Gujarat High Court
Vasantbhai Ambalal Patel & vs State Of Gujarat on 28 March, 2014
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/636/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 636 of 2011
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VASANTBHAI AMBALAL PATEL & 1....Petitioner(s)
Versus
STATE OF GUJARAT, THROUGH CHIEF SECRETARY, &
1....Respondent(s)
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Appearance:
MR AJ PATEL,SR. ADV. with MR AB MUNSHI, ADVOCATE for the Petitioner(s) No. 1 - 2
MR JAIMIN GANDHI, ASST.GOVERNMENT PLEADER for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 28/03/2014
ORAL ORDER
1. Challenge in this petition is made under Articles 226 and 227 of the Constitution of India against the action of the respondent No.2 undertaken in suo motu proceedings in No.Ganat/Manai/Vashi/728 dated 18.5.2009 and order passed thereon on 12/16/8/2010 to hold that section 121 of the Gujarat Town Planning and Urban Development Act, 1976(" TP Act" for short) would apply to the land in question.
2. Present petition arises in the following factual background:-
Page 1 of 13 C/SCA/636/2011 ORDER
2.1 The land bearing Survey No.1054/1 was included in the town planning scheme No.1 and was alloted final plot No.37A admeasuring 21,549 sq.mtrs. Such town planning scheme came to be finalized on 16.9.1983. A certificate was also issued on 16.9.1983 indicating that the town planning scheme No.11 of Borsad was accorded finality on 1.8.1983.
3. It is averred by the petitioner that section 121 of T.P. Act, which came on the statute book in 1968 T.P. Act, was deleted on 6.2.1986. However, repeal and savings clause continue to accord immunity to the petitioners from paying any premium under the Bombay Tenancy and Agricultural Lands Act ("the Tenancy Act"
for short). It appears that respondent No.2, Collector, Anand issued notice on 10.8.2009 directing the petitioner to pay the premium under section 43 of the Tenancy Act on the ground that section 121 of TP Act is no more on the statute book and therefore, all obligations created by the Tenancy Act would revive. It was contended before the Collector by way of a communication in the form of reply dated 18.8.2009 that town planning scheme was already finalized and in the Amendment Act, there is a savings clause under Page 2 of 13 C/SCA/636/2011 ORDER section 124 of the TP Act on application of savings of section 7 of the Bombay General Clauses Act, 1904 all that is saved would apply to repeal and hence by virtue of section 7 of Amendment Act and savings of section 124 of the T.P.Act, Section 121 of the T.P.Act would hold the field. And, therefore the question of payment of premium under section 43 of the Tenancy Act would not arise. It was also objected that such initiation of proceedings was after a lapse of around 15 years when construction on the said land has already been completed. However, the respondent Collector chose not to pay any heed to any such objections and passed the order impugned dated 12/16.8.2010. Hence, the challenge by way of the present petition.
4. On issuance of Rule, affidavit-in-reply has been filed inter alia contending that on granting NA (Non- Agricultural) permission to the said land, huge amount of loss in terms of premium under section 43 of the Tenancy Act has been suffered by the Government. Therefore, on investigation when it was realized that land in question was plotted in several plots in pursuance to NA permission and as no premium was paid, Page 3 of 13 C/SCA/636/2011 ORDER proceedings were initiated for recovery of the same and the notice of demand therefore was issued. It is further urged that in view of the non-payment of the premium, recommendation was sent to the Revenue to cancel the order dated 3.1.1994 granting NA permission.
5. Learned Senior Counsel Shri A.J. Patel appearing with learned advocate Shri A.B.Munshi for the petitioners has urged that no notice for recovery of the premium could have been issued after lapse of more than 15 years. He urged that section 121 of the T.P. Act was enacted essentially to ensure that provisions of Tenancy Act would not be applicable in the case of those lands, which were already part of the Town Planning Scheme which have been finalized. It is further urged that Revenue had, at no point of time, disputed the fact that the land in question was part of the Town Planning Scheme, finalized on 9.6.1983. Moreover, the same has been given effect from 1.8.1983. Learned counsel, therefore, has urged that even if the provisions of section 121 of the TP Act no longer was on statute book from 6.2.1986, that would in no manner change the position under the law as the Page 4 of 13 C/SCA/636/2011 ORDER case of the petitioner would be saved by the repeal and savings clause. He also sought to rely on the decision of this Court rendered in the case of State of Gujarat vs. Deputy Collector (L.R.) Appeals and others dated 29.8.2013 passed in Special Civil Application No. 5429 of 1998 and connected petitions.
6. Learned Assistant Government Pleader Mr.Jaimin Gandhi appearing for the State has vehemently urged inter alia that considering the fact that huge loss would be incurred by the State, action of the respondent does not warrant any interference. He further urged that section 121 since is no longer on the statute book, the petitioner is required to pay the premium under section 43 of the Tenancy Act. He, however, has fairly submitted that the decision of this Court in the case of State of Gujarat vs. Deputy Collector (L.R.) Appeals and others (supra) is not carried out in appeal before the higher forum.
