Gujarat High Court
State Of Gujarat vs Ajay Surendrabhai Patel on 19 November, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1346 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 4857 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 1346 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT & ANR.
Versus
AJAY SURENDRABHAI PATEL
==========================================================
Appearance:
MS HETAL PATEL, ASST.GOVERNMENT PLEADER for the Appellant(s) No.
1,2
MR DHRUV AGARWAL, SR. ADVOCATE assisted by MR VIBHOR and
VARDHAN with MR.NISARG P RAVAL(7262) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 19/11/2024
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NEUTRAL CITATION
C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024
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ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard learned counsels of the parties and perused the record.
2. This Letters Patent Appeal is directed against the judgement and order dated 24.07.2023 passed by the writ Court granting prayer of the writ petitioner to set aside a set of three orders dated 25.02.2023 and another set of three orders dated 01.03.2023, further issuing directions to the Collector to consider the application for grant of NA permission, on its merit, treating the land in question to be an Old tenure in terms of the judgement and order dated 21.08.2014 passed in Special Civil Application No. 9045 of 2012, as also the judgement and order dated 23.01.2023 in Letters Patent Appeal No. 856 of 2015. It is directed by the writ Court that the Collector, Ahmedabad shall decide the application in accordance with the observations in the aforesaid orders of this Court within the period of four weeks from the date of receipt of the order.
3. This is the second round of litigation with respect of the land in question, wherein the only dispute is with respect to the claim of the State authorities to charge premium for conversion of the land in question from agricultural to non-agricultural purposes. We may clarify at this stage itself that the land in question mentioned in this judgement refers to the original Survey No.250, which was allotted to the original tenure holder along with other six(06) plots on 15.06.1943. The original Page 2 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined Survey No.250 was later subdivided into six(06) parcels of lands, which were purchased by the original petitioner and with respect to which six (06) applications were filed seeking for grant of NA permission, which have been rejected by orders impugned (six in number), subject matter of challenge in the original petition, out of which the instant appeal has arisen.
4. The dispute revolves around the nature of the land in question which was allotted to the original tenure holder on 15.06.1943. The demand of premium for conversion of six parcels carved out from the land in question from agricultural to non-agricultural purposes, is based on the stand of the Collector in the order impugned that the land in question original Survey No.250 was allotted as indivisible on Old agreement terms, which may be mentioned as "Juni Karar". In the Revenue records, in Village form No.7/12, the six parcels of the land in question are still shown as "Juni Sharat" i.e. "Old agreement" and not as "Old tenure".
5. The submission of Ms.Hetal Patel, learned Assistant Government Pleader appearing for the State appellants is that for the nature of the land in question which is "Juni Karar" i.e. Old agreement and not as Old tenure land, the subject land is considered to be a restricted tenure land and the respondent, namely the original writ petitioner is liable to pay premium under the title of "
permission for payment of premium for new and indivisible condition of lands non-agricultural purposes Page 3 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined and non-agricultural permission". The submission is that the learned Single Judge in the judgement impugned has erred in simply relying upon the previous decisions of the writ Court ignoring the status of the land in question and the fact that the original petitioner did not submit any document of proof in the previous rounds of litigation to establish the subject land being Old tenure land.
6. The submission is that the original petitioner has succeeded in getting orders from the writ Court in the previous round of litigation vide judgement and order dated 21.08.2014, by making a false statement of the Survey No.250 being Old tenure land. The Division Bench in the judgement and order dated 23.01.2023 passed in Letters Patent Appeal No.856 of 2015, however, has modified the order of the writ Court by providing that it was open for the competent authority to deal with the application seeking conversion within the exercise of its power in the manner known to law.
7. The submission of the learned Assistant Government Pleader for the State appellant is, thus, that the learned Single Judge in the judgement impugned has committed an error of law in holding that in the previous round of litigation in the judgement of the writ Court dated 21.08.2014, it had held in an unambiguous terms that the land in question is of Old tenure and that the NA permission cannot be refused on the ground that the subject land being new tenure land.
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8. It was argued that the observations in Paragraph No."8"
of the judgement impugned that the Division Bench in Letters Patent Appeal No.856 of 2015 vide judgement and order dated 23.01.2023 had upheld the findings of the writ Court in the judgement and order dated 21.08.2014 in unambiguous terms, is a result of misreading of the order of the Division Bench in appeal.
9. The learned Single Judge has erred in holding in the judgement impugned that the orders passed by the Collector in demanding premium for conversion of the subject land for non-agricultural purposes are in teeth of the orders passed by this Court in the previous rounds. It has erred in holding that the application for NA permission has been illegally rejected on the ground that the petitioner has to first apply for change of tenure from new to old by paying premium and, thereafter, only the non-agricultural use permission can be considered.
