TaxTMI 
TaxTMI 
2011 (5) TMI 1082
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....SPECIAL CIVIL APPLICATION No. 13456 of 2008 With SPECIAL CIVIL APPLICATION No. 13769 of 2008 With SPECIAL CIVIL APPLICATION No. 14079 of 2008 With SPECIAL CIVIL APPLICATION No. 14085 of 2008 With SPECIAL CIVIL APPLICATION No. 14144 of 2008 With SPECIAL CIVIL APPLICATION No. 14275 of 2008 With SPECIAL CIVIL APPLICATION No. 14300 of 2008 With SPECIAL CIVIL APPLICATION No. 14520 of 2008 With SPECIAL CIVIL APPLICATION No. 15811 of 2008 With SPECIAL CIVIL APPLICATION No. 15814 of 2008 With SPECIAL CIVIL APPLICATION No. 1283 of 2009 With SPECIAL CIVIL APPLICATION No. 1286 of 2009 With SPECIAL CIVIL APPLICATION No. 1296 of 2009 With SPECIAL CIVIL APPLICATION No. 14411 of 2008 With SPECIAL CIVIL APPLICATION No. 11634 of 2008 With SPECIAL CIVIL APPLICATION No. 11373 of 2009 With SPECIAL CIVIL APPLICATION No. 12179 of 2008 With SPECIAL CIVIL APPLICATION No. 10552 of 2008 With SPECIAL CIVIL APPLICATION No. 10555 of 2008 With SPECIAL CIVIL APPLICATION No. 10831 of 2008 With SPECIAL CIVIL APPLICATION No. 10832 of 2008 With SPECIAL CIVIL APPLICATION No. 10857 of 2008 With SPECIAL CIVIL APPLICATION No. 11240 of 2008 With SPECIAL CIVIL APPLICATION No. 11457 of 2008 With SPECIAL CIVIL APPLICATION N....
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.... SHAH FOR THE PETITIONER MR KAMAL B TRIVEDI, ADVOCATE GENERAL with MR PK JANI, GOVERNMENT PLEADER with MS SANGEETA VISHEN, AGP FOR THE RESPONDENT COMMON CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) The matter relates to payment of premium of land to new and indivisible tenure and restricted tenure for transferring or change of purpose for transferring from new tenure to old tenure land i.e. agriculture purpose to non-agriculture purpose. The petitioners having challenged either the validity of Section 43 of the Bombay Tenancy & Agricultural Lands Act, 1948 [hereinafter referred to as "the Tenancy Act"] and/or the resolution dated 4.7.2008 issued by the State Government for giving effect to Section 43 and/or the rate of jantri i.e the minimum valuation of the land of one or the other areas, they were heard together and decided by this common judgment. 2. At this stage, it may be mentioned that though a number of writ petitions were heard together, but the argument was mainly advanced by 5 to 6 senior counsel, rest of the counsel adopted the same and some of them filed written submissions highlighting the merits of their individual case. Whil....
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....of a loan advanced to him by the State Government under the Land Improvement Loans Act, 1884, the Agriculturists' Loan Act, 1884, or the Bombay Non-agriculturists' Loans Act, 1928, as in force in the State of Gujarat, or in favour of a bank or co-operative society, and without prejudice to any other remedy open to the State Government, bank or co-operative society, as the case may be, in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the State Government, bank or co-operative society, as the case may be, to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such loan. Explanation, - For the purposes of this sub-section, "bank" means - (a) the State Bank of India constituted under the State Bank of India Act, 1955; (b) any subsidiary bank as defined in clause (k) of section 2 of the State Bank of India (Subsidiary Banks) Act, 1959; (c) any corresponding new bank as defined in clause (d) of section 2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970; (d) the Agricu....
