Gujarat High Court
Pratapbhai Punjabhai Vagadia & vs State Of Gujarat & 2 on 12 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/3951/2009 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3951 of 2009
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PRATAPBHAI PUNJABHAI VAGADIA & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR NK MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 - 2
MS NISHA THAKORE, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/09/2017
ORAL ORDER
1 By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs:
"10(A)Be pleased to allow this petition and be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order, quashing and setting aside impugned order dated 11.9.2008 passed by respondent No.2 (Annexure "K" hereto) in so far as it determines the market value of the land in question as per the provisions of Government Resolution dated 4.7.2008 by taking into account the rate of market value of the land in question which came into force with effect from 1.4.2008, and assessing the premium to the tune of Rs.29,13,600/ i.e. 80% of the market value of the land in question; and be further pleased to hold that action on the part of respondent No.2 in determining the market value of the land in question by taking into account the rate of market value of the land in question, which came into force from 1.4.2008 and assesing the premium at the rate of 80% of the aforesaid market value, is illegal, arbitrary and unjust;
(B) Be pleased to issue appropriate writ, order or direction, directing respondent No.2 to redetermine the market value of the land in question by taking into account the rate of market value of the land in question which was prevalent at the relevant point of time when the application Page 1 of 36 HC-NIC Page 1 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER was made by the petitioner i.e. October, 2004, and to reassess the premium accordingly;
(C) Be pleased to grant interim relief and be pleased to stay the operation, implementation and execution of order dated 11.9.2008 passed by respondent No.2 in so far as it determines the market value of the land in question as per the provisions of Government Resolution dated 4.7.2008 by taking into account the rate of market value of the land in question which came into force with effect from 1.4.2008, and assessing the premium to the tune of Rs.29,13,600/ i.e. 80% of the market value of the land in question;
(D) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted."
2 The controversy in question is in a very narrow compass. The writ applicants herein are the owners of land bearing survey No.151/paiki admeasuring 1821 sq. mtrs. situated at mouje: Godhra, Taluka: Godhra, District: Panchmahals. This land was owned by one Madhusudan Lalji Vrajlalji. Upon demise of Madhusudan Lalji Vrajlalji, the land in question was devolved upon his son namely, Ranchhodlalji Madhusudan Lalji. The father of the petitioners used to cultivate the land in question, and accordingly, his name was entered in the revenue record as a tenant in respect of the said parcel of land. The father of the writ applicants herein was declared as a tenant by the Mamlatdar and A.L.T. in 1986 subject to the restrictions under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948. The father of the writ applicants paid the purchase price pursuant to the order, which was passed by the authority concerned. The father of the writ applicants passed away on 1st May 1991. The names of the writ applicants were entered in the revenue record as heirs and legal representatives vide entry No.21687 dated 9th November 1993. The writ applicants, thereafter, preferred an application dated 3rd October 2004 addressed to the Collector, Panchmahals, seeking permission for nonagricultural use. The Collector, ultimately, after a period of almost four years, fixed the amount of premium for the Page 2 of 36 HC-NIC Page 2 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER purpose of changing the tenure of the land on the basis of the market value at the rate of Rs.2,000/ per sq. mtr. The Collector relied upon a Government Resolution dated 4th July 2008 and assessed the premium to the tune of 80% of the market value of the land in question.
3 Being dissatisfied with the amount of premium fixed by the Collector, the writ applicants are here before this Court with this writ application.
4 The principal argument of the learned counsel appearing for the writ applicants is that the respondent No.2 ought not to have assessed the premium to the tune of 80% of the market value of the land in question relying upon the Government Resolution dated 4th July 2008, which came into force with effect from 1st April 2008. The submission is that as the application was filed way back in October 2004, the amount of premium ought to have been assessed relying upon the policy of the State Government prevailing at the relevant point of time. It is submitted that delay on the part of the authorities in deciding the application should not come in the way of the writ applicants so far as the fixation of the amount of premium is concerned.
5 This writ application has been vehemently opposed by Ms. Nisha Thakore, the learned Assistant Government Pleader appearing for the State respondent. The learned A.G.P. would submit that the issue raised in this writ application is no longer res integra. A Division Bench of this Court in the case of Patel Kamalbhai Sharadbhai vs. State of Gujarat [Special Civil Application No.10548 of 2008 and allied matters decided on 3rd May 2011] has taken the view that the crucial date for determination of the premium is the date on which the Collector grants such permission i.e. the prospective date and not retrospective date.
Page 3 of 36HC-NIC Page 3 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER 6 Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that the issue is squarely covered by the Division Bench judgment of this Court. I may quote the relevant observations made by the Division Bench:
"3. Section 43 of the Tenancy Act related to restriction on transfer of land purchased or sold under the Tenancy Act. It was amended from time to time and lastly by virtue of the Gujarat (Amendment) Act No. XXX of 1977, Section 43 came to be further amended by substituting new Section 43, which presently holds the field, and reads as follows : "43. Restriction on transfers of land purchased or sold under this Act. (1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32I, 32O, 32U, 43ID 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 a the State Government may by general or special order determine; and no such land or any interest, there shall be partitioned without the previous sanction of the Collector.
Provided that no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant :
Provided further that the partition of the land as aforesaid shall not be valid if it is made in contravention of the provisions of any other law for the time being in force;
Provided also that such members of the family or the legal heirs shall hold the land, after the partition, on the same terms, conditions, restrictions as were applicable to such land or interest thereat therein purchased by the tenant or the person.
(1A) The sanction under subsection (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government.
(1AA) Notwithstanding anything contained in subsection (1), it shall be lawful for such tenant or a person to mortgage or create a charge on his interests in the land in favour of the State Government in consideration of a loan advanced to him by the Page 4 of 36 HC-NIC Page 4 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER State Government under the Land Improvement Loans Act, 1884, the Agriculturists' Loan Act, 1884, or the Bombay Non agriculturists' Loans Act, 1928, as in force in the State of Gujarat, or in favour of a bank or cooperative society, and without prejudice to any other remedy open to the State Government, bank or cooperative 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 cooperative 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 purposes of this subsection, "bank" means
(a) the State Bank of India constituted under the State Bank of India Act, 1955;
(b) any subsidiary bank as defined in clause (k) of section 2 of the State Bank of India (Subsidiary Banks) Act, 1959;
(c) any corresponding new bank as defined in clause (d) of section 2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970;
(d) the Agricultural Refinance and Development Corporation, established under the Agricultural Refinance and Development Corporation Act, 1963.
(1B) Nothing in subsection (1) for (1AA) shall apply to land purchased under section 32, 32F 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 transferable right in the tenancy of the land.
(2) Any transfer or partition, or any agreement of transfer, or any land or any interest therein in contravention of subsection (1) shall be invalid."
4. The learned counsel for the petitioners would submit that the phraseology used in Section 43 regarding "consideration of payment of amount" is with reference to the "consideration" which passes from vendee to vendor while transferring the land. It should be interpreted in such a manner, on true interpretation, that under Section 43 the amount is not payable to the State Government. Such consideration amount is to be paid to the vendor (the original tenant), to ensure protection of the tiller from exploitation, indigence or compelling dire necessity to alienate the lands Page 5 of 36 HC-NIC Page 5 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER and under a fictitious and colourable transaction or for inadequate consideration. They referred to the Supreme Court decision in the case of State of Maharashtra vs. Babu Govind Gavate, reported in AIR 1996 SC 904, wherein the Supreme Court interpreted the unamended Section
43. Reliance was also placed on the Supreme Court decision in Nagesh Bisto vs. Khando Tirmal, reported in AIR 1982 SC 887 wherein the Supreme Court while interpreting the provisions of Bombay Merged Territories Misc. Alienation - Abolition Act, held that the condition for the grant of sanction by the Collector as a prerequisite for a valid transfer of a holding or the making of a partition by metes and bounds, is to ensured that the actual tiller of the soil is not deprived of his land except for valid consideration, or that the partition effected between the members of a family is not unfair and unequal.
5. The challenge to the validity of Section 43 was made on the following grounds:
(i) Section 43 is ultra vires Articles 14 and 19(1)(f) of the Constitution of India. In view of the provisions contained in Section 32 of the Tenancy Act, the tenant became deemed purchaser on 1.4.1957 (tiller's day). If Section 43 which was enacted simultaneously with Section 32 of the Tenancy Act, is read together, then in that case, it is clear that the occupancy conferred on the tenant under Section 32 was transferable, if so permitted by the District Collector. Original Section 43 did not contain any provision for payment of any amount like premium to anybody in the eventuality of the land being transferred.
