Supreme Court of India
GOHIL JESANGBHAI RAYSANGBHAI & ORS.versusSTATE OF GUJARAT & ANR.
- Citation
- 2014 INSC 137
- Decided
- 25 February 2014
- Disposal
- Dismissed
- Bench
- S S NIJJAR
Holding
Section 43, as amended and read with the 2008 Gujarat Government Resolution, is a valid legislative provision permitting the State to levy a reasonable premium (now reduced to 40%) on the transfer of agricultural land for non‑agricultural use, with valuation based on Jantri rates as of the Collector’s sanction and with the Collector required to decide applications within 90 days, and therefore the appeals are dismissed.
Summary
The appellants challenged the constitutionality of Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 and the 2008 Gujarat Government Resolution that imposed a premium (initially 80%, later reduced to 40%) on the transfer of agricultural land for non‑agricultural purposes, arguing it violated Article 300A and was arbitrary. The Supreme Court held that Section 43, as amended, is a valid provision allowing the State to levy a reasonable premium as consideration for granting transfer permission, and that the premium is a permissible fee, not an unlawful tax. It clarified that the Jantri rates must be applied as of the date of the Collector’s sanction, not the date of application, and that the Collector must decide applications within 90 days, recording reasons for any delay. The Court found no basis to interfere with the High Court’s judgment and dismissed all appeals. The premium was deemed reasonable, especially after reduction to 40%, and the procedural safeguards were upheld.
Issues considered
- The validity of Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 and the 2008 Gujarat Government Resolution restricting transfer of agricultural land for non‑agricultural purposes.
- Whether the premium of 80% (later reduced to 40%) of the Jantri valuation violates Article 300A of the Constitution.
- Whether the Jantri rates for valuation should be fixed on the date of application or on the date of the Collector’s sanction.
- Whether the Collector is required to decide applications for transfer within a reasonable time, specifically 90 days.
- Whether the premium under Section 43 constitutes a tax, fee, or permissible consideration and whether it is arbitrary or unreasonable.
- Whether Rule 25C of the rules framed under the Act limits the amount that can be charged under Section 43.
Legislation cited
Subjects
agricultural landnon‑agricultural useSection 43Gujarat Tenancy ActpremiumJantri valuationArticle 300Areasonable timecollector's sanctionagrarian reform
Judgment
[2014) 3 S C.R. 110
A GOHIL JESANGBHAI RAYSANGBHAI & ORS.
v
STATE OF GUJARAT & ANR.
(Civil Appeal No. 4123 of 2012)
FEBRUARY 25, 2014
B
[SURINDER SINGH NIJJAR AND H.L. GOKHALE, JJ.]
GUJARAT TENANCY AND AGRICULTURAL LANDS
ACT, 1948:
c
s. 43 rlw Government Resolution dated 4. 7.2008 -
Restriction on transfer of agricultural land for non-agricultural
purposes - Transfer of land with previous sanction of Collector
and in consideration of such amount as State Government
0 may determine - Amount determined on the basis of rates
called 'Jantri' on prior sanction to be obtained from Collector
- Single Judge and Division Bench of High Court upholding
the provision - Held: There is no reason to interfere with
impugned judgments of High Court - Application uls s. 43
E cannot be kept pending indefinitely and, therefore, Collector
is expected to decide such applications as far as possible
within 90 days from its receipt, on the lines of the judgment
in Patel Raghav Natha - State Government has reduced the
levy from 80 to 40 per cent which is obviously quite
reasonable - Application uls 43 speaks of previous sanction
F -- Therefore, Jantri rate to be applied will be on the date of
the sanction by Collector, and not on the date of the
application made by the party - Bombay Paragana and
Kulkarni Watans (Abolition) Act, 1950.
G The instant appeals raised the questions with respect
to the validity of s. 43 of the Gujarat Tenancy and
Agricultural Lands Act, 1948 and Gujarat Government
Resolution dated 4.7.2008, which placed restriction on
transfer of agricultural lands by tenants for non-
H 110
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 111
STATE OF GUJARAT & ANR.