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....h was enacted simultaneously with Section 32 of the Tenancy Act, is read together, then in that case, it is clear that the occupancy conferred on the tenant under Section 32 was transferable, if so permitted by the District Collector. Original Section 43 did not contain any provision for payment of any amount like premium to anybody in the eventuality of the land being transferred. It was contended that the petitioners do not challenge the constitutional validity of the provisions regarding control and regulation for transfer of occupancy conferred under Section 32 of the Tenancy Act. The challenge is only in respect of the part of the provision, which provides for payment of amount to the State Government whereby the occupancy which did not carry any burden of payment of any amount to the State Government on 1.4.1957 is materially altered by imposing restrictions regarding payment of amount to the Government initially by Amendment Act No. XVI of 1960 and further by Amendment Act No. XXX of 1977 whereby the phraseology of Section 43 is further amended by adding the word "consideration", which did not occur in Section 43 after the amendment made by Act No. XVI of 1960. In v....
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....tate of Punjab vs. Khand Chand, AIR 1974 SC 543 (ii) Delhi Transport Corpn. vs. DTC Mazdoor Congress, AIR 1991 SC 101 (iii) Bhadrappa vs. Tolacha Naik, (2008) 2 SCC 104, etc. (iv) The challenge to the constitutional validity has been made on the ground of excessive delegation of essential legislative powers. According to the petitioners, in view of the scheme of the Constitution, the legislative powers are conferred on the respective State legislation as well as the Parliament. It is the function and privilege of the legislature to legislate on the subjects incorporated in the entries in the 7th Schedule to the Constitution of India. In absence of any methodology provided under Section 43 for determination of the amount and parameters to exercise powers to determine the amount, either under Section 43 or under the Tenancy Act, Section 43 amounts to excessive delegation of essential legislative powers and, thereby, violative of Article 14 of the Constitution. Reliance was placed on the following Supreme Court decisions :- (a) Krishna Mohan (P) Ltd. vs. MCD, (2003) 7 SCC 151 (b) Bhatnagars & Co. Ltd. vs. Union of India, AIR 1957 SC 478 ....
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....d which was pending consideration before the State Government and to bring simplification in determination of valuation pursuant to one resolution instead of different resolutions as were existing, the State Government on the basis of the letter dated 31.3.2008 of the Revenue Department and circular dated 31.3.2008 of the Superintendent of Stamps, adopted common formula by the impugned resolution dated 4.7.2008. Thus, it was issued with a view to bring simplification in the method of transferring the land of new and indivisible tenure i.e. restricted tenure to old tenure i.e. from agriculture purpose to nonagriculture purpose. The relevant portion of the English version, as submitted by the petitioners, is quoted hereunder :- Regarding bringing simplification in the procedure of converting the land of new of tenure under new and impartible tenure and under the restricted tenure of Tenancy Act in to old tenure for the agricultural or Non-agricultural purpose. Government Of Gujarat Revenue Department Resolution No. NSJ-102006-571-J( Part-2) Sachivalaya Gandhinagar. Dated 04/07/2008 Preamble:- The prior permission of the Collector shall be required to be obtain....
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....oach valuation based on Jantri vide Resolution dated 20/12/2006 No. NSHJ/102006/571/J. The time of public shall be saved by its acceptance and uniformity in respect of valuation in the entire State shall be maintained. Thus, it was under consideration of the Government to bring simplification by applying the procedure of valuation based on jantri by making change in existing valuation procedure and by putting into force one resolution in this regard instead of different resolutions. -:: R E S O L U T I ON ::- On the basis of the letter No.STP/102008/174/H.1 dated 31/03/2008 of the Revenue Department, for the purpose of Stamp duty , a new Jantri has been put into force by issuing the Circular No. Stamp/ Technical/ 07/08/1512 dated 31/03/2008 with effect from 01/04/2008 by the Superintendent of Stamps, Gandhinagar. After studying and careful consideration, the Government has held that the valuation of the land of new and impartible tenure and of restricted tenure type of Tenancy Act is to be done as per the rate of Jantri (as per Annual Statements of rates-2006 and as per the amendments made from time time). By consolidating all resolutions/circulars existing instructions in....