10. The submission is that the stand of the State respondent was clear and categorical since the beginning and even in the first round of litigation before the writ Court in the affidavit filed on behalf of the State respondent, specific contention was raised that the subject land was old agreement ('Juni Sharat') land and it was indivisible and the entry in that regard could be traced to the year 1944. A categorical stand had been taken by the respondent State before the writ Court in the first round itself that in the initial allotment order, right of occupancy was granted and no exclusive right of Page 5 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined ownership was transferred to the original allottee in the year 1944 and, therefore, the premium is leviable at the time of grant of NA permission. This specific stand of the State respondent has not been dealt with and brushed aside by the writ Court in the judgement and order dated 21.08.2014, on the premise that the doubt raised by the officer with regard to the cloud on the title of the purchaser cannot be a reason to hold the title as defective. In the judgement and order dated 21.08.2014, it was recorded that the title of the occupier/original petitioner therein could be traced since 1944 when the land has remained cultivable and there are entries in favour of the present petitioner for the purchase of the land by registered sale deed in the year 2005. The contention of the State respondent that the land in question was inalienable was, thus, held misconceived.
11. It was held by the writ Court therein that the NA permission could not have been refused raising doubt with regard to the title of the land holder. Moreover, no such grant or justification was stated in the reply or the order of rejection of NA permission. Holding so, it was further recorded by the writ Court that if the land in question is an Old tenure land and it is sought to be developed, NA permission could not have been refused on the ground of the same being new tenure. Consequently, while allowing the prayers made in the original writ petition in the prayer Clause 7(A) and (B), the order of rejection passed by the Collector on 23.03.2010 had been quashed and set aside and a direction was issued to the respondents to consider the Page 6 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined case of the petitioner for grant of NA permission.
12. It is further placed before us that on a challenge made by the State appellants to the judgement and order dated 21.08.2014 passed by the writ Court, in Letters Patent Appeal No.856 of 2015, a specific observation had been made by the Division Bench while dismissing the appeal that the directions/mandamus issued by the writ Court by no stretch of imagination, could be construed as respondent authorities having been directed to grant NA permission. Rather, the words and expressions used in the order of the writ Court are to consider the case of the petitioner for grant of NA permission and, resultantly, the respondent authorities being within their power to examine the claim of the petitioner in the matter known to law, were not deprived of independent consideration. The Division Bench has, though rejected the contention of the State appellants that the writ Court had issued positive direction therein to the Revenue authority to grant NA permission which is contrary to the mandate of Section 65 of the Gujarat Land Revenue Code, 1879 (in short as "the Code"), but had held that the direction issued by the writ Court to consider the case of the petitioner for grant of NA permission, as contained in Paragraph No.'7' of the judgement dated 21.08.2014 cannot be construed as a positive direction to grant NA permission, mandatorily.
13. In fact with the above observations therein, while dismissing the appeal and affirming the order of the writ Court, all that the Division Bench had directed to the Page 7 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined competent authority was to consider the claim of the petitioner as directed by the writ Court and complete the exercise as expeditiously as possible.
14. The submission, thus, is that with the decision of the Division Bench in the judgement and order dated 23.01.2023, all observations and directions contained in the judgement and order dated 21.08.2014 passed by the writ Court had been merged in the order of the Division Bench. The result is that any observation of the writ Court in the judgement and order dated 21.08.2014 about the nature of the land in question being Old tenure land no more will have any binding effect to the extent that the claim of the petitioner was not left open to be examined in accordance with the law. With the Division Bench judgement and order dated 23.01.2023 wherein the directions contained in the judgement and order dated 21.08.2014 passed by the writ Court had been merged, as per the observations of the Division Bench, the competent authority was well within its power to examine the claim of the petitioner in the manner known to the law.
15. Resultantly, the learned Single Judge in the judgement impugned in the present appeal, has committed an error of law in holding that the orders passed by the Collector in asking for premium for conversion of land from New to Old tenure for the purpose of grant of NA permission, are in teeth of the previous orders passed by this Court and, thus, in setting aside the same on this ground alone.
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16. Reliance is placed on the decision of this Court in Rajeshbhai Rambhai Dadal vs. State of Gujarat and others in Special Civil Application No. 11279 of 2017 dated 20.06.2017 to assert that it is not permissible for the Court to give any declaration about the nature of the land in question being an Old tenure land in exercise of its supervisory jurisdiction under Article 226/227 of the Constitution of India.