agricultural purposes. It was contended that 80% of the A
Jantri rates fixed for the lands, as prelJlium was violative
of their rights under Art. 300A of the Constitution. The
appeals also challenged the minimum valuation of land
as per the rates contained in the "Jantri" prevalent since
20.12.2006. B
Dismissing the appeals, the Court
HELD: 1.1 The Gujarat Tenancy and Agricultural
Lands Act, 1948 was passed as a part of the agrarian
reform. The Act as such does not permit transfer of C
agricultural land for non-agricultural purpose, and the
same is barred u/s 63 thereof. That Section permits such
a transfer only in certain contingencies as provided
thereunder. Section 43 appears in Part Ill of Chapter Ill of
the Act. Chapter Ill provides for special rights and D ·
privileges of tenants, and contains provisions for
distribution of land for personal cultivation. Part Ill,
thereof, provides for restrictions upon holding of land in
excess of ceiling area. Section 43 has to be seen in this
context. [para 6] [130-G-H; 131-A-B] E
1.2 The principal part of s. 43 lays down that the land
which is purchased by a tenant under the various
Sections referred to in s. 43 shall not be transferred in any
manner except as permitted in s.43. The original s.43 did
not contain any such exception. The Gujarat (Amendment) F
Act No. XVI of 1960 introduced the words "on payment
of such amount as the State Government may by general
or special order determine" in s. 43. A Division Bench of
the Gujarat High Court in Shashikant Mohanlal, upholding
the constitutionality of the Section, held that the amount G
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. In the case of Patel Ambalal Gokalbhai, this
Court held that the amendment of 1960 was protected H
112 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
s amount... " Thus, the Section 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
C 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
0
is however not by way of a right. [para 7-8] [131-B-H; 132-
A-B]
Shashikant Mohan/a/ Vs. State of Gujarat reported in AIR
1970 Gujarat 204 - approved.
E
Patel Ambala/ Gokalbhai vs. State of Gujarat, 1982 (3)
sec 316 - referred to.
1.3 As far as the determination of the amount is
concerned, the State Government decided to adopt the
F approach of valuation based on Jantri, i.e. the list of rates
containing the minimum valuation of land as per the
Government Resolution dated 20.12.2006. It is for this
purpose that the Resolution dated 4.7.2008. was passed.
As per paragraph 4 of the Resolution, the premium is
G required to be recovered on the basis of the Jantri, and
all the powers concerning the transfers in the entire
District are vested in the Collector. The Jantri contains
the rates which are fixed for the purpose of valuation of
the land for levyiRg the stamp duty under the Bombay
H Stamp Act. Those rates in the Jantri are incorporated by
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 113
STATE OF GUJARAT & ANR.
virtue of the Resolution for the purpose of permitting the A
transfers. [para 9] [132-C-F]
1.4 The amount which is being charged is a premium
for granting the sanction. This is because under this
welfare statute the lands have been permitted to be
8
purchased by the tenants at a much lesser price. The
tenant is supposed to cultivate the land personally. It is
not to be used for non-agricultural purpose. A benefit is
acquired by the tenant under the scheme of the statute
and, therefore, he must suffer the restrictiOns which are
also imposed under the same statute. The idea in C
insisting upon the premium is also to make such
transfers to non-agricultural purpose unattractive. The
intention of the statute is reflected in s. 43, and, therefore,
the courts should not depart therefrom while interpreting
the provision. [para 20] [141-H; 142-A-C] D
Shashikant Mohan/al Vs. State of Gujarat reported in
AIR 1970 Gujarat 204 - approved.
2.1 The Section speaks of previous sanction. E
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. [para 21] [142-D-F]
Union of India vs. Mahajan Industries Ltd, 2005 (10) SCC
203 - cited. F
2.2 The application u/s 43 cannot be kept pending
indefinitely and, therefore, the Collector is expected to
decide such applications as far as possible within 90 days
from its receipt, on the lines of the judgment of this Court G
in Patel Raghav Natha. In the event of further delay, the
Collector is expected to record the reasons ·for such
delay. [para 24] [143-D-F]
State of Gujarat vs. Patel Raghav Natha 1970 (1) SCR
335 =1969 (2) sec 187 - relied on. H
114 SUPREME COURT REPORTS [2014] 3 S.C.R.
A K.B. Nagur, M.D. (Ayurvedic) vs. Union of India, 2012 (1)
SCR 1023 = 2012 (4) SCC 483; Delhi Airtech Services Pvt.
Ltd. vs. State of Uttar Pradesh, 2012 (12) SCR 191 = 2011
(9) sec 354 -cited.
2.3 As far as the levy of 80 per cent of the amount is
8
concerned, it has been pointed out that after the
impugned judgment, the State Government has reduced
the levy to 40 per cent which is obviously quite
reasonable. [para 23] [143-C]
c Nagesh Bisto Desai vs. Khando Tirmal Desai AIR 1982
SC 887 - cited.
2.4 Therefore, there is no reason to interfere with the
impugned judgment rendered by the Division Bench,
D approving the decisions rendered by the single Judges
in the writ petitions. [para 25] [143-F-G]
Case Law Reference:
AIR 1970 Gujarat 204 approved para 7
E 1982 (3) sec 316 referred to para 8
AIR 1982 SC 887 cited para 12
2005 (10) sec 203 cited para 13
F 1970 (1) SCR 335 relied on para 13
2012 (1) SCR 1023 cited para 14
2012 (12) SCR 191 cited para 14
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G
4123 of 2012.
