Gujarat High Court
Minaben Arvindlal Gandhi vs State Of Gujarat And Ors. on 14 June, 1991
Equivalent citations: (1992)1GLR413
JUDGMENT S.D. Shah, J.
1. By these group of petitions, the petitioners challenge the order of Secretary (Appeals), Revenue Department, Govt, of Gujarat, dated 25th July, 1984, whereby the Secretary cancelled the order of Taluka Development Officer, Mangrol, dated 4th November, 1982 granting permission to the owners/occupiers of Block Nos. 75 & 88 situated at village Mota Borsara, Taluka Mangrol for making non-agricultural use of the said land. The said order was passed by the Taluka Development Officer in exercise of the powers conferred upon him by Section 65 of Bombay Land Revenue Code, hereinafter referred to as the 'said Code', read with Sections 123 & 157 of Gujarat Panchayats Act, 1961, hereinafter referred to as 'the said Act'.
2. The facts leading to the group of these petitions, briefly stated, are as under:
(i) The respondents Nos. 3 to 7 in each of these petitions, through Power of Attorney, applied to the Taluka Development Officer, Mangrol, under Section 65 of the Code seeking permission for non-agricultural use of parcels of lands bearing Block Nos. 75 & 88 of village Mota Borsara. The Taluka Development Officer, Mangrol, by his order, dated 4th November, 1982 granted permission for non-agricultural use on terms and conditions stated in the said order and he also required respondents Nos. 3 to 7 to pay the premium amount of Rs. 33,426.92 Ps. for block No. 75 and Rs. 30,578.40 Ps. for block No. 88. The amount of premium was paid on 4th November, 1982 by challan in the treasury.
(ii) Thereafter, the respondents Nos. 3 to 7 herein through Power of Attorney-holder sold the said block Nos. 75 and 88 by sub-plotting the same to the petitioners by registered sale deed dated 30th May, 1983 and the petitioners were put in possession and occupation of the said blocks.
(iii) Thereafter, the Secretary (Appeals) issued notice, dated 7th May, 1984 on his coming to know about the order passed by the T.D.O. thereby purporting to act under Section 211 of the Code. By the said notice he called upon the respondents Nos. 3 to 7 to show cause as to why permission for non-agricultural use granted by the T.D.O. should not be cancelled for following reasons:
(a) As per Government Resolution, dated 20th May, 1980 when permission for non-agricultural use is to be granted with respect to new tenure land or land of restricted tenure under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 or Section 32P(8) of the said Act, the premium amount which was hitherto being fixed by the T.D.O. was now not to be fixed by the T.D.O. because of the subsequent change in the resolution of the Government, dated, 20th May, 1980 by virtue of Resolution dated 16th October, 1982. The premium now is to be fixed by the Revenue Officer.
(b) As per Resolution of Govt, dated 25th March, 1981 when permission for non-agricultural use is to be granted it was necessary to obtain opinion of Industries Officer and T.D.O. has failed to obtain such opinion.
(c) The permission for non-agricultural use is granted so as to enable the applicants to establish industry but the nature of industry is not stated by the T.D.O., and therefore, also the order is bad.
(d) Since the T.D.O. granted permission for industrial use he ought to have obtained the opinion of Gujarat Water Pollution Control Board, Gandhinagar, and since he has not obtained such opinion, the order was bad.
(e) The T.D.O. also ought to have enquired as to whether any proceedings for acquisition of land in question were pending.
(f) The T.D.O. also ought to have enquired as to whether by granting such permission breach of any provisions of Urban Development Regulation was committed.
(iv) On receipt of such notice the respondents Nos. 3 to 7 submitted their replies, dated 23-5-1984, inter alia, submitting that they have already paid the amount of premium fixed by the T.D.O. and that after obtaining permission they have sub-plotted the land and have sold the said parcels of land by registered sale deeds to the present petitioners. They, therefore, submitted that notices should be issued to the purchasers and that there was no need to cancel the permission for non-agricultural use.