7. On thus hearing learned counsel for both the sides, and on considering the material on record, at the outset, reproduction of section 43 of the Tenancy Act would be necessary:-
"43. Restriction on transfer of land purchased Page 5 of 13 C/SCA/636/2011 ORDER or sold under the Act.-(1) No land or any interest there in purchased by a tenant under section 17B, 32, 32F, 32-I,32-O,32U,43-1D or 88E or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall partitioned without the previous sanction of the Collector.
(1A) The sanction under sub-section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government. (1AA) Nothwithstanding anything contained in sub-section(1), it shall be lawful for such tenant or a person to mortgage or create a charge on his interest in the land in favour of the State Government in consideration of loan advanced to him by the State Government under the Land Improvement Loans, Act, 1883 (19 of 1883), the Agricultrists' Loans Act, 1928 (Bom.III of 1928), as in force in the State of Gujarat, or in favour of a bank or co-operative society, and without prejudice to any other remedy open to the State Government, bank or co-operative society, as the case may be, in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the State Government, bank or co-operative society, as the case may be, to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such loan.
Explanation.- For the purpose of this sub- section,"bank" means-
(a) the State Bank of India constituted under the State Bank of India Act, 1955 (23 of 1955);
(b) any subsidiary bank as defined in clause
(k) of section 2 of the State Bank of India (Subsidiary Banks) Act, 1959(38 of 1959);Page 6 of 13 C/SCA/636/2011 ORDER
(c) any corresponding new bank as defined in clause (d) of section 2of the Banking Companies (Acquisition and Transfer of Undertakings) Act. 1970 (5 of 1970);
(d) the Agricultural Refinance and Development Corporation, established under the Agricultural Refinance and Development Corporation Act, 1962 (10 of 1963)'; (1B) Nothing in sub-section(1) [or (1AA) shall apply to land purchased under section 32, 32F,32), or 64 by a permanent tenant thereof, if prior to the purchase the permanent tenant, by usage, custom, agreement or decree or order of a court, held a transfer right in the tenancy of the land.] (2) [Any transfer or partition, or any agreement of transfer, of any land interest therein in contravention of sub-section(i) shall be in valid."
8. Section 43 places the restriction on the transfer of land or of the interest in the land by way of purchase or sale etc. It requires previous sanction of the Collector for any land or the interest therein to be transferred by way of sale, gift, exchange, mortgage etc. and except in consideration of payment as the State Government determines by a general or special order, neither sale nor purchase can be made. In other words, without previous sanction of Collector and fulfillment of the payment of premium as the State Government may determine, no land or any interest therein can be either transferred as contemplated under the Tenancy Act.
9. Exception has been carved out in case of those Page 7 of 13 C/SCA/636/2011 ORDER lands which are included under the Town Planning Scheme. Section 121 of the T.P.Act deserves reproduction in this regard:-
"121. [Provisions of Tenancy Acts not to apply to areas under town planning schemes.] Deleted by Guj.4 of 1986, s.5."
10. It is noteworthy that the Town Planning Act has come into force in the year 1978. Section 121 makes it abundantly clear that the provisions of the Tenancy Act, does not apply to the areas/lands covered under Town Planning Scheme. And, therefore, no permission requires to be sought for payment of any amount of premium as to be decided by the State for transfer of the land which falls under the Town Planning Scheme.
11. By way of President's Act No.27 of 1976 section 121 in the principal Act has been deleted. The gazette which published such deletion dated 6.2.1986 also refers to the repeal and savings clause which requires a reference.
"5.Deletion of section 121 of President's Act No.27 of 1976.-In the principal Act, section 121 shall be deleted.
6. Repeal and savings.-(1) The Gujarat Town Planning and Urban Development (Amendment) (Second) Ordinance, 1985 (Guj. Ord.No.15 of 1985), is hereby repealed.
(2) Notwithstanding such repeal anything done or any action taken under the principal Act as Page 8 of 13 C/SCA/636/2011 ORDER amended by the said Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Act.
7. Transitory provisions.- The provisions of the principal Act shall continue to any scheme in respect of which a declaration of intention to make such scheme has been made under section 41 of the principal Act at any time before 1st January, 1985 as if this Act had not been enacted."
12. The transitory provision makes is abundantly clear that the provision of T.P. Act shall continue to govern any scheme in respect of which declaration of intention to make such scheme has been made under section 41 of the principal Act at any time before 1.1.1985 as if this Act had not been enacted.
13. It can be thus seen that section 124 of the T.P. Act specifies the Repeal and saving and on application of the savings clause, coupled with section 7 of the Bombay General Clauses Act, 1904, section 121 of the T.P. Act would be applicable even after the repeal to those lands for which Town Planning Schemes are already declared or finalized.
