GOHIL JESANGBHAI RAYSANGBHAI vs. STATE OF GUJARAT

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4123 OF 2012 Gohil Jesangbhai Raysangbhai & Ors. … Appellant (s) Versus State of Gujarat & Anr. … Respondent (s) WITH CIVIL APPEAL NO.4124 OF 2012 CIVIL APPEAL NO.4125 OF 2012 CIVIL APPEAL NO.4126 OF 2012 CIVIL APPEAL NO.4127 OF 2012 JUDGMENT CIVIL APPEAL NO.4129 OF 2012 CIVIL APPEAL NO.4130 OF 2012 CIVIL APPEAL NO.4131 OF 2012 CIVIL APPEAL NO.4132 OF 2012 CIVIL APPEAL NO.4133 OF 2012 CIVIL APPEAL NO.4134 OF 2012 Page 1 2 CIVIL APPEAL NO.4135 OF 2012 J U D G E M E N T H.L. Gokhale J. All these Civil Appeals raise the 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 of land purchased or sold under the said Act. These appeals raise the questions also with respect to the validity of JUDGMENT 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, transferring, and for changing the use of land from agricultural to non-agricultural purposes. Thirdly, these appeals seek to challenge the minimum Page 2 3 valuation of land as per the rates contained in the list called as “Jantri” prevalent since 20.12.2006.

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 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. JUDGMENT The 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 there are some additional points in some of these Page 3 4 Civil Appeals depending upon the facts of each of those cases. 3. Mr. Huzefa Ahmadi and Mr. P.H. Parekh, both

amongst others appeared for the appellants. Mr. Rohinton Nariman, 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 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 17B, 32, 32F, 32-I, 32-O, 32U, 43-ID or 88E or sold to any person 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 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. JUDGMENT Provided that no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant: Page 4 5 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;

(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. (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’ Loan Act, 1884, or the Bombay Non- Agriculturists’ Loans Act, 1928, as in force in the State of Gujarat, or in favour 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 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 proceeds to be applied in payment of such loan. JUDGMENT Page 5 6 Explanation, - For the purposes of this sub-section, “bank” means – (a) the State Bank of India constituted under the State Bank of India Act, 1955;

(c) any corresponding new bank as defined in clause (d) 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. (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 decree or order of a court, held a transferable right in the tenancy of the land. JUDGMENT (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.” 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:- Page 6 7 “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.

Sachivalaya Gandhinagar. Dated 04/07/2008 Preamble:- 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 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 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 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 transferred in the 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. JUDGMENT 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 land granted or re-granted under different tenure and Page 7 8

JUDGMENT -:: R E S O L U T I O N ::- On the basis of the letter No.STP/102008/174/H.1 dated 31/03/2008 of the Revenue Department, for the purpose of Stamp duty, a new Jantri has been put into force by issuing the Circular No. Stamp/ Technical/07/08/1512 dated 31/03/2008 with effect from 01/04/2008 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 of restricted tenure type of Tenancy Act is to be Page 8 9 done as per the rate of Jantri (as per Annual Statements of rates-2006 and as per the amendments made from time to time).

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(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. (B) The following rates shall be applicable to the land holding under Kutch Inami Abolition Act and new and impartible tenure.

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(B) 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 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 be adopted. JUDGMENT (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 is not remained to be entered in the record to the Collector till the date th 25 of every month. (D) On finalization of the certified mutation entry as per the aforesaid Sr.No.2 (A), the details to the Page 11 12 effect that “liable for premium only for non- agricultural purpose” shall have to be mentioned certainly in bold letters in column of tenure and other rights of Village Form No.7/12.

(F) Moreover at the time of granting such permission if there is any encumbrance upon the land, then the abovementioned concerned officer shall have to issue orders accordingly by granting permission of transfer in old tenure including encumbrance. (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 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. (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. JUDGMENT 3. Procedure of converting from New Tenure to Old Tenure 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 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 within 10 days. Page 12 13

(D) After depositing amount of such premium, the Collector shall have to pass order in this regards within 3 (three) days. (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 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 price of Jantri then premium shall have to be recovered accordingly. After one year applicant shall have to submit an application afresh. JUDGMENT (F) When the permission is required to be granted to the charitable institutes for non-agricultural purpose after recovery, such institution is required to have been 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, 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. Page 13 14

(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. (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. (C) As per above 4(B), 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 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 considering rate of agriculture Jantri prevailing in Urban and Rural area. JUDGMENT (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. (C) In urban area, for non-agriculture purpose, valuation shall be made after considering rates of Janri of developed land. (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 Page 14 15 area, by considering rate of Jantri of the development land.

6. Procedure for disposal of pending chapters:- (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. (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. The chapters which have been sent to the Deputy Town Planner for valuation, shall be called back and calculation of the premium shall be made on the basis of rate as per Jantri. JUDGMENT (c) The chapters decided by the District Valuation Committee, shall also be disposed again at the Collector 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 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 valuated, shall be received back and permission shall be given after taking Page 15 16 consent of the Government and applying the price of Jantri.