It was contended that the petitioners do not challenge the constitutional validity of the provisions regarding control and regulation for transfer of occupancy conferred under Section 32 of the Tenancy Act. The challenge is only in respect of the part of the provision, which provides for payment of amount to the State Government whereby the occupancy which did not carry any burden of payment of any amount to the State Government on 1.4.1957 is materially altered by imposing restrictions regarding payment of amount to the Government initially by Amendment Act No. XVI of 1960 and further by Amendment Act No. XXX of 1977 whereby the phraseology of Section 43 is further amended by adding the word "consideration", which did not occur in Section 43 after the amendment made by Act No. XVI of 1960. In view of the settled legal position, the Act was validly enacted with reference to the constitutional provisions of Article 19(1)(f) as was in operation at the time of legislation of the Act, the subsequent deletion of Article 19(1)(f) cannot infuse life to a stillborn Act.
While accepting that the impugned enactments are included in the 9th Schedule to the Constitution of India under Article 31B of the Constitution, relying on the Supreme Court decision in the case of IR Coelho vs. State of Tamil Nadu, reported in (2007) 2 SCC 1, submitted Page 6 of 36 HC-NIC Page 6 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER that the fundamental right under Articles 14 and 19 of the Constitution being essential feature of the Constitution, if the Act was not held invalid before the pronouncement of the judgment, then the constitutional validity of the enactment can always be examined by the Court.
The impugned legislation imposes unreasonable restriction of fundamental rights of the petitioners, who are citizens of India, to hold and acquire property and the ownership right of the occupier of the land is substantially reduced to the extent of liability to pay the amount to the State Government. The restriction could have been imposed only if such a restriction is in the larger public interest, but no public interest is involved in the present case.
(ii) The impugned provision contained in Section 43 does not lay down any guidelines or parameters for determination of the amount either by general or by special order. Thus, arbitrary powers have been conferred on the executive, against which there is no corrective machinery by way of appeal or revision lies for determination of the amount by the State Government.
(iii) There is no nexus between the Tenancy Act and the object sought to be achieved by amending Section 43 of the Act, which having enacted only for augmenting the financial resources of the State Government. The State was never the owner of the land nor transferred the land in favour of the tenant. The land is statutorily transferred from the landlord to a tenant in furtherance of the directive principles of the Constitution and, therefore, the question of payment of substantial amount to the State Government in the eventuality of the transfer of the land does not arise. Therefore, the provisions are violative of Article 14 of the Constitution of India. Reliance was placed on the Supreme Court decisions in :
(i) State of Punjab vs. Khand Chand, AIR 1974 SC 543
(ii) Delhi Transport Corpn. vs. DTC Mazdoor Congress, AIR 1991 SC 101
(iii) Bhadrappa vs. Tolacha Naik, (2008) 2 SCC 104, etc.
(iv) The challenge to the constitutional validity has been made on the ground of excessive delegation of essential legislative powers. According to the petitioners, in view of the scheme of the Constitution, the legislative powers are conferred on the respective State legislation as well as the Parliament. It is the function and privilege of the legislature to legislate on the subjects incorporated in the entries in the 7th Schedule to the Constitution of India. In absence of any methodology provided under Section 43 for determination of the amount and parameters to exercise powers to determine the amount, either under Section 43 or under the Tenancy Act, Section 43 amounts to excessive delegation of essential Page 7 of 36 HC-NIC Page 7 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER legislative powers and, thereby, violative of Article 14 of the Constitution. Reliance was placed on the following Supreme Court decisions :
(a) Krishna Mohan (P) Ltd. vs. MCD, (2003) 7 SCC 151
(b) Bhatnagars & Co. Ltd. vs. Union of India, AIR 1957 SC 478
(c) Hamdard Dawakhana vs. Union of India, AIR 1960 SC 554
(d) MP High Court Bar Association vs. Union of India, AIR 2005 SC 4114
(v) Section 43 is violative of Article 14 and Article 300A of the Constitution, if Section 43 is not properly interpreted to mean that the consideration amount will go to the vendor (original tenant) to protect them from exploitation.
CHALLENGE TO RESOLUTION DATED 4.7.2008
6. The resolution dated 4.7.2008 was issued by the State to ensure the method of transferring the land of a new tenure land which is new indivisible and restricted tenure to old tenure i.e. agriculture to non agriculture purpose in the old tenure. It was so enacted 'by the order of the Governor of Gujarat' to give effect to Section 43 of the Tenancy Act.
Previously, the land wherein the Government interest was included for transfer, such land at the time of granting permission from agriculture to nonagriculture purpose, the work of assessing the price of the land used to be made by the District level committee or State level committee as per the resolution No. JMN/3997/83/A dated 15.1.1998. As per the assessment as used to be made by such committees, the price was used to be fixed for determination of premium to be paid by the vendors (original tenant) if they wanted to transfer the land from new tenure to old tenure i.e. agriculture purpose to nonagriculture purpose or intended to transfer the same land in favour of some other person for nonagriculture purpose. The same was never challenged by any person including the petitioners.
7. It came to the notice of the State Government that for determination of price by the committees much time used to be consumed at different stages. In fact, the petitioners also allege that though they applied for transfer of land from new tenure to old tenure or in favour of one or others, but no decision was taken for years together. Considering the aforesaid fact relating to time consumption and as for determination of the price of the land no time limit is prescribed, the State Government decided to accept the approach valuation as per the jantri circulated by resolution No. NSHJ/102006/517/J dated 20.12.2006, so as to save time of the land owner - tenants and with a view to maintain similarity in determination of valuation of a particular area. Thus, the change in the prevailing valuation method which was pending consideration before the Page 8 of 36 HC-NIC Page 8 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER State Government and to bring simplification in determination of valuation pursuant to one resolution instead of different resolutions as were existing, the State Government on the basis of the letter dated 31.3.2008 of the Revenue Department and circular dated 31.3.2008 of the Superintendent of Stamps, adopted common formula by the impugned resolution dated 4.7.2008. Thus, it was issued with a view to bring simplification in the method of transferring the land of new and indivisible tenure i.e. restricted tenure to old tenure i.e. from agriculture purpose to nonagriculture purpose. The relevant portion of the English version, as submitted by the petitioners, is quoted hereunder : "Regarding bringing simplification in the procedure of converting the land of new of tenure under new and impartible tenure and under the restricted tenure of Tenancy Act in to old tenure for the agricultural or Non agricultural purpose.
Government Of Gujarat Revenue Department Resolution No. NSJ102006571J( Part2) Sachivalaya Gandhinagar.
Dated 04/07/2008 Preamble: The prior permission of the Collector shall be required to be obtained after making payment of the consideration prescribed by the State Government, by issuing special or general order for transferring any land purchased by the tenants, under Sections 17kh, 32, 32chh, 32t, 32d , 32bh & 43 1gh or Section 88 ch or any land sold to any person under Sections 32g or 64, as per section43 (1) of Bombay Tenancy & Agricultural Lands Act 1948 or its interest, sale, gift, transfer, mortgage, lease or transfer of name or executing written present for transfer or any interest. Without obtaining prior permission of the Collector, partition of any such land or any interest therein can not be made. According to Section 43(1A), the Collector is required to grant permission as per the circumstances prescribed by the Government and as per Section 73kh of Bombay Land Revenue Code, 1879, by virtue of this Act or by virtue of any condition connected with type of tenure, without prior permission of State Government, the Collector or any officer authorized by the State Government, any land holding can not be transferred in the name of another person or its partition can not be made. On making payment of the amount prescribed by the State Government by a special or general order, such permission can be granted.
The prior permission of the Collector/Government is required to be obtained for transfer, change of purpose or partition of the rented land Page 9 of 36 HC-NIC Page 9 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER (including the land alloted to the Exarmymen), and the land granted or regranted under different tenure and under Inami Abolition Act allotted for the agricultural purpose vide different resolutions of the Government and land reserved for cattle. The State Government has implemented the policy in respect of converting such land in old tenure so that there may be simplification in transfer of land known as new tenure and in other transaction.
According to the resolution No. JMN /3997/83/A dated 15/01/98 of the department, at the time of granting such land wherein the interest of Government is included for nonagricultural purpose, the procedure of the assessment of the value of the land is being conducted through the Committee at District Level and State Level. Much time is consumed in this procedure of assessment of value at the various stages and the time limit is not prescribed for assessment of value. Considering all these facts, the State Government had decided to adopt the approach valuation based on Jantri vide Resolution dated 20/12/2006 No. NSHJ/102006/571/J. The time of public shall be saved by its acceptance and uniformity in respect of valuation in the entire State shall be maintained. Thus, it was under consideration of the Government to bring simplification by applying the procedure of valuation based on jantri by making change in existing valuation procedure and by putting into force one resolution in this regard instead of different resolutions.
