- (1.) THE facts which give rise to this appeal are as follows : THE piece of land measuring 14-1/2 biswas situated in Killa No. 1, Sq. 57 of the Chak No. 13-0 in village Karanpura Distt. Ganganagar belonged to M/s Harikishan Singh Rajendra Singh. THEy applied to the District Magistrate for no objection certificate for installation of petrol pump on the said piece of land. THE District Magistrate issued no objection certificate but for certain reasons they could not install the petrol pump over the said land.
(2.) M/s. Vishwanath & Co. , purchased this piece of land from M/s Harikishan Singh Rajendra Singh and simultaneously applied for the transfer of no objection certificate. The Additional District Magistrate sanctioned the no objection certificate in favour of M/s Vishwanath & Go. Construction was started over the said piece of land. One Shri Dalel Singh put in an application to the District Magistrate, Ganganagar on 24-8-62 that M/s Viswanath & Co. have converted the agricultural land into abadi land without proper sanction. The learned District Magistrate issued an interim injunction restraining M/s Vishwanath & Co. , the appellant from constructing any building over the said land. The appellant submitted an elaborate reply along with a site plan. The learned Collector and District Magistrate inspected the site on 16-6-62 and observed that the land is recorded as agricultural land. He also observed that there are certain other buildings like petrol pumps and ginning and pressing factories over the agricultural land. He therefore made his interim order absolute, and restrained M/s Vishwanath & Co. , from further construction over the land and directed them to file an application under rules for the conversion of agricultural land into abadi land. The Collector further asked the Tehsildar to make enquiries against the persons who had unauthorisedly constructed buildings over the agricultural land in the vicinity of the said piece of land. M/s Vishwanath & Co. , therefore went in appeal before the learned Revenue Appelate Authority who vide his order dated 19-9-62 rejected the appeal. The aggrieved party have preferred to come up in second appeal before us. Shri Dalel Singh also appeared before us and requested us that he may be made a party in this case. He however stated that he was a party in the first appellate court, but from the perusal of the record it appears that his application was rejected by the Revenue Appellate Authority on 23-8-62 which is at page 8 of the file. The main contention of the appellant is that no objection certificate for the installation of a petrol pump over the said piece of land was granted by the District Magistrate after taking into consideration all the pros and cons of the case. Once a no objection certificate was issued it was not open for the District Magistrate to go back over his previous order and thereby restrict the appellant to proceed further with the construction of the building. We have given our careful consideration to this case and we feel that the issue of no objection certificate by the District Magistrate and the permission for conversion of agricultural land into abadi are two separate issues. A District Magistrate gives a no objection certificate after consideration of certain provisions of law keeping in view the suitability of the site, safety etc. and the question is decided later on whether the land could be used for a particular purpose and if so necessary formalities have to be gone through to convert the agricultural land into abadi land in pursuance of certain set rules issued by the State Government. Mere issue of no objection certificate in favour of a person does not give him all rights over the said piece of land automatically except that the District Magistrate has no objection if a petrol pump is erected at a proper place. The other contention of the counsel for the appellant is that in the consequence of issue of no objection certificate he started construction over the said land prior to the sec. 90-A of Rajasthan Land Revenue Act came into force. We are not inclined to agree to this contention of the appellant because it is clear from the record that M/s Harikishan Singh Rajendra Singh who obtained the no objection certificate previously did not proceed with the construction over the said land. When this piece of land was purchased by M/s Vishwanath & Co. , in the year 1962, sec. 20-A along with the amendment of clause (V) had already come into force. Thus the contention of the appellant is untenable. The appellant has also stated that all the surroundings of the said land have already been converted into abadi by shop-keepers, mill-owners and factory proprietors and this peice of land is a small portion in between other buildings. We are not concerned with this aspect of the question at all. They may be very good reasons for getting the agricultural land converted into abadi land. The Collector has already asked the applicant to apply for the conversion of agricultural land into abadi land. We see no reason to interfere with the orders passed by the lower courts concurrently. The appeal therefore stands rejected. Per Shri Gajendra Singh - The