(v) It may be noted that despite specific contention that after grant of permission for non-agricultural use the two parcels of lands are sub-plotted and such plots arc sold to the petitioners by registered sale deeds, Secretary (Appeals) did not think it fit to issue notices to the present petitioners and based on the replies filed by the respondents Nos. 3 to 7 he proceeded to pass the impugned order, dated 25th July, 1984 cancelling the permission for non-agricultural use granted by the T.D.O.
3. Being aggrieved by the said order of the first respondent, the petitioners have approached this Court.
4. Mr. P.J. Vyas, learned Advocate for petitioners challenges the order by making following submissions:
(i) the first respondent erred in holding that the T.D.O. has no jurisdiction or authority to grant permission for non-agricultural use and that he has also erred in interpreting the Govt. Resolution dated 20th May, 1980 as well as subsequent Govt. Resolution, dated 18th October, 1982;
(ii) that the order of the first respondent suffers from the vice of non-application of mind because not only he has misread the two Govt. Resolutions but he has recorded the findings of facts which are contrary to material and evidence on repord;
(iii) that the first respondent ought not to have exercised his revisional powers after expiry of long period of more than one year and exercise of such revisional powers after expiry or inordinately long period is bad in law.
5. Mr. B.M. Mangukia, learned. A.G.P. for respondents supports the order of the first respondent and contends that the first respondent was justified in holding that the T.D.O. had no authority to grant permission for non-agricultural use when he has no power to fix the premium subject to which condition, permission can be granted under Section 43 of the Bombay Tenancy & Agricultural Lands Act. He submits that even otherwise also the order is not required to be interfered with.
6. Re-submission 1:
(i) There is no dispute that two plots of land in question were agricultural lands in character. They could not be used for non-agricultural purpose except with the permission of the Collector under Section 65 of the Code. Section 65 of the Code in-so-far as it is relevant is reproduced hereunder:
65. (1) Any occupant of land (assessed or held for the purpose of agriculture) is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or is more convenient (use for the purpose aforesaid).
But if any occupant (wishes to use his holding or any part thereof for any other purpose) the Collector's permission shall in the first place be applied for by the occupant.
[The Collector on receipt of such application.
(a) shall send to the applicant a written acknowledgment of its receipt and:
(b) may, after the due enquiry, either grant or refuse the permission applied for:
Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied shall be deemed to have been granted, such period shall, if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of acknowledgment, but in any other case, it shall be reckoned from the date of receipt of the application.] Unless the Collector shall in particular instances otherwise, direct no such application shall be recognised except it be made by the occupant.
(2) Notwithstanding anything contained in Sub-section (1) but subject to any terms and conditions laid down by the State Government in this behalf, where an occupant has his holding in an area comprising a gram and such area is not within an urban agglomeration or within a radius of five kilometers from the limits of Municipal borough or notified area or industrial estate and such occupant wishes to use his holding or a part thereof only for a residential purpose it shall not be necessary for him to obtain permission of the Collector under Sub-section (1).
It is clear from the said provision that under the provisions of the Code the power is conferred upon the Collector to grant permission to owner/occupier of the land for non-agricultural use of the land which is agricultural in nature. Therefore, under normal circumstances the application was required to be made to the Collector,
(ii) However, after the formation of State of Gujarat the State Legislature has enacted Gujarat Panchayats Act, 1961, hereinafter referred to as the "Panchayat Act". Section 157 of the Panchayat Act in so far as it is material is reproduced hereinbelow:
157. (1) Notwithstanding anything contained in law for the time being in force, the State Government may subject to such conditions as it may think lit to impose, transfer by an order published in the officer Gazette to a District Panchayats (any such powers, functions and duties relating to any matter as exercised or performed) by the State Government or any officer of Government under any enactment which the State Legislature is competent to enact or otherwise in the executive power of the State and appear to relate to matters arising within a district and to be of an administrative character and shall on such transfer, allot to the District Panchayat such fund and personnel as may be necessary to enable the District Panchayat (to exercise the powers and discharge) the functions and duties so transferred.
