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2014 (2) TMI 1339
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....e 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....
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....84, or the Bombay Non- Agriculturists' Loans Act, 1928, as in force in the State of Gujarat, or in favour of a bank or cooperative 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 Agricultural Refinance and Development Corporation, established under the Agricultural Refinance and Development Corporation Act, 1963. (....
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....prior permission of the Collector/Government is required to be obtained for transfer, change of purpose or partition of the rented land (including the land allotted to the Ex-armymen), and the land granted or re-granted under different tenure and under Inami Abolition Act allotted for the agricultural purpose vide different resolutions of the Government and land reserved for cattle. The State Government has implemented the policy in respect of converting such land in old tenure so that there may be simplification in transfer of land known as new tenure and in other transaction. According to the resolution No.JMN/3997/83/A dated 15/01/98 of the department, at the time of granting such land wherein the interest of Government is included for non-agricultural purpose, the procedure of the assessment of the value of the land is being conducted through the Committee at District Level and Sate Level. Much time is consumed in this procedure of assessment of value at the various stages and the time limit is not prescribed for assessment of value. Considering all these facts, the State Government had decided to adopt the approach valuation based on Jantri vide Resolution dated 20/12/2006 ....
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....tenure, but premium is liable to be paid for non-agricultural purpose 3 For Non-agricultural purpose The area of the entire State After 15 years 80 % The land shall be considered of old tenure after sale/ transfer or change of purpose The aforesaid policy shall be equally applied in the entire State except the exception of the following (A) and (B). (A) At the time of transfer, when the land of rural area of new and impartible tenure or restricted type of tenure is allotted as a gift or present to the Educational or Charitable institutes for nonagricultural purpose, 50% amount shall be recovered as premium. (B) The following rates shall be applicable to the land holding under Kutch Inami Abolition Act and new and impartible tenure. Sr. No Purpose Area Tenure of possession Rate of premium Transfer at which Type of tenure 1 2 3 4 5 6 1 From Agriculture to the purpose of agricultural old tenure Rural Area After 15 years Zero It shall be transferred for the purpose of agricultural at old tenure, but premium is liable to be paid for non-agricultural purpose 2 From....
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.... letters in column of tenure and other rights of Village Form No.7/12. (E) If breach of tenure is committed in the land, the procedure for breach of tenure shall be initiated towards such land instead of converting them into old tenure. (F) Moreover at the time of granting such permission if there is any encumbrance upon the land, then the abovementioned concerned officer shall have to issue orders accordingly by granting permission of transfer in old tenure including encumbrance. (G) In the context of lacuna in respect of the order issued for converting the land of new tenure including Tenancy Act into old tenure for agricultural purpose or the mutation in that regard, the competent authorities shall have to conduct the revision proceedings as per the standing instructions issued by the Government. (H) The above mentioned procedure shall have to be reviewed in the meeting of Revenue officers held by the Collector every month. (I) In the case of breach of tenure, for this purpose, 15 (fifteen) years shall have to be reckoned from the date of order of regnant issued lastly. 3. Procedure of converting from New Tenure to Old Tenure for Non-agricultural purpose. ....
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....phan House etc. then such institution shall have to be considered as Charitable Institution. (G) The check list regarding chapters to be given for prior permission at the Collector level and departmental level shall have to be prepared as per Schedule-2 of herewith. The Collector can call for check list and necessary information if he deems fit. 4. Delegation of Powers:- (A) Now premium is required to be recovered on the basis of Jantri, all powers of all area of district shall be vested with Collector. (B) Instead of forwarding of the present the chapter regarding valuation of more than Rs. 50/- lacs to Government, the chapters regarding valuation of more than Rs. 1 crore shall have to be forwarded to Government for prior permission. (C) As per above 4(B), the permission shall have to be granted by making verification of record at department level entirely in respect of the chapter received by the department and by obtaining the consent of the government. 5. Regarding considering rates of Jantri: (A) When sale is required to be made from agriculture to agriculture purpose, the valuation shall be made by considering rate of a....
