IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5057 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE R.BALIA. ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 3 to 5 No -------------------------------------------------------------- NATHUBHAI DULABHAI PATEL Versus COLLECTOR -------------------------------------------------------------- Appearance: MR BS PATEL for Petitioner MR. U.A. Trivedi, AGP for Respondent No.1,2,& 3 MR AJ PATEL for Respondent No. 4 -------------------------------------------------------------- CORAM : MR.JUSTICE R.BALIA. Date of decision: 18/08/98 ORAL JUDGEMENT 1. Rule. Mr. U.A. Trivedi, learned AGP waives service of rule on behalf of respondents No. 1, 2 and 3 and Mr. A.J. Patel waives service of rule on behalf of respondent No.4. 2. The facts leading to the present petition in brief are as under: 3. The petitioner has land bearing RS No.725/1 to 725/6 in the sim of Ankleshwar, District Bharuch. The land was originally agricultural land. On 1.7.1995, permission was granted to the petitioners for non-agricultural use of the land in question under Sec. 65 of the Bombay Land Revenue Code. At the time of obtaining sanction for conversion of agricultural land to non-agricultural purposes, the petitioners have filed the development plan duly sanctioned by Deputy Town Planner, Vadodara dated 26.5.1994. The conversion was accorded on the condition that applicant, it shall be entitled to construct on the land in accordance with the plan approved by the Deputy Town Planner, Vadodara on 26.5.1994. The land was converted for residential purposes and there was prohibition against use for any other purposes. In Condition No. 17 it was also envisaged that if any plan is approved without the permission of the Collector it shall be deemed to be the utilisation of land for other purposes in terms of Sec. 48(4) of the Bombay Land Revenue Code and shall be prohibited. 4. It appears that the petitioner wanted to make alteration in the already approved plan. They applied before the Collector for use of the land in question for non agricultural purposes as per the revised plan on 21.8.95. In this connection, it has been asserted by the petitioner that revised plan for development of the land in question was approved by the Deputy Town Planner, Gujarat State, Vadodara on 25th August, 1995. The entire area of Ankleshwar Nagarpalika has been declared as development area and the nagarpalika as been constituted as area development authority under the provisions of the Gujarat Town Planning and Urban Development Act, 1976, which also sanctioned the plan by its order dated 8th November, 1995. It further appears from the petition that the petitioner had to make successive applications for permission of the Collector in respect of revised plan, after removing objections raised by the Collector or for carrying out the required amendment in the plan. In the first place, no orders were made on application dated 21.8.1995 in spite of the revised plan having been approved by Deputy Town Planning Officer, Vadodara and the appropriate authority, viz., the Municipal Council, Ankleshwar. The petitioner submitted reminder application on 16.2.1996.In this connection it is noticed that on 21.9.1996, the Collector required the removal of a parking area from the revised plan about this, explanation was submitted with the Collector on 11.12.1996. Ankleshwar Municipality which is the Area Development Authority under the Town Planning Act again granted permission and recommended the respondent No.1 Collector for granting permission for the use of the land in question for non-agricultural purposes as per the revised lay out plan. On 25.7.1997 the Collector made an enquiry about the amalgamation of different survey numbers in respect of which the permission was granted for non-agricultural use. On such enquiry, the petitioner approached the Mamlatdar and obtained the orders about amalgamation of the survey numbers on 31st January, 1998. On 2nd April, 1998, the Collector raised issue about the provisions relating to drainage water in the lay out plan. It was followed up by submitting permission from the Ankleshwar Municipality approving the provision for rainy and drainage water. On 12.5.1998, the Collector returned the plan papers to the petitioner for securing approval of plan after providing for drainage and discharge of gutter channels, about drainage of rain water, and provisions for drinking water and roads from the Deputy Town Planning Officer. Consistently the petitioner has been submitting plans as approved from appropriate authority the Town Planning Act, to the Collector for seeking his permission for non-agricultural purpose. The Collector respondent No.1 is returning the papers on one ground or another. In the aforesaid circumstances, the return of plans by communication dated 12.5.1998 was considered by the petitioner as rejection of the application and the petitioner preferred revision before the State Government. Vide its order dated 2nd June, 1998 it has been said that communication dated 12th May, 1998 cannot be considered to be an order of refusal as the Collector has yet to make an order after considering the revised plan that may be submitted by the petitioner. In these circumstances, this petition has been filed. Challenging the Communication dated 12.5.1998 passed by respondent No.1 Collector returning the plans submitted to it and, order of State Government refusing to entertain revision vide communication dated 2nd June, 1998. In between a notice has also been issued to the petitioners to show cause against the proposed cancellation of the NA permission on the ground of alleged breach of condition because the petitioner is seeking to raise construction other than as approved by sanction dated 26.5.1994. 