proceedings in this case arose, as a result of the Collector Ganganagar issuing an injunction against the appellant M/s Vishwa Nath & Co. restraining them from constructing any building over the land in dispute, on the ground that it was an agricultural land. An attempt was being made to convert it into abadi land by installing a petrol pump. The appellants were asked to apply to the State Government for convertion of the agricultural land into abadi land in accordance with rules. While arguing the case the counsel for the petitioner's one of the contention was that the attempt to convert the so called agricultural land into abadi land was started long before sec. 90-A was incorporated in the Rajasthan Land Revenue Act, 1956 by amendment of the Act on 27th December, 1958. Further sec. 5 of sec. 90-A of the above Act was added by way of amendment on 14-9-1960 which made a person trespasser liable to ejectment if he converted the land without the written permission of the State Government. The counsel further argued that at the time when the no objection certificate was given for installing a petrol pump on this land, it cannot be said that the land was held for agricultural purposes. The land in fact was sold by the previous holder for non-agricultural purposes to the present appellant. It, therefore, lost its character of agricultural land. In support the counsel cited two authorities of the Punjab High Court A. I. R. 1924 Lahore p. 657 and A. I. R. 1937 Lahore page 755 in which on the basis of the definition of agricultural land as given in the Punjab Alienation of Land Act it was held that the land was not agricultural land. The Government Advocate's reply was that 'no objection certificate' was in fact given in February, 1958 when sec. 5 was incorporated in the Act and the conversion of agricultural land for any other purposes was prohibited. The question before us is whether this land as laid down in sec. 90-A has been held by the appellant for agricultural purpose or not. In view of this fact, the counsel for the appellant specially pleaded that in the vicinity of this land in question number of other buildings such as petrol pumps ginning factory, etc. were constructed on the surrounding land. No definition of agricultural land has been provided in the Land Revenue Act. The Rajasthan Tenancy Act provides in sec. 5 sub-sec. 2 the following definition of agricultural land - Agricultural' shall include 'horticulture'. Thus it clearly shows that the term land held for agricultural purposes is nowhere defined. The ordinary meaning of the term agriculture is that the holding was used for purpose of raising crops or orchards. The mere fact that the land is assessed to land revenue and classified in the settlement record does not mean that the land is an agricultural land. In a settlement record of a village all lands are classified and numbered. Even some lands which are not capable of cultivation but provide sufficient grass are classified as 'beer' lands and assessed to land revenue. Therefore the test whether a particular land is held for agricultural purpose or not is not necessarily that a land is assessed to land revenue, but it surely means that that land has been used for agricultural purposes in the past. Neither the U. P. Tenancy Act nor the Punjab Tenancy Act provide any definition of agricultural land. It is only the Punjab Land Alienation Act that provides the following definition of agricultural land - "land which is not occupied as the site of any building in a town or village and is occupied or left for agricultural purposes or purposes of subservient to agriculture or for pasture. " In this case there is no finding by the subordinate courts, of the fact whether the land is held for agricultural purpose or not and unless that finding is there the provision of sec. 90-A of the Rajasthan Land Revenue Act, 1956 in my opinion cannot be invoked in this case. It was the duty of the Courts below to make a proper enquiry into this matter and to ascertain whether this land is held for agricultural purpose or not in the past. In Punjab where the land has not been used for agricultural purposes for the last six years preceding the sale, it was held that the land was not an agricultural land. It is the use to which a land is put, that will determine its nature whether the land is agricultural land or not. "in my opinion, therefore it would be necessary that this appeal be accepted and case be remanded for further enquiry whether the land is held for agricultural purpose or not. In the mean time if the appellant wishes to move the Government for granting permission for constructing the petrol pump, he is free to do so, but the present order of the subordinate Courts must be set aside. Per Shri R. N. Madhok - This appeal has been referred to me because of a difference of opinion in the Division Bench consisting of Shri Balwant Singh and Shri Gajendra Singh. Apart from the parties, I have heard Shri Durgalal Bardar, counsel for Dalel Singh, on the ground that he was concerned in the proceedings in the lower courts. No objection has been raised to this. The facts are that Apar Singh and Rajendra Singh partners of