Gujarat High Court
New Kamalkunj Co-Operative Housing ... vs State Of Gujarat And Ors. on 6 July, 1993
Equivalent citations: (1994)1GLR506
JUDGMENT D.G. Karia, J.
1. In both these petitions under Article 226 of the Constitution of India, a short point of law that arises is whether the provisions of Section 65 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, "the said Act") will be applicable to the lands which are no longer agricultural lands and are permitted to be used for non-agricultural purpose, in the following facts and circumstances.
2. The lands of Survey Nos. 453/1, 454/1, 454/2 and 454/3, 455/4 and 455/3 and 456, situated at Chaodkheda, District Gandhioagar are the subject-matter of these petitions. It is not in dispute that the said lands belong to the petitioner, which is a co-operative housing society registered under the provisions of the Gujarat Co-operative Societies Act. The member:, of the petitioner-Socifcty who are coming from the lower strata of the society have invested their savings for the purpose of having a residential premises. The former owners of the lands had obtained necessary exemptions under Section 20(1) of the Urban Land (Ceiling & Regulation) Act,' 1976 with a view to enable the members of weaker sections of the Society to form a co-operative housing society and to construct housing premises for them en the lands in question. The said exemption certificate was granted on November 7, 1989. Thereafter, the land was sought to be converted for use of non-agricultural purpose. Ahmedabed Urban Development Authority, after scrutinising the applications of the land-owners, granted development permission in reaped of the lands in question by the order dated February 5, 1990, a copy of which is at Annexure "C" to the petition. The District Development, Officer, Garcihiragar, by his under dated June 15; 1990 grained permission to use the land in question for non-agricultural purpose. The necessary sale-deeds In respect of the lands in question were executed and registered in favour of the petitioner-Society. The petitioner-Society could not comply with certain conditions set out in the order granting exemption under Section 20(1) of the Ceiling Act and therefore an application for extension of time was made and the same was granted by en older dated July 10, 1991. The petitioner-Society thereafter started making construction of the tenements for its members. The Deputy Collector, Gandhinagar, however, by the impugned order dated February 28, 1991 in Special Civil Application No. 3577 of 1992 and by the impugned order dated June 1, 1991 in Special Civil Application No. 3991 of 1992, declared that the management of the aforesaid lands be assumed on the ground that the said lands had remained uncultivated for two consecutive years. The impugned orders Of assumption of management of the lands in question were passed invoking Section 65 of the said Act. The petitioner-Society has challenged the legality and validity of these impugned orders, assuming the management of the land in question under Section 65 of the said Act.
3. Mr. A.J. Patel, learned Advocate appearing for the petitioner-Society, submitted that the impugned order is an arbitrary order, as the management of the lands in question cannot be assumed by the Government for the reason that the land was not the agricultural land and the Government itself having granted exemption under Section 20(1) of the Urban Land (Ceiling and Regulation) Act, 1986, has permitted to use the lands for non-agricultural purpose. In the facts of the case, according to Mr. Patel, provisions of Section 65 of the said Act cannot be pressed into service.
4. Section 65 of the said Act reads as under:
65. (1) If it appears to the State Government that for any two consecutive years, any land has remained uncultivated or the full and efficient use of the land has not been made for the purpose of agriculture, through the default of the holder or any other cause whatsoever not beyond his control the State Government may, after making such inquiry as it thinks fit, declare that the management of such land shall be assumed. The declaration so made shall be conclusive.
(1A) The assumption of management of land under Sub-section (I) on the ground that the full and efficient use of the land has not been made for the purpose of agriculture shall be for such period as the State Government may, from time to time fix, so, however, that such period shall not exceed ten years in the aggregate. (2) On the assumption of the management, such land shall vest in the State Government during the continuance of the management and the provisions of Chapter-IV shall mutatis mutandis apply to the said land:
Provided that the Manager may in suitable cases give such land on lease at rent even equal to the amount of assessment:
Provided further that, if the Management of the land has been assumed under Sub-section (1) on account of the default of the tenant, such tenant, shall cease to have any right or privilege under Chapter II or III, as the case may be, in respect of such land, with effect from the date on and from which such management has been assumed.
The plain reading of the aforesaid provisions of Section 65 of the said Act makes it clear that the State Government, after leaking such inquiry as it thinks fit, declare that the management of such land shall be assumed, if the land has remained uncultivated for any two consecutive years or use of the land has not been made for the purpose of agriculture, through the default of the holder or any other cause whatsoever not beyond his control. The provisions of Section 65 contemplates that the land, which is ordinarily used for the cultivation purpose should not remain idle or uncultivated for two years continuously. If the land in question is not the agricultural land and it is permitted to be used for non-agricultural purpose, the provisions of Section 65 cannot be pressed into service. It is not understood as to how it was open for the Government to assume powers under Section 65 of the Act, after the Government granted exemption under the Ceiling Act and the District Panchayat granted N.A. Permission under the provisions of the Bombay Land Revenue Code. Section 65 of the said Act provides that the assumption of the management for effective cultivation of the land can be resorted to only if the land is to continue to be agricultural land. In the present case, the land has admittedly ceased to be the agricultural land on grant of exemption under Section 20 of the Ceiling Act and thereafter on grant of permission for its non-agricultural purpose use. Thus, the land in question in the instant case ceased to be the agricultural lands. Therefore, the impugned orders assuming the management of the lands on the ground of the lands remaining uncultivated for two years cannot be sustained.
5. Mr. Patel also invited my attention to the orders of the, Deputy Collector, Gandhinagar, whereby the proceedings under Section 84C of the said Act were sought to be initiated against the petitioner-Society. In the said order, it was accepted that the land was a non-agricultural one and it was exempted under Section 20(1) of the Ceiling Act.
5.1. Mr. Dhaval Dave, learned Assistant Government Pleader, appearing for the respondent-State has not been able to show that the impugned order could be passed in respect of the land which is ordered to be used for non-agricultural purpose.
6. In the result, both the petitions succeed. The impugned orders at Annexure 'C' to the petitions under Section 65 of the said Act are quashed and set aside. Rule is made absolute with costs.