5. In response to notice, no reply has been filed by respondents No. 1, 2 and 3. Respondent No.4 Ankleshwar Municipality has filed its reply. In the affidavit filed on behalf of respondent No.4, it has been stated that under Sec.22 of the Town Planning Act the respondent Municipality is constituted an urban development authority for the urban development area of Ankleshwar town and powers and functions contemplated under Section 22 of the Act have been vested in respondent No.4 Municipality. The area has been declared as a development area vide Notification dated 30th January, 1978. It has been further asserted by Municipal Commissioner that as the Appropriate Authority powers under Section 22 of the Act vests in the Municipality and not in the Collector. It is also stated by the Municipality that the plans submitted by petitioner were examined by it and has approved lay out plans submitted by the petitioner. From this assertion, it is clear that there cannot be any dispute that the revised plan for development of land in question stands duly approved by appropriate authority under the Town Planning Act. 6. On the aforesaid premises, it has been submitted that the petitioner has approached the Collector after sanction of revised plans and for issuing the revised certificate for the non-agricultural use of the land in question. The Collector has no jurisdiction in the facts and circumstances of the present case to withhold the permission, if any, required on the ground of any objection as to revised plans, or subject the petitioner to seek permission of any authority other than one which has jurisdiction to deal with such application for sanctioning revised plan for the development of area. The learned counsel relies on joint reading of Sections 26, 29 and 117 of the Town Planning Act. 7. Learned AGP contends that conversion of agricultural land for non-agricultural purposes is governed by Bombay Land Revenue Code and is not under the provisions of Town Planning Act. Section 67 of the Revenue Code which envisages that the Collector had necessary power to impose conditions subject to rules made in that behalf while granting of the permission to use agricultural holding or any part thereof for any purpose other than agriculture. While granting permission under Sec. 65 on 1.7.1995, the specific condition had been imposed as noticed above that the occupant shall make construction as approved by Deputy Town Planner, Vadodara vide order dated 26.5.1994 and prohibited the use of land in question for any other purpose except with the permission of Collector. As per condition No.14, it was envisaged that before prior sanction of Collector there will not be any change or alteration in respect of planned construction, that is to say, no revision in approved plan shall take place without permission of the Collector. Permission for conversion having been sanctioned subject to these conditions, it is now not open for the petitionqer to turn round and say that those conditions do not apply to them. Thus, the Collector has necessary jurisdiction, under the terms of permission granted to the petitioner for non-agricultural use of the land in question to examine any alternation in the development plan and order its acceptance, rejection or modification. 8. In substance, the contention of Mr. Trivedi is that existing permission for non-agricultural use is restricted to execution of the specified plan sanctioned by the then Deputy Town Planner, Vadodara on 26.5.1994. Use of the said land or part thereof for any other purpose, would require, a fresh application under Section 65 or 65A of the Code. 9. In this connection, further contention of the learned counsel for the petitioner need be noted. It has been urged by Mr. B.S. Patel, learned counsel appearing for the petition that if the NA permission granted on 1.7.1995 is interpreted to be restricted to the plan then sanctioned only and no other purposes, then utilisation of the land for any other purposes would required NA permission only under Section 65 or Section 65A. In that event as the application of petitioner remained undisposed of and it is still pending as has been held by the revisional authority for more than three months from the date of its making, it must be deemed to have been granted in terms of priviso to Sec. 65 which is also to be read in respect of an application under Sec.65A as it makes provisions of Section 65 applicable to the applications made therein. In this connection it is also to be noticed that the petitioner's revision against the communication dated 12.5.1998 treating it to be a return of plans for securing approval of Deputy Town Planner, Vadodara as deemed rejection on its application, has not found favour with the revisional authority who has held the application to be pending and not decided as yet. 10. It is true that an occupant of land assessed to or held for the purpose of agriculture can be used only for agricultural purposes unless otherwise permitting in accordance of the provisions of the Bombay Land Revenue Code. Unless, the land is converted to be used for non-agricultural purposes by competent authority, the nature of land continue to be the agriculture, not available for being used for other purposes. For the purpose of such conversion and use the Land Revenue Code provides procedure. Whether such procedure is affected due to the provision of the Town Planning Act, is not the question arising in this case. However, the question that arise is that once the land has been permitted to be used for non-agricultural purposes of one kind does the permission of the Collector for varied use in the same category is again required under the code. Section 65 in terms make it clear that an occupant of the land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the agricultural purpose. Thus, broadly it provides in detail what use of the land is