From the Judgment and Order dated 03.05.2011 of the
High Court of Gujarat at Ahmadabad in Letters Patent Appeal
No. 1127 of 2008 in Special Civil Application No. 7648 of 2008.
H
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 115 ..
STATE OF GUJARAT & ANR.
WITH A
Civil Appeal No. 4124, 4125, 4126, 4127, 4129, 4130, 4131,
4132, 4133, 4134 and 4135 of 2012.
Rohinton Nariman, SG, Pravin H. Parekh, Himansoo
Desai, Mohit D. Ram, Subhasnee Chatterjee, Meenakshi B
Arora, Vasen A., Huzefa Ahmadi, Pradhuman Gohil, Vikash
Singh, S. Hari Haran, Taruna Singh, Charu Mathur, Bharat S.
Patel, Ranjana B. Patel, D.N. Ray, Lokesh K. Choudhary,
Sumita Ray, K.K. Trivedi, Priank Adhyaru (for Rameshwar
Prasad Goyal), Purvish Jitendra Malkan, Preetesh Kapoor, c
Hemantika Wahi, Jesal, Shamik Sanjanwala, Kailash Pandey,
K.V. Sreekumar, Brajesh Kumar for the appearing parties.
The Judgment of the Court was delivered by
H.L. GOKHALE J. 1. All these Civil Appeals raise the D
questions with respect to the validity of Section 43 of Bombay
Tenancy and Agricultural Lands Act, 1948 as applicable to the
State of Gujarat, now known in the State of Gujarat as Gujarat
Tenancy and Agricultural Lands Act, 1948 ("Tenancy Act" for
short). This section places certain restrictions on the transfer E
of land purchased or sold under the said Act. These appeals
raise the questions also with respect to the validity of resolution
dated 4. 7.2008 passed by the Government of Gujarat to give
effect to this section, and which resolution fixes the rates of
premium to be paid to the State Government for converting, F.
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. G
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 H
116 SUPREME COURT REPORTS [2014) 3 S.C.R.
A 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
B 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 issues
raised in these Civil Appeals are by and large similar, though
c 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,
D 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
E 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 178, 32,
32F, 32-1, 32-0, 32U, 43-ID or BBE or sold to any person
F 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
G 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 Collector.
Provided that no previous sanction of the Collector shall
be required, if the partition of the land is among the
H
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 117
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
members of the family who have direct blood relation or A
among the legal heirs of theAeoant:
Provided further that the partition of the land as aforesaid
shall not be valid if it is made in contravention of the
provisions of any other law for the time being in force;
B
Provided also that such members of the family or the legal
heirs shall hold the land, after the partition, on the same
terms, conditions, restrictions as were applicable to such
land or interest thereat therein purchased.by the tenant
or the person. c
(1A) The sanction under sub-section (1) shall be given
by the Collector in such circumstances and subject to
such conditions, as may be prescribed by the State
Government.
D
(1AA) Notwithstanding anything contained in sub-section
(1), it shall be lawful for such tenant or a person to
mortgage or create a charge on his interests in the land
in favour of the State Government in consideration of a
loan advanced to him by the State Government under the
Land Improvement Loans Act, 1884, the Agriculturists' E
Loan Act, 1884, or the Bombay Non-Agriculturists' Loans
Act, 1928, as in force in the State of Gujarat, or in fav6ur
of a bank or co-operative 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 F
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 G
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 H
118 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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)
B 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.
c
(1B) Nothing in sub-section (1) or (1AA) shall apply to
land purchased under section 32, 32F or 64 by a
permanent tenant thereof, if prior to the purchase, the
permanent tenant, by usage, custom, agreement or
D 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."
E
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:-
F "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.
G Government of Gujarat
Revenue Department
Resolution No.NSJ-102006-571-J (Part-2)
Sachivalaya Ga.ndhinagar.
Dated 0410712008
H
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 119
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
Preamble:- A
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 any land purchased by B
the tenants, under Sections- 17-kh, 32, 32-chh, 32-t, 32-
d, 32-bh & 43-1-gh or Section 88-ch or any land sold to
any person under Sections 32-g or 64, as per section-
43 (1) of Bombay Tenancy & Agricultural Lands Act 1948
or its interest, sale, gift, transfer, mortgage, lease or C
transfer of name or executing written present for transfer
or any interest. Without obtaining prior permission of the
Collector, partition of any such land or any interest
therein can not be made. According to Section 43(1-A),
the Collector is required to grant permission as per the
0
circumstances prescribed by the Government and as per
Section 73-kh of Bombay Land Revenue Code, 1879, by
virtue of this Act or by virtue of any condition connected
with type of tenure, without prior permission of State
Government, the Collector or any officer authorized by the
State Government, any land holding can not be E
transferred in fhe name of another person or its partition
can not be made. On making payment of the amount
prescribed by the State Government by a special or
general order, such permission can be granted.
