Point of Law: Provisions of Section 43 of the Tenancy Act would not apply to the lands in question and hence, the showcause notice as well as the contention raised for payment of premium under Section 43 of the Tenancy Act would not arise in the case on hand. It is an admitted position that as provided in the transitory provisions being Section 7 of the amending Act of 4 of 1976, the provisions of principal act shall continue to apply to Borsad Town Planning Scheme as the said scheme came to be sanctioned before 01.01.1985 and as provided thereunder, the provisions of the principal Act shall continue to apply as if the amending Act no.4 of 1986 have not been enacted. The provisions of Amending Act of 1986 have to be read harmoniously.

JUDGMENT :

R.M.CHHAYA, J.

1. Feeling aggrieved and dissatisfied by the judgment and order dated 28.03.2014 passed by the learned Single Judge in SCA No. 6536 of 2011, the appellant State Government and its authorities have preferred this appeal under Clause 15 of the Letters Patent.

2. Following facts emerge from the record of the appeal

2.1 That one Jamnaben, predecessor in title of the respondents herein, was the original owner of land bearing Revenue Survey No. 1054/1 situated at Borsad, District Anand. As per the record of the appeal, the land in question was included in the Town Planning Scheme Area No.1 of Borsad under the provisions of Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the “Act”). As per the Town Planning Scheme, revenue survey No. 1054/1 was allotted Final Plot No. 37A, totally admeasuring 21,549 sq. mtrs. The Town Planning Scheme Borsad 1 came to be sanctioned under the provisions of Section 65 of the Act on 09.06.1983 and the said Town Planning Scheme came into force from 01.08.1983. The said fact is reflected in the certificate dated 16.09.1993 issued by the Chief Officer, Borsad Nagarpalika, being the appropriate authority under the Act. The F Form, which is forming part of the record of the writ petition indicates the said position. It is the say of the respondents that the Town Planning Scheme was sanctioned on 09.06.1983 and that it came into force on 01.08.1983, when section 121 of the Act existed in the statute, which inter alia provided that the provisions of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “Tenancy Act”) would not apply to the areas under the Town Planning Scheme. It is also a matter of record that Section 121 of the Act came to be deleted by the Act Gujarat 4 of 1986 with effect from 06.02.1986. It is the say of the respondents that as per Section 7 of the Amending Act, the provisions of principal act shall continue to apply to any scheme in respect of which a declaration of intention to make such scheme as provided under Section 41 of the principal act was declared before 01.01.1985, as if the amending act was not enacted.

2.2 The record indicates that the respondents applied for Non Agricultural use permission in respect of land bearing Revenue Survey No. 1054/1 and 1054/2, sanction of which was accorded on 03.01.1994 by the competent authority. The record further indicates that the lands in question were plotted and individual plots were sold by the owners to various interested persons and even the construction of residential houses have come up. It is a matter of record that an amount of Rs. 12,929.40 came to be paid as conversion tax on the land having been developed. The land in question came to be developed after permission was granted by Borsad Nagarpalika being local authority under the provisions of the Gujarat Municipalities Act read with the relevant provisions of the Act. The record indicates that on an application filed by Chetankumar Bhailalbhai Thakar, the District Collector, Anand issued an injunction order on 18.05.2009 contending that no premium as provided under section 43 of the Tenancy Act was paid in respect of the land in question. Such notice / order was issued after more than 15 years by the District Collector, Anand. The respondent filed their reply on 18.08.2009 inter alia stating that the residential houses have been constructed pursuant to the nonagricultural permission granted by the competent authority. It was also pointed out that several families now reside since long. It was also the case of the respondents that Section 121 of the Act was on statute at the relevant time. It is the say of the respondents that section 121 of the Act came to be deleted w.e.f. 06.02.1986. It was also asserted by the respondents that the scheme came to be sanctioned in the year 1983. It is further the case of the respondents that the land in question was included under the Town Planning Scheme before 01.