17. The demand of premium for conversion of land is based on the condition, which is reflected in the original order of allotment dated 15.06.1943 which is incorporated in the Mutation entry dated 15.03.1944 in the name of the original allottee wherein only possessory right has been given to the original allottee on the condition of the land being "Old agreement and indivisible". This status of the land in question has not been changed with the subsequent act of division having been carried out recorded with the Mutation entry dated 20.06.2002 which was certified on 30.07.2002. The fact remains that the land in question as per the revenue records of Village form No.7/12 is the land of "old agreement ('Juni Sharat')" and not an "Old tenure" land. Further, the land in question being indivisible, the 'Old agreement land' cannot be confused with an 'Old tenure land' being the land holding without any restrictions.
18. The submission, thus, is that the learned Single Judge in the judgement impugned in the instant appeal, has committed a grave error law in ignoring all the above Page 9 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined aspects of the matter while holding that a definite finding of fact had been recorded by the writ Court in the previous round vide judgement and order dated 21.08.2014 with regard to the nature of the land in question being an Old tenure and the said finding had been upheld by the Division Bench in the Letters Patent Appeal vide judgement and order dated 23.01.2023.
19. On the merits of the claim of the State respondents about the nature of the land in question and the demand of premium for its conversion for non-agricultural purposes, it was placed before us by the learned Assistant Government Pleader Ms. Hetal Patel that six (06) parcels of land bearing Survey No.252, 255, 250, 224, 225 and 252 situated in village: Makerba, Tehasil and District: Ahmedabad were originally allotted to one Chhaganlal Gangaram by the Deputy Collector vide allotment order dated 15.06.1943 on the condition of "Old agreement terms as indivisible". Mutation entry No.2377 dated 15.03.1944 was made pursuant to the allotment order, whereunder possessory rights were given to the allottee on the conditions of cultivating crop (agriculture operations) till fighting (war) ended. The Mutation entry at Page No.'169' of the paper book records that the order of allotment dated 15.06.1943 of the Prant Officer was confirmed vide order dated 24.06.1943 of the Talati-cum-Mantri and the Mutation entry was recorded thereafter. In the year 2003, the District Inspector of Land Records (in short as "the DILR") made sub-division of the subject land which is Page 10 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined Survey No.250, admeasuring 3 acres, 23 gunthas, which was allotted vide allotment order dated 15.06.1943 along with the aforesaid five (05) survey numbers. The Survey No.250 had further been divided into six (06) parcels of land bearing Survey Nos.250/1 to 250/6 and each plot, thus, admeasured 2411 sq.meters, the total being 14,466 sq.meters.
20. The original petitioner, namely Ajay Surendrabhai Patel had purchased all six parcels of land, namely, Survey Nos. 250/1 to 250/6, through three registered sale deeds, entry with respect to which could be found in the record at Page No.'129' of the paper book.
21. We may note that there is no dispute about the subdivision and the sale deeds dated 12.05.2005, 01.08.2005 and 07.11.2005, for purchase of six parcels of lands comprising in Survey No.250 (originally allotted), by the original petitioner and the said sale deeds are still in operation. There is, absolutely no dispute pertaining to the title of the original petitioner herein.
22. The only issue raised before us is with respect to the demand of premium by the Collector in the orders impugned (in the original petition), for grant of non- agricultural permission for all six plots and these orders (six in number) dated 25.02.2023 and 01.03.2023 passed by the Collector, Ahmedabad are subjected to challenge in the second round of the litigation, namely Special Civil Application No. 4857 of 2023, out of which the present appeal has arisen.
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23. It is the case of the State appellant, as argued by the learned Assistant Government Pleader, that the application for conversion was not considered for the reasons given in the first order dated 23.03.2010 passed by the Collector, on the ground that the payment of premium for the land in question has to be made as per the Government resolution dated 17.03.2017 in accordance with the provisions of Section 73B of the Code. The contention is that the conversion of the land in question for non-agricultural purposes by application of the provision of Section 65 of the Code is not permissible for the restrictions imposed on the land in question in the original allotment order dated 15.06.1943, which has not been altered or modified till date.
24. Section 73B of the Code has been placed before us to submit that where any occupancy, by virtue of any condition annexed to the tenure by or under the Code, is not transferable or partable without previous sanction of the State Government, the Collector or any officer authorised by the State Government shall ensure that such sanction 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.