F
The 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 lan.d granted or re-granted
under different tenure and under lnami Abolition Act G
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 simplificat;on in transfer of land known H
120 SUPREME COURT REPORTS [2014] 3 S.C.R.
A as new tenure and in other transaction.
According to the resolution No.JMN/3997183/A dated 151
01198 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
B
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
c State Government had decided to adopt the approach
valuation based on Jantri vide Resolution dated 201121
2006 No.NSHJ/1020061571/J. The time of public shall be
saved by its acceptance and uniformity in respect of
valuation in the entire State shall be maintained. Thus,
D 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.
E
-:: RE S 0 L U TI 0 N ::-
On the basis of the letter No.STP/1020081174/H.1 dated
3110312008 of the Revenue Department, for the purpose
of Stamp duty, a new Jantri has been put into force by
F issuing the Circular No. Stamp! Technicall07!0811512
dated 3110312008 with effect from 0110412008 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
G 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).
H
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 121
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
By consolidating all resolutions/circulars existing A
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 and transfer! for change of purpose of land of 8
new and impartible and restricted tenure land from
agricultural to agricultural purpose or non-agricultural
purpose, shall be as under.
Sr. Purpose Area Tenure Rate of Transfer at
No. premium which c
type of
tenure
1 2 3 4 5 6
1 From The entire After Zero It shall be
Agricultural rural area 15 transferred D
to the of the State years for the
purpose except purpose of
of agricultural following agricultural
old tenure Urban at old
Areas, tenure, but
E
East, area premium
under ULC, shall be
Mahanagar liable to be
Palika area, paid for
Urban non-
Develop- agricultural F
ment purpose.
Authority
area,
Municipality
area, G
Notified
area,
cantonment
area
2 From The entire After 50% It shall be
H
122 SUPREME COURT REPORTS [2014] 3 S.C.R.
A Agricultural rural area 15 transferred
to the of the State years for the
purpose of except purpose of
agricultural following agricultural
old tenure Urban at old
Areas, tenure, but
B premium is
East, area
under ULC, liable to be
Mahanagar paid for
Palika area, non-
Urban agricultural
c Develop- purpose
ment
Authority
area,
Municipality
area, Notified
D
area,
cantonment
area
3 For Non- The area of After 80% The land
agricultural the entire 15 shall be
E purpose State years considered
of old
tenure after
sale/
transfer or
F change of
purpose
The aforesaid policy shall be equally applied in the entire
State except the exception of the following (A) and (B).
G (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 non-agricultural purpose, 50% amount shall
be recovered as premium.
H (B) The following rates shall be applicable to the land
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 123
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
holding under Kutch lnami Abolition Act and new and A
impartible tenure.
,.
Sr. Purpose Area Tenure Rate of Transfer at
No. premium which type
of tenure
B
1 2 3 4 5 6
1 From Rural After Zero It shall be
Agricultural Area 15 I
transferred
to the years for the c
purpose of purpose of
agricultural agricultural
old tenure at old
tenure, but
premium is
D
liable to be
paid for
non-
agricultural
purpose
2 From E
Urban After 20 It shall be
Agricultural Area 15 (twenty) transferred
to the yeeirs times for the
purpose of amount purpose
agricultural of asses of agricul-
old tenure sment tural at old F
tenure, but
premium is
liable to be
paid for
non- G
agricultural
purpose
3 For Non- The urban After 50% The land
agricultural and rural 15 shall be
purpose areas years considered H
124 SUPREME COURT REPORTS (2014] 3 S.C.R.
A unaer olCI
tenure after
sale/
transfer or
change of
8 purpose.
2. The procedure of converting the land of new tenure into
old tenure for the purpose of agricultural to agric~tural (for
the purpose of Sr.No. 1 & 8(1) of the aforesaid para No.1 ).
(A) If such lands of New Tenure and Restricted tenure under
c • Tenancy Act have been in continuous possession for 15
year or more than it since its grant to the last date of every
month, are liable to be converted into old tenure for
agricultural purpose, after eliminating the entry "New &
lmpartible Tenure" and noting "liable for premium only for
D non-agricultural purpose" on its place, the Mamalatdar of
concerned Taluka on his own motion shall issue such
orders within 15 days and shall have to inform the
concerned holder in writing. At the same time, it shall be
the responsibility of the Mamalatdar to get the mutation
E entry of the said order entered into the Right of Record and
to get it certified as per rules.
