Gujarat High Court
Irfan Yakub Bholat vs State Of Gujarat on 3 March, 2020
Equivalent citations: AIRONLINE 2020 GUJ 162
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/16814/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16814 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? No
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
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IRFAN YAKUB BHOLAT & 3 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
S M KIKANI(7596) for the Petitioner(s) No. 1,2,3,4
DHAWAN JAYSWAL, AGP (1) for the Respondent(s) No. 1,3
MS SEJAL K MANDAVIA(436) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 03/03/2020
CAV JUDGMENT
1. In the present petition, the petitioners have, inter alia, prayed for the following prayers:
"(A) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the DDO, Surat to accept the conversion charges for N.A. permission for residential purpose under section 65 of code in respect of land bearing Revenue Survey/Block No.377 and 378 at village Kosamba and to decide the application for N.A. permission as expeditiously as possible.
(B) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the DDO, Surat to decide an application for N.A. permission by ignoring the opinion dated 21.08.2018 given by the District Collector, Surat and without insisting any amount of premium as envisaged u/s 43 of the Tenancy Act for Page 1 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT the land bearing Revenue Survey/Block No.377 and 378 at village Kosamba.
(C) To issue a writ of mandamus or any other appropriate writ, order or direction, declaring that N.A. permission is deemed to have been granted u/s 65 of the Code in respect of the land bearing Revenue Survey/Block No.377 and 378 at village Kosamba.
(D) xxx xxx xxx
(E) xxx xxx xxx"
2. Thus, the petitioners are seeking a declaration of accepting their conversion charges for non-agriculture permission relating to the residential purpose under Section 65 of the Gujarat Land Revenue Code, 1879 (the Code) in respect of land bearing Survey / Block Nos.377 and 378 of Village Kosamba, Taluka Mangrol, District Surat. It is further prayed that the respondents may be directed to decide the application of the petitioners for non-agriculture permission by ignoring the opinion dated 21.08.2018 given by the District Collector, Surat, without insisting any amount of premium as envisaged under section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act").
3. It is the case of the petitioners that land bearing Block Nos.377 and 378 situated at Village Kosamba, Taluka Mangrol, District Surat, originally belonged to one Musa Ismail Koliya, who was an agricultural tenant. The name of Musa Ismail Koliya was mutated in the revenue record vide Entry No.2520 dated 18.11.1973. It appears that Musa Ismail Koliya applied to convert the land from new tenure to old tenure for agricultural purpose, as provided under Section 43 of the Tenancy Act, however, the Deputy Collector, Olpad Prant, Surat, vide order dated 28.05.1998 rejected the said application.
3.1 Against the aforesaid rejection order, Musa Ismail Koliya preferred Appeal No.42 of 1998 before the District Collector, Surat, Page 2 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT who, vide order dated 23.11.1998, allowed the appeal and permitted conversion of the land from new tenure to old tenure for "agricultural purpose", and accordingly, Entry No.5796 dated 11.12.1998 was mutated in the revenue record.
3.2 Thereafter, Musa Ismail Koliya executed a registered sale deed dated 05.02.1999 in favour of one Shabbir Ahmed Suleman with respect to the aforesaid land and Entry No.5811 came to be mutated in the revenue record on 06.02.1999 reflecting such sale transaction. Shabbir Ahmed Suleman applied to convert the land from new tenure to old tenure for "non-agricultural purpose", and the Deputy Collector vide order dated 23.12.1999 permitted conversion of the land for non-agricultural purpose by imposing four conditions on payment of premium of Rs.2,14,830/-.
3.3 After the aforesaid order, the petitioners purchased the said land by a registered sale deed dated 22.11.2017 and accordingly, Entry No.8698 was mutated in the revenue record, which was certified on 11.05.2018.
3.4 Thereafter, the petitioners applied for non-agricultural use permission, as envisaged under Section 65 of the Code vide application dated 30.05.2018 before the District Development Officer, Surat, who, by the letter dated 30.05.2018, informed the petitioners that they may not use the land for non-agricultural purpose during the pendency of the application. The petitioners accordingly applied for sanction of lay-out plan for residential purpose for the land in question and the Town Planner, Surat vide order dated 06.08.2018 sanctioned the lay-out plan for construction of 278 residential units and also recommended to grant development permission. Since, no response was received by the petitioners, they inquired about the status and it was informed by the District Development Officer, Surat that the District Collector, Page 3 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT Surat vide his opinion/ communication dated 21.08.2018 informed his office that the petitioners are liable to pay the extra premium under Section 43 of the Tenancy Act as per the circular dated 17.02.2012.
4. Learned advocate Mr.Shah submitted that as per Section 65 of the Code, it is incumbent upon the authority to decide the application within a period of three months, otherwise, it would be deemed to have been granted such permission as applied for. Learned advocate Mr.Shah submitted that in the present case, the petitioners have applied for non-agricultural permission on 30.05.2018 and it is an admitted fact that within three months, no decision was communicated to the petitioners by the District Development Officer and, therefore, in view of the above pronouncements, this Court may declare that non-agricultural permission with respect to land bearing Block Nos.377 and 378 of Village Kosamba, Taluka Mangrol, District Surat is deemed to have been granted under Section 65 of the Code.
4.1 It was further submitted that there was no prohibitory orders of the District Collector after the year 1999 with regard to the non- usage of the land for agricultural purpose and hence, the petitioners cannot be made to suffer for the inaction on the part of the District Collector. While placing reliance on the provisions of Section 65 of the Code, the learned advocate submitted that if the authority fails to inform the petitioners of its decision on the application within a period of three months, permission applied for shall be deemed to have been granted. In support of the above submissions, learned advocate Mr.Shah placed reliance on the decision of this Court in the case of Noorbibi Malangbhai Mansuri vs State of Gujarat, 2005 (1) GLH (UJ) 5 and Prahaladbhai Kachrabhai Patel Vs. State of Gujarat, 2018 JX (Guj) 140.
Page 4 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT4.2 Learned advocate Mr.Shah submitted that it is settled proposition of law that while deciding an application for non- agricultural permission, the authority cannot transgress its jurisdiction for other enactments. The learned advocate submitted that while exercising power under the Code, the District Collector / District Development Officer cannot consider the alleged breach of another enactment when, more particularly no proceedings have been initiated under another enactment. Learned advocate Mr.Shah placed reliance on the judgment of this Court in the case of Laxmi Associates vs. Collector, Vadodara, 2006 (3) G.L.R. 1982 and in the case of Chandrakant Atmaram Patel vs. State of Gujarat, 2007 (3) G.L.R. 2419.