14. Reverting back to the facts of the instant case, the land owned by the petitioner was included in the T.P. Scheme finalized in 1983. The petitioners had also applied for N.A. Permission in respect of the Page 9 of 13 C/SCA/636/2011 ORDER said land bearing Survey No.1054/1 for the purpose of putting up construction on the said land. N.A. permission was granted by the competent authority on 3.1.1994 and within six months of such permission the land in question was plotted into several plots and were sold to individuals and those who purchased also carried out the constructions. Such permission was granted in 1994. However, the notice for compliance of provision of section 43 of the Tenancy Act was issued by the Collector on 10.8.2009. Admittedly, as noted above,the land in question was already included in town planning scheme, which was finalized on 9.6.1983 and which has been already given effect on 1.8.1988. In light of such admitted facts, the issuance of the notice after a lapse of 15 years, particularly, when town planning scheme not only had been finalized but was also given an effect to, and the question of recovery of premium under section 43 of the Tenancy Act, simply cannot be sustained. Savings clause at the time of repeal of the T.P. Act would also come to the rescue of the petitioner and no revival of section 43 of Tenancy Act could be permitted.
15. As the scheme has been finalized in the year Page 10 of 13 C/SCA/636/2011 ORDER 1983, the land in question would be covered by the provision of section 121 of the Town Planning Act and such scheme was already in operation before 1.1.1985, the case of the petitioners would be clearly governed by the said period and exemption contemplated under the provision would continue to apply to those lands as well, as per the saving clause. Therefore, naturally and consequently, there would not arise any question of paying premium as per section 43 of the Tenancy Act.
16. This Court in the case of State of Gujarat vs. Deputy Collector (L.R.) Appeals and others (supra) in identical factual matrix held thus:-
"5.The Court is of the considered view that looking to the detailed orders passed by the Tribunal, one and only question are required to be considered is as to whether the case of respondents were governed by the said period under which the scheme was either declared or even published under the Town Planning Act so as to oust the implementation and applicability of the Tenancy Act restrictions. The Court need not go into elaborate facts as only few facts relevant for deciding these controversy are very much available from the simple reading of the order impugned in these petitions. In both these petitions, at relevant stage in both the impugned orders, the Tribunal has recoded in unequivocal terms that Scheme in question either was published or intention to lay a scheme was already published in official mode. Learned advocate appearing for respondents invited this Courts attention to the portion of Page 11 of 13 C/SCA/636/2011 ORDER the orders of Tribunal, which is required to be extracted as under:
In Special Civil Application No. 5429 of 1998 "para-8 : ..... The most important ground to be decided is with regard to the point whether the disputed land can be said to be of restricted tenure in view of the fact that it is covered under the T.P. Scheme No. 6 framed and finalized under the provisions of the Gujarat Town Planning Act before the deletion of Sec. 121 of the said Act, i.e. before 12.6.1985. It is very clearly established by the notification published in the Govt.
Gazette dated 18-10-84 by the Town Planning Officer, T.P. Scheme No. 6/A and dated 25-9-84 that the T.P. Scheme No. 6 has been published, by the decision of the Town Planning Officer under sect. 52(3) of the Town Planning Act. This happened before sec. 121 was deleted from the Town Planning Act, which came into force on 12-6-86. Under Sec. 7 of the Amending Act, even if the intention to make such a scheme is made in respect of any land, the provisions of Sec. 121 was to continue to apply."
In Special Civil Application No.: 5432 of 1998:
"para-9.: &..... In the present case, the intention has been declared for T.P. Scheme No. 7 by the Govt. of Gujarat in Govt. Notification dated 26-6-84, and the disputed land is covered under that Scheme, and the provisions of the Tenancy Act would not be applicable. In that view of the matter, on this point alone, this Revision Application deserves to be dismissed as the learned Dy. Collector has passed the order which is just and proper and it deserved to be upheld."
6. Learned advocates for the respondents have invited this Courts attention to the Government Resolutions and circulars namely the Resolution dated 6.5.1993, which is produced in Civil Application No. 9979 of 2011 in Special Civil Application No. 5432 of 1998 and also the Resolution on similar line dated 24.2.2012, in which, it is unequivocally stated and provided that the transitory provisions is to be Page 12 of 13 C/SCA/636/2011 ORDER reckoned and scheme for the period from 19.6.1976 to 1.1.1985 and in both these matters, the scheme and intention are falling within that period. Suffice it to say that same would be governed and the order of the Tribunal cannot be interfered with in any manner."
17. In light of the discussion held hereinabove, this petition is allowed, quashing and setting aside the impugned order dated 12/16/8/2010 and all consequential proceedings emerging therefrom. Rule is made absolute to the extent above. No order as to costs.
(MS SONIA GOKANI, J.) SUDHIR Page 13 of 13