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Gujarat High Court
Judgename :A.N.Divecha
SHANTABEN ISHVARBHAI PATEL - Appellant
Versus
ADDITIONAL CHIEF SECRETARY,revenue DEPARTMENT - Respondent
S.C.A. 113 of 1988
Decided On : 04/10/1996
Respondent No. 3 has passed resolutions at Annexures H and I to each petition laying down guidelines for fixation of the premium amount for conversion of lands from new tenure to old tenure in case they are covered by the scheme under Sec. 21(1) of the Ceiling Act. The resolution at Annexure I requires fixation of the premium amount in accordance with the guidelines given thereunder. The order at Annexure-E to each petition as affirmed in revision by the order at Annexure-G to each petition has fixed the premium apparently contrary to the guidelines contained in the resolution at Annexure-I to each petition. As pointed out hereinabove, the premium amount fixed under the impugned orders is at the rate of 70% of the the market value of the lands in question. The guidelines given in the Government Resolution at Annexure-I to each petition requires fixation of the premium amount at the rate of 50% of five times the value of compensation payable under Sec. 11(1) of the Ceiling Act. In that view of the matter, the impugned order at Annexure-E to each petition as affirmed in revision by the order at Annexure-G to each petition cannot be sustained in law.
[Para 7]
(b) Constitution of India, 1950 - Art. 226 - Tenancy Act, Sec. 32R - Direction by Govt. to initiate proceedings for summary eviction of petitioners for contravention of Sec. 32R of Tenancy Act - Disputed lands have been covered in Town Planning Scheme and therefore, petitioners instead of cultivating the same have been inclined to raise residential houses - Author of order giving direction has been quite oblivious to Govt. resolution H & I attached with petitions & oblivious to the provisions contained in Sec. 43 of Tenancy Act & Sec. 65 of the Revenue Code which substantially curtails the rigours of Sec. 32R - Order setaside & matter remanded to collector for refixation of premium amount.
It becomes clear from bare reading of Sec. 32R of Tenancy Act, that the statutory purchaser under the Tenancy Act has to use the land or lands in question for personal cultivation and, if he fails to do so, he is liable to summary eviction unless such failure is condoned for sufficient reasons by the Collector. It transpires from the zoning certificate at Annexure-A to each petition that the lands involved in each petition have been covered in Town Planning Scheme No. 9 in Baroda with effect from 22nd December 1983. It transpires therefrom that the lands in question are placed in the residential zone in the said town planning scheme. When the lands are placed in the residential zone in a town planning scheme, their situation can be said to be in an urban area and it is possible that the land-holders might be disinclined to cultivate them as the residential area is meant for raising residential houses. Besides, it appears that the lands in question are situated within the urban agglomeration of Baroda by virtue of the Ceiling Act. People in the urban area would ordinarily not go for personal cultivation as the urbanised society mostly consists of persons involved in commercial and industrial activities.
[Para 9]
Sec. 43 of the Tenancy Act provides for conversion of new tenure lands into old tenure lands on certain terms and conditions as mentioned therein. It thus becomes clear that rigours of Sec. 32R of the Tenancy Act are curtailed to a substantial extent by bringing on the statute book Sec. 43 thereof. Permission under Sec. 43 thereof is required to be granted by the Collector of the concerned area. When the Collector is approached for such conversion, it would obviously be for the purpose of either sale of the land or lands in question or for obtaining the N. A. permission in that regard. It would thus mean that the person applying for such permission would like to give up personal cultivation of the lands in question. When the Collector grants such permission, it can safely be presumed that he had condoned failure of personal cultivation of the land in question. Similarly, permission under Sec. 65 of the Code is ordinarily granted by the Collector. When such permission for non-agricultural use of such new tenure land is granted by the Collector, he can be said to have condoned failure to use the land in question for personal cultivation.
[Para 10]
One cannot lose sight of the relevant provisions contained in Sec. 21(1) of the Act. The avowed object behind it is to provide housing accommodation to weaker sections of the society. The excess land in the holding of a land-holder can be utilised at his instance for providing residential accommodation to weaker sections of the society. To further the avowed object in that regard, respondent No. 3 has passed certain resolutions, two of which are at Annexure-H and I to each petition. When the State Government itself has allowed conversion of new tenure lands into old tenure lands for the purpose of the scheme under Sec. 21(1) of the Act, rigours of Sec. 32R of the Tenancy Act are curtailed to a very great extent. It would amount to condonation of non- user of agricultural lands amenable to Sec. 32R of the Tenancy Act.
