Chandreshbhai Somabhai Patel vs Special Secretary (Appeals) and Another

Rajesh H. Shukla, J.—The present petition has been filed by the petitioner under Articles 14, 19(1)(g), 21, 300A, 226 & 227 of the Constitution of India as well as under the provisions of the Bombay Land Revenue Code, 1879 (''the Code'' for short), for the prayers, inter alia, that appropriate writ, order or direction may be issued to quash and set aside the order passed by the Secretary(Appeals), Revenue Department dated 03.08.2011 at Annexure-I in purported exercise of powers u/s 211 of the Code on the grounds stated in the petition. Heard learned Counsel Shri A.J. Patel for the petitioner and learned AGP Shri Bharat Vyas for the Respondent Nos. 1 and 2.

Learned Counsel Shri A.J. Patel referred to the papers and submitted that land bearing Survey Nos. 391/1, 391/2, 391/4 admeasuring about 11545 sq. mtrs., belonging to the petitioner and NA permission was applied, which was granted on 24.04.2006. Thereafter, the plans for development and construction of the society or residential premises were submitted on 15.07.2006 to the AUDA. However, in purported exercise of powers u/s 211 of the Code, show-cause notice at Annexure-E came to be issued on 01.04.2010, which has led to filing of the present petition. Learned Counsel Shri Patel has submitted that this show-cause notice was given to the petitioner to show cause as to why the NA permission, which has been granted, should not be cancelled for the reasons mentioned therein. He pointedly referred to the show-cause notice and submitted that it is alleged that the premium has not been paid for NA use and thereafter the order at Annexure-I has been issued. Learned Counsel Shri Patel submitted that the issue with regard to the payment of premium of the land and violation any condition of NA would not arise, as the Form No. 6 produced on record showing that different plots were merged or consolidated together, for which the petitioner cannot have any say. He, therefore, submitted that the exercise of powers at such a belated stage is without any justification. He has also submitted that after the NA permission has been granted, development has been made and thereafter, the land in question was sold and the construction has been made, resulting into intervention of the third party rights. He, therefore, submitted that such exercise of powers at such a stage is without any jurisdiction.

Learned Counsel Shri Patel has also referred to the judgment of the High Court reported in Mali Amrutlal Becharbhai and Others Vs. The District Collector of Banaskantha and Others, in the case of Mali Amrutlal Becharbhai & Anr. v. District Collector, Banaskantha and anr., and submitted that as observed that the question of transfer or failure would not arise and if the permission has been granted validly by the authority for NA use, the exercise of powers u/s 211 of the Code is without any justification. He submitted that once the NA permission has been granted, the restriction or the transfer on the land, would not have any applicability. Learned Counsel Shri Patel referred to the judgment of the High Court reported in Bochasanwasi Shri Akshar Purushottam Sanstha by his Pramukh Vs. Thakore Umedji Nanaji and Others, in the case of Bochasanwasi Shri Akshar Purushottam Sanstha by his Pramukh v. Thakore Umedji Nanaji and Ors., in support of his submission and submitted that as observed in this judgment, "Once the land has already been converted into NA use, restriction u/s 63 of Tenancy Act would cease to operate and consequent transfer could not be said to be hit by provisions of Tenancy Act". He therefore submitted that in light of this judgment, there is no justification. Further, learned Counsel Shri Patel submitted that powers have to be exercised within a reasonable time and in the facts of the case when the NA permission has been granted in the year 2006, construction has been made, BU permission has also been obtained in December, 2008 and thereafter, the show-cause notice has been issued dated 01.04.2010, and therefore, this is beyond reasonable period. In support of his submissions, he has also referred to the judgment of the Hon''ble Apex Court reported in 2008 AIR SCW 8172 in the case of Shiv Shankar Mandil & Ors. with State of M.P. & Ors. v. Shiv Shankar Mandil & Ors. Similarly, he has also referred to the judgment of the Hon''ble Apex Court reported in Shri Santoshkumar Shivgonda Patil and Others Vs. Shri Balasaheb Tukaram Shevale and Others, in the case of Shantoshkumar Shivgonda Patil & Ors. v. Balasaheb Tukaram Shevale & Ors. He, therefore, submitted that present petition may be allowed.