:: R E S O L U T I ON :: On the basis of the letter No.STP/102008/174/H.1 dated 31/03/2008 of the Revenue Department, for the purpose of Stamp duty , a new Jantri has been put into force by issuing the Circular No. Stamp/ Technical/ 07/08/1512 dated 31/03/2008 with effect from 01/04/2008 by the Superintendent of Stamps, Gandhinagar. After studying and careful consideration, the Government has held that the valuation of the land of new and impartible tenure and of restricted tenure type of Tenancy Act is to be done as per the rate of Jantri (as per Annual Statements of rates 2006 and as per the amendments made from time time).
By consolidating all resolutions/circulars existing instructions in respect of valuation, it has been decided to follow the following procedure .
1. The new policy of the rates of premium for converting and transfer/ for change of purpose of land of new and impartible and restricted tenure land from agricultural to agricultural purpose or non agricultural purpose, shall be as under.
Sr. Purpose Area Tenure of Rate of Transfer at
No possession premium which Type of
tenure
Page 10 of 36
HC-NIC Page 10 of 36 Created On Wed Sep 13 00:02:47 IST 2017
C/SCA/3951/2009 ORDER
1 2 3 4 5 6
1 From The entire rural After 15 Zero It shall be
Agriculture area of the State years transferred for
to the except following the purpose of
purpose of Urban Areas, East, agricultural at
agricultural area under ULC, old tenure, but
old tenure Mahanagar palika premium shall
area, Urban be liable to be
Development paid for non
Authority area, agricultural
Municipality area, purpose
Notified area,
cantonment area
2 From The entire rural After 15 50 % It shall be
Agriculture area of the State years transferred for
to the except following the purpose of
purpose of Urban Areas, East, agricultural at
agricultural area under ULC, old tenure, but
old tenure Mahanagar palika premium is
area, Urban liable to be paid
Development for non
Authority area, agricultural
Municipality area, purpose
Notified area,
cantonment area
3 For Non The area of the After 15 80 % The land shall
agricultural entire State years be considered of
purpose old tenure after
sale/ transfer or
change of
purpose
The aforesaid policy shall be equally applied in the entire State except the exception of the following (A) and ( B).
(A) At the time of transfer, when the land of rural area of new and impartible tenure or restricted type of tenure is allotted as a gift or present to the Educational or Charitable institutes for nonagricultural purpose, 50% amount shall be recovered as premium.
(B) The following rates shall be applicable to the land holding under Kutch Inami Abolition Act and new and impartible tenure.
Page 11 of 36 HC-NIC Page 11 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER Sr. Purpose Area Tenure of Rate of Transfer at which No possession premium Type of tenure 1 2 3 4 5 6 1 From Rural Area After 15 Zero It shall be Agriculture to years transferred for the the purpose of purpose of agricultural agricultural at old old tenure tenure, but premium is liable to be paid for non agricultural purpose 2 From Urban Area After 15 20 (twenty) It shall be Agriculture to years times transferred for the the purpose of amount of purpose of agricultural assessment. agricultural at old old tenure tenure, but premium is liable to be paid for non agricultural purpose 3 For Non The urban After 15 50 % The land shall agricultural and rural years considered under purpose areas old tenure after sale / transfer or change of purpose
2. The procedure of converting the land of new tenure into old tenure for the purpose of agricultural to agricultural (for the purpose of Sr. No. 1 & B(1) of the aforesaid para No.1).
(A) If such lands of New Tenure and Restricted tenure under Tenancy Act have been in continuous possession for 15 year or more than it since its grant to the last date of every month, are liable to be converted into old tenure for agricultural purpose, after eliminating the entry "New & Impartible Tenure" and noting " liable for premium only for non agricultural purpose" on its place, the Mamlatdar of concerned Taluka on his own motion shall issue such orders within 15 days and shall have to inform the concerned holder in writing. At the same time, it shall be the responsibility of the Mamalatdar to get the mutation entry of the said order entered in to the Right of Record and to get it certified as per rules.
(B) In the cases also wherein, the land is required to be converted from agricultural to agricultural purpose into old tenure by recovering 50% premium or 20 times amount of assessment, the Mamalatdar shall have to Page 12 of 36 HC-NIC Page 12 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER issue orders as stated above in 2(A) after recovering the premium. In the case wherein 50% premium is required to be recovered in Urban Area for agricultural to agricultural purpose, the procedure as mentioned in paragraph No. 3 shall have to be adopted.
(C) It shall be the responsibility of the Prant Officer to see that the entry of such orders and its mutation entry are made in record without fail. The Prant Officer shall have to forward the certificate to the effect that any such entry is not remained to be entered in the record to the Collector till the date 25th of every month.
(D) On finalization of the certified mutation entry as per the aforesaid Sr.No.2 (A), the details to the effect that " liable for premium only for nonagricultural purpose" shall have to be mentioned certainly in bold letters in column of tenure and other rights of Village Form No. 7/12.
(E) If breach of tenure is committed in the land, the procedure for breach of tenure shall be initiated towards such land instead of converting them into old tenure.
(F) Moreover at the time of granting such permission if there is any encumbrance upon the land, then the abovementioned concerned officer shall have to issue orders accordingly by granting permission of transfer in old tenure including encumbrance.
(G) In the context of lacuna in respect of the order issued for converting the land of new tenure including Tenancy Act in to old tenure for agricultural purpose or the mutation in that regard, the competent authorities shall have to conduct the revision proceedings as per the standing instructions issued by the Government.
(H) The above mentioned procedure shall have to be reviewed in the meeting of Revenue officers held by the Collector every month.
(I) In the case of breach of tenure, for this purpose , 15(fifteen) years shall have to be reckoned from the date of order of regnant issued lastly.
3. Procedure of converting from New Tenure to Old Tenure for Non agriculture purpose.
(A) On receipt of application in prescribed form as per Appendix I by Collector, application shall have to be forwarded to Mamlatdar office within 7 days (Seven) for scrutiny as per check list. On receipt of such application after scrutiny, Mamlatdar shall have to submit the report to Prant officer within 20 (twenty) days after making all types of scrutiny and site inspection and the Prant officer shall have to forward the report to Collector after verification within 10 days.
Page 13 of 36HC-NIC Page 13 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER (B) After receiving report of Mamlatdar through Prant Officer, after verifying all record, Collector shall have to take decision within 30 (thirty) days and the said decision shall have to be informed to concerned person. the calculation of the amount of premium shall have to be made as per the rate of Jantri prevailing on the date of decision.
(C) If premium is to be paid as per decision of the Collector, then on getting such information the concerned person shall have to pay the amount of premium within 21 (twenty one) days.
(D) After depositing amount of such premium, the Collector shall have to pass order in this regards within 3 (three) days.
(E) If amount of premium is not paid within twenty one days, then assuming that concerned person is not interested in getting permission and chapter should be filed. However, in some cases, if concerned person submits an application then and if Collector considers the reasons just, then as per the merits of the case, by the reasons to be recorded in writing, instead of 21 (twenty one) days, the Collector can extend till one year from date of intimation of decision. But if during this period there is change in price of Jantri then premium shall have to be recovered accordingly. After one year applicant shall have to submit an application afresh.
(F) When the permission is required to be granted to the charitable institutes for nonagricultural purpose after recovery, such institution is required to have been registered under Public Trust Act. In this regard Certificate of registration before Competent Authority/Charity Commissioner shall have to be produced with file and audited accounts of last three years . If the purpose of applicant's institution is only for " No profit No loss" basis, for charitable activities like Charitable hospital, dispensary , cattle house, Library, Elder house, Orphan House etc. then such institution shall have to be considered as Charitable Institution.
(G) The check list regarding chapters to be given for prior permission at the Collector level and departmental level shall have to be prepared as per Schedule2 of herewith. The Collector can call for check list and necessary information if he deems fit.
4. Delegation of Powers: (A) Now premium is required to be recovered on the basis of Jantri, all powers of all area of district shall be vested with Collector.
( B) In stead of forwarding of the present the chapter regarding valuation of more than Rs. 50/ lacs to Government, the chapters regarding Page 14 of 36 HC-NIC Page 14 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER valuation of more than Rs. 1 crore shall have to be forwarded to Government for prior permission.
(C) As per above 4(B), the permission shall have to be granted by making verification of record at department level entirely in respect of the chapter received by the department and by obtaining the consent of the government
5. Regarding considering rates of Jantri:
(A) When sale is required to be made from agriculture to agriculture purpose, the valuation shall be made by considering rate of agriculture Jantri prevailing in Urban and Rular area.
(B) In rural area, when the land is used for nonagriculture purpose, valuation shall be made by considering rates of Jantri for that purpose.
