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
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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.
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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 Page 2 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 3 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 4 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 5 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 6 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 7 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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, Page 8 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 9 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 10 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 11 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 12 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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.] Page 13 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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.
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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].
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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;
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(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 Page 17 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 18 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 19 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 20 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 21 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 22 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 23 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024 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 Page 24 of 24 Downloaded on : Tue Jan 16 20:32:25 IST 2024