YASHKAMAL BUILDERS BARODA Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
Yashkamal Builders Baroda
STATE OF GUJARAT
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(1.)Petitioner which is a partnership firm has filed this petition challenging the order Annexure H dated 12/01/1987 passed by the State Government cancelling permission for non-agricultural use of land granted by Taluka Development Officer Halol in respect of Survey Nos. 113/1 and 55 of village Penclav (hereinafter referred to as the land) Taluka Halol District Panchmahals. 2 One Mulchand Hirabhai Parikh who was the occupant of the land made an application for permission to Use the land for nonagricultural purposes to the Taluka Panchayat of Halol. The Taluka Development Officer of the Taluka Panchayat Halol granted such permission by his order Annexure A dated 17/12/1981 The petitioner purchased the land for consideration of Rs. 48 257 from Mulchand Hirabhai Parikh under a Registered sale deed dated 29/01/1982 The land was mutated to the name of the petitioner in the revenue records. On 4/03/1986 the State Government issued notice Annexure C calling upon the original occupant Mulchand Hirabhai Parikh to show cause why the permission for non-agricultural use of land should not be cancelled. It appears that the original occupant submitted reply to show cause notice contending to the effect that there was no reasonable ground to cancel the permission for non-agricultural use of the land. The State Government however by its impugned order Annexure H cancelled the permission for non-agricultural use of the land. Petitioner has therefore approached this Court by way of this petition.
(2.)It is not in dispute that the original occupant Mulchand Hirabhai Parikh was holding the land which was agricultural in character and therefore it could not have been used for any purpose other than agriculture except with the permission of the Collector under Sec. 65 of the Bombay Land Revenue Code (Code for short). That section insofar as it is relevant for our purposes reads as under:
"65 Any occupant of land assessed or held for the purpose of agriculture is entitled by himself his servants tenant-agents or other legal representatives to erect farm building construct wells or tanks or make any other improvements thereon for the better cultivation of the land or its more convenient use for the purpose aforesaid.
But if any occupant wishes to use his holding or any part thereof for any other purpose the Collectors permission shall in the first place be applied for by the occupant ".
The Collector on receipt of such application.
(a) shall send to the applicant a written acknowledgement of its receipt and
(b) may after due inquiry either grant or refuse the permission applied for;
Provided that where the Collector fails to inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted"
. It will be seen that under the aforesaid section power is conferred on the Collector to grant permission to the occupant of the land for making non-agricultural use of land which is agricultural in character.
(3.)Section 157 of the Gujarat Panchayats Act 1961 (Panchayats Act for short) insofar as it is relevant for our purposes reads as under:
157 (s) Notwithstanding anything contained in any law for the time being in force the State Government may subject to such conditions as it may think fit to impose transfer by an order published in the Official Gazette to a District Panchayat any such powers functions and duties relating to any matter as are exercised or performed by the State Government or any Officer of Government under any enactment which the State Legislature is competent to enact or otherwise in the executive power of the State and appear to relate to matters arising within a District and to be of an administrative character and shall can such transfer; allot to the District Panchayat such fund and personnel as may be necessary to enable the District Panchayat to exercise the powers and discharge the functions and duties so transferred
(2) Without prejudice to the generality of the provisions of sub-sec (1) the State Government may transfer to the District Panchayats such powers functions and duties as are exercised or performed by the following Department of the State namely:
(2) Land Department :
(3) On the transfer of any powers functions and duties under sub-secs. (1) and (2) the District Panchayats shall if the State Government so directs and with the previous approval of the State Government may delegate to any Panchayat subordinate to it any of the functions powers and duties so transferred and allot to such Panchayat such fund and staff as may be necessary to enable the Panchayat to exercise the powers and discharge the functions and duties so delegated"
It is not in dispute that in exercise of the power conferred under Sec. 157 of the Panchayats Act the State Government transferred to the District Panchayat the powers functions and duties of the State Government and its officers as specified in the schedule thereto. By its Resolution dated 25/03/1963 all the powers functions and duties conferred on the Collector under Secs. 59 65 and 66 of the Code are transferred to the District Panchayats. By another Resolution of even date the State Government directed that out of the powers functions and duties transferred to the District Panchayats under the aforesaid Resolutions the District Panchayats shall delegate to the subordinate Panchayats the powers functions and duties as specified in the statement appended thereto. By the said Resolution the Government was pleased to direct that out of the powers functions and duties transferred to the District Panchayats the latter should delegate to the Taluka Panchayats the powers functions and duties insofar as Class II villages as per classification made in Rule 81 of the Land Revenue Rules 1921 were concerned. It is not disputed that the land in question is in a village which is Class II village. One of the powers which the District Panchayat of Panchmahals had to delegate to the Taluka Panchayat was power regarding grant of permission for non-agricultural use of land under Sec. 65 of the Code. Therefore the District Panchayat of Panchmahals was under obligation to delegate to the Taluka Panchayat of Halol such power under Sec. 65 of the Code.
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