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....cultural purpose 2 From Agriculture to the purpose of agricultural old tenure Urban Area After 15 years 20 (twenty) times amount of assessment. It shall be transferred for the purpose of agricultural at old tenure, but premium is liable to be paid for non-agricultural purpose 3 For Non-agricultural purpose The urban and rural areas After 15 years 50 % The land shall considered under old tenure after sale/transfer or change of purpose 2. The procedure of converting the land of new tenure into old tenure for the purpose of agricultural to agricultural (for the purpose of Sr. No. 1 & B(1) of the aforesaid para No.1). (A) If such lands of New Tenure and Restricted tenure under Tenancy Act have been in continuous possession for 15 year or more than it since its grant to the last date of every month, are liable to be converted into old tenure for agricultural purpose, after eliminating the entry "New & Impartible Tenure" and noting " liable for premium only for non-agricultural purpose" on its place, the Mamlatdar of concerned Taluka on his own motion shall issue such orders within 15 days and shall have to inform the concer....
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....ocedure of converting from New Tenure to Old Tenure for Non-agriculture purpose. (A) On receipt of application in prescribed form as per Appendix -I by Collector, application shall have to be forwarded to Mamlatdar office within 7 days (Seven) for scrutiny as per check list. On receipt of such application after scrutiny, Mamlatdar shall have to submit the report to Prant officer within 20 (twenty) days after making all types of scrutiny and site inspection and the Prant officer shall have to forward the report to Collector after verification within 10 days. (B) After receiving report of Mamlatdar through Prant Officer, after verifying all record, Collector shall have to take decision within 30 (thirty) days and the said decision shall have to be informed to concerned person. the calculation of the amount of premium shall have to be made as per the rate of Jantri prevailing on the date of decision. (C) If premium is to be paid as per decision of the Collector, then on getting such information the concerned person shall have to pay the amount of premium within 21 (twenty one) days. (D) After depositing amount of such premium, the Collector sh....
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....agriculture to agriculture purpose, the valuation shall be made by considering rate of agriculture Jantri prevailing in Urban and Rular area. (B) In rural area, when the land is used for non-agriculture purpose, valuation shall be made by considering rates of Jantri for that purpose. (c) In Urban area, for non-agriculture purpose, valuation shall be made after considering rates of Jantri of developed land. (d) When non-agriculture use is made for educational, social, charity or other purpose, then valuation shall be made in Rural area, by considering rate of Jantri for residential purpose and in Urban area, by considering rate of Jantri of the developed land. (e) The Collector shall have to consider rate of Jantri which are applicable to zone, ward or block where the land is situated. The rate of Jantri of other zone, ward or block shall not be considered. (f) When " rate of developed land " is not mentioned in Jantri of the area, valuation shall be made by considering the purpose and rate of prevailing Jantri of the said area. 6. Procedure for disposal of pending chapters:- (a) In the pending chapters in respect of fixing pr....
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....ot be applied. 8. On implementation of the aforesaid procedure, the resolutions/circulars mentioned in appendix-3 in toto and the resolutions/circulars mentioned in appendix-4 partly are superseded only for the part in mentioned in column -4 of the Appendix-4. In this manner, on account of superseding the resolution entirely or partly, the orders issued before 01/04/2008 shall not be affected under the provisions/ instructions of these resolutions / circulars. 9. On the basis of the policy framed vide resolution dtd. 20/12/2006 of the department for bringing in force the procedure of valuation based on new Jantri with effect from dtd. 01/04/2008, this issue with the concurrence of finance department vide their note dtd. 15/05/2008 and 27/06/2008 on this department file of even number. By order and in the name of Governor of Gujarat, [Anish Mankad] Joint Secretary, Revenue Department, State of Gujarat." 8. The learned counsel for the petitioners have assailed the aforesaid resolution on different counts, as discussed hereunder :- (i) The Tenancy Act does not provide for determination of premium on the basis of the market value. The schedule of rates ....