25. Placing the Government Resolution dated 17.03.2017, referred to in the original order of rejection dated 23.03.2010 passed by the Collector, as also in the orders dated 25.02.2023 and 01.03.2023 in the original writ petition out of which the instant appeal has arisen, it was urged by the learned Assistant Government Pleader Page 12 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined that on account of the conditions of the original allotment order dated 15.06.1943, of the land in question being Old agreement and indivisible, i.e. impartable, as per the clause (8) of the Government Resolution dated 17.03.2017, there is a requirement of payment of premium.
26. The attention of the Court is invited to Clause (8) of the Government Resolution dated 17.03.2017, which reads as under:-
English Version:-
"8. In many cases, government waste land have been granted / re- granted with Old agreements or on Old agreement or on impartible tenure. Such lands attract premium at the time of non- agricultural purpose, however, such entry is not clearly made on the records and subsequent sale transactions take place thereof. Purchaser of such land is to be considered a bona-fide purchaser."
Gujarati Version:-
"(૮) ઘણા કિ સ્સાઓમાં સર ારી પડતર જમીન જુ ના રારે અથવા જુ ના રાર અથવા અકિવભાજ્ય શરતોએ ગ્રાન્ટ/રીગ્રાન્ટ રવામાં આવેલ હોય છે . આવી જમીનો બિ+ન ખેતીના હે તુ માટે પ્રિ.પ્રિમયમને પાત્ર ગણાય છે . પરંતુ રે ડ1 ઉપર આવી સ્પષ્ટ નોંધ રવામાં આવેલ હોતી નથી. જેના ઉત્તરોત્તર વેચાણ થયેલ હોય છે . આવી જમીન ખરીદનારને +ોનાફાઈડ પરચેરઝર ગણવાના રહે છે ."
27. The submission, thus, is that the condition of Government Resolution dated 17.03.2017 in Clause 8 is very specific to the effect that wherever the Government Page 13 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined land "Sarkari Padtar" has been granted with the conditions of old agreement ('Juni Karar') and indivisible (Avibhajiya), for the purpose of conversion of the land for non-agricultural purposes premium is leviable even if the transfer in favour of the purchaser is treated as bona fide purchase. The Government Resolution dated 17.03.2017 is in operation till date and in view of the categorical directions contained in Clause (8) thereof, no infirmity much less illegality can be attached to the orders passed by the Collector in asking for premium while deciding the application for conversion from agricultural to non-agricultural purposes. This aspect of the matter has been completely ignored by the writ Courts in both the rounds of litigation.
28. By placing the revenue entries of the land in question at page Nos.'156' to '167' of the paper book, it was vehemently argued that the nature of the six parcels of the land in question shown in the Village form No.7/12 as 'Juni Sharat' (old agreement) cannot be confused with the Old tenure land. The revenue entry of the year 1941- 42 of Survey No.250 at Page No.'208' of the paper book has further been placed to substantiate that the land in question was a "Sarkari Padtar" (Government land).
29. Elaborating further, the Government Resolution dated 06.03.1971 has been placed to submit that the Government Resolution dated 24.11.1970 has been reiterated therein and it was clarified that as on 01.03.1960 with respect to "Sarkari Padtar" lands, which were given on lease before Independence, such Page 14 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined lands shall be dealt with in terms of the Government Resolution dated 24.11.1970 and only requirement of 12 years of continuous occupation had been modified as the requirement of occupation as on 01.03.1960.
30. Further the Government Resolution dated 16.03.1982 was issued considering various Government Resolution issued from time to time for the purpose of regulating conditions of conversion of new tenure land to Old tenure land, wherein reference of previous Government Resolutions dated 24.11.1970 and 06.03.1971 along with other resolutions were made. Referring to the Government Resolution dated 24.11.1970, provisions have been made therein for relaxing the conditions with respect to restricted new tenure indivisible land. Clause 2(4) of the said Government Resolution referring to date 01.03.1960 further clarifies that the requirement of 12 years of possession as per the Government Resolution dated 24.11.1970 would not be necessary, however, for conversion of land from agricultural to non-agricultural purposes premium would be leviable. With respect to such lands which are Old agreement lands, same conditions were reiterated in the subsequent Government Resolutions dated 18.12.2004 and 04.07.2008.