M/s. Harkirat Singh Rajendra Singh of Sri Karanpur purchased Killa No. 1 of Square of Chak 13 (o) on 7-6-1958. This land is situated on the Karanpur-Padampur road and is within the municipal limits of Karanpur town. M/s. Harkirat Singh Rajendra Singh applied to the Distt. Magistrate, Ganganagar, for a "no objection"certificate with regard to the installation of a petrol pump on the land. The certificate was granted on the 19-2-1959 under the law for the regulation of such installations involving public safety and public convenience. This was a proceeding of the District Magistrate qua District Magistrate. M/s. Vishwanath & Co. , the present appellants, purchased the said land from M/s. Harkirat Singh Rajendra Singh by registered deed dated 5-4-1962 which recites that all rights in the land including the right of irrigation, the rights in trees and water-courses and rights of way stood transferred to the vendee. The appellants applied to the District Magistrate for the transfer of the "no objection" certificate to them, and this application was granted. However, when the work on the installation of the petrol pump was commenced, Dalel Singh addressed an application to the District Magistrate stating that the land in question was agricultural land, and that permission to convert it to a non-agricultural purpose had not been taken by the appellants. On this application, the Additional Collector passed an order ad interim to the appellants restraining them from going ahead with the installation of the petrol pump. After hearing the appellants the learned Additional Collector confirmed the aforesaid order. At the same time, the learned Additional Collector directed the appellants to make a formal application under the rules for the conversion of the land to a non-agricultural purpose. This order having been passed on 19-6-1962, the appellants submitted an application for the conversion of the land to a non-agricultural purpose on 20-6-1962, and the Additional Collector forwarded the application to the Tehsil Karanpur for an early report. Meanwhile, the appellants chose to prefer an appeal against the order of the Additional Collector before the Revenue Appellate Authority, Bikaner, which was rejected. The appellants then preferred their second appeal in this Board. In the Division Bench which heard this appeal, Shri Balwant Singh has held that when the appellants purchased the land on 5-4-1962, sec. 90-A of the Rajasthan Land Revenue Act, 1956 was in force, and that the fact that other land in the surrounding area was already being used for non-agricultural purposes did not by itself take the land in dispute outside the ambit of sec. 90-A of the said Act, which provides that no person holding any land for the purpose of agriculture, and no transferee of such land shall use the same for any other purpose except with the written permission of the State Government obtained in the manner, laid down in this section. Sec. 90-A further provides that no person desiring to use such land or any part thereof for any purpose other than that of agriculture shall apply for the requisite permission. Shri Balwant Singh has wished to dismiss the appeal, seeing no reason to interfere with the order of the Additional Collector. Shri Gajendra Singh has differed with Shri Balwant Singh and he has proposed that the case be remanded for an enquiry whether the land is held for agricultural purposes or not. In the course of his judgment, he has observed that the use to which the land is put determines whether it is agricultural land or not.
(3.) SHRI M. M. Tewari, counsel for the appellants, has urged that since the District Magistrate had permitted the installation of a petrol pump on the land on 19-2-1959 the character of the land had changed, and that it was not land held for an agricultural purpose. This argument taken by itself has no force. Sec. 90-A of the Land Revenue Act was introduced on 27-12-1958, and if on a date subsequent thereto the District Magistrate granted a "no objection" certificate under the Petroleum Act on the installation of a Petrol Pump, this does not tantamount to the grant of sanction by the State Government under sec. 90-A of the Land Revenue Act to the conversion of the land in dispute to a non-agricultural purpose as laid down in sec. 90-A of the Act. SHRI Tiwari has gone on to argue that the land in question has actually not been used for agricultural purpose, and that therefore the provisions of sec. 90-A are not attracted. He has relied on a number of rulings. Before discussing these rulings, it would be helpful to recall sec. 5 (24) of the Rajasthan Tenancy Act, 1955, which defines "land" as land which is let or held for agricultural purposes or for purposes subservient thereto or as grove land or for pasturage. The expression "agricultural land" has not been defined as such in the Rajasthan Tenancy Act, but sec. 5 (2) of the Act says that "agriculture" shall include horticulture. Sec. 3 of the Rajasthan Land Revenue Act, which is an enactment later than the Rajasthan Tenancy Act, says that words and expressions defined in the Rajasthan Tenancy Act, shall, wherever used in the Land Revenue Act, be construed to