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....d violative of Article 14 of the Constitution of India. (iv) The Tenancy Act does not provide for recovery of the amount on every transfer of land. Thus, on transfer of land for agricultural purpose after the payment of premium of 50% of the market price, the new purchaser purchases the land and he becomes the owner and occupier in pursuance of the sale deed and, therefore, the land ceases to be a land for the new purchaser under Section 43 of the Tenancy Act. Therefore, once the permission for transfer is granted and once the premium amount is received by the State, it cannot continue to recover further premium again and again on every occasion of transfer of land. If the interpretation, as the State intends to make, is accepted, then it will amount to paying premium of 50% of the market value for transfer from agriculture to non-agriculture purpose and another premium of 80% for transfer to another person, which amounts to payment of premium @ 130%. Such interpretation if accepted it will be oppressive, arbitrary and violative of Article 14 of the Constitution of India. (v) Section 43 gives right to transfer a property, on the other hand charging unreasonable pr....
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....) The resolution dated 4.7.2008 inasmuch as it provides for decision in pending cases on the basis of the said resolution is bad being without authority as the State Government cannot give retrospective effect to its resolution; no such power has been delegated by the legislature in favour of the State Government. The impugned resolution can operate only prospectively and not retrospectively. Reliance was placed on the Supreme Court decision in the case of Orient Paper Mills vs. Union of India, reported in AIR 1970 SC 1498. (ii) In many cases, it has been pleaded that they have already made agreement with the purchasers, made applications for transfer of land in favour of others and/or for transfer from new tenure to old tenure i.e. from agriculture to non-agriculture purpose, determination has already been made by the District level Committee or the State level Committee and may be pending for approval of the State. In many cases, the applications have already been preferred prior to the resolution dated 4.7.2008, pending since long with the Collector. According to the petitioners in such pending cases, the impugned resolution dated 4.7.2008 cannot be made applicable. In ....
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....oba Shankar Dhumal vs. Mohan Lal Punchand Tathed, this Court hed : (SCC p.690, para 17) "It appears to us that the said paragraph was introduced by way of abundant caution to get over the possible objection raised on the basis of the decision in the case of Dadarao Kashiram vs. State of Maharashtra. The said paragraph is merely declaratory of what the true legal position had always been even from the commencement of the Act. The introduction of an express provision to the above effect does not have the effect of altering the true legal position as explained by us above even without the aid of such express opinion. This becomes further clear from the observations found in the decision of this Court in Raghunath Laxman Wani vs. State of Maharashtra." 12. The learned Advocate General would contend that the Tenancy Act, 1948, the Gujarat (Amendment) Act No. XVI of 1960 and the Gujarat (Amendment) Act No. XXX of 1977 have been placed at different Entry No(s). in the 9th Schedule to the Constitution of India. In view of such inclusion, the aforesaid Acts are immuned from challenge against the their constitutionality. They cannot be challenged on the ground of violation of the....
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....her provisions of the Act and the Rules, such guidelines cannot be alleged to be bad on the ground of unbridled or uncanalised power. In fact, the exercise of power if delegated under the guideline is contrary to the policy as envisaged, it would be gathered from the preamble, objects and reasons and other provisions of the Act. He placed reliance on different Supreme Court decisions, which we will discuss at the appropriate stage. 15. As far as the challenge against the jantri is concerned, the learned Advocate General would contend that none of the petitions has contained an independent and substantial challenge against the jantri dated 1.4.2008 and that, therefore, mere challenge against the jantri price in some individual cases and that too, without any substantive reasons, cannot and should not be entertained in a petition where several issues have been in controversy as discussed hereinabove. 16. He would further contend that the determination of crucial date cannot be the date of application preferred for such determination, but the date on which the actual determination is made by the authorities. He distinguished the case of Union of India vs. Mahajan Industries Ltd.....