4.3 Learned advocate Mr.Shah submitted that it is the case of the State of Gujarat that premium to convert the land from new tenure to old tenure for non-agriculture land purpose has been paid on 13.11.1998, which was reflected in the order dated 23.12.1999 and the land was converted into old tenure for non-agricultural purpose however, as per the opinion of the District Collector, the duration of the premium is only for one year within which the petitioners have to obtain non-agricultural permission. Learned advocate submitted that it is further the case of the State that since, that was not done, again premium is required to be paid, in view of the Government Resolution dated 17.02.2012 and Rule 25-C of the Gujarat Tenancy and Agricultural Lands Rules, 1956 (the Tenancy Rules).
4.4 Learned advocate Mr.Shah submitted that vide order dated 23.12.1999, the Deputy Collector, Surat granted permission to convert the land from new tenure to old tenure for non-agricultural purpose under Section 43 of the Tenancy Act read with Rule 25-C of the Tenancy Rules by imposing four conditions. It was submitted that there is no such condition imposed by the Deputy Collector that the owner of the land has to apply for non-agricultural use Page 5 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT permission within prescribed period of time. It cannot be presumed that when, in the title of the order if Section 43 of the Tenancy Act and Rule 25-C of the Tenancy Rules are mentioned, then no further condition is required to be stated in the order. Learned advocate submitted that the State cannot presume the conditions, if it is not specifically provided. Therefore, when the original owner did not apply for non-agricultural permission within six months, then, by no stretch of imagination, it can be said that permission is deemed to have been cancelled in absence of any such condition, which is not the part of the order.
4.5 Learned advocate Mr.Shah submitted that when premium was paid to convert the land into old tenure for non-agricultural purpose as envisaged under Section 43 of the Tenancy Act, then restriction under Section 43 of the Tenancy Act was already lifted and, thereafter, Section 43 of the Tenancy Act or any provision of the Tenancy Act would not apply. Learned advocate Mr.Shah submitted that neither in Section 43 of the Tenancy Act nor in Rule 25-C of the Tenancy Rules, it was provided that premium, which was paid, would remain in operation only for one year. Therefore, by the Government circulars, such provision cannot be imposed upon the citizens. Learned advocate Mr.Shah submitted that once the land is converted into old tenure for non-agricultural purpose, then all the restrictions under Section 43 of the Tenancy Act are lifted and thereafter, at the time of getting non-agricultural permission, only the conversion charge, as prescribed under Section 65 of the Code with Rule 81 of the Gujarat Land Revenue Rules, 1972 (the Revenue Rules), is required to be paid.
4.6 While placing reliance on the judgment of this Court in the case of Pravinkumar vs. State of Gujarat, 2012 (5) G.L.R. 4211 and judgment dated 14.12.2018 passed in Special Civil Application No.15575 of 2015 (in the case of M/s. Trinity Developers vs. State of Page 6 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT Gujarat), learned advocate Mr.Shah submitted that once the premium is paid and collected by the State Government, it would mean that any restriction of the Government would not remain and hence, the petitioners are not required to pay the premium prevalent at the time of purchasing the land since the same was already paid in the year 1999 by Shabbir Ahmed Suleman. Reliance is also placed on the decision dated 29.04.2013 passed by this Court in Special Civil Application No.158 of 2013 (in the case of Dhruvkumar vs. State of Gujarat & Anr.).
4.7 Finally, it was submitted by learned advocate Mr.Shah that the petitioners are only required to pay the conversion charges while converting the land for non-agricultural use under Section 65 of the Code and as per the provisions of Rule 81 of the Revenue Rules, since the development plan was approved by the Town Planner and the assessment is purely based on mathematical phenomena. Thus, he has submitted that the respondent authorities may be directed to accept the conversion charges for non-agricultural permission from the petitioners for residential purpose under Section 65 of the Code with respect to the land bearing Survey / Block Nos.377 and 378 at Village Kosamba, Taluka Mangrol, District Surat.
5. Learned Assistant Government Pleader Mr.Dhawan Jayswal, while vehemently opposing the submissions advanced by learned advocate Mr.Shah, submitted that the initial order dated 23.12.1999, which was passed pursuant to the application made by the predecessor-in-title, Shabbir Ahmed Suleman, is self-explanatory and the same is passed subject to the compliance of the provisions of Section 43 of the Tenancy Act and Rules 25-C of the Tenancy Rules. He submitted that in fact Shabbir Ahmed Suleman had applied for converting the land from new tenure to old tenure for non-agriculture purpose and accordingly, by paying the premium of Rs.2,14,830/-, the Deputy Collector, Olpad Prant, Surat passed order Page 7 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT dated 23.12.1999, incorporating four conditions. He submitted that the very first condition specifies that the land in question shall be used for the purpose of non-agricultural purpose.
5.1 Learned Assistant Government Pleader Mr.Jayswal further submitted that the predecessor-in-title was very much aware about the provisions of Rule 25-C(3) of the Tenancy Rules, which specifies the conditions subject to which sanction shall be given by the District Collector under Section 43 of the Tenancy Act for transfer of such land. He submitted that the predecessor-in-title has in fact applied for lifting out the restrictions under Section 43 of the Tenancy Act and hence, he was supposed to avoid the conditions laid down by Rule 25-C(3) of the Tenancy Rules. While referring to the aforesaid provisions of Rule 25-C(3), he submitted that a person, in whose favour the transfer is made, shall apply for non-agriculture permission before the competent authority under the Code for non- agricultural use of the land within six months from the date of transfer of land and this period can maximum be extended for five years. Learned Assistant Government Pleader submitted that no such permission was taken for 18 years and the land was sold to the petitioners and thereafter, the petitioners applied for non- agriculture permission.
