REPORTABLE
| IN THE SUPREME COURT OF INDIA | | |
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| CIVIL APPELLATE JURISDICTION | |
| CIVIL APPEAL NO. 7576 OF 2019 | |
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| (@SPECIAL LEAVE PETITION (C) NO. 24633 OF 2017) | | |
| STATE OF GOA & ANR. | | | | | | …APPELLANT(S) |
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Versus
| DR. ALVARO ALBERTO MOUSINHO | | | | |
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| DE NORONHA FERREIRA | | | | …RESPONDENT(S) |
J U D G M E N T
Deepak Gupta, J.
Leave granted.
2. The following question arises for decision in this appeal.
“Whether conversion charges payable for conversion of land
from agricultural to nonagricultural should be calculated
on the basis of the rates applicable at the time of making of
Signature Not Verified
Digitally signed by
MEENAKSHI KOHLI
Date: 2019.09.24
14:30:01 IST
Reason:
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the application or on the date when the order allowing
conversion of land was issued?”
3. Facts necessary for decision of the case are that the
respondent and three of his family members applied to the State
for permission to convert some agricultural land measuring
16014 sq. mtrs. on 08.03.2013. This application was
acknowledged by the Office of the Deputy Collector on
29.04.2013. Inspection of the land was carried out on
15.05.2013 and the Mamlatdar submitted his report to the
Deputy Collector on 16.05.2013. Thereafter, a report was
submitted by the Town and Country Planning Department on
21.05.2013.
4. On 22.05.2013, amendment was made in the Goa, Daman
& Diu Land Revenue Code, 1968 (hereinafter referred to as ‘the
Code’) by the Goa Land Revenue Code (Amendment) Act, 2013
and the rates of conversion were revised and increased
substantially.
5. The Deputy Conservator of Forest, Margao submitted his
report with regard to the conversion on 04.06.2013. On
09.07.2013, the Deputy Collector wrote to the Mamlatdar for
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some information, which information was supplied by the
Mamlatdar to the Deputy Collector on 15.07.2013. On
19.07.2013, the respondent submitted an affidavit agreeing to
pay the conversion charges as asked for and also undertook not
to sue for refund of conversion charges. On 19.09.2013, a
communication was sent to the respondent and his family
members to deposit the amount as per the enhanced rates. On
09.10.2013, the respondent deposited the amount of conversion
charges, as demanded and thereafter, Sanad granting permission
for conversion of land was issued on 19.11.2013.
6. Thereafter, the respondent filed writ petition claiming
refund of the excess amount, as according to the respondent, the
conversion charges should have been fixed as per the rates
applicable on the date of application i.e. 08.03.2013. The High
Court partly allowed the writ petition in the following terms:
“(ii) The impugned communication dated 19.09.2013
stands quashed and set aside.
(iii) The respondents are directed to calculate the
conversion fees payable by the petitioner in the light of
the observations made herein above and refund the
excess amount, if any, to the petitioner together with
interest thereon at the rate of 8% per annum from the
date of such payment up to the actual payment.”
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The High Court, however, held that this order applied only
to 16014 sq. mtrs. and for the remaining area 9354.50 sq. mtrs.
which was added by a separate addendum after the amendment
came into force on 22.05.2013, the respondent herein shall be
liable to pay revised rates. The High Court relied upon the
judgments of this Court in the case of Union of India & Anr. vs.
1
, vs.
Mahajan Industries Ltd. & Anr. Union of India & Ors.
2
Dev Raj Gupta & Ors. , and the judgment of the Delhi High
Court in the case of Ansal & Saigal Properties (P) Ltd. & Ors.
3
vs. L. & D.O. & Ors.
7. As far as the judgment in (supra)
Mahajan Industries case
is concerned, the judgment is based on the concession of the
counsel for the appellant that he did not dispute the correctness
of the judgment of the Delhi High Court in
Ansal & Saigal
Properties (P) Ltd . (supra). The Court further held that in terms
of the said judgment the crucial date for calculating the
conversion charges is the date of receipt of the application. This
Court further held that the application filed by the original
1 (2005) 10 SCC 203
2 (1991) 1 SCC 63
3 (1998) 74 DLT 152
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owners on 25.03.1981 through their general power of attorney for
change of land use had never been rejected and was still pending
and it was in these circumstances that the Union of India was
directed to take a final decision on conversion of land use as
expeditiously as possible but conversion charges would be
payable as on the date of application for conversion. According
to us, this judgment is based on a concession and cannot be
used by the respondent and has been wrongly relied upon by the
High Court.