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....ankri Prasad vs. Union of India, reported in AIR 1951 SC 458. It was as a result of the aforesaid 1st Amendment Act of 1951 that the Supreme Court in the appeal in the case of State of Bihar vs. Kameshwar Singh, reported in AIR 1952 SC 252, held that the Bihar Act has got immunity under the aforesaid constitutional provisions and hence, the same was valid and constitutional. 20. So far as the constitutionality of Section 43 of the Tenancy Act, 1948 is concerned, it will be evident that the same is a step towards a major agrarian reform and one of the main objectives thereof is to regulate and impose restrictions on the transfer of agricultural lands, etc. belonging to or occupied by agriculturists, etc. in the erstwhile Province of Bombay. This aspect will be evident from the second paragraphs of the preamble of the Act, which is set out hereunder :- "AND WHEREAS on account of the neglect of a landholder or disputes between a landholder and his tenants, the cultivation of his estate has seriously suffered, or for the purpose of improving the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture, it is expedient to assu....
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.... the words "previous sanction of the Collector", condition relating to "payment of such amount as the State Government may by general or special order determine", came to be introduced. Section 43 as it stood by virtue of the said Act No. XVI of 1960, read as under :- "43.(1) No land purchased by a tenant under section 32, 32F, 32-I, 32-O or 32-U or sold to any person under section 32P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignment or partition without previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine. (2) Any transfer of land in contravention of sub-section (1) shall be invalid." The validity of Section 43 as made by Act No. XVI of 1960 was challenged on the alleged ground that it does not lay down any guidelines for the executives in the matter of determination of "amount" i.e. "premium" before granting sanction. A Division Bench of this Court in the case of Shashikant Mohanlal vs. State of Gujarat, reported in 1970 (11) GLR 122, exhaustively discussed the objective vis-a-vis various provisions of the Act and laid down the following....
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..... 40 and that, therefore, the constitutionality thereto is immuned from challenge. 25. By insertion of the Amendment Act No. XXX of 19777, Section 43 is amended whereby amongst other things, the words "in consideration of payment of such amount ..." came to be substituted in place of the words "on payment of such amount ...". The amended Section 43 which holds the presently field reads as under :- "43.(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-I, 32-O, 32-U, 43-1D or 88EE or sold to any person under section 32P 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, therein shall be partitioned without the previous sanction of the Collector." 26. The question is whether in view of such amendment, any substantial change is made to show that the legislatures have deviated from the basic philosophy or the main object of the Act i.e. ag....
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.... 'new and impartible tenure' means the tenure of occupancy which is non-transferable and non-partible without the previous sanction of the Collector." The aforesaid preamble and the provisions are the sufficient guidelines suggesting that any amount which the State Government is to fix as a condition precedent to the grant of sanction, has obviously to be in terrorem so as to discourage such transfer, assignment, etc. of the agricultural land by tenant, who was made a deemed purchaser i.e. the owner of the land, which he was cultivating on the stipulated day. Thus, we find that there is sufficient guideline as regards philosophy on which the Act is based. Section 43 thereby cannot be considered to be bad and ultra vires on the ground that it does not lay down any guideline for fixing of premium amount. The judgments relied upon on behalf of the petitioners with reference to different State legislations do not apply in the present case. 28. In the case of Vasanlal M. Sanjanwala vs. State of Bombay, reported in AIR 1961 SC 4, the Supreme Court while upholding the provisions contains in Section 6(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, as was operative....
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....nd a limit is only a limit and not a guidance." 30. One can gather from the preamble, objects and reasons and the other provisions of the Act where legislative policy has laid down suitable guidelines or has not delegated such power giving rise to unbridled or uncanalized power has been discussed by the Supreme Court in the case of Consumer Act Group vs. State of Tamil Nadu, reported in (2000) 7 SCC 425 wherein the Court held :- "18. The catena of decisions referred to above concludes unwaveringly in spite of a very wide power bring conferred on the delegatee that such a section would still not be ultra vires, if guidelines could be gathered from the Preamble, Objections and Reasons and other provisions of the Acts and Rules. In testing the validity of such provision, the courts have to discover, whether there is any legislative policy, purpose of the statute or indication of any clear will through its various provisions. If there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalized. The exercise of power of such delegate is controlled through such pol....
