- (1.) THE appellants aggrieved by the order of the High Court of Judicature at Jabalpur dated 26. 8. 2003 in Writ Petition nos. 6269 and 27171 of 2003 have preferred this appeal with the prayer that the respondent State of Madhya Pradesh be restrained from imposing and collecting any premium under the impugned rule 14 of the Notification dated 24. 1. 2002.
(2.) BRIEF facts giving rise to the present appeal are recapitulated as under: The respondent State of Madhya Pradesh has imposed premium at flat rate irrespective of use and purpose of the diverted land or any relation whatsoever with the land revenue imposed on the land. According to the appellants, the impugned rule 14 of the Madhya Pradesh Land Revenue Code, 1959 (for short "the Code") is arbitrary, unreasonable and as such violative of Article 14 of the Constitution of India. The imposition of premium under rule 14 has been assailed, therefore, it would be imperative to refer to the relevant provisions regarding imposition of premium as under: "imposition OF PREMIUM 13. When the land assessed for any non-agricultural purpose is diverted to any agricultural purpose no premium shall be imposed under Sub-section (5) of section 59 of the Code. 14. (1) For the purpose of levy of premium on agricultural land other than the land specified in the proviso to Sub-section (5) of Section 59 of the Code diverted to non-agricultural purposes, in any towns and villages in the State of Madhya Pradesh shall be divided into the following classes as specified in Column (1) of the Schedule appended to these rules and the premium shall be imposed according to the rates specified in column (2) and (3) of the said Schedule as the case may be: provided that with the sanction of the State government the Sub-Divisional Officer may include any particular village in higher or lower class than that prescribed in this rule: provided further that no premium shall be payable on agricultural land diverted into residential purposes if the area of diverted land is not exceeding one hundred square metre and "kachha" construction is built on such land. Explanation I.- When the 'abadi' of two or more villages adjoins, the population shall be taken as the population of the combined villages. Explanation II.- 'kachha' construction means such construction in which only clay and wood (excluding timber wood) are used. The Schedule framed under rule 14 reads as under: JUDGEMENT_1390_TLPRE0_2008Html1.htm The appellants submitted that reading of section 59 with rules 1 to 12 and sections 77, 78, 79, 81, 82 and 98 of the code shows that the land revenue is imposed on the land on the basis of use, purpose, location, area, size of plot, rental value, assessment rates, advantages and disadvantages etc. In this view of the matter, it would be appropriate to set out section 59 of the Code as under: "section 59. Variation of land revenue according to purpose for which land is used.- (1)The assessment of land revenue on any land shall be made with reference to the use of land-- (a) for the purpose of agriculture or such farm house, which is situated on holding of one acre or more; (b) as sites for dwelling houses; (c) for purposes other than those specified in items (a), (b), (d) or (e); (d) for industrial or commercial purpose; (e) for the purpose of mining under a mining lease within the meaning of Mines and Minerals (Regulation and Development) Act, 1957 (No. 67 of 1959); provided that the assessment of land revenue on any land situated in the areas which are constituted as reserved or protected forests under the Indian forest Act, 1927 (16 of 1927), with reference to use of land for any of the purposes aforesaid shall not be proceeded with or any procedure relating to the assessment to be followed under the relevant provisions of the Code shall not be commenced except on a certificate permitting the use of land issued by an officer of the Forest Department duly authorised by the State Government in this behalf; explanation: For the purpose of clause (a) "farm house" means such building or construction which is any improvement as defined in clause (j) of sub-section (1) of Section 2, the plinth area of which shall not exceed one hundred square meter and the built up area shall not exceed one hundred fifty square meter. (2) Where land assessed for use for any one purpose is diverted to any other purpose, the land revenue payable upon such land shall, notwithstanding that the term for which the assessment may have been fixed has not expired, be liable to be altered and assessed in accordance with the purpose to which it has been diverted. (2-a) The alteration or assessment referred to in sub-section (2) shall be carried out by the Sub-Divisional Officer. (3) Where the land held free from the payment of land revenue on condition of being used for any purpose is diverted to any other purpose it shall become liable to the payment of land revenue and assessed in accordance with the purpose to which it has been diverted. (4) The assessment made under sub-section (2)and (3) shall be in accordance with the rules made by State Government in this behalf and such rules shall be in accordance with the principles contained in Chapter VII or VIII, as the case may be. (5) Where land for use for any one purpose is diverted to any other purpose, and land revenue is assessed thereon