5.2 Thus, learned Assistant Government Pleader Mr.Jayswal submitted that though the predecessor-in-title had paid the premium amount for removing the restrictions of new tenure land, the same would have lapsed, as he did not obtain the permission within a period of five years and hence, the petitioners, when applied for non-agriculture permission, cannot be taken the benefit of the illegal action of the predecessor-in-title by saying that they are not liable to pay the extra premium as per the prevalent rights. Learned Assistant Government Pleader submitted that the petitioners purchased the said land on 22.11.2017. The premium Page 8 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT was paid on 23.12.1999, and the petitioners cannot take benefit of not obtaining the N.A permission, and if the same is allowed, it will cause financial loss to the public exchequer. It is submitted that as per the circular dated 17.02.2012 of the Revenue Department, the petitioners are required to pay the premium as per contemporary rates and the premium, which was paid at the relevant time in the year 1999, would only be effective for one year and thereafter, the owner of the land has to pay the premium as per the prevalent jantri rates after adjusting the amount paid at the relevant time. He submitted that the aforesaid circular would apply in case of the petitioners also.
5.3 Learned Assistant Government Pleader Mr.Jayswal placed reliance on the judgment dated 17.09.2013 passed in Special Civil Application No.14416 of 2013 (in the case of Chhtrasang Dhulabhai & Ors. vs. State of Gujarat & Anr.) in support of his submissions. It was submitted that the aforesaid circular was considered by this Court and accordingly, this Court has held that the same would apply with retrospective effect as the restriction of Section 43 of the Tenancy Act can be said to have been removed upon prior sanction of the authority assailing the condition imposed by the order are not removed. It was submitted that condition No.1 mandates the procedure of the land to obtain non-agriculture permission under Section 65 of the Code, which was admittedly not fulfilled and, hence, the petitioners, who have purchased the land from his predecessor-in-title, are required to pay the premium as per the prevalent jantri rates.
5.4 Learned Assistant Government Pleader Mr.Jayswal submitted that to resolve the issue, the State Government, through the Revenue Department, has taken a policy decision by issuing circular dated 17.02.2012, wherein, considering the provisions of Rule 25-C of the Tenancy Rules, more particularly sub-rule (3) thereof it was Page 9 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT resolved that the premium paid under Section 43 of the Tenancy Act will be made applicable for one year and thereafter, the difference of premium is required to be paid as per the prevailing rate of the land concerned. It was submitted that by considering the above stated facts and on the basis of the documentary evidence on record, the Deputy Collector, Surat vide communication dated 21.08.2018 opined that the petitioners have to pay the difference of premium amount since the effect of the earlier premium will remain for one year only, failing which the petitioners cannot be considered eligible for granting N.A. permission.
5.5 In response to the submissions made with regard to deemed permission as per Section 65 of the Code, learned Assistant Government Pleader Mr.Jayswal submitted that looking to the facts of the case at the time of transfer of land in question in the year 1999, no procedure was initiated by the concerned occupant, who obtained order under Section 43 of the Tenancy Act and, therefore, the provision under Section 65 of the Code is to be read with the procedure undertaken under Section 43 of the Tenancy Act and three months time limit is required to be considered in case the earlier occupant had preferred application under Section 65 of the Code after getting order of conversion in the year 1999.
6. In response to the aforesaid submissions advanced by the learned AGP, learned advocate Mr.Shah further submitted that looking to the provisions of Rule 25-C(3) of the Tenancy Rules, nowhere it is provided that duration of the premium would be for one year. The Proviso of Rule 25-C(3) of the Tenancy Rules also provides for exceptions and therefore, it cannot be said that the cancellation is automatic. It is pertinent to note that as such, there is no condition in the order granting conversion of land from new tenure to old tenure. It is contended that from the year 1999, till date no proceedings have been initiated or no notice was given by Page 10 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT the authority for the alleged breach of order passed under Section 43 of the Tenancy Act, therefore, at the time of considering an application under Section 65 of the Code, no such breach can be presumed after a period of 18 years.
6.1 Learned advocate Mr.Shah submitted that the petitioners have purchased the land on 22.11.2017 and an entry was certified on 11.05.2018 and immediately after the certification of the entry, the petitioners have applied for non-agricultural permission on 30.05.2018. Therefore, the provision of Rule 25-C of the Tenancy Rules and circular dated 17.02.2012 would not be applicable to the facts of the present case.
6.2 Learned advocate Mr.Shah urged that the argument of the State that non-agricultural permission is not taken within six months, therefore, the order passed under Section 43 of the Tenancy Act would be deemed to have been cancelled, is also not tenable in law. It was submitted that the petitioners have purchased the land on 22.11.2017 and Entry No.8698 was certified on 11.05.2018 and at that point of time, no authority has raised any objections for certification of the entry. He submitted that if the contention raised by the State is accepted that permission was cancelled after six months, then the authority ought to have raised objection at the time of certification of entry of the sale deed. Therefore, now the principle of waiver and rule of estoppel would apply in the present case and the State cannot take any objection at the time of considering the application for non-agricultural permission. He submitted that the State cannot contend that at the time of certification of sale deed, the permission under Section 43 of the Tenancy Act is valid but at the time of considering non- agricultural permission, it is deemed to have been cancelled. He submitted that such argument is not available to the State at the time of considering non-agricultural permission more particularly, Page 11 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT when they have not raised any objection at the time of certification of the entry of sale deed. Thus, he submitted that all such objections are not available to the State after a period of 18 years.
6.3 Learned advocate Mr.Shah tried to distinguish the judgment rendered in Special Civil Application No.14416 of 2013 dated 17.09.2013, wherein the circular dated 17.12.2012 has been discussed by contending that looking to the above judgment, it is crystal clear that there was condition imposed by the authority in the order while granting permission to convert the land into tenure. It was submitted that in the above judgment, it was specifically stated that the circular would apply to the facts of the case. It was submitted that there is no question of profiteering at the hands of the petitioners. It was submitted that the State has already charged the premium as per the policy prevailing in the year 1999 and has already collected the consideration of the land and the restrictions under Section 43 of the Tenancy Act were lifted. Therefore, the original owner was holding such land without any restriction and can use that land as per his choice. Therefore, the State has nothing to do with the said land after charging the amount of premium at the market rate and now the State cannot ask for the additional premium when the petitioners have decided to use this land for non- agricultural use.
