-agricultural purposes, pursuant to the Government
Resolution dated 10.05.2001 shall not be guided by the Government
Resolution dated 05.08.2005, inasmuch as, the orders passed by the
Deputy Collector and Collector in the year 2004 for conversion of
the land in question from new tenure to old tenure land have
attained finality. It now cannot be said that the land in question is
not an old tenure land or the sale deed executed by the petitioner
for non-agricultural purpose subject to payment of premium, as
maybe determined by the competent authority was impermissible
under law.
3) It was held by the learned Single Judge that there is no breach
of conditions of conversion of the land in question from new tenure
to old tenure for agricultural purposes and the old tenure land for
non-agricultural purposes, application for which was illegally
rejected by the Collector relying upon the Government Resolution
dated 04.07.2008, which would not be applicable in the instant
case. The direction was, thus, issued to the Collector while
remanding back to consider the application made by the petitioners
for determination of the premium leviable for the use of the land in
question for non-agricultural purposes.
4) The challenge to the order passed by the learned Single Judge
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is based on the contents of Paragraphs '2' and '3' of the
Government Resolution dated 10.05.2001 and the Government
Resolution dated 05.08.2005, whereby the Clause '5' of the
Government Resolution dated 10.05.2001 has been amended,
incorporating the requirement of Section 30 of the Gujarat
Agricultural Lands Ceiling Act, 1960 (for short, "the Ceiling Act'
1960") into the matter where question arises of conversion of the
lands allotted under the Ceiling Act' 1960.
5) Mr. Mitesh Amin, the learned Additional Advocate General,
placing Paragraphs '2' and '3' of the Government Resolution dated
10.05.2001, would vehemently argue that even if as per the
provision of the said Government Resolution, there was a
permission for conversion of the land in question from new tenure to
old tenure but the said conversion was for agricultural purposes
only. The language of the Clauses '2' and '3' of the aforesaid
Government Resolution dated 10.05.2001, further makes it clear
that for conversion of the land in question for non-agricultural
purposes, there was requirement of payment of premium, even if
the land in question has been converted into the old tenure land
prior to the promulgation of the Government Resolution dated
05.08.2005.
6) It was vehemently argued that the language of Clauses '2'
and '3' of the Government Resolution dated 10.05.2001 is clear to
the extent that the process of conversion of the land in question,
which has been converted from new tenure to old tenure for
agricultural purposes, for non-agricultural use it would be subject to
the condition or requirement of the then existing rules or the
Government Resolutions, etc. It was, thus, contended that as per
the said provision, at the time of moving of an application for
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conversion of even an old tenure land from agricultural to non-
agricultural operations, the requirement of the Government
Resolution inforce at the time of such conversions would have to be
fulfilled.
7) The submission is that the land in question had been
transferred in the year 2013 without the permission of the Collector
and hence, the application moved by the transferee seeking for
conversion of the land in question from agricultural to non-
agricultural use, has been rejected on the ground of the transfer
being in breach of provisions of the Government Resolution dated
10.05.2001, as amended vide Government Resolution dated
05.08.2005, which states that whenever a question of conversion
arises, the requirement of the provisions of Section 30 of the Ceiling
Act' 1960 is to be fulfilled. The Collector, finally, has rejected the
application moved by the petitioners for conversion of the land in
question from agricultural to non-agricultural operations on the
premise that premium has not been paid by the petitioner at the
time of transfer of the land from new tenure to old tenure and
further, in view of the breach of amended Clause '5' of the
Government Resolution dated 10.05.2001 with effect from
05.08.2005, prayer to allow the application for non-agricultural
purposes cannot be granted.
8) In rebuttal, the learned counsel for the respondent / original
petitioner has invited attention of the Court to the Government
Resolution dated 03.03.2017, which has been issued with reference
to two Government Resolutions dated 10.05.2001 and 05.08.2005,
subject matter of consideration in the present appeal. When we
looked to the Government Resolution dated 03.03.2017, the same
was issued with reference to the conversion of new tenure lands
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allotted under the Ceiling Act' 1960 (from new tenure to old tenure)
by virtue of the Government Resolution dated 10.05.2001. There is
a categorical clarification given in the said Government Resolution
that the lands in question, which were converted from new tenure to
old tenure between 10.05.2001 to 21.08.2005 would be governed
by the Government Resolution dated 10.05.2001 and the
amendment brought by the Government Resolution dated
05.08.2005 would not be applicable for such cases. The Government
Resolution dated 03.03.2017 is in the nature of clarification and
such is to be given retroactive effect. The order dated 01.04.2013
passed by the Collector in rejecting the application moved by the
petitioner set aside by the learned Single Judge vide judgment and
order dated 09.09.2019 cannot be interfered with. The subsequent
order dated 26.09.2013 passed by the Special Secretary (Revenue
Department) affirming the order of the Collector would
automatically have to go.
