Gujarat High Court
Sacheta Charitable Trust Thru .Trustee ... vs Special Secretary, Revenue Department on 21 December, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5928 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SACHETA CHARITABLE TRUST THRU .TRUSTEE SATISHKUMAR
KESHAVLAL SHAH
Versus
SPECIAL SECRETARY, REVENUE DEPARTMENT
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Appearance:
KUMAR H TRIVEDI(9364) for the Petitioner(s) No. 1
NISHITH P ACHARYA(9308) for the Petitioner(s) No. 1
MS. DHWANI TRIPATHI, AGP (99) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 21/12/2021
ORAL JUDGMENT
1. By way of present petition, the petitioner has challenged order dated 3010.2018 passed by the learned Special Secretary, Revenue Department, bearing No. MVV/JMN/SBR/10/2018 whereby the revision application Page 1 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 referred by the petitioner came to be rejected and the order dated 4.4.2018 passed by the District Collector, Sabarkantha was confirmed.
2. The brief facts leading to the present petition are as follows:
2.1 The land in question being an old tenure land owned by two brothers namely Rameshbhai Parshottambhai Panchal and Maheshbhai Parshottambhai Panchal, admeasuring 14873 sq. mtrs situated at Block No.139, Moje: Mahiyal, Taluka:
Talod, District: Sabarkantha. As per the agreement between the parties, the portion of the land admeasuring 7386 sq. mtrs out of the total land owned by both the brothers was agreed to be sell to the petitioner Trust whereby the transaction was entered into by registered sale-deed dated 10.6.2018 bearing Serial No. 1323 thereof. The petitioner had undertaken an exercise of fragmentation of land in question and got necessary permission issued vide order dated 20.3.2010 of the Deputy Collector, Himmatnagar.
Thereof, an amending deed to the original sale-deed came to be executed for giving effect to the change in the Block No. i.e. to reflect Block No.139 paiki 1 instead of Block No.139 and no other changes were made to the original sale-deed. Thereafter, the petitioner being public Trust, is involved in various activities for the public at large and for that purpose, it had purchased the land in question for small scale industries and also to set-up training centres for the purpose of training people for the industry so that they Page 2 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 can earn livelihood. Accordingly, the petitioner Trust applied before the learned Collector, Sabarkantha under the provision of Section 63AA of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act') for granting certificate and the same came to be rejected by the District Collector vide its order dated 10.1.2013. It was observed by the learned Collector that since the petitioner Trust had purchased the agricultural land without prior sanction of the competent authority and, therefore, no permission is required to be given under Section 63 of the Tenancy and Agricultural Act, 1989.
2.2 It is alleged that this order was passed without granting any opportunity of hearing to the petition Trust and in fragrant of the Gujarat Tenancy and Agricultural Land Act, 1948 against which the petitioner preferred revision application before the Learned SSRD, who by his order dated 8.1.2017, remanded the matter back to the learned Collector for deciding the same, after giving an opportunity of hearing to the petitioner. In the said remand case, the petitioner - Trust produced Trust Registration Certificate, Income Tax Exemption Certificate, etc. and the Project Report that the petitioner- Trust wished to commence accordingly. This application was also rejected by the District Collector by order dated 4.4.2018 on various grounds, with that rejection order, the petitioner again preferred revision 2.3 The petitioner has challenged the aforesaid order on various grounds set-out in the petition memo, which Page 3 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 include:
(i) That the learned District Collector, Sabarkantha has mis-
understood and mis-interpreted the application of the petitioner to be one under Section 63 of the Gujarat Tenancy and Agricultural Land Act, 1948 whereas it was actually one under provisions of Section 63AA of the Gujarat Tenancy and Agricultural Land Act, 1948.
(ii) the land in question was purchased in the year 2008, the Trust had applied for permission/ grant of Certificate in the year 2011. The Trust has never sat idle and agitated points before the authority concerned.
(iii) The authorities have failed to appreciate that the petitioner Trust has received the permission sanctioning the block fragmentation only in the year 2010.
(iv) Respondent - Authorities have failed to appreciate the provisions of sub-section 3(b) of Section 63AA of the Act, wherein there is a clause regarding assessment of fine/ penalty and that the petitioner are ready to pay penalty, if any, over and above the non-agricultural assessment leviable under the Act.
(v) There was no need of calling of opinion of the Industrial Commissioner when the land was purchased for bonafide industrial purpose and does not exceed 10 hectares.
(vi) There was a Clause that the parties would carry out Page 4 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 agricultural work/ functions together with the help of each other and this fact ought to have been considered by the concerned authority.