(2) Without prejudice to the generality of the provisions of Sub-section (1) the State Government may transfer to the District Panchayats (such powers, function and duties as are exercised or performed) by the following Departments of the State, namely:
(1) Agriculture, (2) Animal husbandry, (3) Public Helath and Medical relief, (4) Public Works Dept. activities in the District, (5) Social Welfare, (6) Land Dept., (7) Prohibition Department so far as prohibition propaganda is concerned, (8) Cooperative Department, (9) Cottage Industries and Small Scale Industries and (10) District Statistical Office.
(3) On the transfer of (any powers, functions and duties) under Sub-sections (1) and (2) District Panchayat shall, if the State Government so directs and with the previous approval of the State Government may delegate to any panchayat subordinate to it any of the functions, powers and duties so transferred and allot to such fund and staff as may be necessary, to enable the Panchayat (to exercise the powers and discharge the functions and duties) so delegated.
(4) Where (any powers, functions and duties) conferred by or under any enactment arc so transferred or delegated, that enactment shall have effect as if this Section 11Ad been incorporated in that enactment.
(5) The matters in respect of which the functions and duties are transferred or delegated under this section shall be deemed to be included in the Panchayat functions list.
(iii) From the provisions of Section 157 it becomes clear that the State Govt, has power to transfer by order published in the official gazette, to District Panchayat any power, function and duties relating to any matters as are exercised or performed by the State Govt, or any officer of the Govt, under any enactment. In exercise of such powers State of Gujarat has issued order dated 25th March, 1963 transferring to the District Panchayats the powers, functions and duties of the State Govt, and its officers as specified in the schedule thereto. All the powers, functions and duties conferred on the Collector under Sections 65, 165 and 166 of the Code were transferred to District heads. By another Govt. Resolution dated 25th March, 1963 it was provided that out of the powers, functions and duties transferred to the District Panchayats, District Panchayats shall delegate the subordinate panchayats powers, functions and duties as specified in the statement appended to the second resolution From the text of Section 157 of the Panchayats Act read with above referred two resolutions it becomes clear that the power to grant permission for non-agricultural use which is otherwise conferred on Collector by Section 65 of the Code could be transferred under Section 157 by the State Govt, to the District Panchayat and in fact by the Resolution of 1963 said power is transferred to all the District Panchayats. By subsequent resolution of the very date the District Panchayat is further empowered to delegate such power to grant permission for non-agricultural use to any subordinate Panchayats.
(iv) At this stage it is required to be noted that the parcels of lands are new tenure lands or lands of restricted tenure, the transfer whereof is restricted under Section 43 of the Bombay Tenancy and Agricultural Lands Act. Section 43(1) of the said Act, inter alia, provides that no land or any interest therein purchased by a tenant under Sections 17B, 32, 32F, 32-1, 32-0 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 without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government by general or special order determine, and no such land or any interest, therein shall be partitioned without the previous sanction of Collector. It is thus clear that even such a land of restricted tenure can be transferred after obtaining previous sanction of the Collector. Second embargo is that the amount of premium shall be fixed by the State Govt, and such premium shall have to be paid to the State Government. With respect to such parcels of new tenure land initially by Guvt. resolution, dated 20th May, 1980 the power was given to grant permission for nun-agricultural use, to District Panchayat or Taluka Panchayat on condition that at the time of granting permission the competent officer shall determine the amount of premium and shall order that such amount of premium be paid. The condition No. 7 of the said resolution inter alia provided that where such parcels of lands arc situated within Panchayat limits and when power is conferred upon the District Panchayat or Taluka Panchayat the permission for non-agricultural use shall be granted after fixing the amount of premium as per Govt, resolution and after directing that the amount of such premium shall have to be paid to the Government. From the text of resolution dated 20th May, 1980 it becomes clear that even with respect to parcels of land in the present case the T.D.O. has power and authority to grant premission for non-agricultural use as per the resolution dated 20th May, 1980. What was expected of him was that he was required to fix the amount of premium as per Govt, resolution and he was also required to direct in the order that such premium shall be paid by the owner/occupant as a condition to the grant of permission for non-agricultural use. In fact, pursuant to such power conferred upon T.D.O., in number of cases permissions were granted by the T.D.O. for non-agricultural use.