6.4 Learned advocate Mr.Shah submitted that in the decision reported in case of Jayaben vs. District Collector, Vadodara, 2008 (1) G.L.R. 202, this Court has held that as per provisions of the Code, non-agricultural permission granted cannot be construed that the petitioner has to start non-agricultural usage and it is on the discretion of the petitioner to start or not to start non-agricultural usage of the property. The State cannot compel the citizens to start with non-agricultural operation no sooner did non-agricultural permission is granted. It is submitted that in the present case, while Page 12 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT converting the land from new tenure to old tenure for non- agricultural purpose, no such condition was imposed by the authority and, therefore, it cannot be said that since non-agricultural permission was not obtained within six months, the order converting the land from new tenure to old tenure, would not operate.
7. Upon deliberation of the issues raised in the present petition and after necessary examination of the facts and the law cited at the Bar, this Court does not find merit in the writ petition for the foregoing reasons.
8. The substratum of the dispute raised in the petition is with regard to the demand of premium at contemporary rates over and above which has been paid at the relevant time when the land in question was granted permission for conversion of land from new tenure to old tenure for non-agricultural purpose in the year 1999.
9. The facts, which are established from the record are, that the petitioners are the purchasers of the land bearing Block No.377 and 378 admeasuring 34,149 sq. mtrs. situated at Village Kosamba, Taluka Mangrol, District Surat.
10. Initially, the name of the tenant - Musa Ismail Koliya was mutated in the revenue record pursuant to the order dated 06.11.1973 passed by the Deputy Collector, vide Entry No.2520 dated 18.11.1973. It appears that thereafter, he applied to convert the land from new tenure to old tenure for agricultural purpose, which was allowed by the District Collector, Surat by order dated 23.11.1998 and Entry No.5796 was recorded on 11.12.1998 to that effect. Thereafter, Musa Ismail Koliya executed a registered sale deed dated 05.02.1999 in favour of one Shabbir Ahmed Suleman with respect to the aforesaid land and Entry No.5811 came to be mutated in the revenue record on 06.02.1999. The subsequent Page 13 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT purchaser - Shabbir Ahmed Suleman applied to convert the land from new tenure to old tenure for non-agricultural purpose and accordingly, the Deputy Collector vide order dated 23.12.1999 permitted conversion for non-agricultural purpose by imposing four conditions.
11. At this stage, it is pertinent to note that Reference No.2 of the order dated 23.12.1999 refers to the provisions of Section 43 of the Tenancy Act and Rule 25-C of the Tenancy Rules. A premium of Rs.2,14,830/- was also paid by Shabbir Ahmed Suleman. One of the conditions that condition No.1 incorporated in the order dated 23.12.1999 reflects that the land in question shall be used for non- agricultural purpose. The petitioners, thereafter, purchased the said land by a registered sale deed dated 22.11.2017 and Entry No.8698 came to be certified on 11.05.2018. Accordingly, the petitioners applied for non-agricultural use permission as envisaged under Section 65 of the Code vide application dated 30.05.2018 before the District Development Officer, Surat who, vide letter dated 30.05.2018 acknowledged the receipt of the application and also asked the petitioners not to carry out any non-agricultural activities.
12. It is a case of the petitioners that since no order was communicated by the District Development Officer with regard to the decision taken on their application, they approached the Additional Collector in this regard and obtained communication/ opinion dated 21.08.2018 written by the District Collector, Surat to the District Development Officer, Surat informing that the petitioners are required to pay extra premium as per the prevalent jantri rates in view of the provisions of the Circular dated 17.02.2012. Being aggrieved by the aforesaid opinion, the petitioners have approached this Court.
13. The main plank of the submissions advanced on behalf of the Page 14 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT petitioners is that the District Collector or the revenue authorities cannot insist for any additional amount of premium since the predecessor-in-title of the land in question, Shabbir Ahmed Suleman, had already paid a premium of Rs.2,14,830/-. It is submitted that since the premium was paid at the relevant time, the provisions of the Tenancy Act would cease to apply once restrictions envisaged under Section 43 of the Tenancy Act are removed. It was also submitted that the predecessor of the petitioners, who had applied for removing the restrictions under Section 43 of the Tenancy Act, was not aware of the provisions of Rule 25-C of the Tenancy Rules since there was no condition of obtaining N.A. was imposed.
14. The order dated 23.12.1999 passed by the Deputy Collector, on the application filed by the predecessor land owner of the petitioners Shabbir Ahmed Suleman reveals that he had paid a premium of Rs.2,14,830/- and accordingly, on such payment of premium, the restrictions envisaged under Section 43 of the Tenancy Act were removed. Reference No.2 of the order dated 23.12.1999 incorporates the provisions under Section 43 of the Tenancy Act and Rule 25-C of the Tenancy Rules. Thus, the petitioners cannot contend that the predecessor land owner of the petitioners was unaware of the provisions of Rule 25-C of the Tenancy Rules as the same was not incorporated in the order.
15. It is well established that ignorance of law is not an excuse. The predecessor land owner had specifically filed an application under the provisions of Section 43 of the Tenancy Act seeking removal of restrictions as prescribed therein by converting the land from new tenure to old tenure for non-agricultural purpose, and it can be presumed that he was having knowledge of the provisions of Rule 25-C of the Tenancy Rules. After obtaining the aforesaid order dated 23.12.1999, the predecessor land owner Shabbir Ahmed Page 15 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT Suleman did not further undertake any exercise for obtaining the permission for non-agricultural use as envisage under Rule 25-C of the Tenancy Rules. By the order dated 23.12.1999, the predecessor Shabbir Ahmed Suleman had only cleared the first hurdle of removing the restrictions provided under Section 43 of the Tenancy Act. At this stage, it would be apposite to refer to the relevant provisions of Section 43 of the Tenancy Act and Rule 25-C(1)(e) and (3) of the Tenancy Rules. The relevant provisions read thus:
SECTION 43 : Restriction on transfer of land pur- chased or sold under this Act (1) No land or any interest there in purchased by a ten-
ant under section 17B 32 32F 32-I 32-O 32U , 43-1D or 88E or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mort- gage, lease or assignment, without the previous sanc- tion of the Collector and expect in consideration of pay- ment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall partitioned without the previ- ous sanction of the Collector.
...............
"25-C. Circumstances in which and conditions subject to which sanction shall be given by the Collector under Section 43 for transfer:
(1) The circumstances in which and the conditions subject to which the previous sanction of the Collector under Sub-section (1) of Section 43 may be given, shall be as follows, namely.
(a).........;
(b).............
(c) ..........Page 16 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT
(d) ......
(e) that the land is being sold bona fide for any non-
agricultural purpose;
(f) ..........