(vii) The stand of the petitioner that since they have not received permission, they have yet not prepared the layout plan, ought to have been considered by the authority.
(viii) The revenue authority has overlooked the detailed Project Report having complete details regarding the intended project planned by the petitioner Trust.
3. Heard Mr. Nishit Acharya, learned advocate for the petitioner and Ms. Dhwani Tripathi, learned AGP for the respondent State.
4. Mr. Nishit Acharya, learned advocate for the petitioner has reiterated the aforesaid facts and has submitted that the authorities have overlooked the clauses of the sale-deed wherein the seller and purchaser has agreed to undertake the agriculture work jointly. While referring to various documents placed on record, Shri Acharya has also submitted that the land in question is less than 10 hectares and, therefore, there was no need of asking any advice from the Industrial Committee. He has also submitted that the land being less than 10 hectares, sub-clause (b) of Section (1) of Section 63AA of the Act would not be applicable. He has also submitted that there was no need of any averment in the sale-deed for lease of the land for the Page 5 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 industrial purpose. He has also submitted that the petitioner Trust provided every documents and has shown its intention to initiate industrial activities for the purpose of public activities, the authorities concerned ought to have granted necessary permission under Section 63AA of the Tenancy Act. He has also submitted that the authorities concerned has misinterpreted the Section 63AA of the Tenancy Act and has wrongly applied the provisions of Section 63 of the Tenancy Act for rejecting the application of the Trust and for granting necessary Certificate/ permission. He has prayed to allow the present petition.
5. Per contra, Ms. Dhwani Tripathi learned AGP for the respondent State has vehemently submitted that the learned Collector as well as learned Special Secretary Revenue Department (Appeals) (SSRD) have not committed any error in passing the impugned orders. While referring to the contention of both the orders, learned AGP submitted that after considering the factual aspect, the revenue authorities have passed proper order which does not call for any interference of this Court. She has submitted that the present petition being meritless, be rejected.
6. By way of rejoinder, Mr. Nishit Acharya, learned advocate for the petitioner has reiterated his submissions and has submitted that not the entire portion of the land is sold to the petitioner and there was an order of fragmentation, passed in the year 2010 and thereafter the Trust has Page 6 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 applied for necessary permission under the provisions of Section 63AA of the Tenancy Act. He has prayed to allow the petition.
7. Heard learned advocates for the parties. Perused the material placed on record. The entire issue revolves around Section 63 as well as Section 63AA of the Tenancy Act. At this juncture, it is worthwhile to refer to said provision, which reads as under:
"63. Transfers to non-agriculturists barred. - (1) Save as provided in this Act,-
(a) no sale (including sales in execution of a decree of Civil Court of 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 property is delivered to the mortgagee, [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 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.] Page 7 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 [(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 (Bombay XXVIII of 1947),]].
[(4) Nothing in section 63A shall apply to any sale made under sub-section (1).] [63AA. Sale of land for bonafide industrial purpose permitted in certain cases. - (1) Nothing in section 63 shall prohibit the sale or the agreement for the sale of land for which no permission is required under sub-section (1) of section 65B of the Bombay Land Revenue Code, 1879 (Bombay V of 1879) in favour of any person for use of such land by such person for a bonafide industrial purpose:
Provided that-
(a) the land is not situated within the urban agglomeration as defined in clause (n) of section 2 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976),
(b) where the area of the land proposed to be sold exceeds ten hectares, the person to whom the land is proposed to be sold in pursuance of this subsection shall obtain previous permission of the Industries Commissioner, Gujarat State or such other officer, as the State Government may, by an order in writing, authorise in this behalf, Page 8 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021
(c) the area of the land proposed to be sold shall not exceed four times the area on which construction for a bonafide industrial purpose is proposed to be made by the purchaser:
Provided that any additional land, which may be required for pollution control measures or required under any relevant law for the time being in force and certified as such by the relevant authority under that law shall not be taken into account for the purpose of computing four times the area, [Provided further that where the land is sold to a purchaser which is a company as defined by clause (20) of section 2 of the Companies Act, 2013 (18 of 2013), it may offer the equity shares of the company, to the person by whom such land is being sold, in lieu of the sale price of such land and if such person is in agreement for accepting such equity shares, either in full or partly, then it shall be incumbent upon such company to allot such equity shares of equivalent amount, either in full or partly, to such person,]
(d) where the land proposed to be sold is owned by a person belonging to the Scheduled Tribe, the sale shall be subject to the provisions of section 73AA of the Bombay Land Revenue Code, 1879 (Bombay V of 1879).
(2) Nothing in section 63A shall apply to any sale made in pursuance of sub-section (1).