(c) In Urban area, for nonagriculture purpose, valuation shall be made after considering rates of Jantri of developed land.
(d) When nonagriculture use is made for educational, social, charity or other purpose, then valuation shall be made in Rural area, by considering rate of Jantri for residential purpose and in Urban area, by considering rate of Jantri of the developed land.
(e) The Collector shall have to consider rate of Jantri which are applicable to zone, ward or block where the land is situated. The rate of Jantri of other zone, ward or block shall not be considered.
(f) When " rate of developed land " is not mentioned in Jantri of the area, valuation shall be made by considering the purpose and rate of prevailing Jantri of the said area.
6. Procedure for disposal of pending chapters:
(a) In the pending chapters in respect of fixing premium at district level and state level, in all chapters wherein the decision is required to be taken after 1/4/2008, the calculation of the premium shall be made on the basis of the rate as per Jantri.
(b) The chapters which have not been placed in the District Valuation Committee, such chapters pending at District level, shall not be placed in the District Valuation Committee, but their valuation shall be made as per Jantri. The chapters which have been sent to the Deputy Town Planner for valuation, shall be called back and calculation of the premium shall be made on the basis of rate as per Jantri.
(c) The chapters decided by the District Valuation Committee, shall also be disposed again at the Collector level by deciding the premium on the basis Page 15 of 36 HC-NIC Page 15 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER of the rate of Jantri.
(d) The chapters pending at the state level, shall not be sent back to the district or shall not be produced in the Valuation Committee of State level, but permission shall be given by taking consent of the Government and considering the rate of Jantri.
(e) The pending chapters which have been valuated in the office of the Chief Town Planner and which have not been valuated, shall be received back and permission shall be given after taking consent of the Government and applying the price of Jantri.
(f) The chapters sent back from the state level to the district level for compliance, shall not be sent back in the department, but as per above instruction, the Collector shall have to dispose the chapters by deciding the price on the basis of Jantri.
(g) In the cases where the chapters have been received at the State level and necessity arises for compliance on the basis of the record, the chapters of the amount upto Rs.1/ (one ) crore, shall be disposed in accordance with rules by returning the chapter and by making complete verification at the Collector level as per the check list and by returning the the chapters be returned.
(h) In the chapters remained pending at the district and the state level also, in all cases wherein the permission order is required to be issued after 1042008 also, the orders shall have to be issued by deciding the premium as per Jantri.
7. In the cases of land allotted under gifting of land ( bhoodan) and under The Gujarat Agriculture Land Ceiling Act, 1960, any provision of this resolution shall not be applied.
8. On implementation of the aforesaid procedure, the resolutions/circulars mentioned in appendix3 in toto and the resolutions/circulars mentioned in appendix4 partly are superseded only for the part in mentioned in column 4 of the Appendix4.
In this manner, on account of superseding the resolution entirely or partly, the orders issued before 01/04/2008 shall not be affected under the provisions/ instructions of these resolutions / circulars.
9. On the basis of the policy framed vide resolution dtd. 20/12/2006 of the department for bringing in force the procedure of valuation based on new Jantri with effect from dtd. 01/04/2008, this issue with the concurrence of finance department vide their note dtd. 15/05/2008 and 27/06/2008 on this department file of even number.
Page 16 of 36HC-NIC Page 16 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER By order and in the name of Governor of Gujarat, [Anish Mankad] Joint Secretary, Revenue Department, State of Gujarat."
8. The learned counsel for the petitioners have assailed the aforesaid resolution on different counts, as discussed hereunder :
(i) The Tenancy Act does not provide for determination of premium on the basis of the market value. The schedule of rates is fixed for the purpose of levying stamp duty under the Bombay Stamps Act, which is not statutory, but it is only a guiding principle for Sub Registrar. The person presenting the document for registration can always object for the payment of stamp duty on the basis of the jantri and he can challenge the market value on the ground that it is lower than the schedule of rates as provided in the jantri. In such eventuality, detailed procedure is prescribed for determination of the market price in each case and further corrective machinery is also provided for the determination of the market value determined by the Collector, but there is no corrective machinery provided to determine the value of the land except determination as fixed under jantri though the jantri is not binding for stamp duty purposes.
(ii) It is humanly impossible to determine the market price of all the lands in the State of Gujarat. The Land Acquisition Act also provides a detailed provision for determination of the market value of the land sought to be acquired. The compensation determined by the Land Acquisition Officer can always be challenged by reference to the Civil Court and the judgment of the Civil Court can always be challenged before this Court, but unfortunately when the occupier of the land has to pay 80% of the market value only for transferring the land, the occupier is bound to pay the rate arbitrarily fixed by jantri without any remedy. Therefore, the resolution in question is arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
(iii) The occupier of the land in pursuance of the statutory purchase under the Tenancy Act has been conferred a right of occupancy, which is heritable by testamentary or nontestamentary succession. The occupier is entitled to possess, carry out agricultural operations and the occupier can also use the land for nonagricultural purpose for his personal need. The land is also transferable with the permission of the Collector. The transferability of the land is assessed at 80% and the rest of the occupancy rights are assessed at 20%. This Page 17 of 36 HC-NIC Page 17 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER phenomenon is absolutely arbitrary, discriminatory and it is oppressive. Indirectly the State by the impugned resolution acquired 80% of the right, title and interest in the land without payment of any compensation to anybody. Therefore, the resolution is arbitrary and violative of Article 14 of the Constitution of India.
(iv) The Tenancy Act does not provide for recovery of the amount on every transfer of land. Thus, on transfer of land for agricultural purpose after the payment of premium of 50% of the market price, the new purchaser purchases the land and he becomes the owner and occupier in pursuance of the sale deed and, therefore, the land ceases to be a land for the new purchaser under Section 43 of the Tenancy Act. Therefore, once the permission for transfer is granted and once the premium amount is received by the State, it cannot continue to recover further premium again and again on every occasion of transfer of land. If the interpretation, as the State intends to make, is accepted, then it will amount to paying premium of 50% of the market value for transfer from agriculture to nonagriculture purpose and another premium of 80% for transfer to another person, which amounts to payment of premium @ 130%. Such interpretation if accepted it will be oppressive, arbitrary and violative of Article 14 of the Constitution of India.
(v) Section 43 gives right to transfer a property, on the other hand charging unreasonable premium on the basis of the Government Resolution will amount to deprivation of the property without authority of law and is violative of Article 300A of the Constitution.
Excessive delegation of power is arbitrary and absolute discretion given without any guidelines is also violative of Article 14 of the Constitution. Reliance was placed on the Supreme Court decision in the case of Senior Supdt. of Post Office vs. Izhar Hussain, reported in AIR 1989 SC 2262.
(vi) The tenant on payment of full amount of the purchase price as determined under Section 32G of the Tenancy Act, becomes the owner of the land under Section 32 of the Tenancy Act. Once the tenant becomes the full owner of the land on payment of the purchase price, again asking for 80% of the jantri value for obtaining permission for transfer under Section 43 amounts to taking away 80% of the sale amount of the property which is violative of Article 300A of the Constitution of India.
CHALLENGE AGAINST JANTRI CAME INTO FORCE WITH EFFECT FROM 1.4.2008 Page 18 of 36 HC-NIC Page 18 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER
9. The learned counsel for some of the petitioners have raised the question of validity of the jantri which came into force from 1.4.2008 on the following counts :
(i) The jantri is not fixed on any rational basis and the same is not fixed in consultation with the landholders, even the landholders have not been heard before fixing the valuation in the jantri.
(ii) Under Rule 8 of the Stamp Duty Act, there is an elaborate provision for fixing the market value including the market value of the non agricultural land. Individual factors are taken into consideration for determination of such value of nonagricultural land including the vicinity, facilities such as road, railway station, etc. amenities like public hospitals, etc., the size and shape of the land, but there cannot be any jantri villagewise as the market value is always required to be determined with reference to the particular land or a plot or a property.
(iii) The value in the jantri is without any basis, unreasonable, arbitrary, unfair and thereby violative of Article 14 of the Constitution of India.
EFFECT OF RESOLUTION DATED 4.7.2008 - RETROSPECTIVE OR PROSPECTIVE
10. In some cases, the petitioners have raised the question of giving effect to the resolution dated 4.7.2008 from retrospective date. They submitted as follows :
(i) The resolution dated 4.7.2008 inasmuch as it provides for decision in pending cases on the basis of the said resolution is bad being without authority as the State Government cannot give retrospective effect to its resolution; no such power has been delegated by the legislature in favour of the State Government. The impugned resolution can operate only prospectively and not retrospectively. Reliance was placed on the Supreme Court decision in the case of Orient Paper Mills vs. Union of India, reported in AIR 1970 SC 1498.
