( 1 ) BY way of this petition under Article 226 of the Constitution of India, the petitioners challenge the order dated 23rd August 1976 passed by the District Development Officer, Gandhinagar, imposing penalty at 40 times the non-agriculture assessment for alleged non-agriculture use of their land and also conversion tax at the rate of Rs. 15/- per sq. mt. , as well as the order dated 27th February 1997 passed by the Secretary (Appeals), Revenue Department, confirming the order passed by the District Development Officer.

( 2 ) THE facts of the case are that the petitioner No. 1 is the owner of land admeasuring 4383 sq. mtrs. of survey No. /block No. 114 of Mouje Motera, Taluka Gandhinagar, District Gandhinagar (hereinafter referred to as the subject land ). The petitioner No. 2 is the occupier of the said land. One Somabhai Karsanbhai, respondent No. 3 herein, was occupying the subject lands in the year 1991-92. It appears that, for a period of two months, in the year 1991-92, the said Somabhai Karsanbhai had stored charcoal on the subject lands. On the basis of a panchnama drawn by the Circle Inspector on spot inspection, the District Development Officer had initiated proceedings for contravention of provisions of Section 65 of the Bombay Land Revenue Code, 1879 (the Code) in view of the aforesaid unauthorised non-agriculture use of the subject lands in the year 1991-92 by the respondent No. 3. Pursuant to a notice dated 3rd May 1996 issued by the District Development Officer, Gandhinagar, calling upon the occupier of the said land, to show cause as regards the contravention of Section 65 of the Code, the petitioner No. 2, who was the occupier of the subject lands at the time of issuance of notice, appeared before the District Development officer and submitted that the lands are owned by the petitioner No. 1 and that the subject lands had been used for the non-agriculture purpose of storing charcoal for a period of two months during 1991-92 by the then occupier Shri Somabhai Karsanbhai, and that, for the said breach, if the occupier was liable to pay penalty, the same would be paid. It was also submitted that thereafter, the said land has not been put to non-agriculture use.

( 3 ) BY an order dated 25th August 1996, the District Development Officer, held that the land had been put to unauthorised use for non-agriculture purpose during the year 1991-92 and accordingly, imposed penalty equal to 40 times the non-agricultural assessment, which was quantified at Rs. 26,051=20. It was further held that the conversion tax at the rate of Rs. 15/- per sq. mt. amounting to Rs. 65,745/- was also payable. Accordingly, an amount aggregating to Rs. 92,796=20 was held to be payable by the petitioner.

( 4 ) THE petitioner carried the matter in revision before the Secretary (Appeals ). The Secretary (Appeals), for the reasons stated in his order dated 25th February 1997, rejected the revision application and upheld the order of the District Development Officer.

( 5 ) BEING aggrieved by the aforesaid two orders, the petitioner has approached this Court by way of the present petition.

( 6 ) MR. M. R. BHATT, the learned advocate appearing on behalf of the petitioner has fairly submitted that it is an admitted position that there has been default by way of unauthorized use of the subject lands for non-agriculture purpose in the year 1991-92. He, however, challenged the impugned order mainly on two counts. Firstly, on the ground that the levy of penalty at 40 times the assessment was contrary to the Government Resolution dated 28th September, 1984; and secondly, on the ground that though the subject lands were rightly classified under the category at serial No. 1 in the Table below Section 67a of the Code which provides for the rate of conversion tax, in fact, the conversion tax was levied at the rate applicable to lands belonging to the category at serial No. 5 in the said Table.

( 7 ) REFERRING to the Government Resolution dated