(g)......
(h)...........
(i)........
(j).........
(k)..........
(2) ..............
(3) The sanction of the Collector under clause (e) of sub-rule (1) shall be subject to a further condition that the person in whose favour the transfer is made shall apply for N. A. permission before a competent authority under the Bombay Land Revenue Code, 1879 for non- agricultural use of the land within six months from the date of transfer of land and this period may be extended upto two years in aggregate by the Collector for genuine reasons to be recorded in writing and that such person shall use the land for the purpose for which the sanction has been granted within three years from the date of grant of non-agricultural permission under the provision of the said Code, or within such further period not exceeding five years in the aggregate as the Collector for reasons to be recorded in writing may from time to time fix or within such further period exceeding five years as aforesaid as the Collector may fix with the prior approval of the State Government. If the person fails to comply with the condition within the period so specified, the sanction given under sub-section (1) of Section 43 shall be deemed to have been cancelled and the transfer shall be deemed to have been made without the previous sanction of the Collector:
Provided that commencement of bona fide steps to use the land for the purpose for which sanction has Page 17 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT been granted shall be deemed to be compliance with the condition regarding the use of the land for non- agricultural purpose within the sanctioned period:
Provided further that if the Collector is satisfied that the person in whose favour the transfer is made is unable to make use of the land within the specified period for the purpose for which the sanction has been granted on account of genuine reasons, he may allow him to use the land for a different purpose including agricultural use after specifying such conditions as may be considered necessary and thereupon the person concerned shall use the land for the said purpose within the sanctioned period."
A bare reading of the afore-noted provisions will ensure that section 43 of the Tenancy Act imposes the restrictions on the land purchased by the tenant and such land or any interest cannot be partitioned without precious sanction of the Governor. Rule 25-C of the Tenancy Rules contemplates the circumstances and the conditions subject to which sanction shall be given by the Collector under section 43 of the Tenancy Act for transfer. Rule 25-C(3) of the Tenancy Rules stipulates limitation of satisfying the conditions of Section 43 of the Tenancy Act. Sub-rule (3) of Rule 25-C of the Tenancy Rules relates to clause (e) of Section 43 of the Tenancy Act prescribes the period within which the application for NA permission has to be made and also provides the period during which the land has to be put to actual NA use. Rule 25-C of the Tenancy Rules stipulates the circumstances in which the conditions subject to which sanction shall be given by the District Collector under Section 43 of the Tenancy Act for transfer. Rule 25-C(3) of the Tenancy Rules prescribes that a person has to apply for non-agricultural permission within a period of "six months" from the date of transfer of land and this period may be extended upto "two years" in aggregate by the District Collector for genuine reasons to be recorded in writing and that such person shall use the land for the Page 18 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT purpose for which the sanction has been granted within "three years" from the date of grant of non-agricultural permission under the provisions of the said Code, or within such further period not exceeding "five years" in the aggregate as the District Collector for the reasons to be recorded in writing may from time to time fix or within such further period exceeding five years as aforesaid as the District Collector may fix with the prior approval of the State Government. It was further stipulated that if the person fails to comply with the condition within the period so specified, the sanction given under sub-section (1) of Section 43 of the Tenancy Act shall be deemed to have been cancelled and the transfer shall be deemed to have been made without previous sanction of the District Collector. Thus, in the present case, the predecessor-title-
holder was required to apply for non-agricultural permission within a period of six months from the date of transfer of land, which could have been extended upto two years and also the outer limit of five years and if he has failed to comply with the conditions, the provisions of Rule 25-C(3) of the Tenancy Rules stipulates that such sanction given under sub-section (1) of Section 43 of the Tenancy Act shall be deemed to have been cancelled. Hence, no written order is actually required to be passed informing the grantee about the cancellation as the provisions stipulate of cancellation of such permission automatically, in case the land owner does not apply for non-agricultural permission within a period of six months. It is the duty of the land owner to follow the procedure prescribed under Rule 25-C of the Tenancy Rules, and to check that the sanction does not get nullified. The status of the land will get restored to the position as prevailed while granting sanction under Section 43 of the Tenancy Act.
16. The Proviso to Rule 25-C(3) of the Tenancy Rules also declares that if it is shown to the District Collector that the person in whose favour the transfer is made is unable to make use of the land within Page 19 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT the specified period for the purpose for which the sanction has been granted on account of genuine reasons, he may allow him to use the land for a different purpose, including agricultural use after specifying such conditions as may be considered necessary and thereupon the person concerned shall use the land for the said purpose within the sanctioned period. The predecessor-in-title of the petitioners has not approached the District Collector under this Proviso explaining the circumstances due to which he was unable to use the land for non-agricultural purpose. The petitioners cannot plead that their predecessor-in-title was not aware of the provisions of Rule 25-C of the Tenancy Rules of making the application for obtaining N.A. permission within the time specified under the Rules. The State Government cannot be put to loss of revenue of the ignorance of the predecessor-in-title of the land. The State can demand the premium on contemporary rates when the title holder of the land applies for N.A. permission. Thus, no illegality is found in the order of the authorities to pay the difference of premium amount on the basis of the existing jantri rates as it cannot be said that by the order dated 23.12.1999, once the premium has been paid, no further premium is required to be paid at the time of applying further permission for non-agricultural use.
17. Once it is established that the sanction, which was granted by the order dated 23.12.1999 under the provisions of Section 43(1) of the Tenancy Act, has lapsed as no exercise was undertaken by Shabbir Ahmed Suleman for observing the purpose of non- agricultural use, for which the land was granted to him, the petitioners have to pay the premium while applying for NA permission. The effect of such lapse would be that the sanction given under sub-section (1) of Section 43 of the Tenancy Act would be deemed to have been cancelled. The petitioners cannot get the benefit of Section 65 of the Code, which stipulates that if the District Collector does not decide the application within a period of three Page 20 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT months, and fail to inform his decision, the permission applied for shall be deemed to have been granted since the order dated 23.12.1999 had already lapsed as the predecessor- in-title, Shabbir Ahmed Suleman had failed to comply with the provisions of Rule 25- C of the Tenancy Rules. The petitioners are not entitled to take benefit of the provisions of Section 65 of the Tenancy Act though there is clear breach of provisions of Section 25-C(3) of the Tenancy Rules. The provision of Section 65 of the Code can only get attracted when there is no breach of the provisions of Act or the Rules and the grantee fulfills or satisfies all the conditions. Thus, the petitioners are not entitled to unjust enrichment due to the lapse of the predecessor-in-title. The decision reported in Prahaladbhai Kachrabhai Patel (supra) cannot rescue the petitioners from the lapse of the predecessor-in-title.