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....nd applying the price of Jantri. (f) The chapters sent back from the state level to the district level for compliance, shall not be sent back in the department, but as per above instruction, the Collector shall have to dispose the chapters by deciding the price on the basis of Jantri. (g) In the cases where the chapters have been received at the State level and necessity arises for compliance on the basis of the record, the chapters of the amount upto Rs. 1/- (one) crore, shall be disposed in accordance with rules by returning the chapter and by making complete verification at the Collector level as per the check list and by returning the chapters be returned. (h) In the chapters remained pending at the district and the state level also, in all cases wherein the permission order is required to be issued after 1- 04-2008 also, the orders shall have to be issued by deciding the premium as per Jantri. 7. In the cases of land allotted under gifting of land (bhoo-dan) and under The Gujarat Agriculture Land Ceiling Act, 1960, any provision of this resolution shall not be applied. 8. On implementation of the aforesaid procedure, the resolutions/circulars m....
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....der the State. It was argued before the said Division Bench that this section does not lay down any guidelines. However, the High Court held that the amount as introduced under the Amendment was the charge which the State was seeking, for permitting the transfer since the occupancy right as such was not transferable as of right. 8. The validity of the above amendment of 1960 came up for consideration before the Supreme Court in the case of Patel Ambalal Gokalbhai Vs. State of Gujarat reported in 1982 (3) SCC 316. This Court held that the Amendment was protected under the 9th Schedule to the Constitution, and therefore immune from any challenge. Subsequently, by Amendment Act No. XXX of 1977, the words "in consideration of payment of such amount..." came to be substituted in place of the words "on payment of such amount..." Thus, the section now permits such a transfer by the tenant after the appropriate amount as determined by the State Government by a general or special order is paid by way of consideration, and only after a previous sanction is obtained from the Collector for effecting the transfer. Thus, the State Government has to lay down by general or special order the pay....
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....all be deprived of his property save by authority of law. Such high premium is arbitrary, unreasonable and unconscionable. It is also pointed out that the applications for transfer are not decided quickly enough. They are kept pending for a long time, whereby, the agriculturists seeking to transfer the land suffers. 11. If we take two of the twelve cases which are before us, we can see the submissions advanced on behalf of the appellants in a factual matrix. In Civil Appeal No.4129/2012 the appellant Savitaben represented by Mr. Ahmedi is an agriculturist in Surat. She made an application for conversion for non-agricultural purpose on 16.4.2003. She is having a land admeasuring about 4,875 sq. mts. at plot No. 65 in revenue survey no. 90. Another application in the same survey no. was decided on 4.7.2005 at the rate of premium of Rs. 700 per sq. mts. The above referred Resolution came to be passed on 4.7.2008. Her application though made earlier, was not decided until then. It was decided thereafter, and she was asked to pay the premium at the rate of Rs. 12000 sq. mts by order dated 7.8.2008 passed by the Collector on the basis of circle rates. The case of one Kashiben, repr....
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....ters must be taken within reasonable time. In the facts of that case it was held that it must be arrived at within 90 days. 14. On the concept of reasonableness, reliance was placed on paragraph 38 of the judgment in K.B. Nagur, M.D. (Ayurvedic) Vs. Union of India reported in 2012 (4) SCC 483. It was held therein that when no specific time limit is provided for taking the decision, the concept of reasonable time comes in. It was submitted that good governance required a timely decision and for that judgment of this Court reported in Delhi Airtech Services Pvt. Ltd. Vs. State of Uttar Pradesh reported in 2011 (9) SCC 354 relied upon. (It was also submitted that Section 43 should be read alongwith Section 69 of the Act.) The period for decision making should at the highest be 90 days from the date of application. Reply on behalf of the respondents 15. Mr. Nariman, learned senior counsel appearing for the respondents submitted that essentially the amount which was being charged under Section 43 (as it stands now) was by way of consideration for the permission to transfer the agricultural land for non agricultural purpose. This amount which was being charged was a premium to b....