(v) It appears that this matter came to the notice of the State Govt, and the State Govt, by its resolution dated 16th October, 1982 found that the Panchayat Officers were in fact granting permission for non-agricultural use even with respect to the pew tenure lands and that they were determining the amount of premium. State Govt., therefore, by subsequent resolution deleted para 7 of the resolution dated 20th May, 1980 and instead provided that when the question of determining the amount of premium arises before the T.D.O. he shall refer the matter to the Dist. Collector or Dy. Collector and he shall get the amount of premium fixed by revenue officer and after such amount of premium is fixed he shall pass the order granting permission for non-agricultural use based on the condition that the amount of premium so determined shall be paid by the applicant.
(vi) From the reading of said resolution it is clear that the power to grant permission for non-agricultural use which was delegated to the T.D.O. by Dist. Panchayat was not taken away. The power to grant permission for non-agricultural use remained with the T.D.O. It is not the case of the Government in this case that the power to grant permission for non-agricultural use was withdrawn from the T.D.O. Mr. B. M. Mangukia, learned A.G.P. rightly points out that in cases of new tenure lands or lands of restricted tenure the power to fix the premium was taken away from the T.D.O. or Panchayat Officer and as and when the question of granting permission for non-agricultural use with respect to such lands arose he was required to refer the matter to the Collector/Dy. Collector or Revenue Officer who was required to determine the amount of premium and such amount of premium was required to be paid by the applicant.
(vii) After examining the position of law emerging from conjoint reading of Section 65 of the Code read with Section 157 of Gujarat Panchayats Act and also various resolutions issued by the State with respect to the new tenure/restricted tenure lands and more particularly on the facts of the present case, I am of the opinion that it cannot be said that there was total absence of jurisdiction/power in the T.D.O. to grant permission for non-agricultural use. In fact from the Govt, resolutions dated 20th May, 1980 and subsequent resolution dated 16-10-1982 clear position emerges that T.D.O. has power to grant permission for non-agricultural use even with respect to new tenure or restricted tenure lands subject to condition that the amount of premium payable by the applicant shall be determined by the Collector/Dy. Collector or Revenue Officer and such amount of premium is made payable by the applicant as condition to grant of permission for non-agricultural use.
(viii) Mr. P.J. Vyas, learned Advocate for petitioners is right in submitting that the first respondent has, in fact, misconstrued the two resolutions. The first respondent has construed the second resolution dated 16-10-1982 as withdrawing power from T.D.O. to grant permission for non-agricultural use. What is achieved by the second resolution is to see that the amount of premium is not fixed by the T.D.O. and that it is fixed by the Collector/Dy. Collector or Revenue Officer. Such amount of premium after it is fixed by the Revenue Officer is to be paid by the applicant. The only flaw in the order of the T.D.O. granting permission for non-agricultural use therefore was that he himself fixed the amount of premium and he did not refer the matter to Collector/Dy. Collector or Revenue Officer for fixing the amount of premium. I do not think that by such a lapse entire order of the T.D.O. granting permission for non-agricultural use becomes non-est or without jurisdiction. He has, undoubted jurisdiction to grant permission for non-agricultural use because of the operation of Section 157 of Gujarat Panchayats Act and subsequent delegation of power by the District Panchayat in favour of Taluka Panchayat. By operation of Section 157 of Gujarat Panchayats Act as held by this Court in the case of M/s. S. Kumar Builders, Baroda v. State of Gujarat, reported in [1989 (1)] XXX (1) GLR 382 the power which the Taluka Panchayat exercised under Section 65 of the Code is an executive or administrative power and therefore same could be exercised by T.D.O. under Section 123(1) of the Gujarat Panchayats Act. The T.D.O. therefore has undoubted power to grant permission for non-agricultural use under Section 65 of the Code and resolution dated 16-10-1982 does not take away such power. It simply conditions the said power by providing that the amount of premium shall be determined by the Collector/Dy. Collector or Revenue Officer. This flaw in the order of the