18. When the provisions of Rule 25-C(3) of the Tenancy Rules have already come into play and no N.A. permission is obtained, then the purchaser of the land has to pay the premium at the contemporary rates, when he is seeking N.A. permission. Vide circular dated 17.02.2012, the State Government has clarified the implementation of provisions of Rule 25-C of the Tenancy Rules, since there is frequent misuse of the provisions of Section 43 of the Tenancy Act, and the public exchequer was suffering because of such misuse. Thus, the Circular dated 17.02.2012 will apply to all the cases, in which the land purchasers have not obtained the NA permission after they have obtained permission of removing restrictions as prescribed under Section 43 of the Tenancy Act. Though, Rule 25-C(3) of the Tenancy Rules does not provide any duration of premium in one year, once the land owner does not act as per the aforesaid provisions, the sanction obtained by him under Section 43 of the Tenancy Act gets diluted automatically as provided under Rule 25-C(3) of the Tenancy Rules and there is no need of the District Collector or the authority to inform about such Page 21 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT deemed cancellation. The contention raised by the petitioners that no authority has raised any objections for certification of the E No.8698 ntry and hence, they are not required to pay any premium while obtaining non-agricultural permission, does not deserve acceptance. As observed hereinabove, the provisions of Rule 25- C(3) of the Tenancy Rules do not stipulate about actual information of the cancellation of the permission since in the event, the provisions of Rule 25-C(3) of the Tenancy Rules are not satisfied the permission is deemed to have been cancelled. Assuming that no notings were posted in the revenue entries by the authorities, the petitioners were required to verify the lapse from the predecessor- in-title. The predecessor-in-title should have informed the petitioners that he had not applied for NA within the time stipulated in Rule 25-C(3) of the Tenancy Rules. The petitioners cannot take benefit of their ignorance or the ignorance of the predecessor land owner. After a passage of 17 years, Shabbir Ahmed Suleman sold the land to the petitioners and, thereafter, the petitioners have applied for non-agricultural permission. Thus, even if no such condition was incorporated in the order dated 23.12.1999, the petitioners are required to pay premium and it cannot be held that once the restrictions under Section 43 of the Tenancy Act are removed, no premium is required to be paid even if the provisions of Rule 25-C are violated.
19. The citations, on which the reliance is placed by the petitioners, are not persuasive and do not apply to the facts of the present case. The facts referred in the judgment dated 14.12.2018 passed in Special Civil Application No.15575 of 2015 and allied matters reflect that in the case before the Court, the authorities have demanded premium at the time of conversion of charges from the residential purpose to the commercial purpose. In the case before the Coordinate Bench, the non-agricultural permission was already granted to the owners of the land and the authorities have Page 22 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT substantially demanded extra premium, when the same was being used for the commercial purpose.
20. With regard to the contention of transgression of powers by the respondent authority, it is noticed that there is no breach of provision of any other Act, which is examined by the respondent authority. In the case of Laxmi Associates (supra), the issue was with regard to breach of the provisions of Prevention of Fragmentation and Consolidation of Holdings Act, 1947 when the permission under Section 65 of the Code was sought. In the present case, the authorities have only demanded the premium on contemporary rates, when the petitioners have applied for N.A. permission under the provisions of the Tenancy Rules.
21. The reliance placed on the decision in case of Jayaben vs. District Collector, Vadodara (supra), is misconceived since the facts of the said case suggest that the purchaser of the land had already obtained NA permission, but did not carry out any non- agricultural use. In the instant case, indubitably, no NA permission is applied nor it is granted after 1999, when the land was converted from "new tenure" to "old tenure" for non agricultural use.
22. In the case of Pravinkumar Keshavji Tank (supra), the Coordinate Bench has examined the issue of delay in payment of premium. The ratio laid down by this Court will not apply to the facts of the case. Similarly, in case of Dhruvkumar Girishchandra (supra), (judgment dated 29.042013 in Special Civil Application No.158 of 2013), this Court was confronted with the issue with regard to the demand of premium for two stages, one from new tenure agriculture to old tenure agriculture, and two, from old tenure agriculture to non-agriculture as per the prevailing rates.
23. At this stage, I may with profit refer and rely upon the Page 23 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT judgement of Division Bench of this Court in the case of Jivrambhai Vasatbhai Desai vs State of Gujarat, 2010 (3) G.L.R. 2094. I may with profit extract the relevant observations of the Division Bench as thus:
"3. The relevant facts can be summarized thus:-
3.1 One Mr. Rupaji N. Thakore, the original owner of the parcel of land bearing Survey No. 99/1 admeasuring 0 Hector, 60 Are and 70 Sq. Mtrs. situate in mouje Nagalpur, Mehsana had submitted an application on or around 26.3.1990 to the Collector requesting for permission to convert the aforesaid land from "new tenure land" to "old tenure land" for non-agricultural purpose. The permission for conversion was sought - for with a view to constructing residential houses.
3.2 By his order dated 22.8.1990 the Collector granted the permission as contemplated under Section 43 of the Bombay Tenancy and Agricultural Land Act, 1998 (hereinafter referred to as the "Tenancy Act") and permitted the conversion of the land into old tenure, subject to diverse conditions prescribed in the order including the condition that a sum of Rs. 2,42,340/- shall have to be paid towards premium. It is the case of the appellant-petitioner that the prescribed amount was paid and the land in question was converted into "old tenure land". Consequently, the land in question became freehold land which could be sold, in accordance with law, in the market.
3.3 It is pertinent that over and above the condition for payment of the premium, the aforesaid order dated 22.8.1990 prescribed various other conditions viz. to obtain permission under Land Revenue Code and to apply within six months for permission for N.A. use and to put the land in question to nonagricultural use ("N.A. use"
for short) within 3 years. The order also expressly stipulated and clarified that if the conditions were not complied with the permission shall be deemed to have been cancelled.