(3) (a) Where the land is sold to a person in pursuance of sub-
section (1) (hereinafter referred to as "the purchaser"), he shall within thirty days from the date of the purchase of the land for a bonafide industrial purpose, send a notice of such purchase in such form alongwith such other particulars as may be prescribed, to the Collector and endorse a copy thereof to the Mamlatdar.
(b) Where the purchaser fails to send the notice and other particulars to the Collector under clause (a) within the period specified therein, he shall be liable to pay, in addition to the non- agricultural assessment leviable under this Act, [after one month from the date of such purchase, such fine of one per cent. of the prevailing jantri every month, as the collector may, subject to rules made under this Act, direct].
(c) Where, on receipt of the notice of the date of purchase for the use of land for a bonafide industrial purpose and other Page 9 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 particulars sent by the purchaser under clause (a), the Collector, after making such inquiry as he deems fit-
(i) is satisfied that the purchaser of such lands has validly purchased the land for a bonafide industrial purpose in conformity with the provisions of sub-section (1), he shall issue a certificate to that effect to the purchaser in such form and within such time as may be prescribed,
(ii) is not so satisfied, he shall, after giving the purchaser an opportunity of being heard, refuse to issue such certificate and on such refusal, the sale of land to the purchaser shall be deemed to be in contravention of section 63.
(d) (i) The purchaser aggrieved by the refusal to issue a certificate by the Collector under sub-clause (ii) of clause (c) may file an appeal to the State Government or such officer, as it may, by an order in writing, authorise in this behalf.
(ii) The State Government or the authorised officer shall, after giving the appellant an opportunity of being heard, pass such order on the appeal as it or he deems fit.
(4) (a) The purchaser shall comply with the provisions of any law for the time being in force or any order or direction of the Central Government or State Government or any Corporation owned or controlled by such Government, Government company, local authority or statutory authority in relation to use of land for industrial purpose before the land is put to use for such purpose.
[(b) the purchaser to whom a certificate is issued under sub- clause (i) of clause (c) of sub-section (3) shall commence production of goods or providing of services within five years from such date:
Provided that the period of five years may on an application made by the purchaser in that behalf be extended by two years by the Collector as he may by an order in writing in such circumstances as may be prescribed:
Provided further that the Collector shall not extend such period for more than a period of one year at a time: [Provided also that such aggregate period of seven yea.rs may, on an application made by the purchaser in that behalf and on payment of 20 per cent. of the prevailingT'antri value, be extended by another three years by the State Government and thereafter, be extended by the State Government from time to time for further periods on payrnent of 20 per cent. of the prevailing jantri for every three years].] Page 10 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 [(4A) In case where the purchaser fails to commence the production of goods or providing of services within three years from the date of certificate issued under sub-section (3) or thereafter, the Collector may, after an application is made to him in that behalf, grant permission by an order for sale or transfer of such land:
[Provided that such permission shall be granted by the Collector only upon the payment of -
(a) 100 per cent. of the prevailing jantri value, if the application is made after a period of three years but before completion of a period of five years from the date of certificate as referred to in sub-clause (i) of clause (c) of sub-section (3);
(b) 60 per cent. of the prevailing jantri value, if the application is made after a period of five years but before completion of a period of seven years from the date of certificate as referred to in sub-clause (i) of clause (c) of sub-section (3);
(c) 30 per cent. of the prevailing jantri value, if the application is made after a period of seven years but before completion of a period of ten years from the date of certificate as referred to in sub-clause (i) of clause (c) of sub-section (3);
(d) 25 per cent. of the prevailing jantri value if the application is made beyond ten years: Provided however that, -
(i) such permission for sale of such land shall be granted only for the bonafide industrial purpose and in case the industrial purpose usage is not permissible under the Common General Development Control Regulations, such permission shall be granted only for the purpose of use of such land as per the zone declared in the Common General Development Control Regulations;
(ii) clauses (a) to (d) shall not apply in the cases of the land which is purchased for bonafide industrial purpose and which needs to be transferred in the case of merger, amalgamation, joint venture, subsidiary company, group company and associate company, conversion of partnership in the company and vice versa or into limited liability partnership, change in partners but in such cases permission Page 11 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 shall be granted after charging of 10 per cent of the prevailing jantri value;
(iii) clauses (a) to (d) shall not apply in the cases of the land which is purchased for bonafide industrial purpose and which needs to be transferred in the case of acquisition of assets of industrial unit under order of Debt Recovery Tribunal/National Company Law Tribunal/ Liquidator /Financial Institutions auction, subject to the condition that such transfer is ordered by such Court/Authority but in such cases the purchaser shall apply for permission within 60 days from the date of transfer of assets by authority and such permission shall be granted after charging of 10 per cent of the prevailing jantri value;
