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SUPREME COURT OF INDIA
Hon’ble Mr. Justice Surinder Singh Nijjar & Hon’ble Mr. Justice H.L. Gokhale
Gohil Jesangbhai Raysangbhai & Ors.
Versus
State of Gujarat & Anr.
Civil Appeal No.4123 of 20121—Decided on 25/02/2014
Gujarat Tenancy and Agricultural Lands Act, 1948 — Gujarat (Amendment) Act, 1960 — State Government Resolution dated 04.07.2008 — Rules framed under the Act — Rule 25-C — Sections 32-G, 43, 63 and 69 — Provisions relating restrictions on transfer of land, Resolution fixing the rates of premium for conversion and transfer of land and minimum valuation of Land contained in “Jantri” — Constitutional validity of the provisions challenged — Finding as to — Originally Section 43 of the Act did not contain any exception for transfer of agricultural Land — It is by amendment of 1960 on payment of such amount as the State, Government by general or special order determine were introduced — The constitutional validity of the amendment 1960 was considered by Apex Court — It was held that alleged amendment was protected under 9th Schedule to the Constitution and therefore it was immune from any challenge — As far as determination of the amount charged under Government Resolution 2000 — which require charging premium on basis of “Jantri” is also not open to challenged because earlier which was 80 percent of the price received by agriculturist on transfer has been reduced to 40% by State Government — Besides Rule 25-C of the rule framed under the Act gives guidelines and when read with Rule Government can not charge any disproportionate amount under Section 43 of the Act — Court also laid down that Collectors would be expected to decide such application within 90 days of receipt of such applications.
Held :
The original Section 43 did not contain any such exception. The Gujarat (Amendment) Act No. XVI of 1960 introduced the words “on payment of such amount as the State Government may by general or special order determine” in Section 43. [Para 7]
The amount which is being charged is not a tax but a fee. It is neither. It is a premium for granting the sanction. This is because under this welfare statute these lands have been permitted to be purchased by the tenants at a much lesser price. As held in Shashikant Mohanlal vs. State of Gujarat, AIR 1970 Guj 204, the tenant is supposed to cultivate the land personally. It is not to be used for non agricultural purpose. A benefit is acquired by the tenant under the scheme of the statute, and therefore, he must suffer the restrictions which are also imposed under the same statute. The idea in insisting upon the premium is also to make such transfers to nonagricultural purpose unattractive. The intention of the statute is reflected in Section 43, and if that is the intention of the Legislature there is no reason why the Courts should depart therefrom while interpreting the provision. [Para 20]
As far as the levy of the 80 per cent of the amount is concerned, it was submitted that it was unconscionable, and it would mean expropriation, and will be hit by Article 300-A of the Constitution. Once Court see the scheme of these provisions, in our view, no such submission can be entertained. In any case Mr. Nariman has pointed out that after the impugned judgment, the State Government has reduced the levy to 40 per cent which is obviously quite reasonable. [Para 23]
Law Laid Down :
State is theoretically the owner of all the Land and occupants hold those lands under the State.
H.L. Gokhale J.—All these Civil Appeals raise the questions with respect to the validity of Section 43 of Bombay Tenancy and Agricultural Lands Act, 1948 as applicable to the State of Gujarat, now known in the State of Gujarat as Gujarat Tenancy and Agricultural Lands Act, 1948 (“Tenancy Act” for short). This section places certain restrictions on the transfer of land purchased or sold under the said Act. These appeals raise the questions also with respect to the validity of resolution dated 4.7.2008 passed by the Government of Gujarat to give effect to this section, and which resolution fixes the rates of premium to be paid to the State Government for converting, transferring, and for changing the use of land from agricultural to non-agricultural purposes. Thirdly, these appeals seek to challenge the minimum valuation of land as per the rates contained in the list called as “Jantri” prevalent since 20.12.2006.
2. The Tenancy Act was passed way-back in the year 1948, as a beneficial legislation and as a part of agrarian reform. This section has been amended twice thereafter, first in 1960 and then in 1977. The aforesaid challenge was first taken in the High Court of Gujarat by filing various Special Civil Applications (i.e. Writ Petitions) bearing Spl. C.A. No. 12661 of 1994 and others which came to be dismissed. Thereafter the Letter Patent Appeals bearing Nos.1127 of 2008 and others were filed against the judgments rendered by Single Judges in these different Special Civil Applications. The judgment rendered by a Division Bench dated 3.5.2011 in a group of these Letter Patent Appeals and Special Civil Applications once again repelled the challenge. This common judgment has led to this group of 12 Civil Appeals. The issues raised in these Civil Appeals are by and large similar, though there are some additional points in some of these Civil Appeals depending upon the facts of each of those cases.
3. Mr. Huzefa Ahmadi and Mr. P.H. Parekh, both senior counsel, and Mr. Bharat Patel, learned counsel, have amongst others appeared for the appellants. Mr. Rohinton Nariman, Senior Counsel and Ms. Hemantika Wahi have appeared for the State of Gujarat and its officers to defend the impugned judgment.
4. The above referred Section 43 of the Tenancy Act reads as follows:—
“43. Restriction on transfers of land purchased or sold under this Act.—(1) No land or any interest therein purchased by a tenant under Section 17-B, 32, 32-F, 32-I, 32-O, 32-U, 43-ID or 88-E or sold to any person under Section 32-P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, there shall be partitioned without the previous sanction of the Collector.
Provided that no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant:
Provided further that the partition of the land as aforesaid shall not be valid if it is made in contravention of the provisions of any other law for the time being in force;
Provided also that such members of the family or the legal heirs shall hold the land, after the partition, on the same terms, conditions, restrictions as were applicable to such land or interest thereat therein purchased by the tenant or the person.
(1A) The sanction under Sub-section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government.
(1AA) Notwithstanding anything contained in Sub-section (1), it shall be lawful for such tenant or a person to mortgage or create a charge on his interests in the land in favour of the State Government in consideration of a loan advanced
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