(8) In the cases also wherein, the land is required to be
converted from agricultural to agricultural purpose into old
tenure by recovering 50% premium or 20 times amount of
F assessment, the Mamalatdar shall have to issue orders as
stated above in 2(A) after recovering the premium. In the
case wherein 50% premium is required to be recovered
in Urban Area for agricultural to agricultural purpose, the
procedure as mentioned in paragraph No.3 shall have to
G be adopted.
(C) It shall be the responsibility of the Prant Officer to see
that the entry of such orders and its mutation entry are
made in record without fail. The Prant Officer shall have
to forward the certificate to the effect that any such entry
H, is not remained to be entered in the record to the Co!lector
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 125
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
till the date 25th of every month. A
(D) On finalization of the certified mutation entry as per the
aforesaid Sr.No.2 (A), the details to the effect that "liable
for premium only for non-agricultural purpose" shall have
to be mentioned certainly i~ bold letters in column of tenure 8
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.
c
(F) Moreover at the time of granting such permission if
there is any encumbrance upon the land, then the
abovementio.ned concerned officer shall have to issue
orders accordingly by granting permission of transfer in old
tenure including encumbrance. D
(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 E
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. F
(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 G
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 H
126 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B within 10 days.
(B) After receiving report of Mamlatdar through Prant
Officer, after verifying all record, Collector shall have to take
decision within 30 (thirty) days and the said decision shall
have to be informed to concerned person. The calculation
c of the amount of premium shall have to be made as per
the rate of Jantri prevailing on the date of decision.
(C) If premium is to be paid as per decision of the
Collector, then on getting such information the concerned
D person shall have to pay the amount of premium within 21
(twenty one) days.
(D) After depositing amount of such premium, the Collector
shall have to pass order in this regards within 3 (three)
days.
E
(E) If amount of premium is not paid within twenty one days,
then assuming that concerned person is not interested in
getting permission and chapter should be filed. However,
in some cases, if concerned person submits an
F application then and if Collector considers the reasons just,
then as per the merits of the case, by the reasons to be
recorded in writing, instead of 21 (twenty one) days, the
Collector can extend till one year from date of intimation
of decision. But if during this period there is change in
G price of Jantri then premium shall have to be recovered
accordingly. After one year applicant shall have to submit
an application afresh.
(F) When the permission is required to be granted to the
charitable institutes for non-agricultural purpose after
H
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 127
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
recovery, such institution is required to have been A
registered under Public Trust Act. In this regard Certificate
of registration before Competent Authority/Charity
Commissioner shall have to be produced with file and
audited accounts of last three years. If the purpose of
applicant's institution is only for "No profit No loss" basis, B
for charitable activities like Charitable hospital, dispensary,
cattle house, Library, Elder house, Orphan House etc. then
such institution shall have to be considered as Charitable
Institution.
(G) The check list regarding chapters to be given for prior
c
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.
D
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. E
(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. F
(C) As per above 4(8), 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 G
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 H
128 SUPREME COURT REPORTS [2014] 3 S.C.R.
A considering rate of agriculture Jantri prevailing in Urban
and Rural area.
(B) In rural area, when the land is used for non-agriculture
purpose, valuation shall be made by considering rates of
Jantri for that purpose.
B
(C) In urban area, for non-agriculture purpose, valuation
shall be made after considering rates of Janri of developed
land.
c (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
of Jantri of the development land.
D
(E) The Collector shall have to consider rate of Jantri which
are applicable to zone, ward or block where the land is
situated. The rate of Jantri of other zone, ward or block shall
not be considered.
E (F) When "rate of developed land" is not mentioned in
Jantri of the area, valuation shall be made by considering
the purpose and rate of prevailing Jantri of the said area.
6. Procedure for disposal of pending chapters:-
F (a) In the pending chapters in respect of fixing premium at
district level and state level, in all chapters wherein the
decision is required to be taken after 1/4/2008, the
calculation of the premium shall be made on the basis of
the rate as per Jantri.
G
(b) The chapters which have not been placed in the District
Valuation Committee, such chapters pending at District
level, shall not be placed in the District Valuation
Committee, but their valuation shall be made as per Jantri.
H The chapters which have been sent to the Deputy Town
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 129
STATE OF' GUJARAT & ANR. [H.L. GOKHALE, J.]
Planner for valuation, shall be called back and calculation A
of the premium shall be made on the basis of rate as per
Jantri.
(c) The chapters decided by the District Valuation
Committee, shall also be disposed again at the Collector 8
level by deciding the premium on the basis of the rate of
Jantri.
(d) The chapters pending at the state level, shall not be
sent back to the district or shall not be produced in the
Valuation Committee of State level, but permission shall C
. be given by taking consent of the Government and
considering the rate of Jantri.
