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Gujarat High Court
Judgename :JAYANT PATEL
PATEL MOHANBHAI ISHWARBHAI - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 7842 Of 1990
Decided On : 11/01/2006
Whether grant of N.A. permission by T.D.O. in the case is without jurisdiction.
Head Note :
Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. Act 67 of 1948) - Section 43 - Bombay Land Revenue Act - Sections 65 and 211 - N.A. permission - Grant of - Jurisdiction - Delay in exercise of revisional power - Finding as to - Sustainability - It appears that vide resolution of the State Government dated 20.05.1980 powers to grant N.A. permission was delegated to T.D.O. in the present case - However such power came to be withdrawn and modified by the State Government by its subsequent Resolution dated 16.10.1982, whereas the permission in the present case came to be granted by T.D.O. in November, 1980 after the delegation but prior to withdrawal of such power - It cannot, therefore, be said that T.D.O. had no authority at the relevant time to grant N.A. permission - It cannot be said that there was inherent lack of power with T.D.O. for fixation of the premium in view of Restriction under Section 43 of the Act while granting permission for N.A. use - That apart State Government has exercised the revisional power after a period of seven years or more with unreasonable delay - In the facts and circumstances the State Government has not only committed error apparent on the face of record but has committed jurisdictional error, therefore, impugned order passed by State Government dated 14.03.1990 is quashed and set aside.
Held :
t appears that vide resolution of the State Government dated 20.05.1980, such powers were delegated to the authority granting permission for N.A. use which in the present case was T.D.O. However, such power came to be withdrawn and modified by the State Government by its subsequent Resolution dated 16.10.1982 whereas, the permission in the present case came to be granted by the T.D.O. in November, 1980 i.e. after the delegation, but prior to withdrawal of such power. Therefore, even qua the restriction as per the provisions of Section 43 of the Act is concerned, it cannot be said that the T.D.O. had not authority whatsoever nor can it be said that it was a case of inherent lack of power for fixation of the premium keeping in view the restriction under Section 43 of the Act while granting permission for N.A. use. [Para 11]
The State Government while passing the impugned order has lost the sight of both the aforesaid aspects and if the case was not falling in the category of exercise of the power by the authority, having no jurisdiction at all or inherent lack of power, it was also required for the State Government to consider the matter on the ground of delay since the action is initiated in any case after the period of 7 years and more. It appears that the State Government has exercised the power under Section 211 of the Code while passing the impugned order as the Revisional Authority. In any case, the ground in the show-cause notice was for want of authority on the part of T.D.O. Therefore, it was required for the State Government to examine the matter on the aspects of authority of the T.D.O. to grant permission under Section 65 of the Code read with the provisions of Section 43 of the Act for fixation of premium. As the said aspects keeping in view the resolution and the aforesaid legal positions referred to hereinabove in case of both the aforesaid decisions of this Court are not considered, it can be said that the State Government has not only committed error apparent on the face of record, but has also committed jurisdictional error in considering the grounds extraneous to the show-cause notice, which may consequently result into breach of principles of natural justice. [Para 12]
Law Laid Down :
When N.A. permission is granted by competent authority, the State Government is required to exercise its revisional power with in reasonable time.
Conclusion :
T.D.O. at the relevant time had the authority to grant N.A. permission, therefore, it cannot be faulted.
Cases Referred :
M/s. Yashkamal Builders, Baroda vs. State of Gujarat & Anr., 1989 (1) GLR 382;; Minaben Arvindlal Gandhi vs. State of Gujarat & Ors., 1992 (1) GLR 413.
Decided in Favour of :
Petitioner
Petition Allowed
( 2 ) IN view of the aforesaid order, the matter shall be essentially between the petitioners and the State Government having exercised the revisional jurisdiction against the order passed by the T. D. O. granting N. A. permission of the land in question.
( 3 ) THE short facts of the case appear to be that one Mahijibhai Somabhai was holding the land at village Maghasar, Taluka Halol, District Panchmahals applied for permission for non-agricultural use of the land to Taluka Panchayat, Halol on 15. 09. 1980. The Taluka Development Officer passed the order on 24/25. 11. 1980 granting permission for N. A. use of the land in question. One of the conditions No. 18 of the permission was to pay premium of Rs. 18,906/- to the District Collector, Panchmahals after obtaining permission from the District Collector. However, subsequently, on 11. 05. 1981, a modification of the said conditions was ordered by the T. D. O. whereby, the stipulation for obtaining permission from the District Collector was deleted and condition No. 18 was substituted by providing that since the land is subject to the restriction under Section 43 of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the act ) the premium of Rs. 18,906/- shall be required to be deposited with the State Government. It appears that the entry came to be mutated in the revenue record and the petitioners thereafter, have purchased the said land by registered sale deed dated 26. 12. 1980. It appears that the State Government on 05. 12. 1988, initiated the proceedings under Section 211 of the Bombay Land Revenue Code (hereinafter referred to as the code ) and called upon the petitioners and others to show cause as to why the matter should not be taken in revision against the order passed by the T. D. O. for grant of N. A. permission. The petitioners submitted the reply and the record shows that the original holder of the land namely Shri Mahijibhai Somabhai did not make any representation, possibly because the land was already sold by him to the petitioners. The State Government after hearing the petitioners, who were occupant of the land and holding the land on the relevant point of time, passed the order and the order of T. D. O. , granting permission for N. A. use was set aside and it is under these circumstances, the petitioners have approached to this Court by preferring the present petitions.
( 4 ) HEARD Mr. S. S. Sanjanwala, learned counsel appearing for the petitioners and Mr. M. R. Mengde, learned A. G. P. appearing for the State Authorities.
( 5 ) IT is not in dispute that the land was situated at village Maghasar of Taluka Halol, District Panchmahals nor the date of passing the order by T. D. O. i. e. 24/25. 11. 1980 is in dispute. The learned counsel appearing for the petitioners submitted that thought the resolutions, on the basis of which, the powers were delegated by the District Panchayat to Taluka Panchayat and in tern to Taluka Panchayat to the T. D. O. for the purpose of exercise the power under Section 65 of the Code and the resolution of the State Government authorising the concerned authority granting permission under Section 65 of the Code to fix the premium under Section 43 of the Act are not on record but there is reference to both the aspects in the decision of this Court in case of M/s. Yashkamal Builders, Baroda V/s. State of Gujarat and another reported in 1989 (1) GLR 382 and another decision of this Court in case of Minaben Arvindlal Gandhi V/s. State of Gujarat and others reported in 1992 (1) GLR 413. The learned counsel submitted that so
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