T.D.O., dated 4-1-1982 is not fatal so as to render entire order non-est. In my opinion the first respondent was clearly in error in setting aside the order of the T.D.O. solely on the ground that he has no power to grant permission for non-agricultural use. If there was omission on the part of T.D.O. in referring the matter to the Collector/Dy. Collector/Revenue Officer for fixing the premium the first respondent ought to have directed the T.D.O. to undertake that exercise or he could have atleast directed the Collector/Dy. Collector/Revenue Officer to fix the amount of premium and could have called upon the applicant to pay up amount of premium so fixed. He was not, in any way, justified in cancelling the permission for non-agricultural use which was already granted and it was utilised by the subsequent purchasers. I am, therefore, of the opinion that the order of the first respondent is required to be quashed and set aside insofar as by the said order he has cancelled the permission granted to respondents Nos. 3 to 7 for non-agricultural use. As regards the amount of premium to be fixed the matter is required to be sent back to T.D.O. with direction that he may refer the matter to the Collector/Dy. Collector/Revenue Officer for determining the amount of premium to be paid by the applicant and after so ascertaining the amount of premium he is further directed to call upon the respondents Nos. 3 to 7 to pay the difference of amount of premium after giving credit of the amount of premium already paid by the respondents Nos. 3 to 7.
7. Re-submission 2:
(i) As regards second submission of Mr. Vyas he is justified in criticising the order of the first respondent on the ground that it suffers from vice of non-application of mind. At three stages the first respondent has observed that the amount of premium is not paid by the respondents Nos. 3 to 7. Mr. Vyas, on the other hand, points out that the full amount of premium was paid on the very day on which the permission was granted, i.e., on 4-11-1982 and he refers to the challan by which the amount was deposited in the treasury under Head No. 0.29/LR. It appears that the first respondent has not scrutinised the entire record and has proceeded on the assumption that the amount of premium is not paid. From the record it transpired that the amount of premium was paid on the very day when the permission was granted. Even on this ground also the order of the first respondent is required to be quashed and set aside.
8. Re-submission 3:
(i) Mr. Vyas submits that the permission for non-agricultural use was granted by the T.D.O. on 4-11-1982 while the order cancelling the said permission was passed on 25th July, 1984, i.e., after period of about more than 18 months. He, therefore, submits that there is inordinate delay in passing the order in question and since the order is passed under Section 211 of the Code it ought to have been passed within reasonable time. Period of 18 months is unreasonably long period and therefore the order should be set aside. I do not find any substance in this submission of Mr. Vyas. It may be noted that no fixed time limit is prescribed for exercising power under Section 211 of the Code. It is true that such power is required to be used with reasonable time. What is the reasonable time depends upon the facts and circumstances of each case. No straight jacket formula can be applied. In the present case as and when the State Govt, came to know about the passing of order by the T.D.O. it has in fact immediately issued notice to show cause. I do not find that period of about one year can be said to be unreasonably long period. This submission of Mr. Vyas, therefore, fails.
9. In the result, all these petitions must succeed. The order of the first respondent, dated 25th July, 1984 cancelling the permission for non-agricultural use granted by the Taluka Development Officer is hereby quashed and set aside. Matter is remanded to the T.D.O. with direction that he shall refer the matter to the Collector/Dy. Collector/Revenue Officer for fixing the amount of premium to be paid by the respondents Nos. 3 to 7 and after ascertaining such amount of premium the T.D.O. shall suitably modify his order so as to refix the amount of premium, and he shall, thereafter call upon the respondents Nos. 3 to 7 to pay the difference of amount of premium, if any, and in case the amount of premium fixed by him and already paid by the respondents Nos. 3 to 7 is found to be higher he shall order the refund of the balance amount to respondents Nos. 3 to 7.
In the result, rule is made absolute accordingly in each petition. No costs. Writ of this order shall be sent to the T.D.O., Mangrol immediately by the Court.