(ii) In many cases, it has been pleaded that they have already made agreement with the purchasers, made applications for transfer of land in favour of others and/or for transfer from new tenure to old tenure i.e. from agriculture to nonagriculture purpose, determination has already been made by the District level Committee or the State level Committee and may be pending for Page 19 of 36 HC-NIC Page 19 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER approval of the State. In many cases, the applications have already been preferred prior to the resolution dated 4.7.2008, pending since long with the Collector. According to the petitioners in such pending cases, the impugned resolution dated 4.7.2008 cannot be made applicable. In the case of old pending applications, the earlier guidelines under which the District level Committee or the State level Committee were empowered to determine the premium are to continue with the same.
11. The learned Advocate General for the State submitted that Section 43 is a part of the steps towards a major agrarian reform to regulate and impose restriction on the transfer of agricultural lands, etc. belonging to or occupied by agriculturists, etc. The Act is covered under the protective umbrella of the 9th Schedule to the Constitution vide its Entry No. 2. He referred to the history and object with which the Tenancy Act was enacted. According to him, by the impugned amended Section 43, the basic provision of Section 43 has not been changed. The insertion of the words "... in consideration of payment of such amount ..." in place of the earlier words "... on payment of such amount ..." has not effected any change whatsoever nature. The dictionary meaning of the words "in consideration" is "in return of", which is synonymous with the words "on payment of". Pertinently, this amendment did not have the effect of substantial change in the position in any manner. In fact, the meaning of the earlier words referred to in Section 43(1) of the Tenancy Act had remained the same with a precise clarification. At the same time, even after the said amendment, the basic purpose of the Tenancy Act remained the same and the amendment continued with the basic philosophy of agrarian reform which the Tenancy Act seeks to implement. However, many a times, the legislature is extracautious and inserts words "ex abundanti cautela" with a view to repel any doubt. In this behalf, he referred to the Supreme Court decision in the case of State of UP vs. Union of India, reported in (2003) 3 SCC 239, relevant para 14, which reads as follows : "To the same effect are the views expressed by this Court in Raj Bahadur Kanwar Raj Nath vs. Pramod C. Bhatt, Custodian of Evacuee Property. (AIR p. 108, para 6) The operative portion of the section which confers power on the Custodian to cancel a lease in unqualified and absolute and could not be abridged by reference to the non obstante clause which was only inserted ex abundanti cautela with a view to repel a possible contention that the section does not by implication repeal statutes conferring rights on lessees.
And in Bhikoba Shankar Dhumal vs. Mohan Lal Punchand Tathed, this Court held : (SCC p.690, para 17) Page 20 of 36 HC-NIC Page 20 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER "It appears to us that the said paragraph was introduced by way of abundant caution to get over the possible objection raised on the basis of the decision in the case of Dadarao Kashiram vs. State of Maharashtra. The said paragraph is merely declaratory of what the true legal position had always been even from the commencement of the Act. The introduction of an express provision to the above effect does not have the effect of altering the true legal position as explained by us above even without the aid of such express opinion. This becomes further clear from the observations found in the decision of this Court in Raghunath Laxman Wani vs. State of Maharashtra."
12. The learned Advocate General would contend that the Tenancy Act, 1948, the Gujarat (Amendment) Act No. XVI of 1960 and the Gujarat (Amendment) Act No. XXX of 1977 have been placed at different Entry No(s). in the 9th Schedule to the Constitution of India. In view of such inclusion, the aforesaid Acts are immuned from challenge against the their constitutionality. They cannot be challenged on the ground of violation of the provisions of Part III of the Constitution relating to fundamental rights. On this ground, the petitions deserve to be dismissed. He relied on the decision of the Supreme Court in the case of Patel Ambalal Gokalbhai vs. State of Gujarat, reported in (1982) 3 SCC 316.
He would further contend that even if it is considered that insertion the Amendment Act No. XXX of 1977 is subsequent to 24.4.1973 i.e. the date on which the judgment of the Supreme Court rendered in the case of Keshavanand Bharati, then in that case also, there being no change in the basic philosophy or main objective of the Act by the said Amendment Act No. XXX of 1977, the said amendment Act No. XXX of 1977 would continue to be covered under the protection of Article 31B read with 9th Schedule to the Constitution of India. In this behalf, he placed reliance on the judgment of the Supreme Court in the case of SN Medhi vs. State of Maharashtra, reported in AIR 1971 SC 1992 dealing with similar challenge to the Bombay Tenancy and Agricultural Land (Amendment) Act, 1964, wherein the Supreme Court observed as under : "11. ... ... The basic position still remains the same after the impugned Act and there is nothing in the Amendment Act which is destructive of the scheme of agrarian reform which the legislation seeks to implement and which is protected under Article 31A of the Constitution.
13. We do not therefore think that the impugned Act has in anyway affected the main purpose of the Act or the object which it seeks to Page 21 of 36 HC-NIC Page 21 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER achieve nor do the amendments effected thereby take the provisions out of the protection given to it under Article 31A of the Constitution."
While referring to the main object of the Act, the learned Advocate General also placed reliance on the decision of this Court in the case of Shashikant Mohanlal vs. State of Gujarat, reported 1970 (11) GLR
122.
13. The relevant provisions contained the preamble as well as in in some of the Sections of the Act were highlighted to demonstrate the philosophy of the Act and submitted that the Act is promulgated to regulate and impose restriction on the transfer of agricultural land.
14. So far as the resolution dated 4.7.2008 is concerned, the learned Advocate General submitted that if the legislative policy is sufficiently clear and the guidelines could be gathered from the preamble, objects and reasons and other provisions of the Act and the Rules, such guidelines cannot be alleged to be bad on the ground of unbridled or uncanalised power. In fact, the exercise of power if delegated under the guideline is contrary to the policy as envisaged, it would be gathered from the preamble, objects and reasons and other provisions of the Act. He placed reliance on different Supreme Court decisions, which we will discuss at the appropriate stage.
15. As far as the challenge against the jantri is concerned, the learned Advocate General would contend that none of the petitions has contained an independent and substantial challenge against the jantri dated 1.4.2008 and that, therefore, mere challenge against the jantri price in some individual cases and that too, without any substantive reasons, cannot and should not be entertained in a petition where several issues have been in controversy as discussed hereinabove.
16. He would further contend that the determination of crucial date cannot be the date of application preferred for such determination, but the date on which the actual determination is made by the authorities. He distinguished the case of Union of India vs. Mahajan Industries Ltd., reported in (2005) 10 SCC 203 cited on behalf of the petitioners wherein the Supreme Court held, inter alia, that "the crucial date of calculating the conversion charges has to be the date of receipt of application for conversion of land use". According to him, the said decision cannot be applied in the present case as the said judgment was rendered on concession as observed in the said case.
17. Before examining the aforesaid questions, it will be appropriate for us to notice the historical preview of the agrarian reform, statement and Page 22 of 36 HC-NIC Page 22 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER objects of the Bombay Tenancy Act, 1948 and the legal position of certain general principles relating to the challenge of a statute and the parameters of the Courts' jurisdiction to examine materials for arriving at the legislative intent behind a statute.
18. In late thirties, due to lack of security in the matter of tenure and rent, the incentive to cultivate was fast losing, which had given rise to a large scale of unrest and discontent in the agrarian community. The same paved a path for the enactment of the Bombay Tenancy Act, 1939, the main objective whereof was to remove intermediary, i.e, the landlord and to bring the tillertenants in direct contact with the State. Therefore, the country saw enactment of such similar legislations in several States. It is not in dispute that agriculture is the mainstay of the Indian economy. That is why, since independence, the country has embarked on a planned development of agrarian reforms by introducing tenancy laws all over the country. The Bombay Tenancy and Agricultural Lands Act, 1948 (as already referred to as "the Tenancy Act") replaced the Bombay Tenancy Act, 1939.
19. The first challenge against the constitutionality of such agrarian reform legislation was undertaken in the State of Bihar, wherein the Bihar Land Reforms Act, 1950 was held unconstitutional and invalid by the Patna High Court on 12.3.1051 in the case of Kameshwar Singh vs. State of Bihar, reported in AIR 1951 Patna 91. When the appeal against the aforesaid judgment was preferred in the Supreme Court, during pendency of the said case, the 1st Amendment Act, 1951 was passed amending the Constitution of India by inserting Articles 31A, 31B and Schedule IX in the Constitution. The constitutional validity of the said amendments came to be upheld by the Supreme Court on 5.10.1951 in the case of Shankri Prasad vs. Union of India, reported in AIR 1951 SC
458. It was as a result of the aforesaid 1st Amendment Act of 1951 that the Supreme Court in the appeal in the case of State of Bihar vs. Kameshwar Singh, reported in AIR 1952 SC 252, held that the Bihar Act has got immunity under the aforesaid constitutional provisions and hence, the same was valid and constitutional.
