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TMI Blog2014 (2) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The intention of the statute is reflected in Section 43, and if that is the intention of the Legislature there is no reason why the Courts should depart therefrom while interpreting the provision. Jantri rates - Held that:- 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. Rule 25C of the Rules makes it clear that transfer of an agricultural land for non-agricultural purpose is not easy. It is only sub-clause (e) thereof under which such a transferor will have to make his case which is when a transfer is sought for a bonafide purpose. Even so, this does not absolve one from taking any prior sanction. It will only mean that if the application is bonafide, normally the transfer will be sanctioned, because as such there is no right to insist on a transfer for non-agricultural purpose. Period for considering the application, and granting the sanction - Held that:- Such application cannot be kept pending indefinitely, and therefore we would expect the Collector to decide such applications as far as possible within 90 days from the receipt of the application - In the event the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these Civil Appeals are by and large similar, though there are some additional points in some of these Civil Appeals depending upon the facts of each of those cases. 3. Mr. Huzefa Ahmadi and Mr. P.H. Parekh, both senior counsel, and Mr. Bharat Patel, learned counsel, have amongst others appeared for the appellants. Mr. Rohinton Nariman, senior counsel and Ms. Hemantika Wahi have appeared for the State of Gujarat and its officers to defend the impugned judgment. 4. The above referred Section 43 of the Tenancy Act reads as follows:- 43. Restriction on transfers of land purchased or sold under this Act.- (1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32-I, 32-O, 32U, 43-ID or 88E 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, there shall be partitioned without the previous sanction of the Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchased under section 32, 32F or 64 by a permanent tenant thereof, if prior to the purchase, the permanent tenant, by usage, custom, agreement or decree or order of a court, held a transferable right in the tenancy of the land. (2) Any transfer or partition, or any agreement of transfer, or any land or any interest therein in contravention of sub-section (1) shall be invalid. 5. The English version (as incorporated in the impugned judgment) of Gujarat Government Resolution dated 4.7.2008 to give effect to this section, and which resolution lays down the rates of premium reads as follows:- Regarding brining simplification in the procedure of converting the land of new tenure under new and impartible tenure and under the restricted tenure of Tenancy Act into 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 obtained after making payment of the consideration prescribed by the State Government, by issuing special or general order for transferring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 O N ::- 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 to time). By consolidating all resolutions/circulars existing instructions in respect of valuation, it has been decided to follow the following procedure. 1. The new policy of the rates of premium for converting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. (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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stead of forwarding of the present the chapter regarding valuation of more than ₹ 50/- lacs to Government, the chapters regarding valuation of more than ₹ 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 agriculture Jantri prevailing in Urban and Rural area. (B) In rural area, when the land is used for nonagriculture 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 Janri 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 payment which is required to be made for such a transfer. If the agriculturist is seeking such a transfer, he has to make the necessary payment, and the transfer will be permitted only after a prior sanction is obtained from the Collector. The transfer is however not by way of a right. 9. As far as the determination of this amount is concerned, the same was earlier entrusted to the District Level Committee or the State Level Committee as per the Government Resolution dated 15.1.1998. However, the Government found that much time used to be consumed for determination of this price at different stages. Besides, uniformity had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricultural 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 ₹ 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 ₹ 12000 sq. mts by order dated 7.8.2008 passed by the Collector on the basis of circle rates. The case of one Kashiben, represented by Mr. Bharat Patel, is similar. She is the appellant in Civil Appeal No.4130/2012, and is having her property at Vadodara. It is her submission that because of the application of this Resolution, exorbitant amount is being sought. The application is not being decided in reasonable time. The land is being wasted and is being used by other people for dumping garbage. 12. It was submitted on behalf of most of the appellants that the land was in the possession and cultivation of their family from their forefather s time, and they had a stake in the land. It was submitted by them that they had paid the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 be paid to the State, and this is because the land theoretically belongs to the State, and all the cultivators are holding the land under the State. The kind of authority which the tenant acquired after making the necessary payment for purchase of the land under the statute was to cultivate the land himself. The land was not to be put to non agricultural use, or else the tenant would lose the land under the provision of the statute, and it would be given to those who needed it for personal cultivation. In his submission, the premium was therefore justified. He informed us that after the impugned judgment of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril 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 of the land? The Legislature said that in such a case the tenant cannot be permitted to continue as a tenant he would have to go out of the land. If the tenant is permitted to continue as a tenant, the object and purpose of the enactment of the legislation, namely, to eliminate the middleman, would be defeated. The Legislature therefore, provided in Section32-P that if the tenant expresses his unwillingness to become deemed purchaser of the land and the purchase consequently becomes ineffective, the Collector shall give a direction providing that the tenancy in respect of the land shall be terminated and the tenant su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective 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 inhibition to transfer, wnats to transfer the land, he shall do so only on payment of such amount as the State Government may by general or special order determine. That is the charge which the State makes for permitting transfer where the occupancy is not transferable as of right. It is no doubt true that the words to the State Government are not to be found after the word payment in Section 43 but that does not make any difference. These words were perhaps not explicity used by the Legislature as the Legislature might have felt that even without these words the meaning of the section was reasonably clear 18. The above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 of Sub-section (2) of Section 4 of Act No. 60 of 1950 and Sub-section (3) of Section 7 of Act No. 22 of 1955, and the question is whether the occupancy of the land regranted under Sub-section (1) of Section 4 of the former Act and Sub-section (2) of Section 7 of the latter Act is still impressed with the character of being impartible property. All that these provisions lay down is that the occupancy of the land regranted under Subsection (1) of Section 4 of the former Act shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may, by general or spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (e) thereof under which such a transferor will have to make his case which is when a transfer is sought for a bonafide purpose. Even so, this does not absolve one from taking any prior sanction. It will only mean that if the application is bonafide, normally the transfer will be sanctioned, because as such there is no right to insist on a transfer for non-agricultural purpose. 23. As far as the levy of the 80 per cent of the amount is concerned, it was submitted that it was unconscionable, and it would mean expropriation, and will be hit by Article 300A of the Constitution. Once we see the scheme of these provisions, in our view, no such submission can b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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