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....resent case, the tenant who became a deemed purchaser, then owner, in view of the Tenancy Act, nobody is going to deprive of his property. In fact, as now development is taking place in and around the area, therefore the tenants who have now become owners of the property, they want to change the tenure from new tenure to old tenure, i.e. from agricultural to non-agricultural land. This they want for their benefit. Similarly if the restricted tenure (new tenure) is taken out, they may transfer their property to get much more what they spent taking advantage of agrarian reforms under Section 32 of the Tenancy Act. When a development is made, the owner of the property may get much more than what he would have got, if the same remained undeveloped in the process, but also get the benefit of living in a developed town having good town planning. Such was the observation of the Supreme Court in the case of State of Gujarat vs. Shantilal Mangaldas, reported in (1969) 1 SCC 509. 35. Section 43 of the Tenancy Act, where restriction has been put by asking to pay premium in case of transfer of nature of the land from new tenure to old tenure i.e. from agriculture to non-agriculture or for t....
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....that the earlier procedure to assess the price of the land through the District level committee or State level committee at different stages used to consume much time, in absence of any time limit fixed for assessing the price. Considering the aforesaid aspect and the State Government's policy to make easy implementation of the transfer of land from new tenure to old tenure i.e. agriculture to non-agriculture, it was decided to accept approach valuation as made by resolution No. NSHJ/102006/517/J dated 20.12.2006 i.e. jantri. Pursuant to the letter dated 31.3.2008 of the Revenue Department which relates to stamp duty, the jantri was given effect from 1.4.2008. It has not been accepted in toto, will be evident from the impugned resolution dated 4.7.2008. For example, for transfer of land from agriculture to old tenure in rural areas after 15 years, the rate of premium has been fixed at "zero". However, such rate for transfer from agriculture to old tenure in urban areas after 15 years, the rate has been fixed at 50%. For transfer from agriculture to non-agriculture in such area after 15 years has been fixed at 80%. Therefore, if the agricultural land is in rural area, and is s....
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.... 9 filed in Special Civil Application No. 10832 of 2008, has stated as under :- "9. It is submitted that so far as the new Jantry (Annual Statement of Rates-2007) is concerned. The same is decided after scrupulously followed all the procedure and also considered the objection raised by the concerned person. It is submitted that the authority has also taken assistance/guidance of technical agency. It is submitted that before finalizing the new Jantry, the State Authority had undertaken sitewise survey and lso considered the sale transactions of last 3 years as well as considered the market value fixed by the District Level Valuation Committee and State Land Valuation Committee. It is submitted that initially the authority has prepared draft Jantry and the same was published in local daily and the authority has invited objections/suggestions from the affected persons. It is submitted that in view of the advertisement published by the authority, the authority has received more than 4,000 objections and the authority has appointed expert committee to consider such objections in view of the draft Jantry. Thereafter, ultimately, the final Jantry was prepared and the same was mad....
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....ities or the District level committee or the State level committee. In some of the cases, it is stated that the District level committee or the State level committee has already determined the premium, but the Collector has not granted permission. Therefore, according to them, the crucial date for determination of the premium should be the date of application. In this connection, we may only observe that under Section 43, there is a restriction on transfer of land purchased or sold under the said Act. No land or any interest therein purchased by a tenant under Sections 17B, 32, 32F, 32-I, 32-O, 32-U, 43-ID or 88EE can be transferred by any tenant, owner, by sale, gift, mortgage, lease or assignment without the previous sanction of the Collector. In each case, it is to be seen as to the place where such land is situated i.e. in the urban area or in the rural area. If it is in the urban area, then it is to be ascertained whether the land falls within the municipal area or the area under the Urban Development Authority or Mahanagarpalika or notified area or cantonment area. Collection of all such facts takes much time as thorough inquiry is to be made and then to give finding. Therefo....