8. In , there were various
Dev Raj Gupta’s case (supra)
questions raised. One of the questions was – when was the
application properly constituted; and the other was, what was the
appropriate date for fixing the conversion charges? The High
Court held that a proper application for conversion had been filed
by the land owners on 15.02.1978. The High Court further held
that in view of the provision in the Master Plan declaring the area
in question in which the leased land was situate as commercial
zone, there was automatic and statutory conversion and no
application for conversion was necessary. It was also held that it
was the rate of 1978 which would apply and not the rate of April,
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1981. This Court held that an application for conversion was
required and a proper application in this behalf was filed only on
27.02.1981. This Court held that the sanction was given by the
authority concerned to convert the user of land on 12.01.1984
and the Union of India had failed to explain the delay of 3 years
in replying to the application for conversion filed on 27.02.1981
and it was in these facts it was held that the conversion charges
should be fixed as on 27.02.1981.
9. As far as the judgment of the Delhi High Court in the case of
(supra) is concerned, on
Ansal & Saigal Properties (P) Ltd.
careful perusal of the same we find that that judgment has been
delivered in the facts of the case. There was no provision for
levying of conversion fees from a particular date. In the present
case, Section 32 of the Code is applicable and there was no such
provision before the Delhi High Court. Therefore, in our view,
that judgment has no applicability to the facts and
circumstances of the case.
10. As far as the present case is concerned, we may make
reference to the relevant provisions of Section 32 of the Code
which reads as follows:
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“ 32. Procedure for conversion of use of land from one
purpose to another. –
(1) xxx xxx xxx
(2)The Collector, on receipt of an application,
(a) shall acknowledge the application within seven days;
(b) xxx xxx xxx
(c) may, after due enquiry, either grant the permission on
such terms and conditions as he may specify subject to any
rules made in this behalf by the Government; or refuse the
permission applied for, if it is necessary so to do to secure
the public health, safety and convenience or if such use is
contrary to any scheme for the planned development of a
village, town or city in force under any law for the time
being in force and in the case of land which is to be used as
building sites in order to secure in addition that the
dimensions, arrangement and accessibility of the sites are
adequate for the health and convenience of the occupiers or
are suitable to the locality; where an application is rejected,
the Collector shall state the reasons in writing of such
rejection.
(3)The Collector shall take a decision on the application
within a period of sixty days from the date of receipt of the
application and in case of his failure to do so, the person
shall have the right to make an appeal to the Secretary
(Revenue) to the Government who shall dispose of the
appeal within a period of thirty days from the date of filing
of appeal.
(4) xxx xxx xxx
(5) xxx xxx xxx
(6)When the land is permitted to be used for a non
agricultural purpose, a sanad shall be granted to the holder
thereof in the prescribed form, on payment of fees at the
following rates, namely:
xxx xxx xxx
(Rates are prescribed)
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(7) xxx xxx xxx”
.
11 It would be pertinent to mention that vide amendment dated
22.05.2013, subsection (6) was amended providing different
commercial rates for different areas and for different purposes.
We are concerned with clause (ii) of subsection (6) of Section 32
which reads as follows:
“(ii) When the land is permitted to be used from one
purpose to another, a sanad shall be granted to the
holder thereof in the prescribed form, on payment of the
fees hereinbelow:”
12. A careful analysis of Section 32 shows that on receipt of an
application, the Collector shall acknowledge the application
within 7 days, if it is not otherwise returned. Clause (c) of sub
section (2) of Section 32 empowers the Collector either to grant or
refuse permission. Subsection (3) is important and provides
that the Collector should take a decision on the application
within a period of 60 days from the date of receipt of the
application. In case, the Collector fails to take a decision within
60 days then the person has a right to file an appeal to the
Secretary (Revenue), who is duty bound to dispose of the appeal
within 30 days of the filing of the appeal.
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13. Subsection (6) clearly lays down that once permission is
granted to use the land for nonagricultural purpose, a Sanad is
to be granted to the holder thereof on payment of fees prescribed
in the Code itself. Even after amendment, the position virtually
remains the same.
14. The question of payment of conversion fees arises only when
a decision is taken to grant a Sanad . Therefore, the relevant date
for fixing the conversion charges will be the date on which the
decision is taken to grant the Sanad . In the present case, that
date appears to be 19.09.2013. The amount determined by the
Collector was deposited by the land owners on 09.10.2013
though under protest reserving their right to challenge the
fixation of the date on which the conversion charges were to be
levied.
15. As far as the present case is concerned, the application was
admittedly submitted on 08.03.2013. The perusal of the record
reveals that on 29.04.2013 the Field Surveyor prepared a note
that the application is in order and the copies of the same be
forwarded to the Deputy Conservator of Forest, Margao,
Mamlatdar , Salcete, Town & Country Planning Department,
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Salcete with a request to the respondent and his family members
to be present for inspection of the site proposed. It would also be
relevant to point out that after the officers submitted the reports,
as required, the respondent submitted an affidavitcum
indemnity bond on 19.07.2013. The relevant portion of the same
reads as follows:
“7. I further say that, myself along with my said
brother shall not request the Government for the refund
of conversion fees or part of conversion fees paid
hereinafter for conversion of said land, except in case
where we are not allowed to develop the land by any
government authority and or agency.”