20. So far as the constitutionality of Section 43 of the Tenancy Act, 1948 is concerned, it will be evident that the same is a step towards a major agrarian reform and one of the main objectives thereof is to regulate and impose restrictions on the transfer of agricultural lands, etc. belonging to or occupied by agriculturists, etc. in the erstwhile Province of Bombay. This aspect will be evident from the second paragraphs of the preamble of the Act, which is set out hereunder : "AND WHEREAS on account of the neglect of a landholder or disputes between a landholder and his tenants, the cultivation of his estate has seriously suffered, or for the purpose of improving Page 23 of 36 HC-NIC Page 23 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture, it is expedient to assume management of estates held by landholders and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans in the Province of Bombay and to make provisions for certain other purposes hereinafter appearing ...."
Section 43 as it originally stood in the Act prohibits transfer of land purchased by a protected tenant's right under Section 32 of the Tenancy Act except with previous sanction of the provincial Government, which read as under : "43. Restriction on protected tenant's right of transfer - No land purchased by a protected tenant under section 32 shall be transferred by sale, gift, exchange, lease, mortgage or assignment without the previous sanction of the provincial Government."
The Act is covered under the protective umbrella of 9th Schedule to the Constitution vide its Entry No. 2.
21. In the year 1955, Bill No. XXXIV of 1955 was introduced in the State legislature when originally by virtue of clause 28, the suggestion was made to have prohibition of transfer for a period of 5 years, but the Select Committee appointed to consider the said Bill suggested that the power contained in Section 43 should apply to the land for all times and thereby omitted the time limit by removing the words "within a period of five years" and that is how, for making alienation of agricultural lands in the hands of the tenants i.e. deemed purchasers, inhibitive concept of "not alienating the land for all times without the previous sanction of the Collector" came to be maintained, while the Bill culminated into the Act of XIII of 1956.
22. The constitutionality of Sections 5 to 9, 17A, 31A to 31D and 32 to 32R of the Act No. XIII of 1956 came to be challenged before the Supreme Court in the case of Sri Ram Ram Narain vs. State of Bombay, reported in AIR 1959 SC 459. In the said case, the Supreme Court held that Act No. XIII of 1956 was covered by Article 31A of the Constitution and was, therefore, protected from attack against its constitutionality on the score of its having violated the fundamental rights enshrined under Articles 14, 19 and 31 of the Constitution.
23. Section 43 of the Tenancy Act came to be further amended by virtue of the Gujarat (Amendment) Act No. XVI of 1960 wherein after the words "previous sanction of the Collector", condition relating to "payment of such amount as the State Government may by general or special order Page 24 of 36 HC-NIC Page 24 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER determine", came to be introduced. Section 43 as it stood by virtue of the said Act No. XVI of 1960, read as under : "43.(1) No land purchased by a tenant under section 32, 32F, 32I, 32O or 32U or sold to any person under section 32P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignment or partition without previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine.
(2) Any transfer of land in contravention of subsection (1) shall be invalid."
The validity of Section 43 as made by Act No. XVI of 1960 was challenged on the alleged ground that it does not lay down any guidelines for the executives in the matter of determination of "amount" i.e. "premium" before granting sanction. A Division Bench of this Court in the case of Shashikant Mohanlal vs. State of Gujarat, reported in 1970 (11) GLR 122, exhaustively discussed the objective visavis various provisions of the Act and laid down the following propositions : "(a) The tiller of the soil should be brought into direct contact with the State and the intermediary landlord should be eliminated and with that end in view, sections from section to 32R and section 43 have been introduced by the Legislature;
(b) As on 1.4.1957, every tenant shall be deemed to have purchased from his landlord, land free from all encumbrances, provided he was cultivating the same personally.
(c) It must be remembered that the State is theoretically the owner of all land and all occupants hold under the State;
(d) The tenant becomes the deemed purchased of the land at a ridiculously low price because it was intended that he should continue to personally cultivate.
(e) If an occupant is not entitled to transfer his land without the permission of the State, the State can very well say that the permission to transfer the land would be granted only if he pays a premium to the State as the sovereign owner of the land.
Page 25 of 36HC-NIC Page 25 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER
(f) Section 43 provides that if the tenant who is otherwise under an inhibition to transfer, wants to transfer the land, he shall do so only on payment of such amount as the State Government may by general or special order determine;
(g) The above is the charge which the State makes for permitting transfer where the occupancy is not transferable as of right;
(h) The payment contemplated by the section 43 is payment to the State Government and not to the landlord;
(i) The landlord fades out of the picture once the deemed purchase is effected and it is difficult to see why the Legislature should have provided that when the tenant transfers the land, such amount as may be determined by the Government shall be paid to the landlord;
(j) The amount that was determined to be payable to the State Government on transfer by sale was 50% of the net profit of Rs.1,20,391.00 (i.e. sale price of Rs.1,32,391
- purchase price of Rs.12,000), which comes to the tune of Rs.60,195.65."
24. The validity of the aforesaid Amendment Act No. XVI of 1960 fell for consideration before the Supreme Court in the case of Patel Ambalal Gokalbhai vs. State of Gujarat, reported in (1982) 3 SCC 316. In the said case, the Supreme Court held that the Gujarat (Amendment) Act No. XVI of 1960 is covered by the protective umbrella of 9th Schedule at its Entry No. 40 and that, therefore, the constitutionality thereto is immuned from challenge.
25. By insertion of the Amendment Act No. XXX of 19777, Section 43 is amended whereby amongst other things, the words "in consideration of payment of such amount ..." came to be substituted in place of the words "on payment of such amount ...". The amended Section 43 which holds the presently field reads as under : "43.(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32I, 32O, 32U, 431D or 88EE 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 Page 26 of 36 HC-NIC Page 26 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector."
26. The question is whether in view of such amendment, any substantial change is made to show that the legislatures have deviated from the basic philosophy or the main object of the Act i.e. agrarian reform ?
27. From Section 43, it will be evident that the right of tenants that they shall be deemed to be purchasers even continues after enactment of the amended Section 43.
This Court has already stated that in normal course the State is theoretically the owner of all lands and all occupants hold under the State. (refer the case of Shashikant Mohanlal vs. State of Gujarat, reported in 1970 (11) GLR 122). The occupant was earlier not entitled to transfer his land without the permission of the State and even after the amendment, such permission is required to be obtained. Therefore, there is no change of position.
In the case of Shashikant Mohanlal vs. State of Gujarat, (supra), this Court noticed that as per earlier Section 43, there was a provision to grant permission on payment of such amount as may be determined by the Collector. The said Section stipulated for permission of transfer of land only after the premium to the State is paid, which is the supreme owner of the land, as the State Government by a general or special order determine, as per the earlier Section 43, but even after the amendment, the position does not change.
28. The relevant provisions contained in the preamble and some of the Sections of the Act as highlighted by the learned Advocate General demonstrate the philosophy of the Act, relevant of which are quoted hereunder : "(a) Preamble "... to regulate and impose restriction on the transfer of agricultural land ..."
(b) Second proviso to subsection (1B) of Section 32 "Provided further that (I) if the tenant fails to give such undertaking within such prescribed period, or if the tenant, after giving such undertaking, refused to accept the tenancy or possession of the lands ... the lands shall vest in the State Government free from all encumbrances. ...."
(c) Subsection (8) of Section 32P :
"No land of the description referred to in subsection (&) shall Page 27 of 36 HC-NIC Page 27 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER be transferred by sale, gift, exchange, mortgage, lease or assignment or partition without the previous sanction of the Collector. ..."
(d) Section 63 :
"No sale, gift, exchange or lease of any land or interest therein, etc. shall be valid in favour of a person who is not an agriculturist ..."
(e) Explanation to subsection (5) of Section 84C :
For the purposes of this section 'new and impartible tenure' means the tenure of occupancy which is nontransferable and nonpartible without the previous sanction of the Collector."
The aforesaid preamble and the provisions are the sufficient guidelines suggesting that any amount which the State Government is to fix as a condition precedent to the grant of sanction, has obviously to be in terrorem so as to discourage such transfer, assignment, etc. of the agricultural land by tenant, who was made a deemed purchaser i.e. the owner of the land, which he was cultivating on the stipulated day. Thus, we find that there is sufficient guideline as regards philosophy on which the Act is based. Section 43 thereby cannot be considered to be bad and ultra vires on the ground that it does not lay down any guideline for fixing of premium amount. The judgments relied upon on behalf of the petitioners with reference to different State legislations do not apply in the present case.