(e) The pending chapters which have been valuated in the
office of the Chief Town Planner and which have not been D
valuated, shall be received back and permission shall be
given after taking consent of the Government and 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 E
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 F
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 G
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
H
130 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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.
B
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
c 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
D 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
'E finance department vide their note dtd. 15/05/2008 and 27/
06/2008 on this department file of even number.
By order and in the name of Governor of Gujarat,
[Anish Mankad]
F Joint Secretary, Revenue Department,
State of Gujarat."
The consequent requirements under Section 43 read with
aforesaid resolution dated 4.7.2008
G 6. As we have noted earlier the Tenancy Act was passed
as a part of the agrarian reform. The Act as such does not
permit transfer of agricultural land for non-agricultural purpose,
and the same is barred under Section 63 of the Act. That
section permits such a transfer only in certain contingencies as·
H provided under that Section. Section 43 with which we are
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 131
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
concerned in the present matter and which appears in Part Ill A
of Chapter Ill of the Act. Chapter Ill provides for Special rights
and privileges of tenants, and contains provisions for
distribution of land for personal cultivation. Part 111, thereof,
provides for restrictions upon holding of land in excess of ceiling
area. Section 43 has to be seen in this context. B
7. The principal part of Section 43 lays down that the land
which is purchased by a tenant under the various Sections
referred to in Section 43 shall not be transferred in any manner
except as permitted in Section 43. The original Section 43 did C
not contain any such exception. The Gujarat (Amendment) Act
No. XVI of 1960 introduced the words "on payment of such
amount as the State Government may by general or special
order determine" in Section 43. The constitutionality of the
section was examined by a Division Bench of the Gujarat High
Court in Shashikant Mohan/al Vs. State of Gujarat reported D
in AIR 1970 Gujarat 204. The Court held that the State is
theoretically the owner of all the land, and occupants hold these
lands under the State. It was argued before the said Division
Bench that this section d9es. not lay down any guidelines.
However, the High Court held that the amount as introduced E
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 F
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 G
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
H
132 SUPREME COURT REPORTS [2014] 3 S.C.R
A 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,
B 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
C 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 to be brought
in with respect to determination of valuation in particular areas.
D Therefore, the State Government decided to adopt the
approach of valuation based on Jantri, i.e. the list of rates
containing the minimum valuation of land as per the
Government Resolution dated 20.12.2006. It is for this purpose
that the aforesaid resolution dated 4.7.2008 was passed. As
E can be seen from paragraph 4 of this Resolution, now the
premium is required to be recovered on the basis of the Jantri,
and all the powers concerning the transfers in the entire District
are vested in the Collector. The Jantri contains the rates which
are fixed for the purpose of valuation of the land for levying the
F stamp duty under the Bombay Stamp Act. Those rates in the
Jantri are incorporated by virtue of this Resolution for the
purpose of permitting these transfers.
Submissions of the appellants
G 10. The Resolution provides that the transfer shall be
permissible only after 15 years of possession of the land by
the tenant. The main grievance of the appellants is that for
transfer of such lands in the entire State (except Kutch) from
agricultural to non-agricultural purposes, the premium payable
H shall be 80 per cent of the price received by the agriculturists
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 133
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
as determined as per the Jantri rates. Thus, whatever may be A
the price mentioned in the document of transfer, the valuation
of the land will be done as per the rates in the Jantri, and 80
per cent of such amount will be payable to the State for
permitting such a transfer. The contention of the appellants is
that the requirement of the payment of consideration at such a B
high rate amounts practically to expropriation, and is violative
of Article 300A of the Constitution of India, which lays down that
no person shall 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 c
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 D
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 ·
<1dmeasuring about 4,875 sq. mts. at plot No. 65 in revenue E
::.,urvey 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 F
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, 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 G
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.
H
134 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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 price to purchase
the land under Section 32G of the Tenancy Act. The land having
B been purchased for a price, it is not a largess given by the
State. Reliance was placed on paragraph 43 and 44 of the
judgment in Nagesh Bisto Desai Vs. Khando Tirmal Desai
reported in AIR 1982 SC 887 to submit that the purpose of prior
permission was only to protect the tenant from selling the land
c at a throw away price, and not for the State to profiteer. It was
then submitted that the amount to be charged under Section
43 was at the highest in the nature of a fee and not a tax and,
therefore, it has to be proportionate. The Jantri rates were being
applied in an arbitrary manner, and the premium at 80 per cent
was unconscionable. (It must however be noted that it was
0
pointed out on behalf of the Government that after the judgment
of the High Court, the premium has been reduced to 40 per
cent.) It was also submitted that Rule 25C of the rules framed
under the Act gives guidelines, and when read with that Rule,
Government cannot charge any dis-proportionate amount under
E Section 43 of the Act.