16. It was thereafter that the order dated 19.09.2013 was
passed. After depositing the amount and taking necessary
permissions, the writ petition was filed.
17. We are of the view that the situation in the present case is
totally different from the cases referred to by the High Court. In
the cases decided by this Court, there was no provision similar to
Section 32 of the Code. Section 32 lays down certain timelines
and gives a right to the land owners to file an appeal if the
timeline is not adhered to by the department. The application in
the present case was filed on 08.03.2013 and 60 days expired on
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07.05.2013. The land owner could have filed an appeal
immediately thereafter to the appellate authority which was
obliged to decide it within 30 days. This was not done. In fact,
even after the amendment was made on 22.05.2013, no appeal
was filed. No doubt, there is a delay in terms of the timelines laid
down in Section 32 but the delay cannot be said to be too much.
Furthermore, the respondent waived any rights which may have
accrued to them in terms of Section 32 by not filing an appeal.
Further, the respondent has acquiesced and consented to
conversion charges being paid in accordance with the amended
provisions by filing the affidavitcumindemnity bond, referred to
above.
18. It was contended by Mr. Dhruv Mehta, learned senior
counsel appearing for the respondent that this indemnity bond
was a result of coercion by the authorities, who insisted on the
said indemnity bond being filed before granting permission. We
are not impressed with this argument. In the writ petition filed
by the respondent, the only averment made in this regard is that
respondent was required to submit the said indemnity bond to
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the Office of the Deputy Collector. The relevant portion of the
writ petition reads as follows:
“7. On 19/07/2013, the Petitioner submitted Affidavit
cumIndemnity Bond, which the Petitioner was required
to submit to the Office of the Deputy Collector (Revenue)
……
8. At the time of presenting the said Affidavitcum
Indemnity Bond, the Petitioner’s representative was told,
that the issuance of the Conversion Sanad, might be
delayed further, as confusion had arisen in the Office of
the Deputy Collector (Revenue), in the matter…...”
19. We also cannot lose sight of the fact that the respondent
had only sought permission for conversion of 16014 sq. mtrs. of
land but on consideration of the plan submitted by the
respondent before the Town and Country Planning the total
requirement of land was 25368.50 sq. mtrs. and, therefore,
permission was granted for this 25368.50 sq. mtrs. The
confusion arose because of the area which the applicant applied
for and this led to delay in the decision of the matter.
20. Though from the record it is not very clear on which date
the application was filed for conversion of the excess 9354.50 sq.
mtrs. of land but the finding of the High Court is clear that the
application for this additional area which came to be included by
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a separate addendum to the original application was filed only
after the amendment came into force. This portion of the
judgment has not been challenged by the respondent. It is, thus,
apparent that the land actually required to be converted was
25368.50 sq. mtrs. and, therefore, a complete application could
be said to have been filed only after the addendum was added.
21. Even if we were to ignore the addendum, it is obvious that
by applying for a smaller area than what was actually required,
the respondent and his family members themselves created a
confusion which also was partly responsible for the delay in grant
of permission. This is not a case where the delay is very large
and we are of the view that the respondent also contributed to
the delay by not applying for the conversion of the entire extent of
land in one go. Furthermore, as pointed out above, the
respondent did not even file an appeal.
22. It is in this factual background that we have to consider the
affidavitcumindemnity bond filed by the respondent. In our
view, there was no coercion in the matter. The respondent was
not forced to file such an affidavit. They may have been asked to
do so but they could have refused to file it. Nothing has been
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placed on record to even remotely undertake that undue pressure
was put upon the respondent to file such an affidavit. In this
affidavit he undertook to pay the conversion charges as
demanded. He also undertook not to challenge the imposition of
conversion charges. Most importantly, he also undertook not to
sue for recovery of any excess conversion charges. The
respondent deposited this amount, though under protest.
Thereafter, he obtained all necessary permissions and after
Sanad and all other documents were prepared, he chose to
challenge the order. In our view, the respondent cannot be
permitted to challenge the levy of conversion charges at the rates,
post amendment, on account of his acts, deeds and conduct and
acquiescence to the said order.
23. In view of the above discussion, we hold that in the facts of
the present case, the appellants rightly imposed the conversion
charges as on the date of decision to grant Sanad , which is the
legal position. We further hold that the respondent was not
entitled to challenge the levy of these conversion charges in view
of his own acts, deeds and conduct.
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24. In view of the above, we allow the appeal, set aside the
judgment of the High Court dated 13.10.2016 and dismiss the
Writ Petition No.262 of 2014 filed by the petitioner (respondent
herein). Pending application(s), if any, stands disposed of.
………………………J.
(Deepak Gupta)
………………………J.
(Aniruddha Bose)
New Delhi
September 24, 2019
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