31. It was further submitted that the validity of the Government Resolution dated 04.07.2008 has been upheld by the Apex Court in the judgement and order dated 25.02.2014 reported in Gohil Jesangbhai Page 15 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined Raysangbhai and others vs. State of Gujarat and another, (2014) 5 SCC 199, wherein the right of the State to charge premium has been upheld noticing the observation of the Division Bench of this Court in the judgement and order dated 03.05.2011, where the issue was raised with respect to the validity of Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 as applicable to the State of Gujarat (Gujarat Tenancy and Agricultural Lands Act, 1948). It was noted by the Apex Court in Paragraph No.'17' of the said decision, noticing the observation of the Division Bench, that there cannot be doubt that it is implicit in the language used in the Section that the payment contemplated is payment to the State Government. The State is theoretically the owner of all the lands; all occupations held under the State. 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 premium to the State as a sovereign owner of the land. It is noted that the provision in Section 73B of the Bombay Land Revenue Code was introduced with retrospective effect by Gujarat Act of 1965, which provides that where occupancy in any land is not transferable or partable without the previous sanction, permission shall not be given by the Collector or Authorised officer except on payment of premium as determined by the State Government, by general or special order. The premium is the charge which the State asks for permitting transfer where occupancy is not transferable as of right.
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32. With reference to the Government Resolutions dated 03.05.2011, 13.04.2023 and 15.04.2023, it was placed that premium which was leviable earlier to the extent of 40% for conversion of Old agreement for non- agricultural purposes has been reduced to 30%, when such conversion is sought after 15 years of occupation of such land.
33. The Government Resolution dated 03.05.2011 was issued for determination of premium for conversion of new and indivisible land as Old tenure land for agricultural as well as non-agricultural purposes. The conditions mentioned in the said Government Resolution further indicates that for conversion of new and impartable tenure land for agricultural to agricultural purposes as Old tenure land, for the land lying in certain areas, no premium or 24% premium, would be leviable after 15 years of occupation, depending upon the area wherein the land in question lies. However, for conversion to non-agricultural purposes for the entire State, 40% premium would be leviable after 15 years of occupation. The said Government Resolution further clarifies that all other conditions of the Government Resolution dated 04.07.2008 for conversion of such lands, namely New tenure to Old tenure for agricultural or non-agricultural operations would be applicable as such. By subsequent Government Resolution dated 15.04.2023, the rates for charge of premium have been reduced to 20% for agricultural to agricultural purposes as Old tenure from 24%; and 30% for non-agricultural Page 17 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined use from agricultural purposes in place of 40%, as prescribed in the Government Resolution dated 03.05.2011.
34. With the above noted Government Resolutions, it was vehemently argued that the requirement of levy of premium for conversion of an agricultural land with the restricted conditions of Old agreements and indivisible, even for such lands the lease of which was granted prior to Independence was reiterated from time to time, beginning from the Government Resolutions 24.11.1970 to 04.07.2008. It was, thus, not permissible for the original petitioner to argue that the premium is not leviable because the land in question had been allotted/granted prior to Independence, though on the condition of being Old agreement and indivisible. Restrictions on the use of the land in question for agricultural operations only as Old agreement and indivisible land has never been relaxed nor condoned with. Moreover, the levy of premium is a matter of policy of the State Government, which has been affirmed with the insertion of Section 73B of the Code by Gujarat Act No.35 of 1965 with retrospective effect as also the Government Resolution dated 04.07.2008, the validity of which has been upheld by the Apex Court in the aforesaid decision of Gohil Jesangbhai Raysangbhai and others (supra). There is, thus, no reason to take the view that the land in question is an Old tenure land. Nonetheless, it is not permissible for the Court to make any declaration of the land in question being Old tenure Page 18 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined land in exercise of its jurisdiction under Article 226/227 of the Constitution of India.
35. Mr. Dhruv Agarwal, learned Senior Advocate assisted by Mr. Vibhor Vardhan and Mr. Nisarg P. Raval, learned advocates appearing for the original petitioner/ respondent herein, in rebuttal, invited attention of the Court to a Government Resolution dated 24.11.1970, having Notification No.NSHJ/3970/7244 [A]-Z (in short as 'G.R.No.7244[A]-Z'). The Government Resolution dated 24.11.1970 relied by the learned Assistant Government Pleader to substantiate her submissions noted hereinabove is, however, numbered as Resolution No.NSJ/3970/7244[B]-Z (in short as 'G.R.No.7244[B]-Z').
36. We may note that the reference of the Government Resolution dated 24.11.1970 which could be found in the subsequent Government Resolutions 05.03.1971, 16.03.1982,18.03.2004 and 04.07.2008, is the G.R No.7244[B]-Z and there is no reference of the Government Resolution dated 24.11.1970 which is the G.R.No.7244[A]-Z placed by the learned Senior Advocate for the respondent/original petitioner. From a further careful perusal of the Government Resolutions dated 16.03.1982 and 18.12.2004, wherein there is reference of various Government Resolutions issued from the year 1947 onwards, it may be noted that though Government Resolution dated 24.11.1970, namely G.R.No.7244 [B]-Z and another G.R.No.NSJ/3970/7244[C]-Z dated 24.11.1970 have been referred therein, but there is no Page 19 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined reference of the G.R.No.7244[A]-Z.
