1.0 By way of present petition, the petitioner has prayed to quash and set aside the order dated 09.07.1993 passed by the Gujarat Revenue Tribunal in the Revision Application preferred by the petitioner-State wherein the order dated 09.03.1992 passed by the Deputy Collector, Khaira at Anand is quashed and set aside.
2.0 The case of the petitioner is that respondent -Patel Mafatbhai Ashabhai held Survey No. 520/6 admeasuring A.0-5 of Anand, which he had received under the provisions of the Tenancy Act and which is subject to the restrictive conditions of Section 43 of the Act. He made an application on 29.06.1991 through his Power of Attorney Vasantbhai Haribhai Patel to the Deputy Collector, Anand, seeking permission to use this land for residential house for their own use and for fixing premium under Section 43.
2.1 There are some corrections on this application, as per which now it reads that the permission is sought for their own house/farm house. The statement of the power of Attorney was taken before the Deputy Collector on 07.09.1991 to the same effect and it contains some corrections to read that the purpose was for construction of their own house/farm house.
2.2 The Deputy Collector made the inquiry. He obtained panch valuation as also 5 years sale statistics. He obtained the opinion of the Deputy Town Planner, Nadiad which is dated 19.10.1991. The Deputy Town Planner opined Rs. 70/ per square meter with a remark that the survey number is situated within the agricultural zone and, therefore, the valuation done was for agricultural purpose. Thereafter, the Deputy Collector passed order dated 23.12.1994. He observed that as per 5 year sale statistics, the valuation would be Rs. 40/- per square meter and as per panch valuation it would be Rs.9000/- per guntha. He accepted the opinion of the Deputy Town Planner that the market price would be Rs. 70/- per square meter.
2.3 The Deputy Collector decided to deduct Rs. 118/- as per provisions under Section 32(G) of the Act and then to charge 80% thereon as market value. On 06.03.1994, the Deputy Collector, Anand arrived at a valuation of Rs. 28,242/- by order dated 09.03.1991 and asked the respondent to pay this amount in Government Treasury within 21 days. After the said order, the premium of Rs. 28,242/- was deposited on 24.12.1991 and then Deputy Collector, Anand passed order on 09.03.1992.
2.4 He granted permission under Section 43. On 18.11.1992, the respondent preferred a Revision Application praying that no premium amount could have charged under Section 43 for construction. The Government preferred Revision Application against the order of the Deputy Collector before the Gujarat Revenue Tribunal, Ahmedabad. The Gujarat Revenue Tribunal passed an order rejecting the Revision Application filed by the petitioner and allowing the Revision Application filed by the respondent. Hence, this petition.
3.0 Learned Assistant Government Pleader submitted that the respondent had received the land under the provisions of the Tenancy Act only on 30.04.1991 and still within the two months he thought of making an application under Section 43 which shows that the purchaser of agricultural land under the provisions of the Tenancy Act does not want to use the same for agricultural purpose and has obviously for other intentions.
3.1 He contended that Revision Application No. 906 of 1992 is barred by limitation. He further submitted that respondent had given consent to pay the premium and therefore it cannot be said that he had filed application under misunderstanding of the provisions of law. The area of the land is just 5 gunthas and the whole area is to be converted into farm house which would mean that there would be no farm land at all. When the area is in agricultural zone, permission for non-agricultural use should not have been granted.
4.0 As a result of hearing and perusal of the record it is found that land was obtained by the respondent under Section 32(G) of the Tenancy Act only on 30.04.1991 under the ALT's order in Tenancy Case No. 280/77 and he had paid up the purchase price on 20.03.1992. This situation makes it clear that immediately after the purchase, the respondent had sought for permission to build farm house/house for personal use on this land.
4.1 For construction for personal use of farm house, the provisions of Section 43 of the Tenancy Act would not come into play and permission is required to be obtained under Section 65 of the Bombay Land Revenue Code. Section 43 of the Tenancy Act will apply only when there is a transfer intended or contemplated in the process. If a farm house is to be built only for the purpose of self-occupation the provisions of Section 43 would not come into play and therefore, the impugned order of the Deputy Collector (1) fixing the premium and (2) granting permission under Section 43 was not in accordance with the provisions of law.
5.0 I am in complete agreement with the reasonings adopted and findings adopted by the Tribunal. The petition is required to be dismissed and the same is dismissed. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated.
(K.S.JHAVERI, J.) niru* Top