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....ating personality or for any non-agricultural purpose, he could after giving notice and making an application for possession as provided in Section 31, sub-section (2), terminate the tenancy of the tenant subject to the conditions set out in Sections 31-A to 31-D but if he did not take steps for terminating the tenancy of the tenant within the time prescribed in Section 31, the tenant became the deemed purchaser of the land on 1st April 1957. If the landlord gave notice and made an application for possession within the time prescribed in Section 31, the tenant would not become the deemed purchaser of the land on 1st April 1957 but he would have to await the decision of the application for possession and if the application for possession was finally rejected, he would be the deemed purchaser of the land on the date on which, the final order of rejection was passed. Now if the tenant becomes deemed purchaser of the land, there would be no difficulty, for the intermediary landlord would then be eliminated and direct relationship would be established between the State and the tiller of the soil. But what is to happen if the tenant expresses his unwillingness to become deemed purchaser ....
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....t in the language used in the section that the payment contemplated is payment to the State Government. It must be remembered that the State is theoretically the owner of all land; all occupants hold under the State. If an occupant is not entitled to trnasfer his land without the permisson of the State, the state can very well say that the permission to transfer the land would be granted only if he pays a premium to the State as the sovereign owner of the land. As a matter of fact, such a provision is to be found in Section 73-B of the Bombay Land Revenue Code, 1879. That section which was introduced in the Code with retrospective effect by Gujarat Act 35 of 1965 provides that where any occupancy, by virtue of any conditions annexed to the tenure by or under the Code is not transferable or partible without the previous sanction of the State Government, the Collector or any other officer authorised by the State Government, such sanction shall not be given except on payment to the State Government of such sum as the State Government may by general or special order determine. The Legislature has also similarly provided in Section 43 that if the tenant who is otherwise under an inhibit....
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.... (3) Nothing in [sub-sections (1) and (2)] shall apply to any land- (a) the commutation settlement in respect of which provides expressly that the land appertaining to the watan shall be alienable without the sanction of the State Government; or (b) which has been validly alienated with the sanction of the State Government under section 5 of the Watan Act. Explanation-For the purpose of this section the expression "holder" shall include- (i) all persons who on the appointed day are the watandars of the same watan to which the land appertained, and (ii) in the case of a watan the commutation settlement in respect of which permits the transfer of the land appertaining thereto, a person in whom the ownership of such land for the time being vests. (emphasis supplied) 19. This Section 4 came up for consideration before a bench of three Judges of this Court in Nagesh Bisto Desai (supra), and in paragraph 43 this Court approved the scheme of the Section under which the transfer is subject to the sanction of the Collector, and on payment of requisite amount. This paragraph reads as follows:- 43. It still remains to ascertain the impact ....
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....29/2012. The fact however, remains that the Section speaks of previous sanction. As noted earlier, Section 4(2) of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950 also speaks about the previous sanction. Thus, this is the theme which runs through all such welfare agricultural enactments, and a similar provision in the said Act has been left undisturbed by the bench of three Judges of this Court. Therefore, the Jantri rate to be applied will be on the date of the sanction by the Collector, and not on the date of the application made by the party. 22. Rule 25C of the Rules framed under the Bombay Tenancy and Agricultural Lands Act, 1948, was relied upon by the appellants. It speaks about the circumstances in which, and conditions subject to which sanction shall be given by the Collector under Section 43 for transfer. The rule was relied upon by the appellants to submit that Government cannot charge any disproportionate amount under Section 43. The rule however, does not create any such restrictions on the provisions under Section 43. In fact, the rule makes it clear that transfer of an agricultural land for non-agricultural purpose is not easy. It is only sub-clause ....