have the meanings assigned to them by the Tenancy Act. Shri Tewari has first referred to AIR 1924 Lahore, 657. In that case their lordships were interpreting the expression "agricultural land" as defined in the Punjab Alienation of Land Act, 1900, which is as follows - "land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture. " Their Lordships held that the test was the use to which the land was put at the time of the sale, but that agricultural land did not cease to be agricultural land merely because at the time of sale it bore no crop and had been left fallow. They further observed that each case must be decided on its own facts. The second ruling is A. I. R. 1937 Lah. 755. In the latter case their Lordships held in a preemption suit that the land in dispute was not agricultural land because it was not proved that it had been used for grazing purposes or that grass growing in the area in dispute had been regularly cut and sold for profit. This decision was also given in the context of the definition of "agricultural land" in the Punjab land laws. I do not think these two rulings help the appellants. The learned Revenue Appellate Authority examined the khasra girdawari record from Samvat 2013 to 2016 and found that it was in the possession of one Resham Singh in Samvat 2013. The girdawari record shows that the land was cultivated in that year but was allowed to remain uncultivated during Samvat 2014, 2015 and 2016. The khasra girdawari record referred to above also shows that in the jamabandi proceeding in 2013 Samvat, the land stands recorded as the "khudkasht" land of Resham Singh and others. It bears a khasra number. The particulars of the land shown in the khasra girdawari record make it out to be land held for agricultural purposes on which Sarson a spring crop, was raised in 2013 Samvat, which corresponds to 1957 A. D. As stated earlier, the registered deed of 5-4-1962 by which the appellants purchased the land clearly says that what the vendors had transferred to the vendees were rights appurtenant to agricultural land, such as the right of irrigation and rights in water courses. Further when the Additional Collector passed his impugned order restraining the appellants from going ahead with the construction of the petrol pump, they made haste to apply for the conversion of the land for that purpose. In the circumstances of the case I do not see any reason to differ from the finding of the Revenue Appellate Authority and the Additional Collector that the land in dispute is agricultural land. In case the land in dispute had ceased to be agricultural land, the appellants could have shown that it had been struck off the land revenue roll, but no such thing was attempted by them. I must also refer to other authorities relied upon by the learned counsel for the appellants. The first is A. I. R. 1957 S. C. 768, wherein their Lordships were called upon to decide whether certain income was of the nature of ''agricultural income" for the prupose of assessment under the Income Tax Act. Their Lordships examined the connotation of the terms "agriculture", "agricultural purpose" and "agricultural operations", and ruled on the facts and circumstances of the case that the income of the assessee was "agricultural income" since the assessee had expended human skill and labour for a number of years in forestry operations which they held to be "agricultural operations". I do not think that the ruling of the Supreme Court has any direct bearing on the present case. The fourth ruling cited by the learned counsel for the appellants is AIR 1960 M. P. 86. Their Lordships of the Madhya Pradesh High Court had to decide in the context of the law of that State whether the land in dispute in the case before them was "khudkasht" land or not. I do not think this ruling has relevance for the determination of the point in dispute in the present appeal, namely, whether the land in question is agricultural land. The last ruling referred to by the learned counsel for the appellant is Hussain Beg versus the Board of Revenue, Rajasthan and other (D. B. Civil Writ No. 101 of 1964) decided on 31-8-1964. In that case their Lordships examined the scope of the expression "agricultural land" and held that the preparing of the soil for the planting of trees, placing the seed therein and rearing the plant was nothing but an operation of his land and that the term "land" as defined in the Jaipur Tenancy Act 1945 must necessarily include grove land though that Act did not expressly include grove land in the definition of the term "land". I do not see the relevance of this ruling for the decision of the present appeal. In sum, I consider that there is no reason to interfere with the finding of the lower courts that the land in dispute is agricultural land and I agree with my learned colleague Shri Balwant Singh that the appeal should be dismissed. The application made by the appellants to the Additional Collector for the conversion of the land to a non-agricultural purposes will take its own course. The case may now go back to the Division Bench for announcing the decision in accordance with the majority view, which is, that the appeal be dismissed. . ;