( 1 ) THE present petition has been preferred against the order dated 4th July/august, 2005 passed by the the District Development Officer, Vadodara (Annexure ?g? to the memo of the petition) to the effect that under section 67 of the Bombay Land Revenue Code, 1879, there is a breach of condition by the present petitioner and therefore, penalty has been imposed upon the petitioner for the fact that after getting NA permission for the land in question, the petitioner has not started non-agricultural usage of the land in question.

( 2 ) I have heard the learned counsel for the petitioner who has submitted that initially the petitioner had in mind non-agricultural usage for the land in question and therefore, an application was preferred for getting NA permission which was granted by the concerned respondent authority vide order dated 26th March, 1997 and 4th October, 1997. But thereafter, for the reasons beyond the control of the present petitioner, the non-agricultural usage which was permitted to the petitioner was not brought into effect. But agricultural operations were continued by the present petitioner. Thereafter, an application was preferred on 15th July, 2004 under Rule 91 of the Gujarat Land Revenue Rules, 1972, for agricultural assessment of the property in question as non-agricultural usage was never started by the present petitioner. But instead of allowing this application under Rule 91 of the Rules of 1972, a show cause notice was given by respondent no. 3 dated 29th April, 2005 for the alleged breach of section 67 of the Code, 1879 which was replied in detail, but a final order was passed by the respondent no. 3 on 29th April, 2005 (Annexure ?h? to the memo of the petition) in pursuance of their resolution dated 4th July, 2005 (Annexure ?j? to the memo of the petition), whereby penalty has been imposed upon the present petitioner for the alleged breach of section 67 of the Code of 1879 as the petitioner has not started non-agricultural usage of the property in question after getting NA permission. It is submitted by the learned counsel for the petitioner that NA permission is not imposing a duty upon petitioner, to start non-agricultural operation. On the contrary, it is the power vested in the petitioner that as and when the petitioner wants to start non-agricultural usage of the property in question within time stipulated in the permission, it can be started. Subject to the conditions of NA permission, it is the power vested in the petitioner to start non-agricultural usage. Non-agricultural usage permission is not a duty cast upon the present petitioner and hence the notice issued by the respondent no. 3 dated 29th April, 2005 and the consequent order passed by the respondent no. 3 dated 29th April, 2005 (at Annexures ?e? and ?h? respectively) deserve to be quashed and set aside and a direction may be given to the concerned respondent authorities to fix agricultural assessment for the property in question in pursuance of an application preferred by the present petitioner under Rule 9 of the Rules, 1972 which is dated 15th July, 2004.

( 3 ) I have heard the learned counsel for respondent no. 3 who has submitted that after getting NA permission, the petitioner has not started non-agricultural usage of the property in question and thereby there is a loss of revenue to respondent no. 3. In fact, after getting NA permission, the petitioner ought to start non-agricultural usage of the property in question and therefore, show cause notice was given by the respondent no. 3 on 29th April, 2005 and thereafter, a final order was passed on 4th August, 2005. It is also submitted by the learned counsel for respondent no. 3 that the impugned order is an appealable order and hence, the petition may not be entertained by this Court.

( 4 ) I have also heard the learned Assistant Government Pleader for the respondent State who has submitted that after getting NA permission from the concerned respondent authorities, the petition

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