[Para 11]
It may be noted that respondent No. 1 was exercising powers of the State Government and strangely enough he has remained oblivious and unmindful to the aforesaid government resolutions at Annexure-H and I to each petition. Had he applied his mind to these resolutions and other aspects of the matter as pointed out hereinabove, I am sure he would not have fallen into the error of giving the direction to respondent No. 2 to initiate the proceeding for eviction of the occupants of the lands in question for the alleged contravention of Sec. 32R of the Tenancy Act. I am therefore of the opinion that the aforesaid direction contained in the impugned order at Annexure-G to each petition deserves to be ignored.
[Para 12]
The matters deserve to be remanded to respondent No. 2 for fresh fixation of the premium amount for conversion of the lands involved in each petition from new tenure land to old tenure land in the light of the Government Resolutions of 16th March, 1982 as amended by the Government Resolution of 4th December, 1986 at Annexure-I to each petition.
[Para 13]
( 1 ) PRACTICALLY identical orders passed by the Collector of vadodara (respondent No. 2 herein in each petition) as affirmed in revision by the common order passed by the Additional Chief Secretary, Revenue Department (Appeals) at Ahmedabad (respondent No. 1 herein) on behalf of the State government (respondent No. 3 herein in each petition) on 25/11/1987 is under challenge in these petitions under Art. 226 of the Constitution of India. By his impugned order, respondent No. 2 fixed premium at the rate of 70% of the market value with respect to the subject-matter of these petitions for conversion thereof from the tenure to old tenure. The petitioners have also incidentally challenged the Government resolution passed on 19/02/1979 and 4/12/1986 prescribing the rate of premium for the purpose of conversion of lands from new tenure to old tenure qua the scheme under Sec. 21 (1) of the Urban land (Ceiling and Regulation) Act, 1976 (the Ceiling Act for brief ).
( 2 ) THE petitioners in both these matters are common. Practically identical orders passed by the respondents are challenged in both petitions. In both these petitions have been challenged the aforesaid resolutions passed by respondent No. 3. Common questions of law and fact are found arising in both these petitions. I have, therefore, thought it fit to dispose of both these petitions by this common judgment of mine.
( 3 ) THE facts giving rise to these petitions move in a narrow compass. The petitioners appear to have applied for permission under Sec. 21 (1) of the Ceiling Act with respect to several parcels of land situated within the urban agglomeration of Vadodara. By the order passed by the Competent Authority at Vadodara on 28/10/1985, such permission came to be granted on certain terms and conditions. Its copy is at Annexure-C to each petition. Such conditions included obtaining of what is popularly known as the N. A. permission under the Bombay Land Revenue Code, 1879 (the code for brief) and also conversion of lands from new tenure to old tenure wherever necessary. It appears that certain lands were new tenure lands. The petitioners thereupon approached respondent No. 2 for grant of permission for conversion of certain parcels of land from new tenure to old tenure. By the order passed by him on 3rd/1 7/01/1987 under Sec. 43 of what is popularly known as the Tenancy Act, such permission came to be granted on payment of the premium at the rate of 70% of the market value of the lands in question. Its copy is at Annexure E to each petition. The petitioners appear to have found the premium amount to be quite exorbitant. They, therefore, carried the matter in revision before respondent No. 3. It appears to have been assigned to respondent No. 1 for hearing and disposal. By his order passed on 25th November 1987 but commuommunicated on 16/12/1987, respondent no. 1 rejected it. He also directed respondent No. 2 to initiate proceedings for summary eviction of the occupants of the lands in question. Its copy is at Annexure G to each petition. In the meantime, the petitioners also applied for what is popularly known as the N. A. permission under the Code. By the order passed by respondent No. 2 on 18/03/1987, such permission came to be granted on certain terms and conditions. Its copy is at Annexure F to each petition. So far as the order at Annexure F to each petition is concerned, the petitioners appear to have made to grievance thereagainst. They appear to have accepted it and complied with the conditions attached thereto. The petitioners, however, felt aggrieved by the order at Annexure E to each petition as affirmed in revision by the order at Annexure g to each petition. They have, therefore, approached this Court by means of these petitions under Art. 226 of the Constitution of India for questioning their correctness. In the process, the petitioners have also challenged the legality and validity of two government Resolutions of 19/02/1979 at Annexure H
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