9) Adding further, to the findings returned by the learned Single
Judge, taking note of the Government Resolution dated 03.03.2017,
we may record that by virtue of the Government Resolution dated
10.05.2001, a window was opened by the State Government for
conversion of lands allotted under the Ceiling Act' 1960 from new
tenure to old tenure for agricultural operations only. In the said
Government Resolution, there is a reference of two earlier
Government Resolutions dated 02.01.1996 and 06.03.1998, which
were rescinded by virtue of Paragraph '5' of the Government
Resolution dated 10.05.2001.
10) The Government Resolution dated 02.01.1996 provided that
even after the conversion of such lands from new tenure to old
tenure, which were allotted under the Ceiling Act' 1960,
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requirement of payment of premium at the time of transfer would
be insisted. Meaning thereby, the tenure holder, who sought
conversion of such lands from new tenure to old tenure and transfer
his land for agricultural purpose, he was required to pay premium at
that stage itself.
11) The Government Resolution dated 06.03.1998 is only
reiteration of the requirement / conditions of the Government
Resolution dated 02.01.1996. However, by virtue of Clause '5' of
Government Resolution dated 10.05.2001, the requirement of
payment of premium at the time of transfer and conversion of land
from new tenure to old tenure, allotment under the Ceiling Act'
1960, has been done away with the rescission of the Government
Resolutions dated 02.01.1996 and 06.03.1998.
12) By virtue of the Government Resolution dated 05.08.2005,
further a substituted condition has been put in place as Paragraph
'5' in the Government Resolution dated 10.05.2001, wherein it was
provided that whenever the question arises for conversion of the
lands allotted under the Ceiling Act' 1960, the requirement of
Section 30 of the Ceiling Act' 1960 was to be fulfilled and the
proceedings would be conducted by the Collector in accordance
with the provisions of Section 30 of the Ceiling Act' 1960.
13) There is no dispute about the fact that the land in question
has been converted from new tenure to old tenure land as per the
Government Resolution dated 10.05.2001 by virtue of an application
filed by the petitioner before the Deputy Collector vide order dated
05.04.2004. The said order was affirmed in revision by the Collector
and as rightly noted by the learned Single Judge, both the orders
have attained finality. The result of the aforesaid order of
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conversion during the subsistence of the original Government
Resolution dated 10.05.2001 would be that the land in question
would go out of the purview of the Government Resolution dated
05.08.2005, which was issued for modification of the Government
Resolution dated 10.05.2001, in the matter of conversion of
agricultural lands from new tenure to old tenure, allotted under the
Ceiling Act' 1960. The reason being that the status of the land in
question was changed from new tenure to old tenure much prior to
the amendment of the Government Resolution dated 10.05.2001 by
virtue of the Government Resolution dated 05.08.2005.
14) The submission made by the learned Additional Advocate
General to insist upon the Condition No.5, as incorporated by the
Government Resolution dated 05.08.2005, to defend the order
passed by the Collector in rejection of the application seeking
permission for non-agricultural use, cannot be appreciated, for the
simple reason that on the date of conversion of the status of the
land in question from new tenure to old tenure, the requirement, as
brought by amendment vide Government Resolution dated
05.08.2005, was not in existence.
15) The conditions of seeking permission for transfer under
Section 30 of the Ceiling Act' 1960, therefore, cannot be insisted
with, inasmuch as, that with the conversion of the land in question
from new tenure to old tenure, there remained no restrictions on the
land in question, except that the land in question can be used for
agricultural operations only and the permission for non-agricultural
use would be granted only on payment of premium. Only condition
remains after conversion of the land in question from new tenure to
old tenure by virtue of the Government Resolution dated
10.05.2001, that the landholder is required to pay premium for use
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of the land in question for non-agricultural purposes.
16) The content of Paragraph '2' of the Government Resolution
dated 10.05.2001 has to be read with unamended Paragraph '5' of
the said Resolution, whereby two previous Government Resolutions
dated 02.01.1996 and 06.03.1998 have been rescinded. In any
case, by virtue of the Government Resolution dated 03.03.2017, the
State Government itself has cleared the confusion and clearly stated
that for all those cases, where the lands were converted as per the
Government Resolution dated 10.05.2001 between 10.05.2001 to
21.08.2005, the Government Resolution dated 05.08.2005 would
not be applicable.
17) In view of the above observations, in addition to the findings
returned by the learned Single Judge, rejecting the contention of the
learned Additional Advocate General, we dismiss the present
appeal. No order as to costs.
18) The Collector concerned is directed to comply with the order
passed by the learned Single Judge and determine the premium for
conversion of the land in question from agricultural to non-
agricultural purposes, requiring the petitioner to complete the
necessary formalities for the purpose, as expeditiously as possible
preferably within the period of six weeks from the date of receipt of
copy of this order.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
SAHIL S. RANGER