under the provisions of this section, the Sub-Divisional Officer shall also have power to impose a premium on the diversion in accordance with rules made under this Code: provided that no premium shall be imposed for the diversion of any land for charitable purpose. (6) Notwithstanding any usage or grant or anything contained in any law, the right of all persons holding land, which immediately before the coming into force of the Madhya Pradesh Land Revenue code, 1954 (II of 1955), was held in malik makbuza right, to exemption from payment of premium on diversion of such land is hereby abolished; but every such person shall, on diversion of such land, be entitled in lieu of such right to a rebate equal to the land revenue for one year payable for such land from the amount of premium determined under sub-section (5 ). " It would be appropriate to recapitulate rules pertaining to imposition of premium. "rules REGARDING ALTERATION OF assessment AND IMPOSItION OF PREMIUM [notifications No. 175-6477-VII-N (Rules); dated the 6th January 1960 and as amended by No. 1400-VII-N-1, dated 21st May 1971, published in M. P. Raj. Pt. 4g, dated 11. 6. 1971, p. 270 and by No. F. 11-7-VII-S-8-89 dated 24. 1. 2000] 1. In these rules "code" means the Madhya pradesh Land Revenue Code, 1959 (No. 20 of 1959 ). A. ALTERATION OF ASSESSMENT (i) Diversion from a non-agricultural purpose to an agricultural purpose in non-urban and urban areas. 2. When land already diverted to a non-agricultural purpose and re-assessed on that basis is rediverted to an agricultural purpose the assessment as refixed shall be equal to the agricultural assessment on the land as fixed at the last settlement. 3. When land already diverted to a non-agricultural purpose and assessed on that basis is rediverted to an agricultural purpose and there is no agricultural assessment to fall back upon, the assessment on rediversion shall be fixed at the rate adopted for similar soil in the same village or in a neighbouring village at the last settlement. 4. The assessment fixed under rules 2 and 3 shall remain in force till the next succeeding settlement of the village. (ii) diversion from an agricultural purpose to a non-agricultural purpose. (a) Non-Urban areas 5. If any land assessed at agricultural rates is diverted to a non-agricultural purpose, the assessment thereon shall be revised in accordance with any of the methods specified below according to the circumstances of the case, Viz. :-- (a) If the area in which the land is situate has an assessment rate as approved by the State government under Sub-section (2) of Section 77 of the Code, then in accordance with the assessment rate so prevailing. (b) If there be no assessment rate in force as aforesaid, then the Sub-Divisional Officer shall calculate the estimated rental value of the land to be assessed in accordance with rules 33, 34, 35 and 36 of the rules framed under Clauses (viii), (ix), (x) and (xii) of Sub-section (2) of section 258 of the code, as far as they may apply and fix the assessment of the land up to the maximum of 33 percent of the estimated rental value of the land, taking into account the advantages or disadvantages and other circumstances peculiar to the survey number to be assessed. 6. In fixing the actual assessment, the area of a survey number of Sub-division measuring less than 5 sq. metres shall be taken to be 5 sq. metres. In other cases areas up to 5 sq. metres shall be ignored, and areas exceeding 5 sq. metres but below 10 sq. metres shall be taken as 10 square metres. The assessment shall be correct to the nearest naye Paise. 7. The assessment fixed under rule 5 shall remain in force till the next succeeding settlement of the village. (b) Urban Areas 8. If any land in an urban area assessed at agricultural rate is diverted to an non-agricultural purpose, its assessment shall be altered by fixing the actual assessment on the basis of the standard rate prevailing for the area in which the land is situated, if, in such area, a standard rate as approved by the State Government under rule 30 of the rules framed under clauses (xvi), (xvii) and (xviii)of Sub-section (2) of Section 258 of the Code, is in force. 9. If no such standard rate is in force, the average letting value of the land shall be calculated, as far as may be, in accordance with rules 25, 26, 27 and 28 of the rules made under the clauses specified in rule 8 above and a standard rate determined in accordance with the provisions of rule 30 of the said rules. 10. On such standard rate being calculated, the Sub-Divisional Officer shall fix the actual assessment on the land diverted to a non-agricultural purpose up to one-third of the estimated annual rental value of the land, if the land is held for the purposes mentioned in clause (b) or (c) of Sub-section (1) of Section 59 of the code and up to one-half of the estimated annual rental value, if the land is held for purposes mentioned in clause (d) of the said Sub-section. 11. In fixing the actual assessment, the area of a plot measuring less than 5 sq. metres shall be taken to be 5 sq. metres. In other cases areas up to 5 sq. metres shall be ignored, and areas exceeding 5 sq. metres but below 10 sq. metres shall be taken as 10 sq. metres. The assessment shall be correct to the nearest naye paise. 12. The assessment fixed under rule 10 shall remain in force till the next succeeding settlement of the village. x x x x "