(iv) if any bonafide industrial user fails to take such permission within a period as specified in clause (iii) above, the Collector shall grant permission by charging of 20 per cent of the prevailing jantri value.] (4B) Notwithstanding anything contained in sub-section (4) or sub-section (4A), -
(i) where the land is sold to a person in pursuance of sub-
section (1) for the purpose of establishing an industrial park in consonance with the policy and conditions of the State Government in that behalf, the purchaser shall fulfill all the conditions in such manner and within such period as may be prescribed;
(ii) the purchaser shall be required to obtain certificate/certificates from the Industries Commissioner, Gujarat State, in the manner as may be prescribed of having fulfill the conditions as referred to in clause (i); [(ii-a) the purchaser shall commence production of goods or providing of services on the land purchased by him within such period with effect from the date of grant of issue of certificate by the Industries Commissioner, Gujarat State or the Collector, whichever is later, for establishing industrial park under the policy of the State Government for Industrial parks as the State Government may, by notification in the Official Gazette, specify; (ii-b) after successfully commissioning of production of goods or providing of services to the satisfaction of the Collector, for a period of three years from the date of approval for putting land to bonafide industrial use or Page 12 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 establishing industrial park, the restrictions of this section shall not apply.]
(iii) in case where the purchaser fails to obtain the certificate/certificates as referred to in clause (ii), the provisions of sub-section (5), in so far as vesting of such land or part of such land in case where the purchaser has already transferred any portion or portions of such land, in the State Government and disposal of such land are concerned, shall mutatis mutandis apply;
[(vi) the purchaser shall not be entitled to sale or transfer the land for the first three years from the date of grant of approval for establishing industrial park and in case where the purchaser is of the view, after a period of three years from the date of purchase of such land, that it is not possible for him to fulfill the condition and obtain the certificate/certificates as referred to in this section, he may make an application to the Collector for grant of permission to sale or transfer of such land for other bonafide industrial purpose and the Collector shall there upon grant such permission to sale only upon payment of,
(a) 100 per cent. of the prevailing jantri value, if the application is made after a period of three years but before completion of a period of five years from the date of certificate as referred to in sub-clause (i) of clause (c) of sub-section (3) or, as the case may be, the certificate as referred to in clause (ii-a) of sub-section (4B);
(b) 60 per cent. of the prevailing jantri value, if the application is made ut r u period of five years but before completion of a period of seven years from the date of certificate as referred to in sub-clause (i) of clause (c) of sub-section (3) or, as the case maybe, the certificate as referred to in clause (ii-a) of sub-section (4B);
(c) 30 per cent. of the prevailing jantri value, if the application is made after a period of seven years but before completion of a period of ten years from the date of certificate as referred to in sub-clause (i) of clause (c) of sub-section (3) or, as the case may be, the certificate as referred to in clause(ii-a) of sub-section (4B);
(d) 25 per cent. of the prevailing jantri value if the application is made beyond ten years:
Page 13 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 Provided that such permission for sale of such land shall be granted only for the purpose of use of such land for the bonafide industrial purpose.]
(v) the transferee under clause (iv) or any person to whom such land may be transferred in any subsequent transaction or transactions shall be entitled to sell or transfer such portion of land to any person for the purpose as provided in clause (iv);
(vi) in case where the purchaser is of the view, after a period of three years from the date of purchaser of such land, that it is not possible for him to fulfill the conditions and obtain the certificate/certificates as referred to in this section, he may make an application to the Collector for grant of permission to sale or transfer of such land and the Collector shall thereupon grant such permission only upon the payment of, -
(a) 40 per cent. of the prevailing Jantri value, if the application is made before the completion of a period of five years from the date of certificate; as referred to in sub-clause (i) of clause (c) of sub-section (3);
(b) 60 per cent. of the prevailing Jantri value, if the application is made after a period of five years, but before the completion of a period of seven years from the date of certificate; as referred to in sub-clause (i) of clause (c) of sub-section (3);
(c) 100 per cent. of the prevailing Jantri value, if the application is made thereafter:
[Provided that, -
(i) such permission for sale of such land shall be granted only for the bonafide industrial purpose and in case the industrial purpose usage is not permissible under the Common General Development Control Regulations, such permission shall be granted only for the purpose of use of such land as per the zone declared in Common General Development Control Regulations;