3.4 It emerges from the record that despite the time limit (6 months) specified in the order the application seeking N.A. permission (as prescribed by the aforesaid order) was not made for long time. Instead, the land in question was sold - off on 31.12.1999 (prior to which an agreement to sale appears to have been entered into in 1991 between the original landholder and the petitioners) by the landholder to the petitioners.
3.5 A notice under Section 84(c) of the Tenancy Act was issued by the Mamlatdar and ALT asking the applicant- landholder to show cause as to why the said conveyance Page 24 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT should not be declared as in breach of the provisions of Tenancy Act and in breach of the conditions mentioned in the order dated 22.8.1990 and that why the land in question should not be mutated in favour of the State Government.
5 The appeal and the submissions of the appellants are vehemently resisted by the learned AGP Mr. Shah. He, at the outset, opposed the submissions of the appellant's counsel that there is no loss and there would not be monetary loss to the State or the public at large. He submitted that if the petitioners were to seek the N.A. use permission as of now then they would be required to pay the premium amount at the contemporary rate which would be much higher than the rate which was applied to the application made by the original landholder in March 1990. This would result into substantial loss to the public exchequer and that therefore the submission of the appellant, he submitted, is not justified.
Mr. Shah, the learned AGP also opposed the submission that the provisions under Rule 25 (c) are merely directory and not mandatory. He referred to the text of the provisions under Rule 25(c) and submitted that the said Rules are mandatory. He also supplemented the said submission by contending that even if it is assumed that the said provisions are directory then also in view of the fact that despite the provision under the said Rule the appellants did not seek extension of time it would now not be open to the petitioners to claim that by taking a lenient view about the violation, the petitioners should be let-off with imposition of some fine. He submitted that there are three concurrent orders recording finding of fact wherein all authorities have taken same view against the appellant-petitioners and the said decisions have found favour with the learned Single Judge also inasmuch as the said orders have been confirmed by rejecting the petition and that in view of concurrent decisions at 3 stages and then by the learned Single Judge, the appeal does not deserve to be entertained.
9.3 By virtue of Section 43 of the Tenancy Act, certain restrictions on transfer of land, purchased or sold under the Tenancy Act, have been imposed. The said provision requires previous sanction of the Collector in certain cases/types of transfers. The relevant part of said Section 43 reads thus:-
....."
9.4 While the said provision imposes the requirement of previous sanction of the Collector in certain cases, the Rule 25(c) prescribes the circumstances in which and the conditions subject to which the previous sanction of the Collector under Section 43 of the Tenancy Act, may be granted. The Rule inter alia provides that if the conditions Page 25 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT are not complied with then upon expiry of the time limit (or extended time limit - if applied for and granted - as the case may be) the sanction will stand cancelled and if any transaction is entered into - without complying the conditions or in violation of the conditions - then the transaction shall be deemed to be without previous permission of Collector, hence in breach of Section 43.
Thus, what the Rule contemplates and provide for is "conditional sanction" which would cease to operate on non-compliance of conditions within time, subject to extension that may be granted by Collector.
9.5 The sub-rule 1 of said Rule 25(c) prescribes the eventuality and the circumstances in view of which the Collector may grant sanction contemplated under Section
43. The sub-rule 2 of Rule 25(c) postulates that in cases of transfer under clauses (a), (b), (c) and (g) the land should be put to use only for the purpose for which the sanction is granted.
9.6 An important feature of said sub-Rule (2) is that the said sub-rule empowers the Collector to grant, for complying the conditions of sanction, extension for a period up to two years in aggregate for genuine reasons to be recorded in writing. The said sub-rule then provides the consequence if the person fails to comply with the conditions.
9.7 Sub-rule 3 of Rule 25(c) pertains to sanction under clause (e) and specifies the period within which the application for N A permission has to be made and also provides the period during which the land has to be put to actual N A use. The said sub-rule also provides the consequence in the event of failure viz. that if the person fails to comply with the condition within specified period then the sanction granted under Section 43 shall be deemed to have been cancelled and the transfer shall be deemed to have been made without previous sanction of the Collector. The relevant part of the said Rule 25(c) reads thus:-
11 In the backdrop of such facts, the submission or the point now required to be considered is that even if the conditions under Rule 25(c) are to be taken as directory and not mandatory - as urged by the appellant - then also whether there is any good and satisfactory ground and justification to hold that in present case the sanction should not be "deemed to have been cancelled" and the conveyance should "not be deemed to have been made without previous sanction of the Collector."
12 In present case it is not in dispute that the appellants as well as the original applicant-landholder have (a) hitherto, not complied the relevant and prescribed conditions, they also (b) did not commence any action to seek N.A. Permission; and (c) before the expiry of Page 26 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT specified time they did not even care to seek extension of time and (d) did not satisfy the Collector at the relevant time about genuineness of the reasons due to which they were not in position to take any action.
13 Assuming that the appellant is right in contending that the provision under Rule 25(c) are directory and not mandatory then also it would not follow as corollary that upon noncompliance of the prescribed conditions in specified time limit the "deemed consequence" will not come into operation.
13.1 The provision under Rule 25(c) empowers the Collector to merely extend the time limit - subject to the outer/maximum limit of extension specified therein - for complying the conditions. Thus, the Collector can extend the time limit to enable the compliance, but only to the extent of maximum time limit prescribed under the said Rule. Consequently, if upon being satisfied with the reasons/explanation the Collector extends the originally specified time limit then the requirements/conditions can be complied with within such extended time limit and if the conditions are complied with within such extended time limit then only the "deemed consequence" which may have set - in upon non-compliance, would get erased. The Rule does not confer any more or wider power on the Collector and since the Collector derives the authority to grant extension in time limit by virtue of the provision, he cannot exercise any authority not conferred on him, or beyond what is conferred.
14 The inaction on the part of the grantee (original landholder) can be, in the facts of the case, more particularly in absence of any convincing and cogent evidence regarding reason for not complying the conditions, construed as, and it may translate into the act of (the grantee) forgoing or relinquishing the permission granted by virtue of the order dated 22.8.1990.
14.1 The appellants-petitioners being conscious of the position which emerged on account of operation of law have calculatively raised only one submission comprising two subordinate submissions viz. that the conditions under Rule 25(c) are directory and not mandatory hence
(i) should not be applied with all rigour as if they are mandatory; and (ii) that the violation should be treated as mere technical breach of the conditions which are merely directory and the petitioner should be let-off with a direction to pay fine as may be considered appropriate by the Court. We are afraid, such a submission or request cannot be countenanced in the facts of the case.