28. In the case of Vasanlal M. Sanjanwala vs. State of Bombay, reported in AIR 1961 SC 4, the Supreme Court while upholding the provisions contains in Section 6(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, as was operative in the State of Mahrashtra at the material time, as well as of a notification issued thereunder, empowering the Government to fix the maximum rent payable by the tenants on the ground that the material provisions of the Act including its preamble were intended to give relief to the tenants by fixing the maximum rent payable by them, the Supreme Court observed as under : "(6) The present Act is undoubtedly a beneficent measure. It has enacted provisions for agrarian reform which the Legislature thought was overdue. ...
(7) ... ... In our opinion, therefore, having regard to the legislative policy laid down by the Act in its preamble and in the other relevant sections ... ... it would not be possible to hold that the power delegated to the Provincial Government by section 6(2) suffers from the infirmity of excessive delegation. The fact that no minimum has been prescribed would not materially affect this Page 28 of 36 HC-NIC Page 28 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER position."
(8) ... ... If section 6(2) is valid then the exercise of the power validly conferred on the Provincial Government cannot be treated as fresh legislation which offends against Article 31. If the Act is saved by Article 31B, section 6(2) is also saved, and the power must be held to be validly conferred on the Provincial Government, and a notification issued by virtue of the said powers cannot be challenged on the ground that it violates Article 31."
29. In the case of Corporation of Calcutta vs. Liberty Cinema, reported in AIR 1965 SC 1107, the Supreme Court observed as under : "26. No doubt when the power to fix rates of taxes is left to another body, the legislature must provide guidance for such fixation. The question then is, was such guidance provided in the Act ? We first wish to observe that the validity of the guidance cannot be tested by a rigid uniform rule; that must depend on the object of the Act giving power to fix the rate. It is said that the delegation of power to fix rates of taxes authorized for meeting the needs of the delegate to the valid, must provide the maximum rate that can be fixed or lay down rules indicating that maximum. We are unable to see how the specification of the maximum rate supplies any guidance as to how the amount of the tax which no doubt has to be below the maximum, is to be fixed. Provision for such maximum only sets out a limit of the rate to be imposed and a limit is only a limit and not a guidance."
30. One can gather from the preamble, objects and reasons and the other provisions of the Act where legislative policy has laid down suitable guidelines or has not delegated such power giving rise to unbridled or uncanalized power has been discussed by the Supreme Court in the case of Consumer Act Group vs. State of Tamil Nadu, reported in (2000) 7 SCC 425 wherein the Court held : "18. The catena of decisions referred to above concludes unwaveringly in spite of a very wide power bring conferred on the delegatee that such a section would still not be ultra vires, if guidelines could be gathered from the Preamble, Objections and Reasons and other provisions of the Acts and Rules. In testing the validity of such provision, the courts have to discover, whether there is any legislative policy, purpose of the statute or indication of any clear will through its various provisions. If there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalized. The exercise of power of such delegate Page 29 of 36 HC-NIC Page 29 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER is controlled through such policy. .. .. ...."
31. Almost similar provision is contained in Section 73B of the Bombay Land Revenue Code. As per said Section 73B of the Bombay Land Revenue Code when any land covered by the Tenancy Act is to be converted from new tenure to old tenure i.e. from agriculture to nonagriculture, the owner thereof is to seek previous sanction of the State Government, which shall not be given except on payment to the State Government of such sum as the State Government may, by general or special order, determine. Said Section 73B while fell for consideration before this Court in the case of Kanaiyalal D Sopariwala vs. State of Gujarat, reported in 2009 (1) GLH 185, this Court observed as under : "10. ... ... The premium that is due to the Government is charged in lieu of waiving the State's interest in a particular new tenure land and permitting the occupant to put it to nonrestricted use i.e. old tenure. Such restrictions are also placed to ensure that lands acquired under some beneficial legislation or under some welfare scheme are not transferred for profit, thereby defeating the very purpose of the grant. ... ..."
32. In the case of Rajenbhai B Shah vs. Baijiben K Patanvadia, reported in 2009 (2) GLR 1784, this Court while dealing with the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, held as follows : "10. .. .. .. Object, title and marginal note indicates the underlying purpose and policy of the legislation. Underlying purpose and objects of the Tenancy Act is not to transfer the agricultural land to a nonagriculturist, but will be frustrated if permitted by a testamentary disposition. Such a device, is void, if it defeats the purpose of a legislation for an illegal purpose."
33. In some of the cases, the petitioners have claimed right under Article 19(1)(f) of the Constitution of India, but the same was omitted by the Constitution (44th Amendment) Act, 1978 with effect from 20.6.1979. In some cases, it has been claimed that they are the owners and they have human right to hold the land.
34. It is true that the property ceases to be a fundamental right but now it is to be considered as a constitutional right and human right. Such right is to be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law.
In the present case, the tenant who became a deemed purchaser, Page 30 of 36 HC-NIC Page 30 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER then owner, in view of the Tenancy Act, nobody is going to deprive of his property. In fact, as now development is taking place in and around the area, therefore the tenants who have now become owners of the property, they want to change the tenure from new tenure to old tenure, i.e. from agricultural to nonagricultural land. This they want for their benefit. Similarly if the restricted tenure (new tenure) is taken out, they may transfer their property to get much more what they spent taking advantage of agrarian reforms under Section 32 of the Tenancy Act. When a development is made, the owner of the property may get much more than what he would have got, if the same remained undeveloped in the process, but also get the benefit of living in a developed town having good town planning. Such was the observation of the Supreme Court in the case of State of Gujarat vs. Shantilal Mangaldas, reported in (1969) 1 SCC
509.
35. Section 43 of the Tenancy Act, where restriction has been put by asking to pay premium in case of transfer of nature of the land from new tenure to old tenure i.e. from agriculture to nonagriculture or for transfer of land to others if made for nonagricultural purpose, the said Act being regulatory in nature as by reasons thereof the right of the owner of the property to use and develop stands restricted, which requires strict construction. An owner of the land is entitled to use or develop the same for any purpose unless there exists certain regulations in a statute or statutory Rules. The regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right to property of the owner of such land.
In the present case, we find that the restriction and regulated power has been made to ensure that the lands which were acquired under the beneficial legislation in favour of one or under some welfare scheme are not transferred for profit, thereby defeating the very purpose of the grant. The premium is thus charged to restrict the transfer from agricultural land to nonagricultural land or for earning profit, thereby defeating the very purpose and object of Tenancy Act, which was enacted for agrarian reform.
36. In view of our discussions aforesaid, while we hold that Section 43 as inserted by Amendment Act No. XXX of 1977 does not interfere with the human right of a tenant, who became a deemed owner under the Tenancy Act, it also do not deprive such tenant - owner of the property and thereby does not violate Article 300A of the Constitution of India. Further, the provisions contained in Section 43, if read alongwith the preamble and other provisions of the Tenancy Act, we find that specific guidelines have been laid down by the legislature to suggest any amount which the State Government is to fix as a condition precedent for the grant of sanction. Thus, there being sufficient guidelines as regards the philosophy on the basis of which the Act is based, Section 43 cannot be considered to be bad Page 31 of 36 HC-NIC Page 31 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER and ultra vires on the ground that it does not lay down any guideline for fixation of the premium amount.
37. As we hold that Section 43 does not violate any fundamental right or constitutional right of the tenant - deemed purchaser - owner of the land, we also hold that that the impugned amended Section 43 if covered by the protective umbrella of 9th Schedule at Entry No. 217 of the 9th Schedule and is immuned from challenge.
38. So far as the resolution dated 4.7.2008 is concerned, from its preamble it will be evident that the earlier procedure to assess the price of the land through the District level committee or State level committee at different stages used to consume much time, in absence of any time limit fixed for assessing the price. Considering the aforesaid aspect and the State Government's policy to make easy implementation of the transfer of land from new tenure to old tenure i.e. agriculture to nonagriculture, it was decided to accept approach valuation as made by resolution No. NSHJ/102006/517/J dated 20.12.2006 i.e. jantri. Pursuant to the letter dated 31.3.2008 of the Revenue Department which relates to stamp duty, the jantri was given effect from 1.4.2008. It has not been accepted in toto, will be evident from the impugned resolution dated 4.7.2008. For example, for transfer of land from agriculture to old tenure in rural areas after 15 years, the rate of premium has been fixed at "zero". However, such rate for transfer from agriculture to old tenure in urban areas after 15 years, the rate has been fixed at 50%. For transfer from agriculture to nonagriculture in such area after 15 years has been fixed at 80%.
Therefore, if the agricultural land is in rural area, and is sought to be transferred for nonagriculture purpose (old tenure), in that case, no premium has been fixed. On the other hand, if the agricultural land is transferred from agriculture to nonagriculture in the urban area after 15 years, then only premium of 50% is to be paid and if a person does not want to retain such land, but want to sell for nonagricultural purpose to other in any part of the State, then he is to pay the premium at 80% .