37. All the above noted Government resolutions are on the subject of regulating New and indivisible lands occupied by the tenure holders with the condition of being New and indivisible lands under various orders of grants/allotment.
38. Recording the above, it is pertinent to note that the Government Resolution dated 24.11.1970, G.R.No.7244[B]-Z relied by the learned Assistant Government Pleader prescribes conditions in the matter of levy of premium for conversion of New and impartable tenure lands with restricted conditions to Old tenure lands for agricultural as well as non-agricultural operations, whereas G.R.No.7244[A]-Z dated 24.11.1970 is with regard to conversion of New tenure to Old tenure for Khalsa lands in the Deshi States located in the Gujarat region of the former Mumbai State. The said resolution provides for conversion of new tenure lands to Old tenure with unrestricted rights without charging any premium, with respect to such lands which were held by the tenure holders, three years prior to the revenue year of the amalgamation of the Deshi States.
39. The content of the G.R.No.7244 [A]-Z dated 24.11.1970, in (English translation) is to be extracted hereinunder :-
"1. In the revenue year when the Deshi States were amalgamated, three year prior thereto, the tenure holders, who had been holding government land except for specific lease period, they or their their legal heirs were Page 20 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined being granted possesory rights in respect of said land under New tenure and indivisible conditions by the former Bombay government, without charging any price, as per Resolution No.LND-1055/3101 dated 28/07/1955.
2. Due to the restricted rights, as mentioned above, tenure holders had to pay premium while obtaining permission for the transfer of such land. The issue of converting such New tenure lands to Old tenure without charging any premium was under the consideration of the State government. After examining all aspects on the issue and considering the period of possession of such lands, the government has resolved that, effective from 1.11.1970, these New tenure lands will be converted to Old tenure without charging any premium. The holders of such land will not be required to pay any premium at the time of transfer, and their unrestricted rights under the Old tenure will be recorded by the Talati in the title deed as per the instructions of the Mamlatdar. The Talati will need to send a report regarding such tenure holders from the villages within his service area to the Mamlatdar, who will then obtain orders to record the necessary changes in the land records.
3. For lands subjected to non-transferable restrictions under the notification issued under Section 73A of the Land Revenue Code, such restrictions will continue to apply. However, when obtaining permission for transfer, they will not be required to pay any premium. This relief will be provided to them through this resolution.
4. In cases where orders have already been issued to change the Old tenure by taking premium, those cases will not be reopened. However, in pending cases of similar nature, where a final decision has not yet been made, Page 21 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined orders will be issued in accordance with this resolution.
5. These orders should be widely publicized, and any necessary amendments should be resolved within the period of 6 months. It is the responsibility of the Prant officers to ensure that this is done within the stipulated time."
40. A careful reading of the aforesaid Government Resolution in Gujarati as well as in English shows that it begins with the statement that it pertains to such land holdings which were Government land wherein possessory rights were granted under New and indivisible conditions by the former Bombay Government without charging any price as per the Resolution dated 28.07.1955 mentioned therein excluding those for which specific lease period has been provided. Further condition as contained in Paragraph No.'1' of the Government Resolution is that such land holders had been holding Government land for three years prior to the revenue year when the Deshi States were amalgamated.
41. In the instant case, in the letter of allotment as referred to in the Revenue Entry No.2377 dated 15.03.1944 at Page No.'169' of the paper book, there is no mention of any specific period of lease at the time of allotment. The allotment order extracted in the said entry No.2377 only records that the possessory rights in land in question would continue till fight (war) ended, on the condition of Old tenure impartable. The war, as per our understanding, referred therein, was the Second World Page 22 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined War, which came to an end sometime in the year 1945. However, the fact remains that no specific time period of lease was incorporated in the allotment order nor the land in question had been resumed after end of the Second World War. The land in question admittedly remained in the possession of the original grantee beyond the war i.e. after 1945 and even after Independence, till the Notification No.NSHJ/3970/7244 [A]-Z came into being on 24.11.1970. The land in question, which was the 'Government Padtar' land, with respect to which possessory rights was granted to the original tenure holder vide allotment letter dated 15.06.1943 remained in the possession of the original grantee on two conditions, namely the land being Old Agreement and impartable.
42. With the advent of the G.R.No.7244 [A]-Z, the restricted rights of the tenure holders have been converted into unrestricted rights in view of the Paragraph No.'2' of the said Government Resolution which provides that the Government had resolved that with effect from 01.11.1970, such new tenure lands (covered by the said resolution) will be converted to 'Old tenure' without charging any premium. The holders of such lands will not be required to pay any premium at the time of transfer and their unrestricted rights under the Old tenure will be recorded by the Talati in the title deed as per the instructions of the Mamlatdar.