13. It was submitted that it is the date of the application
which should be considered as the material date for deciding
the valuation of the property, and not the date of the decision
F on the application by the Collector. Besides, the decision on
the application cannot be indefinitely delayed. Reliance was
placed on paragraph 8, 11 and 12 of the judgment of this Court
in Union of India Vs. Mahajan Industries Ltd. reported in 2005
(10) sec 203 to submit that date of application is the material
G date. Reliance was also placed on the judgment of this Court
in State of Gujarat Vs. Patel Raghav Natha reported in 1969
(2) sec 187 (para 11 and 12) to submit that the decisions in
revenue matters must be taken within reasonable time. In the
facts of that case it was held that it must be arrived at within
H 90 days.
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 135
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
14. On the concept of reasonableness, reliance was A
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 B
decision and for that judgment of this Court reported in Delhi
Airtech Services Pvt. Ltd. Vs. State of Uttar Pradesh reported
in 2011 (9) sec 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 c
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 D
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 E
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 F
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 High Court, the premium has been
brought down to 40%. In his submission, the Jantri rate had to G
be applied on the date of sanction as the Section provided for
a prior sanction. He, however, accepted that the decision on
the application for conversion to non-agricultural purpose has
to be in reasonable time.
H
136 SUPREME COURT REPORTS [2014] 3 S.C R
A Consideration of the submissions
16. We may at this stage refer to the judgment of the
Division Bench of the Gujarat High Court in Shashikant
Mohan/al (Supra) by P.N.Bhagwati, CJ as he then was in the
B High Court. With respect to this co-relation between Sections
32 to 32R of this statute and Section 43, the Division Bench
observed as follows:-
"7. The Act as originally enacted in 1948 was
intended to regulate the relationship of landlord and
c tenant with a view to giving protection to the tenant against
exploitation by the landlord but in 1956 a major
amendment was made in the Act introducing a radical
measure of agrarian reform. The Legislature decided that
the tiller of the soil should be brought into direct contact
D with the State and the intermediary landlord should be
eliminated and with that end in view, the Legislature
introduced a fasciculus of sections from Section 32 to S.
32-R and S. 43. These sections came into force on 13th
December 1956 and they provided for the tenant
E becoming deemed purchaser of the land held by him as
tenant. Section 32 said that on 1st April 1957 every tenant
shall, subject to certain exceptions which are not material
for the purpose of the present petitions, be deemed to
have purchased from him landlord, free from all
F encumbrances subsisting thereon on the said day, land
held by him as tenant provided he was cultivating the
same personally. If the landlord bona fide required the
land either for cultivating personality or for any non-
agricultural purpose, he could after giving notice and
making an application for possession as provided in
G
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
H
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 137
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
the land on 1st April 1957. If the landlord gave notice and A
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 B
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 c
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 0
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 E
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 summarily evicted. The land
would then be surrendered to the landlord subject to the F
provisions of Section 15 and if the entire land or any
portion thereof cannot be surrendered in accordance with
the provisions of Section 15, the entire land or such
portion thereof, as the case may be, shall be disposed
of by sale according to the priority list. The priority list G
consists of persons who would personally cultivate the
land and the sale of the land to them would ensure that
the tiller of the soil becomes the owner of it and there is
no intermediary or middleman to share the profits of his
cultivation. Since the tenant is made the deemed H
138 SUPREME COURT REPORTS [2014] 3 S.C.R.
A purchaser of the land in order to effectuate the policy of
agrarian reform to eliminate the intermediary landlord and
to establish direct relationship between the State and the
tiller of the soil so that soils of his cultivation are not
shared by an intermediary or middleman who does not
8 put in any labour, the Legislature insisted that the tenant
must personally cultivate the land of which he is made
the deemed purchaser. The tenant, said the Legislature,
would continue to remain owner of the land only so long
as he personally cultivated it; he must make use of the
c land for the purpose of which it was given to him as owner.
If the tenant failed to cultivate the land personally either
by keeping it fallow or by putting it to non-agricultural use,
he would lose the land under Section 328 and the land
would be given away to others for personal cultivation in
accordance with the provisions of Section 84-C."
D
17. As far as the right of the State to charge the premium
is concerned the Division Bench observed as follows in
paragraph 11 thereof:-
"11. As the section stands there can be no doubt that it
E
is implicit 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
F 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 Bornbay
G 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
virlue of any conditions annexed to the tenure by or under
the Code is not transferable or parlible without the
H previous sanction of the State Government, the Collector
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 139
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
or any other officer authorised by the State Government, A
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 B
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 c
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
0
the meaning of the section was reasonably clear...... "
18. The above decision has not been interfered with by this
Court in any manner. A similar provision has been made in
Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950.