(ii) sub-clauses (a) to (d) shall not apply in the cases of the land which is purchased for bonafide industrial purpose and which needs to be transferred in the case of merger, amalgamation, joint venture, subsidiary company, group company and associate company, conversion of partnership in the company and vice versa or into limited liability partnership, change in partners but in such cases permission shall be granted after charging of 10 per cent of the prevailing jantri value;Page 14 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022
C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021
(iii) clauses (a) to (d) shall not apply in the cases of the land which is purchased for bonafide industrial purpose and which needs to be transferred in the case of acquisition of assets of industrial unit under order of Debt Recovery Tribunal/National Company Law Tribunal/ Liquidator /Financial Institutions auction, subject to the condition that such transfer is ordered by such Court/Authority but in such cases the purchaser shall apply for permission within 60 days from the date of transfer of assets by authority and such permission shall be granted after charging of 10 per cent of the prevailing jantri value;
(iv) if any bonafide industrial user fails to take such permission within a period as specified in clause (iii) above, the Collector shall grant permission by charging of 20 per cent of the prevailing jantri value.] Explanation:- For the purposes of this section, the expression "bonafide industrial purpose" includes and shall always be deemed to have included the establishment of the industrial park.] [(5) Where the Collector after making such inquiry deems fit and giving the purchaser an opportunity of being heard comes to the conclusion that the purchaser has failed to commence production of goods or providing of services within the period as specified in clause (b) of sub-section (4), or the period extended under the provisos to the clause, the land shall vest in the State Government free from all encumbrances on payment to the purchaser of such compensation as the State Government may determine and such land shall be disposed of by the State Government in the manner as may be prescribed.]
8. Considering the submissions made by both the sides, coupled with the material placed on record and aforesaid legal provisions, it appears that the land has been purchased by the Trust for the purpose of industrial activities. It also reveals from the sale-deed that the land in question is below 10 Hectares. Therefore, in view of the proviso contained in Section 63AA, there is no need to obtain previous permission of the Industrial Commissioner, Page 15 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 Gujarat State or such officer as the State Government may have authorised in this behalf. It is pertinent to note that the Government has introduced special provisions by way of Section 63AA for sale of land for bonafide industrial purpose. This provision carves out proviso in respect of non-applicability of Section 63 of the Bombay Land Revenue Code.
8.1 At this juncture, it is pertinent to note that the Trust Deed of the Charitable Trust is produced in the matter which clearly shows that the object of the Trust includes educational and health for the downtrodden people of the State. Thus, the purpose of use of the said land is in the field of health and education. As such, even if it is presumed that Section 63(1)(A) of the Tenancy Act is applicable, then in that case by way of provision under Sub- section (1A) of Section 63A of the Tenancy Act, such transfer of agricultural land in favour of the Trust is permissible.
9. Now, admittedly in the present case, concerned authorities have considered the aspect of the applicability of Section 63 of the Tenancy Act. However, considering the fact that land in question is less than 10 Hectares, there is no need of any prior permission. The authority has not considered the aspect as to whether Section 63AA will be applicable or not. It also appears that the petitioner Trust has tried best to get necessary permission and has also supplied detailed project report regarding its intent in project. The provision Page 16 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 under Section 63AA clearly provides for the recovery of the premium or market price. Such permission could be granted in terms of Section 63AA of the Tenancy Act. However, this aspect has not been considered by the revenue authority. The entire exercise carried out by the revenue authority are without taken into consideration all these aspect and has committed error of facts and law.
10. In view of the aforesaid facts, the impugned orders need to be set aside. However, at the same time, the matter needs to be remanded back to learned District Collector, Sabarkantha to proceed afresh in accordance with Section 63AA of the Gujarat Tenancy and Agricultural Lands Act, 1948.
11. Therefore, in view of the aforesaid discussion, the present petition is partly allowed. The impugned order dated 3010.2018 passed by the learned Special Secretary, Revenue Department, bearing No. MVV/JMN/SBR/10/2018 as well as the order dated 4.4.2018 passed by the District Collector, Sabarkantha bearing No. TNC/VASHI/5085/2011/ REMAND are quashed and set aside.
12. The learned District Collector, Sabarkantha is hereby directed to decide the application of the petitioner in accordance with the provisions of Section 63AA of the Tenancy Act, keeping in mind the observations made hereinabove, in accordance with law, as early as possible, preferably within a period of four months from the date of Page 17 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022 C/SCA/5928/2019 JUDGMENT DATED: 21/12/2021 receipt of the order of this Court.
Rule is made absolute to the aforesaid extent. No order as to cost. Direct Service is permitted.
(DR. A. P. THAKER, J) SAJ GEORGE Page 18 of 18 Downloaded on : Wed Jan 12 12:53:06 IST 2022