LAWS(BOM)-1997-9-6

STATE OF GOA Vs. ZARINA ABDULALI KARMALI

Decided On September 12, 1997
STATE OF GOA Appellant
V/S
ZARINA ABDULALI KARMALI Respondents

JUDGEMENT

(1.) THE present petition arises from the order passed by the respondent No. 3, Administrative Tribunal, on 1-6-1995 whereby the Tribunal set aside the order dated 18-10-1988, passed by the Dy. Collector and S. D. O. Ponda, Sub-Division, Ponda.

(2.) THE controversy in the present petition relates to Survey Nos. 188/1 and 188/4 of Ponda, belonging to respondent No. 1 and classified as "cultivable (Bharad)" land in the Record of Rights of Ponda town prepared pursuant to the new survey. The property bearing Survey No. 188/1 admeasures 15,950 sq. metres and Survey No. 188/4 admeasures 1500 sq. metres, in area, out of which 900 sq. metres and 200 sq. metres, respectively, are shown as "uncultivable" area being occupied by the houses. On receipt of report from the Mamlatdar of Ponda, dated 29-7-1988. that on an area of 2640 sq. metres in the property bearing Survey No. 188/1 some construction work was going on, the Dy. Collector, Ponda issued notices dated 3-8-1988 to the respondents Nos. 1 and 2 informing that there was unauthorised use of agricultural land to non-agricultural purpose in contravention of sections 30 and 32 of the Land Revenue Code in regard to Survey No. 188/1 of Ponda, without obtaining prior permission for such change of use of land. By the said notice, the respondents Nos. 1 and 2 were called upon to show cause why the penalty should not be levied as provided in section 33 of the Land Revenue Code and the Rules framed thereunder and further as to why the restoration of land to its original use should not be ordered. In reply dated 16-8-1988, the respondent No. 2 raised various contentions and without prejudice to their rights also applied for conversion permission under section 32 of the Land Revenue Code. In fact, such an application dated 10-8-1988 was received from the respondents No. 1 on 16-8-1988 in the Office of Dy. Collector relating to conversion of 2270 sq. metres from the entire area of 15,950 sq. metres comprised of Survey No. 188/1. Yet, there was another application dated 23-6-1988, received on 16-8-1988 for conversion of an area of 5538 sq. metres of Survey Nos. 188/1 and 188/4. By an order dated 18. 10. 1988, the Dy. Collector imposed fine of Rs. 1,62,000/- to be paid by the respondents Nos. 1 and 2 within a period of 30 days from the receipt of the order while warning that on failure to pay the said penalty, the application of the respondent No. 1 filed for conversion of 2270 sq. metres and 5538 sq. metres of the property bearing Survey Nos. 188/1 and 188/4 would be rejected and penalty as provided under Clauses (ii) and (iii) of section 33 of the Land Revenue Code, 1968 would be imposed on the respondents. Being aggrieved, the respondents Nos. 1 and 2 filed the appeal before the Respondent Administrative Tribunal, which was allowed by impugned order dated 1-6-1995 and order of the Dy. Collector, Ponda was quashed and set aside.

(3.) THOUGH various arguments were advanced in support of the order of the Dy. Collector and against the impugned order by the learned Government Advocate, as well as in support of the impugned order and as against the order of Dy. Collector by the learned Advocate appearing for the respondent No. 2 herein, the records clearly disclose that the Dy. Collector while passing the order dated 18-10-1988 proceeded on the presumption that all lands are agricultural lands, unless they are classified as non-agricultural by order of Government or converted for non-agricultural purpose with the permission of the competent authority, whereas the Administrative Tribunal proceeded on the presumption that the Land Revenue Code itself contains different provisions in respect of different types of lands and, therefore, accepted the argument of the respondents that a land once found located within the Municipal limits that itself would be enough to indicate the same to be non-agricultural land. Curiously enough, neither the Government Advocate nor learned Advocate for the respondent No. 2 pointed out any provision of law or produced any material on record to arrive at such sweeping general conclusions which are sought to be arrived at by both the authorities. Neither the Land Revenue Code nor any other law presupposes that all lands are agricultural lands. So also no law supports the presumption that the moment the land is found located in the Municipal limits of the city, the same has necessarily to be a non agricultural land. Both the authorities having proceeded on wrong presumptions, have acted with material irregularity in exercise of their jurisdiction while dealing with the matter in hand.