Section 4 of this Act reads as follows:- E ·
4. (1) A watan land resumed under the provisions
of this Act shall {subject to the provisions of Section 4A]
be regranted to the holder of the watan to which it
apperlained, on payment of the occupancy price equal
to twelve times of the amount of the full ass~ssment of F
such land within [five years] from the date of the coming
into force of this Act and the holder shall be deemed to
be an occupant within the meaning of the Code in respect
of such land and shall primarily be liable to pay land
revenue to the State Government in accordance with the G
provisions of the Code and the rules made thereunder;
all the provisions of the Code and rules relating to
unalienated land shall, subject to the provisions of this
Act, apply to the said land:
H
140 SUPREME COURT REPORTS [2014] 3 S.C.R
A Provided that in respect of the watan land which has
not been assigned towards the emoluments of the
officiator, occupancy price equal to six times of the
amount of the full assessment of such land shall be paid
by the older of the land for its regrant:
B Provided further that if the holder fails to pay the
occupancy price within the period of [five years] as
provided in this section, he shall be deemed to be
unauthorisedly occupying the land and shall be liable to
be summarily ejected in accordance with the provisions
c of the Code.
(2) The occupancy of the land regranted under sub-
section (1) shall not be transferable or partible by metes
and bounds without the previous sanction of the Collector
D and except on payment of such amount as the State
Government may by general or special order determine.
(3) Nothing in [sub-sections (1) and (2)] shall apply to any
land-
(a) the commutation settlement in respect of which
E
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
F 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
G 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
H
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 141
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
such land for the time being vests. A
(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 B
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- C
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. D
All that these provisions lay down is that the occupancy
of the land regranted under Sub-section (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 E
State Government may, by general or special order,
determine. It is quite plain upon the terms of these
provisions that they impose restn'ctions in the matter of
making alienations. On regrant of the land, the holder is
deemed to be an occupant and therefore the holding F
changes its intrinsic character and becomes Ryotwari
and is like any other property which is capable of being
transferred or partitioned by metes and bounds subject,
of course, to the sanction of the Collector and on
payment of the requisite amount. G
20. These two judgments answer the submission of the
appellants that the amount which is being charged is not a tax
but a fee. It is neither. It is a premium for granting the sanction.
This is because under this welfare statute these lands have
H
142 SUPREME COURT REPORTS (2014) 3 S.C.R.
A been permitted to be purchased by the tenants at a much lesser
price. As held in Shashikant Mohan/a/ (supra), the tenant is
supposed to cultivate the land personally. It is not to be used
for non agricultural purpose. A benefit is acquired by the tenant
under the scheme of the statute, and therefore, he must suffer
B the restrictions which are also imposed under the same statute.
The idea in insisting upon the premium is also to make such
transfers to non-agricultural purpose unattractive. 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
c should depart therefrom while interpreting the provision.
21. It was submitted by the dppellants that assuming that
the valuation of the land is permitted to be done as per the Jantri
rates, it must be so done on the basis of the rates as prevalent
on the date of the application. The resultant injustice was
D highlighted in the case of Savitaben in Civil Appeal No. 4129/
2012. The fact however, remains that the Section speaks of
previous s~mction. 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
E 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
F party.
22. Rule 25C of the Rules framed under the Bombay
Tenancy and Agricultural Lands Act, '.1·948, was relied upon by
the appellants. It speaks about the circumstances in which, and
conditions subject to which sanction shall be given by the
G 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
H agricultural land for non-agricultural purpose is not easy. It is
GOHIL JESANGBHAI RAYSANGBHAI & ORS. v. 143
STATE OF GUJARAT & ANR. [H.L. GOKHALE, J.]
only sub-clause, <e) thereof under which such a transferor will A
have to make ~ 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 s
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 C
our view, no such submission can be entertained. In any case
Mr. Nariman has pointed out that after the impugned judgment,
the State Government has reduced the levy to 40 per cent which
is obviously quite reasonable.
D
24. The last point which requires consideration is with
respect to the period for considering the application, and
granting the sanction. There is some merit in the submission
of the appellants in this behalf. Such application cannot be kept
pending indefinitely, and therefore we would expect the E
Collector to decide such applications as far as possible within
90 days from the receipt of the application, on the lines of the
judgment of this Court in Pate{ Raghav Natha (supra). In the
event the application is not being decided within 90 days, we
expect the Collector to record the reasons why the decision is
getting belated.
F
25. For the reasons stated above we do not find any
reason to interfere in the impugned judgment rendered by the
Division Bench, approving the decisions rendered by the Single
Judges in the Writ Petitions. All appeals are, therefore, G
dismissed with no order as to costs.
H.P. Appeals dismissed.
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