14.2 While all the authorities have taken similar/concurrent decision and the said decisions have also found favour and approval of the learned Single Page 27 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT Judge we do not think that, in the facts of present case, there are any circumstances which would justify any other view.
15 xxxxxxxxxxxxxx 16 The fact remains that any of the conditions were not and have not been complied with and without complying with the conditions, the landholder even sold off the land in question to the petitioners-appellants though the permission/sanction granted by the order dated 22.8.1990 stood cancelled by operation of law.
16.1 These defaults, when considered in light of the provision under Rule 25(c) which makes provision for extension of time (and that also was not availed by the landholder or the appellants before the expiry of specified time limit and/or before the expiry of maximum time available to the Collector for extension) do not permit us to take any different view in the matter than the view taken by the authorities and confirmed by the learned Single Judge."
The facts of the case as recorded in the judgment of the Division Bench suggest that the original owner of the land had got his land converted from "new tenure land" to "old tenure land" on the payment of premium of Rs.2,42,340/-, and hence the restrictions under section 43 of the Tenancy Act were removed subject to the conditions imposed in the order as envisaged under Rule 25-C of the Tenancy Rules. Thereafter, the land was sold without satisfying the conditions prescribed in the order. The Division Bench, while interpreting the provision of Rule 25-C of the Tenancy Rules, has held that if the conditions of Section 43 of the Tenancy Act are not complied with, then, upon expiry of the time limit (or the extended time limit - if applied for and granted - as the case may be) as stipulated under Rule 25-C of the Tenancy Rules, the sanction will stand cancelled and any transaction shall be deemed to be without previous permission of District Collector in breach of Section 43 of the Tenancy Act. The only distinguishing factor in the present case is that while passing the order dated 23.12.1999 removing the restrictions envisaged under Section 43 of the Tenancy Act, the Page 28 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT authority has not mentioned that the predecessor-in-title shall has to apply for NA permission within a period as stipulated in Rule 25-C of the Tenancy Rules. The only relevant condition incorporated in the order dated 23.12.1999 is that the concerned land shall be used for non-agricultural purpose. The petitioners are taking advantage of non-prescription of any other conditions as stipulated in Rule 25-C of the Tenancy Rules. It is contended that if no other conditions are incorporated, it was not mandatory for the predecessor-in-title to apply for NA permission as stipulated in the Rule. Such a submission cannot be countenanced since the order dated 23.12.1999 incorporates Section 43 of the Tenancy Act and Rule 25-C of the Tenancy Rules. As noted hereinabove, the petitioners cannot plead ignorance of provisions of Rule 25-C of the Tenancy Rules, since the predecessor-in-title had applied under the provisions of Section 43 of the Tenancy Act to convert his land from "new tenure" to "old tenure". It is not open for them to contend that though the predecessor-in-title holder was aware of provision of Section 43 of the Tenancy Act, but was unaware of provisions of Rule 25-C of the Tenancy Rules. The petitioners cannot approbate and reprobate. After obtaining benefit of removing the restrictions as prescribed under Section 43 of the Tenancy Act, the petitioners, who are the subsequent purchasers, have purchased the land after a period of 17 years, and hence, they cannot defend the inaction of the predecessor-in-title holder by contending that he was not supposed to follow the provisions of Rule 25-C of the Tenancy Rules, which contemplate of applying for NA permission within the times stipulated therein. The predecessor-in-title has slept over his right for all these years and has paid premium, when the restrictions on the land were removed. The same will remain in force till the time limit prescribed under the Rule 25-C of the Tenancy Rules or for one year as prescribed under the Circular dated 17.02.2012, since the order removing restrictions under Section 43 of the Tenancy Act will lapse, if no further action is taken for applying for the NA permission Page 29 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT under Section 65 of the Code. The land owner has to pay the premium as per the policy of the State Government at the time of obtaining NA permission. No action is taken by the State in vesting the land in State Government, but the petitioners are only asked to pay the premium at contemporary rates as per the policy of the State after the adjustment of the premium, which is already paid. The District Collector in the order dated 21.08.2018 has only opined for the payment of extra premium as per the prevalent rates.
24. In the present case, the facts suggest that after the order dated 23.12.1999, the predecessor-in-title has never applied for getting NA permission within the time stipulated in Rule 25-C of the Tenancy Rules, hence as per the deeming fiction provided under the said Rule, the sanction of removing the restrictions under Section 43 of the Tenancy Act shall stand cancelled. Hence, when the petitioners have applied for NA permission in the year 2018 under Section 65 of the Code, they are liable to pay the difference of premium at contemporary rates. The State Exchequer cannot be put to loss due to the deliberate inaction on the part of the land owners in wake of the fact that the price of the land has increased during the intervening period. The petitioners and their predecessor-in-title cannot forget that they are beneficiaries of the State Government land, which is given to them as a welfare measure through beneficial piece of legislation, and hence, cannot act detrimental to the interest of the State. Neither the predecessor-in-title nor the petitioners can be allowed to take unfair benefit by resorting to profiteering by deliberately sitting tight and not applying for NA permission within the time stipulated in Rule 25-C of the Tenancy Rules. The circular dated 17.02.2012 has been issued by the State Government for preventing misuse of the provisions of Section 43 of the Tenancy Act. The circular only provides for payment of difference of amount of premium and not about forfeiting any amount of premium though the provisions of Rule 25-C of the Page 30 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020 C/SCA/16814/2018 CAV JUDGMENT Tenancy Rules are violated. It is pertinent to note that the petitioners have not challenged the Circular dated 17.02.2012, which provides for adjustment of premium, hence, in wake of absence of such prayer, they are bound by the provisions of the circular. In fact, the action of the State Government can be said to be benevolent in restricting the premium for one year from the date of the order passed by the District Collector under Section 43 of the Tenancy Act despite the fact that such order will lapse, in case the provisions of Rule 25-C of the Tenancy Rules are violated. Thus, the petitioners cannot avoid the payment of difference of amount of premium prevalent at the time of a filing the application for obtaining NA permission.
25. The writ petition fails legal scrutiny and accordingly the same is dismissed. Rule discharged. There shall be no order as to costs.
(A. S. SUPEHIA, J) GUPTA* Page 31 of 31 Downloaded on : Thu Mar 05 01:07:24 IST 2020