Similarly, a separate standard has been made for the land holding on new and indivisible conditions under Kachchh Inam Abolition, whereunder for transfer from agriculture to nonagriculture (old tenure) in rural area while no premium is required to be paid, in the urban area for such transfer after 15 years, a person is required to paid 20 times amounts of assessment and if in such Kachchh area, if alienates the land for nonagriculture purpose in nay of the such area i.e. urban or rural, after 15 years is liable to pay only 50%.
39. Previously there was no time limit for deciding the application for transfer from new tenure to old tenure or transfer by way of alienating the Page 32 of 36 HC-NIC Page 32 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER land under Section 43 of the Tenancy Act, but now by the impugned resolution dated 4.7.2008, the time limit is prescribed and the officials have also been asked to ensure that on recovery of the premium, names are mutated in the revenue record. Thus, more advantageous guidelines have been issued for the benefit of the tenant owners, many of whom inspite of representations filed earlier, could not get permission to transfer from new tenure to old tenure of land. Thus, as we find that the resolution dated 4.7.2008 is more beneficial and has been made in consonance with Section 43 of the Act, easy to calculate the premium and is in the interest of the landholders who want to transfer under Section 43 of the Tenancy Act, it cannot be said to be arbitrary and, thereby, requires no interference.
40. So far as the jantri is concerned, though challenge has been made in some of the writ petitions, but in non of them they have enclosed copy of the jantri which came into effect from 1.4.2008. The learned counsel for the petitioners could not show how such jantri is illegal except a bald statement that has been made that it is unscientific in nature, do not provide any mechanism to oppose the valuation.
The respondent - State in its affidavit at para 9 filed in Special Civil Application No. 10832 of 2008, has stated as under : "9. It is submitted that so far as the new Jantry (Annual Statement of Rates2007) is concerned. The same is decided after scrupulously followed all the procedure and also considered the objection raised by the concerned person. It is submitted that the authority has also taken assistance/guidance of technical agency. It is submitted that before finalizing the new Jantry, the State Authority had undertaken sitewise survey and lso considered the sale transactions of last 3 years as well as considered the market value fixed by the District Level Valuation Committee and State Land Valuation Committee. It is submitted that initially the authority has prepared draft Jantry and the same was published in local daily and the authority has invited objections/suggestions from the affected persons. It is submitted that in view of the advertisement published by the authority, the authority has received more than 4,000 objections and the authority has appointed expert committee to consider such objections in view of the draft Jantry. Thereafter, ultimately, the final Jantry was prepared and the same was made applicable since 1.4.2008. It is required to be clarified that the Jantry (ASR2006) is prepared subject to further modification in future. It is submitted that the petitioner has not challenged the Jantry introduced on 1.4.2008 and therefore, I refrain myself for commenting further on that issue. However, it is submitted that the authority has taken due care before preparing new Jantry."
Page 33 of 36HC-NIC Page 33 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER The aforesaid fact has not been disputed by the petitioners. The Court was informed by the learned Advocate General that they are going to change the Jantry with effect from 1.4.2011. In this background also, no interference is called for against the jantri.
41. In some of the cases, the parties have raised the question of crucial date for determination of the premium amount. According to them, it should be the date of application on which they applied for permission for transfer. Before the learned Single Judge, when the aforesaid matter was raised in Special Civil Application No. 22164 of 2006 and other allied matters, the learned Single Judge while referring the said matter to the Larger Bench vide order dated 29.11.2006, decided two different situations for determining the crucial date for land valuation, namely,
(a) in a matter where the Government has to grant or allot the land and a question arises as to what price should be made applicable for payment, i.e. whether the price prevalent at the time when the application for grant was made or the time when the Government grants permission; and
(b) in a matter where the Government has to grant permission for commercial exploitation of land, i.e. permission for sale of agricultural land for nonagricultural purpose.
It was in the aforesaid context that the learned Single Judge observed that the following judgments will not have any applicability in the present case, since they all were the cases of grant of land by the State Government.
1. Harijan Vithalbhai vs. Krishnamurth, the Collector, 1976 GLR 525
2. Ashutosh Sarkari Karmchari Coop. Society Ltd. vs. State, 1995 (2) GLR 1419
3. Decision of this Court dated 29.6.1999 in SCA No. 2459 of 1999
42. Many of the petitioners have taken a plea that they have already made agreement for sale long back, applied for permission and there was no latches on their part, but there was latches on the part of the State authorities or the District level committee or the State level committee. In some of the cases, it is stated that the District level committee or the State level committee has already determined the premium, but the Collector has not granted permission. Therefore, according to them, the crucial date for determination of the premium should be the date of application.
Page 34 of 36HC-NIC Page 34 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER In this connection, we may only observe that under Section 43, there is a restriction on transfer of land purchased or sold under the said Act. No land or any interest therein purchased by a tenant under Sections 17B, 32, 32F, 32I, 32O, 32U, 43ID or 88EE can be transferred by any tenant, owner, by sale, gift, mortgage, lease or assignment without the previous sanction of the Collector. In each case, it is to be seen as to the place where such land is situated i.e. in the urban area or in the rural area. If it is in the urban area, then it is to be ascertained whether the land falls within the municipal area or the area under the Urban Development Authority or Mahanagarpalika or notified area or cantonment area. Collection of all such facts takes much time as thorough inquiry is to be made and then to give finding. Therefore, the petitioners cannot claim that once they file the application, the Collector is bound to give permission. In appropriate case, it can be refused. The petitioners have no right to transfer the land except in accordance with Section 43 to claim transfer of land from agriculture to nonagriculture or to alienate the land.
If without permission under Section 43, the land could not have been sold, the agreement if any reached by the petitioners with any other person for transfer of land, such agreement is invalid, having executed in violation of Section 43 of the Act and hence to be ignored.
43. Whenever the transfer will be made from agriculture to non agriculture or permission will be granted to transfer the land to others, such permission can be granted only from the prospective date the Collector having not empowered to grant permission to transfer from a retrospective date.
If such permission can be granted to transfer the land from prospective date and thereafter transfer will be made from prospective date, the petitioners cannot claim to ascertain the valuation from a retrospective date. If the transfer of land is to be made after the permission is granted by the Collector, the valuation of the land will be that of the date when such permission is granted i.e. the prevailing valuation Therefore, the petitioners cannot claim that the valuation should be made on the basis of the valuation as was existing on the date they applied i.e. about 5 to 6 years back or more.
44. Further, if the petitioners will not transfer the land as of today or in future to another person at the costs as was prevailing 5 to 10 years back and for the purpose of stamp duty, they will pay stamp duty as was prevailing at the time of sale, they cannot claim determination of valuation as was prevailing at the time of sale. For the said reason, the petitioners cannot take any advantage of the judgments referred by them which are not applicable in the facts and circumstances of the cases in hand. We, therefore, hold that the crucial date for determination of the premium is the date on which the Collector grants such permission, i.e. Page 35 of 36 HC-NIC Page 35 of 36 Created On Wed Sep 13 00:02:47 IST 2017 C/SCA/3951/2009 ORDER prospective date and not retrospective date. For the same very reason, we hold that the resolution dated 4.7.2008 is prospective and cover all the pending cases, including the cases where assessment was made by State or District level Committee or any other authority, if the matter is pending for permission by the Collector.
45. So far as the individual cases are concerned, we are not dealing with or discussing the individual claim as their applications for permission are pending with the Collector and will be guided by the finding as given by us and mentioned hereinabove. We find no merit in any of the writ petitions and the Letters Patent Appeals and, therefore, we dismiss all the writ petitions, Letters Patent Appeals and the Civil Applications. However, there shall be no order as to costs."
7 In view of the settled position of law, no further adjudication is necessary in this matter.
8 In the result, this application fails and is hereby rejected.
9 At this stage, Ms. Thakore, the learned A.G.P. submitted that the amount of premium to the tune of Rs.29,13,600/ was fixed way back in the year 2008. Indisputably, this amount has not been deposited by the writ applicants since they thought fit to challenge the fixation of the premium. According to the learned A.G.P., the policy of the State Government is that the fixation of the amount towards premium would remain in force for a period of two years. On expiry of the period of two years, the fixation would lapse. If the writ applicants want the land to be converted from 'new tenure' to 'old tenure', then it shall be open for them to apply a fresh with the authority concerned.
10 Notice stands discharged.
(J.B.PARDIWALA, J.) chandresh Page 36 of 36 HC-NIC Page 36 of 36 Created On Wed Sep 13 00:02:47 IST 2017