43. Paragraph No.'5' of the aforesaid Resolution dated Page 23 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined 24.11.1970 relied by the learned Senior Counsel for the respondent/original petitioner further indicates that the decision in the resolution was to be widely publicized and necessary amendments were to be incorporated within the period of six months. It seems that in view of the Government Resolution dated 24.11.1970 G.R.No.7244[A]-Z, the word "indivisible" has been deleted from the revenue record of the land in question and it only was mentioned as "Old agreement". As is clear from the perusal of the Village form No.7/12 of six parcels of Plot No.250 placed on record by the learned AGP, the word "indivisible" is nowhere mentioned. As per the own admission of the State authorities, the land in question, namely Survey No.250 has been divided by the DILR in six parcels in the year 2002, whereafter these plots were purchased by the original petitioner vide sale deeds executed in the year 2005. In these facts and circumstances, the insistence of the Collector to charge premium on the premise of another Government Resolution of the same date i.e. 24.11.1970, namely the G.R.No.7244[B]-Z, which had been issued on the subject of granting exemption from New tenure Government lands allotted under the Rules for disposal of the Government waste lands, is found to be illegal and based on misconceived notion, more so, being in complete ignorance of the G.R.No.7244 [A]-Z.
44. A further perusal of the G.R.No.7244[B]-Z dated 24.11.1970 indicates that the same was issued with Page 24 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined reference to the Government Resolution dated 01.03.1960, regarding the Rules for the disposal of government waste lands under Rule 4(6), whereunder all government waste lands were to be granted with New and indivisible conditions. It also records that normally, permission for transfer of such lands was not granted except under special circumstances or for compelling reasons. Even when such permission was granted, 50% of the premium is charged on the difference between the market value of the land and the original occupancy price paid by the holder. The land holders enjoy only cultivatory rights and do not fully or partially hold ownership rights over such lands. On these conditions the government waste allotted lands under the Government Resolution dated 01.03.1960, certain exemptions were provided in the said Government Resolution dated 24.11.1970, as contained in Clause (a) to (e). The demand of premium made by the Collector is being substantiated by the learned Assistant Government Pleader based on the said G.R.7244[B]-Z dated 24.11.1970, which is extracted hereinunder for ready reference:-
"As per the Government Resolution No.HND-3960/A,1, dated 01-03-60, regarding the rules for the disposal of government waste lands, under rule 4(6), all government waste lands are to be granted with new and indivisible conditions. Therefore, normally, permission for transfer of such lands is not granted except under special circumstances or for compelling Page 25 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined reasons. Even when such permission is granted, 50% of the premium is charged on the difference between the market value of the land and the original occupancy price paid by the holder. Consequently, holders of such lands enjoy only cultivation rights and do not fully or partially hold ownership rights over such lands. Taking into account the duration of the holder's possession and the difficulties faced in determining the market value when applying for transfer, the government has decided to grant the following exemptions:
(a)Holders of land allotted under the rules for the disposal of government waste lands, if they pay a premium equivalent to 60 'Pat' of the shape of the land, may be exempted from the new tenure restrictions for agricultural use of the land. Such exemption will only be granted to those holders who have fully complied with all the conditions imposed at the time of the land allotment during the twelve-year continuous possession of the land.
(b) After the twelve-year period mentioned above, if the land is intended to be used for non-agricultural purposes, or if the land is to be used for non-agricultural purposes after being exempted from the new condition restrictions for agricultural use, the holder will have to pay 50% of the premium on the difference between the market value of the land for non-
agricultural use and the amount paid for the original occupancy right, after deducting the amount (60 'Pat' of the shape of the land) already paid for exemption from the new tenure restrictions.
Page 26 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined (c)If the land has been exempted from the new tenure restrictions for
agricultural use, a note shall be made in Village Form No.7/12 stating that at the time of granting permission for non-
agricultural use of the said land, a premium of 50% on the difference between the market value for non-
agricultural use and the amount paid for the original occupancy right shall be charged as a liability on the land.
(d) If any holder wishes to transfer the land for agricultural use before the completion of the twelve-year period, they will have to pay a premium of 50% on the difference between the market value of the land and the amount paid for the original occupancy right at the time of such conversion. Such permission will only be granted in special cases mentioned in Government Resolution No.3907/33/3 dated 26-08- 47 and only to those holders who have fully complied with all the conditions imposed at the time of land allotment.
