Bombay High Court
State Of Goa & Others vs Smt. Zarina Abdulai Karmali & Others on 12 September, 1997
Equivalent citations: 1998(4)BOMCR136, (1998)1BOMLR702
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. The present petition arises from the order passed by the respondent No. 3, Administrative Tribunal, on 1-6-1995 whereby the Tribunal set aside the order dated 18-10-1988, passed by the Dy. Collector and S.D.O. Ponda. Sub-Division, Ponda.
2. The controversy in the present petition relates to Survey Nos. 188/1 and 188/4 of Ponda, belonging to respondent No. 1 and classified as "Cultivable (Bharad)" land in the Record of Rights of Ponda town prepared pursuant to the new survey. The property bearing Survey No. 188/1 admeasures 15,950 sq. metres and Survey No. 188/4 admeasures 1500 sq metres, in area, out of which 900 sq. metres and 200 sq. metres, respectively, are shown as "uncullivable" area being occupied by the houses. On receipt of report from the Mamlatdar of Ponda, dated 29-7-1988. that on an area of 2640 sq. metres in the property bearing Survey No. 188/1 some construction work was going on, the Dy. Collector, Ponda issued notices dated 3-8-1988 to the respondents Nos. 1 and 2 informing that there was unauthorised use of agricultural land to non-agricultural purpose in contravention of sections 30 and 32 of the Land Revenue Code in regard to Survey No. 188/1 of Ponda, without obtaining prior permission for such change of use of land. By the said notice, the respondents Nos. 1 and 2 were called upon to show cause why the penalty should not be levied as provided in section 33 of the Land Revenue Code and the Rules framed thereunder and further as to why the restoration of land to its original use should not be ordered. In reply dated 16-8-1988, the respondent No. 2 raised various contentions and without prejudice to their rights also applied for conversion permission under section 32 of the Land Revenue Code. In fact, such an application dated 10-8-1988 was received from the respondents No. 1 on 16-8-1988 in the Office of Dy. Collector relating to conversion of 2270 sq. metres from the entire area of 15,950 sq. metres comprised Of Survey No. 188/1. Yet, there was another application dated 23-6-1988, received on 16-8-1988 for conversion of an area of 5538 sq. metres of Survey Nos. 188/1 and 188/ 4. By an order dated 18.10.1988, the Dy. Collector imposed fine of Rs. 1,62,000/- to be paid by the respondents Nos. 1 and 2 within a period of 30 days from the receipt of the order while warning that on failure to pay the said penalty, the application of the respondent No. 1 filed for conversion of 2270 sq. metres and 5538 sq. metres of the property bearing Survey Nos. 188/1 and 188/4 would be rejected and penalty as provided under Clauses (ii) and (iii) of section 33 of the Land Revenue Code, 1968 would be imposed on the respondents. Being aggrieved, the respondents Nos. 1 and 2 filed the appeal before !he Respondent Administrative Tribunal, which was allowed by impugned order dated 1-6-1995 and order of the Dy. Collector, Ponda was quashed and set aside.
3. Though various arguments were advanced in support of the order of the Dy. Collector and against the impugned order by the learned Government Advocate, as well as in support of the impugned order and as against the order of Dy. Collector by the learned Advocate appearing for the respondent No. 2 herein, the records clearly disclose that the Dy. Collector while passing the order dated 18-10-1988 proceeded on the presumption that all lands are agricultural lands, unless they are classified as 'non-agricultural' by order of Government or converted lor non-agricultural purpose with the permission of the competent authority, whereas the Administrative Tribunal proceeded on the presumption that the Land Revenue Code itself contains different provisions in respect of different types of lands and, therefore, accepted the argument of the respondents that a land once found located within the Municipal limits that itself would be enough to indicate the same to be non-agricultural land. Curiously enough, neither the Government Advocate nor learned Advocate for the respondent No. 2 pointed out any provision of law or produced any material on record to arrive at such sweeping general conclusions which are sought to be arrived at by both the authorities. Neither the Land Revenue Code nor any other law presupposes that all lands are agricultural lands. So also no law supports the presumption that the moment the land is found located in the Municipal limits of the city, the same has necessarily to be a non agricultural land. Both the authorities having proceeded on wrong presumptions, have acted with material irregularity in exercise of their jurisdiction while dealing with the matter in hand.
4. In fact, whether a particular land is an agricultural land or not or whether it is non-agricultural land or not would depend on the factual situation in loco in each case. It will depend on the evidence regarding nature of land to be placed before the authority competent to decide the said issue.
