Point of Law:
Circular / resolution dated 20th December, 1965 issued by the State Government in its Revenue Department which has clarified that if the occupants of the land for the purpose of better cultivation or for providing better facilities viz. constructing a well or house and for the said activities, if he is making a provision of brickkiln, the same is to be considered as an agricultural activity; however, if the bricks are being used for commercial purpose or for any other purpose, the same is to be considered as a non-agricultural purpose and accordingly, necessary steps shall be taken in that behalf. Thus, the State Government itself has formulated a policy considering the fact that if the bricks produced from the brickkiln are used for the purpose of constructing well, making house or for improvement of the land, the same be considered to be an agricultural activity.

JUDGMENT :

1. The present petition has been filed under Article 226 of the Constitution of India, inter alia praying for quashing and setting aside the order dated 14th December, 2004 passed by the Secretary, Sabarkantha District Panchayat & District Development Office, Sabarkantha District Panchayat, Himmatnagar as well as the order dated 25th January, 2006 passed by the Principal Secretary (Appeals), Revenue Department. By the order dated 25th January, 2006, the Principal Secretary (Appeals), Revenue Department, has rejected the revision application filed by the petitioner challenging the order dated 14th December, 2004. By the said order dated 14th December, 2004, the Secretary, Sabarkantha District Panchayat & District Development Officer, has while regularising the brickkiln of the petitioner, imposed 20 times assessment as a penalty.

2. Tersely stated are the facts:-

2.1 The petitioner is the owner of the land bearing Survey Numbers 74/1, 74/2, 74/3 and 74/1/2 at Village Vadiyavir, Taluka: Idar, District Himmatnagar. The petitioner was desirous of putting up construction of the house in one of the survey numbers and thus, for the said purpose, needed soil for manufacturing of the bricks. The petitioner has made one lac bricks from the said brickkiln and the same were utilised for the purpose of constructing the house in one of the aforesaid land bearing Survey Numbers 74/2, admeasuring 3238 sq.mtrs. 2.2 The Secretary, Sabarkantha District Panchayat & District Development Officer, had passed an order dated 14th December, 2004 regularising the brickkiln by imposing penalty of 20 times the assessment as per the Government Resolution dated 20th September, 1984. In the said order, reference has been made to a decision taken by the District Panchayat, Sabarkantha vide resolution number 651 dated 18th November, 2004. It is in the said meeting, a decision was taken by the District Panchayat of imposing penalty of 20 times the assessment as per the Government Resolution dated 20th September, 1984 for regularising the brickkiln.

2.3 Being aggrieved and dissatisfied, the petitioner preferred a revision application under the provisions of Section 211 of the Gujarat Land Revenue Code (hereinafter referred to as “the Code”) before the Principal Secretary (Appeals), who vide his order dated 30th January, 2006, rejected the revision application and confirmed the order dated 14th December, 2004 passed by the Secretary, Sabarkantha District Panchayat & District Development Officer.

2.4 Being aggrieved by the aforesaid two orders dated 14th December, 2004 as well as 25th January, 2006, the petitioner has preferred the present petition with the aforementioned prayers.

3. Mr. Vishrut Jani learned Advocate for the petitioner, submitted that the activity which was undertaken by the petitioner was for constructing house for his personal use over the land bearing Survey No.74/2. The petitioner under a bona fide belief that the activity of making the bricks from the brickkiln, being for the purpose of constructing house, no permission was required. It is further submitted that even if one peruses contents of the Government Resolution dated 20th December, 1965, it categorically provides that if any activities, viz. improvement of the land, construction of well, or construction of the house, and if for the said purposes, the owner of the land make a provision of brickkiln for making the bricks, such activities cannot be construed as a non-agricultural activity. It is thus submitted that looking to the provisions of the Government Resolution dated 20th December, 1965, no permission is required for the said purpose. Under the said belief, the petitioner without taking any permission had made the provision for brickkiln and the bricks produced thereof were utilised in the construction of the house. It is further submitted that since no permission was required by virtue of the provisions of the Government Resolution dated 20th December, 1965, there arises no