(3.) SECTIONS 77, 78, 79, 81, 82 and 98 are also set out. Section 77. Fixation of assessment rates.- (1)On completing the necessary inquiries, as may be prescribed, the Settlement Officer shall forward to the State Government his proposals for assessment rates for different classes of land in such form and along with such other particulars as may be prescribed. (2) The State Government may approve the assessment rates with such modifications as it may deem fit. Section 78. Maximum and minimum limits for the rate of assessment.- The maximum and minimum limits for the assessment rate shall respectively be one and quarter times and three-fourth of the assessment rate in force for the time being: provided that in the event it is considered desirable to alter the minimum or maximum limits, aforesaid, a proposal to that effect shall be laid on the table of the Legislative Assembly for its approval and the limits of assessment rate shall thereafter be altered in accordance with the proposals as approved. Section 79. Fixation of fair assessment.- The settlement Officer shall fix the assessment on each holding in accordance with the assessment rates approved under section 77 and the provisions of the section 81 and such assessment shall be the fair assessment of such holding. Section 81. Principles of assessment.- (1) The fair assessment of all lands shall be calculated in accordance with the principles and restrictions set forth in the section. (2) No regard shall be had to any claim to hold land on privileged terms. (3) Regard shall be had in the case of agricultural land to the profits of agriculture, to the consideration paid for leases' to the sale prices of land and to the principal moneys on mortgages, and in the case of non-agricultural land, to the values of the land for the purpose for which it is held. (4) The fair assessment on land used for non-agricultural purposes shall not exceed thirty-three per centum of the estimated rental value of the land. (5) Where an improvement has been effected at any time in any holding held for the purpose of agriculture by or at the expense of the holder thereof, the fair assessment of such holding shall be fixed as if the improvement had not been made. (6) Except for special reasons to be approved in each case by the State Government, no increase in the fair assessment of a holding for the purpose of agriculture shall exceed fifty per centum of the existing assessment. Section 82. Announcement of settlement.- (1)When the assessment of any land has been fixed in accordance with section 79, notice thereof shall be given in accordance with rules made under this code, and such notice shall be called the announcement of the settlement. (2) The assessment of any land, as announced under this section, shall be the land revenue payable annually on such land during the term of the settlement unless it is modified in accordance with the provisions of this Code, or any other law. Section 98. Fixation of standard rates of assessment.- The Collector shall keep a record in accordance with the rules made under this Code of all registered sales and leases of lands in the different blocks in urban areas in respect of land held for each of the purpose mentioned in sub-section (1) of section 59. (2) The average annual letting value of lands in each block in respect of land held for purposes mentioned in sub-section (1) of section 59 shall be determined separately in the prescribed manner on the basis of transactions of sales and leases in respect of the land held for each of the aforesaid purposes in such block during the period of five years immediately preceding the year in which the letting value is being determined, so far as the information about such transactions is available: provided that if the transactions which have taken place in any block in respect of any land held for any of the aforesaid purpose are not sufficiently representative transactions in respect of the land held for the corresponding purpose during the same period in adjacent block may be taken as basis for determining the letting value. (3) The standard rate of assessment for lands held for purposes mentioned in clause (b) or (c) of sub-section (1) of section 59 shall be equal to one-third of the average annual letting value determined or the block in respect of such land under sub-section (2) and for purposes mentioned in clause (b) of sub-section (1) of section 59 shall be one half of the average annual letting value determined for the block in respect of such land. (4) The standard rates for lands held for agricultural purposes shall be fixed with due regard to soil and position of land and to the profits of agriculture to the consideration paid for leases and to the sale prices of such lands. Mr. A. K. Sanghi, the learned counsel for the appellants submitted that there are restrictions for not exceeding the rental value and assessment rates under sections 81 (4) and 81 (6) and rule 5 (b) of section 59, which are quoted above. Mr. Sanghi also submitted that the imposition of land revenue is guided by number of factors, principles, restraints which are not to be found while imposing premium under section 59 (5)or the impugned rule 14. There are no guidelines or nexus either with section 59 or the Code itself.;