(e)During the twelve-year period, no permission for using the land for non-
agricultural purposes shall be granted without the government's approval.
Such approval shall only be given in special cases, subject to the payment of a premium deemed appropriate by the government, which may be more than 50% of the difference between the market value of the land and the amount paid for the original occupancy right.
2. Holders wishing to avail themselves of the above exemptions must apply to the Mamlatdar with details of the land, its shape, etc. After examining the application, the Mamlatdar will notify Page 27 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined the holder of the amount of premium (60 'Pat' of the shape of the land) to be paid, and the holder must consent to pay the premium as determined. In cases where exemption from the new condition restrictions for non-
agricultural use is sought, exemption will only be granted after confirming that the competent authority has granted permission for the specific non- agricultural use of the land. The necessary premium must be paid at the time of granting such permission for non-agricultural use.
3. These orders are issued with the concurrence of the Finance Department dated 24-07-70, on file No.NSJ/3970/7244-Z of this department."
45. Taking note of the contents of the above referred two Government Resolutions of the same date, i.e. 24.11.1970, it is evident that both the resolutions operate in two different fields. On the one hand, the G.R.No.7244[A]-Z apply for conversion of Government lands with respect to which possessory rights had been given three years prior to revenue year of the amalgamation of the Deshi States under new and undivided conditions as per the resolution of the former Bombay Government dated 28.07.1955, whereas the G.R.7244[B]-Z applied in the cases where Government waste lands were granted with new and indivisible conditions, with reference to the provisions contained in the Government Resolution dated 01.03.1960 which provided for disposal of Government waste lands as per Page 28 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined the Rules 4(6), on new and indivisible conditions. There is no dispute about the fact that the land in question was a "Government Padtar" land and possessory right was given to the original owner with the condition of it being Old agreement and indivisible land. The possessory right in the said land having been granted prior to the amalgamation of the Deshi States in the year 1943, in our considered opinion, the land in question would be covered by the condition of the Paragraph No.'1' of the G.R.No.7244[A]-Z.
46. It may be noted that there is no reason for exclusion of the land in question from being covered by Clause (1) of the G.R.No.7244 [A]-Z dated 24.11.1970, for the mere reason that the allotment order dated 15.06.1943 contained a statement that possession was being given till war ended, more so, when the land holder continued in possession of the land in question till the date of the promulgation of the Government Resolution dated 24.11.1970 and even thereafter, without any requirement of any extension of the time period for occupation. The contention of the learned Assistant Government Pleader that the statement in the allotment order that possessory rights were given till the war ended, has to be read and understood as the occupancy rights having been given for a specific lease period and, thus, the land in question has to be excluded by virtue of Clause (1) of the Government Resolution dated 24.11.970, relied by the learned Senior Counsel for the Page 29 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024 NEUTRAL CITATION C/LPA/1346/2023 JUDGMENT DATED: 19/11/2024 undefined original petitioner, is found to be without any basis.
47. From the admitted facts that the possessory rights in the land in question was given on 15.06.1943 with the allotment of the land in question being Old agreement and indivisible and the said restriction on the possessory rights and indivisible, had been removed with the advent of the Government Resolution dated 24.11.1970, G.R.No. No.7244 [A]-Z. With the removal of the restrictions on the rights of the land holder, the land in question has been continuously shown as "Old agreement land" in the Revenue records, which fact is not disputed. The word "indivisible" has nowhere been recorded or mentioned as is clear from the extract of the Village form No.7/12 appended with the record of the instant appeal and the writ petition. We cannot read the word "indivisible" with the words "Old Agreement (Juni Karar)" mentioned in the revenue records more so after division of the original plot into six parcels of the land in question, placed on the record.
48. Taking note of the above, in the totality of the facts and circumstances of the present case, we see no reason to interfere in the order passed by the learned Single Judge that the Collector is required to decide the application for conversion of the land in question for non- agricultural purposes, in accordance with the observations of the writ Court in the judgement and order 21.08.2014, wherein the land in question has been clearly mentioned and referred as the "Old tenure land".
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49. The submission of the learned Assistant Government Pleader that the "Old agreement" had been confused as "Old tenure" and the petitioner has succeeded in getting the order from the writ Court by making a misstatement, is found to be devoid of force.
50. With the above, no interference is called for. The appeal stands dismissed. Consequently, connected Civil Application also stands dismissed.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) SUDHIR Page 31 of 31 Uploaded by EZHURHASSAN SUDHIR ACHUTHAN(HC00192) on Fri Nov 29 2024 Downloaded on : Fri Nov 29 22:40:27 IST 2024