considered as use for agriculture purpose. That is to say, the land used for ancillary purpose to cultivation to the extent permitted under Sec. 65 is considered to be used for agricultural purposes and within the dominion of the accupant's right to use uninhibited. However, it is further envisaged that if occupant wishes to use the land any other purpose, the permission of the Collector is required for that. The Collector has been given necessary authority to accept or refuse such prayer. It also envisages that if 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. Once land is permitted to be used for non-agriculture purpose, for further user in different class of non-agriculture purpose was not subject to provision of Bombay Land Revenue Code until insertion of Section 65A. By Act 26 1976 Section 65A was inserted which envisages that where the occupant of any land assessed or held for any non-agricultural purpose wishes to use such land or part thereof for any other non-agricultural purpose, the Collector's permission shall be required and the provisions of Section 65 shall apply sofar as may be. Non-agricultural purpose for the purpose of Section 65A are defined to mean as purpose defined in clause (b) to (e) of sub-section (1) of Section 48. Section 48 in turns enumerates the classification of land in various classes on the basis of purpose for which the same is used. It enumerates different classes of land for the purpose of assessment on the basis of its use, viz. (a) agriculture, (b) residence, (c) industry, (d) commerce or (e) any other purpose. Thus Section 65A envisages if the land has already been permitted to be used for any purpose other than agriculture in any classification on the basis of use, further change in use from one category to another category shall also require permission of the Collector before it can be put to such other use. However, no such permission or condition is envisaged for different mode and manner of use within the same category. Section 67 says nothing in Section 65, 65A and 66 shall prevent the granting of the permission aforesaid on such conditions as may be prescribed by the Collector subject to any rules made in this behalf by the State Government. 11. The question that arise for consideration is whether under the enabling provision of Section 67, the Collector has unbridled power to impose any condition for which though no provision has been made under the rule framed under the Code, in compatible with the statutory provisions or even if such conditions may not be on the face of it invalid, can the same override the other statutory provisions operating in the field in which the conditions are envisaged to operate. 12. It is pertinent to notice that permission which is required under Sec. 65 is for use of land for non-agriculture purpose. The provision itself does not further inhibit use to which the land on such conversion can be put to any non-agriculture purpose. Section 65A makes it abundantly clear that permission envisaged under Sec. 65 is from one class of user to another class of user and is not for specified use in a particular class. Section 48 enumerates classification of land in five categories. Once the land is converted from agriculture to other purposes, it may fall in one or other of 4 categories, viz. residential, industrial, commercial or other (other than agriculture). Further conversion of use from one category to another required fresh permission from the Collector. That is clear purport of Section 65A. If a piece of land has been permitted to be used for residential purposes, its use for any residential purposes, does not invite application of Section 65A. While imposing condition under Section 67, it is inherent that such condition does not transgress the statutory provision resulting in trenching upon legislative field and creating new jurisdiction cannot be permitted. That will be overriding the scheme of Act, viz. where no permission is required for a use in a given class once permission is granted, a condition cannot be imposed that still permission of Collector will be required for use in same class for which conversion is permitted. If land is permitted to be used for residential purposes, conditions to its user as residential purpose after conversion, contrary to law governing its user as residential purposes cannot be imposed, nor the Collector in the guise of exercise of power under Section 67, while laying down any condition arrogate to itself jurisdiction and control over such act which under the relevant laws are assigned to someone else exclusively. Thus, where the provision conferring jurisdiction and power unto Collector for permitting change in user of land for non-agriculture purpose itself does not envisage necessity of seeking permission of Collector for its use within the same category, the Collector with reference to Section 67, cannot arrogate to itself authority to meddle with freedom of occupant to use the same for the converted use, within the province of law governing use on that field by imposing any such condition creating new field of power not envisaged. Neither Section 65 nor Section 65A envisages permission of Collector within the same class for which the land is assessed. Laying down condition requiring such permission is to be viewed as ultra vires the Act. 13. It may further be seen that Section 67 is not a non-obsentate provision. It only says that nothing in Section 65, 65A and 66 of the Code shall prevent the Collector for permitting change in use subject to such condition as he may deem fit subject to rule, made in that behalf. It neither envisages transgression of limits of scheme of conversion in use envisaged under Section 65 and 65A, nor it confers any such authority on the Collector which conflicts with any other law for the time being in force. The power