Learned AGP Shri Bharat Vyas has referred to the papers and submitted that the transfer of the land in question is violating the provisions of Section 73-B of the Code and Rule 37 of the Code. He pointedly referred to the provisions and submitted that such a transfer of agriculture land without permission and payment of premium for such a use is prohibited. He submitted that there is no evidence produced on record with regard to payment of any premium. He has also referred to the record to suggest that the land was impartible as shown in the revenue record, therefore, it was impartible land for which the premium was required to be paid, which has not been paid. He has submitted that therefore the exercise of powers u/s 211 of the Code pursuant to the notice dated 01.04.2010, cannot be said to be beyond reasonable period or after delay. He submitted that within about a year the show-cause notice has been issued and thereafter, the order came to be passed, therefore there is no inordinate delay, which would attract the judgments cited by learned Counsel Shri Patel. He, therefore, submitted that the present petition may not be entertained.

In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.

The issue involved in the present petition is the aspect of the exercise of powers and also the fact whether such permission is required for that purpose or not. Some disputed facts themselves are required to be noted. The land in question is purchased by the petitioner by sale-deed in the year 2005, NA permission has been granted on 24.04.2006, thereafter the plans were submitted to AUDA on 15.07.2006. After the construction has been made, BU permission has been granted in December, 2008. Admittedly, pursuant to the correspondence, which is on record at Annexure-R-II, where the Collector has addressed a letter to the District Development Officer for sending a report and on the basis thereof, the District Development Officer communicated to the Secretary (Appeals) for taking the matter into revision, which ultimately, resulted into show-cause notice dated 01.04.2010. Therefore, it is this background of facts, which is required to be noted.

The issue with regard to violation of the provisions particularly Section 73-B of the Code, which provides for payment of premium for sanctioning transfer or partition of occupancy, which is required to be considered. Section 73-B provides as under:

73B. Payment of premium for sanctioning transfer or partition of occupancy--Where any occupancy, by virtue of any conditions annexed to the tenure by or under this Act, is not transferable or portable 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.

Therefore, it provides that sanction cannot be given by the authority except on payment to the State Government of such sum (premium), which is attached to the tenancy of the land. However, as stated above, this issue could have been considered for the purpose of payment of premium either before the grant of NA permission or when different plots were consolidated and merged together. As submitted by learned Counsel Shri Patel that the land including the transferred land, which has been consolidated and merged by the authority, in light of the exercise of powers, it would loose its identity and character and it would not be possible for any kind of criteria for the assumption of premium. Therefore, the submission made by learned Counsel Shri Patel with regard to grant of NA permission, when the land itself has changed its character and identity, in such a condition the exercise of powers u/s 211 cannot be justified for payment of premium for cancellation of the NA permission.

In any view of the matter, as it has been observed in a judgment of the High Court reported in Bochasanwasi Shri Akshar Purushottam Sanstha by his Pramukh Vs. Thakore Umedji Nanaji and Others, in the case of Bochasanwasi Shri Akshar Purushottam Sanstha by his Pramukh v. Thakore Umedji Nanaji and Ors., that "Once the land has already been converted into NA use, restriction u/s 63 of Tenancy Act would cease to operate and consequent transfer could not be said to be hit by provisions of Tenancy Act". In the same way in all conversion of land by grant of NA, the payment of premium is a condition for the purpose of permitting such use or transfer and therefore, it cannot be a matter of scrutiny subsequently, after development has taken place creating rights in favour of the third party as stated. It is in these circumstances, the impugned order passed by the authority cannot be sustained. Therefore, the issue with regard to exercise of powers within reasonable time or beyond is not required to be discussed and accordingly is not relevant. Therefore, in view of this settled legal position, the present petition deserves to be allowed and accordingly stands allowed in terms of Para No. 15(A). The impugned order passed by the Secretary (Appeals), Revenue Department at Annexure-I cancelling the NA permission is hereby quashed and set aside. The NA permission dated 24.04.2006, granted earlier, shall stand restored. Rule is made absolute. No order as to costs.