5. Undisputedly, the primary issue is as regards the nature of land in question. It is, therefore, necessary for the fact-finding authority to call upon the concerned parties to produce all materials before it decides about the natufe of land in question and then on proper analysis of the said materials to arrive at the finding regarding the nature of the land as it existed prior to commencement of the construction by the respondent No. 2 which was reported to the Dy. Collector by the Mamlatdar of Ponda by its communication dated 29-7-1988. If the Dy. Collector finds that the land which is used for construction by the respondent No. 2 was of the nature of agricultural land, only then the question of conversion thereol for construction on other activities could arise. However, before arriving at any finding, it is absolutely necessary to give sufficient opportunity to the concerned parties to put forth their case and to prove the same by leading whatever evidence they may produce in support of their contentions. The material on record do not disclose any such exercise having been undertaken by the Dy. Collector before passing order dated 18-10-1988. Strangely enough, totally overlooking those aspects, the Administrative Tribunal proceeded on totally contrary presumption merely because the Land Revenue Code contains provisions relating to different types of lands and that the land in question is situated in the Municipal limits of the city of Ponda, and therefore would be non-agricultural land and thereby set aside the order of Dy. Collector. There was no material before the Dy. Collector to arrive at a finding that the land in question was agricultural, so also there was no material before the Administrative Tribunal to arrive at a finding that since the land is located within the Municipal limits of city of Ponda that by itself was enough to indicate that the land was non-agricultural.
6. It is, therefore, ex facie clear that both the Authorities have acted with material irregularity in exercise of their jurisdiction while passing respective orders and, therefore, are liable to be quashed and set aside. It is necessary for the Dy. Collector concerned to consider all the contentions raised by the respondent No. 2 in their replies to the show cause notice as well as in their application for conversion, including the point regarding nature of the land in question and particularly, in relation to the area where the actual construction has been carried out and which was intimated to it by the Mamlatdar by its letter dated 29-7-1988.
7. At this stage, it would not be out of place to refer to the judgment of the Apex Court in the matter of Malankara Rubber and Produce Co. Ltd. v. State of Kerala & others, . No doubt that the facts of the said case are different from those of the case in hand. However, it is worth reproducing certain observations in the said judgment of the Apex Court which were though reproduced by the Administrative Tribunal in its judgment, but were not applied in the manner the same ought to have been applied to the case in hand while deciding the same. Indeed, the Apex Court has observed in the said decision that:
"..... Whether lands are agricultural or not may depend also on their physical properties and situation. There may be rocky lands, hillsites, unculturable lands, forests, etc. which by their very nature are not agricultural lands. So also lands comprised within a Municipality specially in towns and cities cannot be styled agricultural lands because no agricultural operations can be carried on there.....if an industrial or Commercial undertaking owns several blocks of buildings situate close to each other with some land interspersed between them, it cannot be said that these lands are agricultural lands and can only qualify for exemption only if they are notified to the District Collector and set apart for the industrial or commercial purpose of the undertaking."
The Apex Court has thereby made it clear that a land whether it is agricultural or not would depend on its physical properties and situations. In other words, merely because the land is situated in a non-urban area, or far away from the city limit that, by itself, cannot be a reason to classify it as 'agricultural land'. Similarly, merely because the land is situated within the Municipal limits, it would not give rise to the presumption that it is a non-agricultural land. Moreover the Supreme Court has also cautioned that when the land is found situated within the limits of Municipal area, merely because some agricultural operations are carried on therein, it would not, by itself, make it agricultural land. This is more so in view of the fact that the Land Revenue Code itself does not define the term "agricultural land" or "non-agricultural land".
8. Though various points are sought to be raised in this petition, it would be premature to decide the same without proper decision on the basic question by the fact-finding authority by analysing all the materials which may be placed before the same by the concerned parties. It is necessary to have the issue relating to the nature of land properly decided on the basis of all such evidence. In this view of the matter, it is necessary to leave all other points open while quashing the impugned orders and to remand the matter to the Dy. Collector, Ponda to be decided afresh and in the light of the above observations.
9. In the result, the petition is allowed. Rule is made absolute in the above terms. It is made clear that this Court has not expressed any opinion on any of the points sought to be raised except that there is no presumption in law that all lands are agricultural lands, unless they are classified as 'non-agricultural by order of Government or converted for non-agricultural purpose with the permission of competent authority', as well as there is no presumption that each and every land found located within the Municipal limits of the city would, by itself, be an indication that the land is 'non-agricultural land'. The petition is, therefore, accordingly disposed of. There shall be no order as to costs.
10. Petition Allowed