conferred is not made overriding by use of words like `notwithstanding any provisions made under Section 65, 65A or 67' or `notwithstanding any other law in that regard'. While a non-obstentate clause has an overriding effect, a mere enabling provision couched in the language as Section 67 is, it operates within the framework of substantive scheme of the Code in that regard and without impinging upon the operative field of other laws. 14. The scheme of Code about conversion in use of land held for one purpose to another purpose is directly related to the object of its assessment. Non-agricultural purpose in Section 65 is directly related to use of land otherwise than for cultivation and ancillary use specified in main provision which are deemed to be use for agricultural purpose. Primarily, it refers to conversion of land for use of one category to for use in another category, so that its assessment can be made in accordance with the user. Once such permission is granted, and field of use of land for any other purpose is governed by specific statutes. The provision of Code generally conferring the power on authorities under it cannot be extended to entrench on such field occupied by special Legislations. For example, if land is permitted to be used for residential purposes, how and in what manner residential use of such land can be made is governed by other laws regulating type of construction and development of residential areas. Condition imposed under Section 67 can relate to exercise of power relatable to conversion of land from one use to another but not to manner of use in the converted category which is subject of special statute, in the present case the Town Planning Act. In other words, once a parcel of land is permitted to be used as residential, the conditions or rules governing constructions of residential nature can be governed by law relating to building regulations and not under the Code. The Collector exercising jurisdiction under the Code cannot be in the guise of exercise of power under Section 67 of the Code, truncate the jurisdiction of authorities under said Act or arrogate to himself such authority to himself which is not vested in him under that law or where exercise of such authority under general law is excluded by operation of special law. 15. In the context of present controversy, at this juncture, it is apposite to notice some provisions of the Gujarat Town Planning and Urban Development Act. 16. Under Section 2(ix) "development area" means an area declared to be a development area under Section 3 or, as the case may be, an urban development area under Section 22 of the Act and `appropriate authority' in relation to development area, means an `area development authority' or an `urban development authority', as the case may be. In terms of Section 2 of sub - Section (iii) an area development authority means authority constituted under Section 5 and on `urban development authority' means an authority so constituted under Section 22 as per sec. 2(iv). 17. Once under Section 3 or Section 22 an area has been declared as `development area' and appropriate authority is constituted, it is required to prepare a draft development plan under Sec. 9 and publish the same in Official Gazette under Section 13 of the Act. On publication of such draft development plan in respect of any development area, Chapter IV deals with control of development and use of land included in development plant, is required to prepare a draft development plan, Section 26 prohibits any person to carry on any development in any building or in or over any land within the limits of the said area without the permission in writing of the `appropriate authority.' Sections 27 to 29 deal with procedure for dealing with application for such permission. Other provisions of the Chapter deal with ancillary matters including providing consequence of carrying any development work within the area without the permission in writing of the appropriate authority. 18. Relevant for present purposes, Section 117 of the Act envisages, which opens with a non-obstentate clause `notwithstanding anything contained in any other law for the time being in force...'. When permission for development in respect of any land has been granted under the Act, such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under any other law for such development has not been obtained. It also envisages in respect of carrying out development within such area for which a draft plan has been published that if permission of appropriate authority as required under Sec. 26 has not been obtained but with permission from other authority as required under other law, then it shall not be deemed to be lawfully undertaken or carried out on the basis of such permission. The term `Development' has been defined into Section 2(viii) with all its grammatical variations and cognate expressions to mean the carrying out of any building, engineering, mining, or other operations in or or over, or under land or the making of any material change in any building or land or in the use of any building or land, and includes layout and subdivision of any land. A combined reading of Section 26 and 117 leaves no room of doubt that on any land which is part of an area declared as `development area' under the Act, for which an appropriate authority has been constituted, no development after publication of draft scheme can be undertaken except with the permission of the appropriate authority under the Act of 76. Permission of any other authority if required under any other law for such development is of little relevance. Its existence or non-existence does not affect the nature of development carried out under the Act. If the development has been carried out as per the permission granted by the appropriate authority under the Act of 76, it shall be deemed