(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 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. 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 the Appendix-4. JUDGMENT 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 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 finance department Page 16 17 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,

State of Gujarat.” The consequent requirements under Section 43 read with aforesaid resolution dated 4.7.2008 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 provided under that Section. Section 43 with which we are concerned in the present matter and which JUDGMENT appears in Part III of Chapter III of the Act. Chapter III provides for Special rights and privileges of tenants, and contains provisions for distribution of land for personal cultivation. Part III, thereof, provides for restrictions upon holding of land in excess of ceiling area. Section 43 has to be seen in this context. Page 17 18 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

Section 43 did 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 Mohanlal Vs. State of Gujarat reported 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 JUDGMENT argued before the said Division Bench that this section does not lay down any guidelines. However, the High Court held that the amount 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. Page 18 19 8. The validity of the above amendment of 1960 came up for consideration before the Supreme Court in the case of Patel Ambalal Gokalbhai Vs. State of Gujarat reported in

th protected under the 9 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 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 order is paid by way of consideration, and only after a previous sanction is obtained from the JUDGMENT 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, 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. Page 19 20 9. As far as the determination of this amount is concerned, the same was earlier entrusted to the District Level Committee or the State Level Committee as per 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. 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 can be seen from paragraph 4 JUDGMENT 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 stamp duty under the Bombay Stamp Act. Those rates in the Jantri Page 20 21 are incorporated by virtue of this Resolution for the purpose of permitting these transfers. Submissions of the appellants

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 shall be 80 per cent of the price received by the agriculturists as determined as per the Jantri rates. Thus, whatever may be 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 JUDGMENT 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 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. Page 21 22 It is also pointed out that the applications for 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 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 admeasuring about 4,875 sq. mts. at plot No. 65 in revenue survey no. 90. Another application in the same survey no. was decided on 4.7.2005 at the rate of premium of JUDGMENT 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 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 Page 22 23 No.4130/2012, and is having her property at Vadodara. It is her submission that because of the application of this Resolution, exorbitant amount is being sought. The

is being wasted and is being used by other people for dumping garbage. 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 been purchased for a price, it is not a largess given by the State. Reliance was placed on paragraph JUDGMENT 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 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 Page 23 24 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

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 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 on the application by the Collector. Besides, the JUDGMENT 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) SCC 203 to submit that date of application is the material date. Reliance was also placed on the judgment of this Court in State of Gujarat Vs. Patel Raghav Natha reported in 1969 (2) SCC 187 Page 24 25 (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 90 days.

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 decision and for that judgment of this Court reported in Delhi Airtech Services Pvt. Ltd. Vs. State of Uttar Pradesh reported in 2011 (9) SCC 354 relied upon. (It was also submitted that Section 43 should be read JUDGMENT alongwith Section 69 of the Act.) The period for decision making should at the highest be 90 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 being charged under Section 43 (as it stands now) was by Page 25 26 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 all the 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 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 JUDGMENT Court, the premium has been brought down to 40%. In his submission, the Jantri rate had to 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. Consideration of the submissions Page 26 27 16. We may at this stage refer to the judgment of the Division Bench of the Gujarat High Court in Shashikant Mohanlal (Supra) by P.N.Bhagwati, CJ as he then was in the

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premium is concerned the Division Bench observed as follows JUDGMENT in paragraph 11 thereof:-

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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:- 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 appertained, on payment of the occupancy price equal to twelve times of the amount of the full assessment of such Page 30 31

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: 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 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 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- JUDGMENT (a) the commutation settlement in respect of which 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 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 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 Page 31 32 appertaining thereto, a person in whom the ownership of such land for the time being vests. (emphasis supplied) 19. This Section 4 came up for consideration before a

Page 32 33 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

lands have been permitted to be purchased by the tenants at a much lesser price. As held in Shashikant Mohanlal (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 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 JUDGMENT is reflected in Section 43, and if that is the intention of the Legislature there is no reason why the Courts should depart therefrom while interpreting the provision. 21. It was submitted by the appellants 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 Page 33 34 injustice was highlighted in the case of Savitaben in Civil Appeal No. 4129/2012. The fact however, remains that the Section speaks of previous sanction. As noted earlier, Section

Act, 1950 also speaks about the previous sanction. Thus, this is the theme 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 party. 22. Rule 25C of the Rules framed under the Bombay Tenancy and Agricultural Lands Act, 1948, was relied upon by JUDGMENT the appellants. It speaks about the circumstances in which, and conditions subject to which sanction shall be given by the 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 Page 34 35 that transfer of an agricultural land for non-agricultural purpose is not easy. It is only sub-clause (e) thereof under which such a transferor will have to make his case which is

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 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 our view, no such submission can be JUDGMENT 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. 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 Page 35 36 of the appellants in this behalf. Such application cannot be kept pending indefinitely, and therefore we would expect the Collector to decide such applications as far as possible within

judgment of this Court in Patel 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. 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, dismissed with no order as to costs. JUDGMENT …………………………..J. [ Surinder Singh Nijjar ] ……..……………………..J. [ H.L. Gokhale ] New Delhi Dated : February 25, 2014 Page 36