MALI AMRUTLAL Vs. DISTRICT COLLECTOR B K

JUDGEMENT

(1.) The petitioners are the owners and occupiers in respect of the land bearing Survey Nos. 608+609+610/11 admeasuring 0 Acre 11 Gunthas situated in the town of Palanpur, District Banaskantha. The petitioners are permanent tenants of the said land since former State of Palanpur. The said land was awarded to the petitioners under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. On an application by the petitioners to convert the land admeasuring 1161-05 sq. metres out of the said land to non-agricultural one, the Collector by his order dated 2/05/1989 granted N. A. permission in respect of the said land, on the terms and conditions set out in that N. A. permission order. The Special Secretary, Land Revenue Department (Appeals) invoking the provisions of Sec, 211 of the Bombay Land Revenue Code, issued notices dated 23/08/1989 to the petitioners to show cause why the N.A. permission granted in their favour should not be cancelled. The petitioners showed cause contending, inter alia, that the N.A. permission order by the Collector was just and legal. The learned Additional Chief Secretary, Revenue Department (Appeals), Government of Gujarat, however, by the impugned order, quashed and set aside the order for N.A. permission. The petitioners have challenged the legality and validity of the impugned order in this petition.

(2.) Mr. M. C. Bhatt, learned Advocate for the petitioners, contended that under Sec. 65 of the Bombay Land Revenue Code, the petitioners were entitled to apply for necessary permission to convert the land into one for non-agricultural use and the Collector having got processed and after considering the relevant aspects, has granted the application of the petitioners. Mr. Bhatt further submitted that the learned Additional Secretary (Revenue) could not have invoked the provisions of Sec. 43 of the Bombay Tenancy Act, inasmuch as the petitioners did not intend to transfer the land in question. Section 43 of the Bombay Tenancy Act provides for restriction on transfer of the land purchased under the Act. Under that provision, no land or any interest therein purchased by a tenant under the various sections mentioned therein or sold to any person under Sec. 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. In the instant case, it is none of the cases of the petitioners to transfer the landby sales, gift, exchange, mortgage, etc. There was, therefore, no question of obtaining previous sanction of the Collector, as contemplated under Sec. 43 of the Bombay Tenancy Act. In this connection, Mr. Bhatt relied upon the case of Shanabhai v. Collector of Kheda, 1989 0 GLT 29. The facts and the ratio of the said case squarely apply to the present case.

(3.) Mr. Dhaval Dave, learned Assistant Government Pleader, appearing for the respondents, submitted that if the agricultural land is permitted to be converted into non-agricultural use, the entire object of the Bombay Tenancy Act would be frustrated and Sec. 43 of the said Act is attracted in the facts of the present case. I am afraid, I cannot accept the submission of Mr. Dave. It is not the case of transfer of the land. Section 43 of the Bombay Tenancy Act imposes restriction on transfer of land purchased or sold under the Bombay Tenancy Act. Mr. Dave could not point out that a small piece of land has not been converted by the petitioners with a view to transfer the same. There is no material on record to suggest it.