Sunday, 19 August 2018

Whether class 2 occupant is entitled to sell agricultural land after converting it to non agricultural land without paying unearned income?

A perusal of Government Resolution dated 08.09.1983 shows that when agricultural land held by a person as occupant Class II is allowed to be sold, this GR is attracted. Here, respondent Nos. 1 & 2 were holding agricultural land as occupant Class II and they wanted permission to put it to non-agricultural purposes. After that permission was secured, land ceased to be agricultural land and, therefore, also ceased to be subject to 1958 Act. It, therefore, became amenable to Government Resolution dated 08.09.1983. This Government Resolution specifically stipulates payment of unearned income at 75% when such occupant Class II sales the land for non-agricultural use. The unearned income is difference between market value on the date of sale and occupancy price at which land was original granted to agricultural tenant as owner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2551 of 2004

Decided On: 28.03.2018

Dilip Vs.  Dyaneshwari and Ors.

Hon'ble Judges/Coram:
B.P. Dharmadhikari and Arun D. Upadhye, JJ.

Citation: 2018(4) MHLJ 462


1. Nobody was present for the petitioner yesterday. Even today, there is no appearance for the petitioner.

2. We have yesterday and today looked into the papers with the help of Shri Deshpande, Advocate holding for Shri Parchure, learned counsel for respondent Nos. 1 & 2 and Ms. Mehta, learned AGP for respondent Nos. 3 & 4.

3. The learned AGP has fairly pointed out to this Court the order passed by the Minister on 03.07.2004, which holds that it is not necessary for the appellant therein viz., Smt. Rajani Shankar Misal, to pay 75% unearned income. She has also invited our attention to Government Resolution dated 08.09.1983. She points out that the Hon'ble Minister has looked into said resolution and thereafter reached a particular finding.

4. Shri Deshpande, learned counsel submits that the said finding, as recorded by the Hon'ble Minister on 03.07.2004, clinches the controversy in favour of respondent Nos. 1 & 2. Respondent Nos. 1 & 2 have become owner of agricultural land because of statutory provisions contained in the Maharashtra Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. Their predecessors were tenants, who became owner. The request, seeking permission to transfer such land by respondent Nos. 1 & 2, is regulated by Section 57 of above mentioned 1958 Act and, therefore, cannot be subjected to Government Resolution dated 08.09.1983.

5. The petitioner before this Court is a citizen, who attempts to point out huge loss suffered by the State Government because of non-payment of unearned income by the persons like respondent Nos. 1 & 2 to respondent Nos. 3 & 4.

6. The facts are not in dispute. Respondent Nos. 1 & 2 are legal heirs of one Rambhaji Nagoji. Rambhaji was tenant of land Survey No. 18 of Mouza - Waghapur, Taluka & District - Yavatmal. He acquired ownership by an order dated 30.06.1966 passed in Tenancy Case No. 209/59-13/1963-64 of Waghapur. After his death, respondent Nos. 1 & 2 converted Survey No. 18/1, Area 5.99 Hectare, into non-agricultural land by moving appropriate application under Section 57 of the 1948 Act. Respondent No. 3 - Additional Collector vide order dated 15.01.1992 in Revenue Case No. 26/59(23)/91-92, permitted this conversion. Respondent Nos. 1 & 2 laid plots therein and sold the same to various persons. The balance land ad-measuring 2 H. 84 R. was sold to Akruti Developers.

7. The petitioner has pointed out above mentioned Government Resolution dated 08.09.1983. He claims that when such permission is granted to respondent Nos. 1 & 2, who were occupants of Class II land, it has to be on condition of paying unearned income of 75% to the State Government. The petitioner also points out that one Shri Bankar lodged a complaint with the Revenue Minister on 30.09.2003 and 09.12.2003 in this respect and the petitioner as a Social Worker was bringing this violation to the notice of this Court.

8. Respondent No. 3 - Additional Collector has filed reply and submitted that the object of 1958 Act is not to earning money and making profit. Permission to convert land to non-agricultural purposes was given as per law under Section 57 of 1958 Act and Government Resolution dated 08.09.1983 is not applicable to such land. He has claimed that there are separate provisions under Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 1958 Act) and, therefore, the provisions of Government Resolution were not at all attracted. He has also pointed out that the Divisional Commissioner, Amravati Division, in some other matter, on 17.11.2001, sought clarification and the State Government vide its letter dated 23.04.2002 issued necessary clarification. The State Government pointed out that there were separate provisions in above mentioned Acts and Rules about transferring lands to land holders after seeking permission from Competent Authority and, therefore, the resolution dated 08.09.1983 had no application. The State Government has also pointed out the order of Minister dated 03.07.2004 mentioned supra, which takes similar view.

9. It is in this backdrop that we have considered the controversy. In Vidarbha Region provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, are not attracted. Law applicable in this region is Maharashtra Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, which is also known now as Maharashtra Tenancy Act, 1958.

10. Section 57 of the 1958 Act imposes restriction on transfer of land purchased or sold under 1958 Act. The tenant who become owner, cannot sold the land of which he has become owner without previous sanction of the Collector. Subsection (2) provides that any transfer of land in contravention of sub-section (1) is invalid. The Collector can give sanction in such circumstances and subject to such conditions as may be prescribed by the State Government. The proviso added to Section 57 dispenses with such permission, if the same is after more than 10 years of becoming owner. It, however, requires seller to pay nazrana equal to 40% of land revenue and the purchaser from him also has to be agriculturist. Such proposed purchaser must also not be holding the land in excess of ceiling area prescribed under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961.

11. The provisions of Section 57, therefore, do not permit or contemplate change of user from agricultural to non-agricultural purposes and sale of residential plots, this aspect is regulated only by Section 44 of the Maharashtra Land Revenue Code, 1966. The authorities functioning under 1958 Act cannot, therefore, permit agricultural land, forming subject matter of proceedings under Section 57 thereof, to be converted or put to non-agricultural purposes and its sale to non-agriculturist. Here Respondent Nos. 1 & 2 have not sought permission to sell agricultural land. They first got it converted to non-agricultural use and then laid plots in it. The plots in lay out were then sold. The stand of respondent Nos. 3 & 4 in their reply affidavit that 1958 Act contains special procedure and provision to regulate such transfer is, therefore, erroneous and misconceived. The order of Minister dated 03.07.2004 is also, therefore, erroneous and misconceived.

12. A perusal of Government Resolution dated 08.09.1983 shows that when agricultural land held by a person as occupant Class II is allowed to be sold, this GR is attracted. Here, respondent Nos. 1 & 2 were holding agricultural land as occupant Class II and they wanted permission to put it to non-agricultural purposes. After that permission was secured, land ceased to be agricultural land and, therefore, also ceased to be subject to 1958 Act. It, therefore, became amenable to Government Resolution dated 08.09.1983. This Government Resolution specifically stipulates payment of unearned income at 75% when such occupant Class II sales the land for non-agricultural use. The unearned income is difference between market value on the date of sale and occupancy price at which land was original granted to agricultural tenant as owner.

13. We, therefore, find substance in the contention of the petitioner that the respondents have caused huge loss to public exchequer by not subjecting such lands to levy of unearned income as per Government Resolution dated 08.09.1983.

14. We, therefore, direct respondent Nos. 3 & 4 to levy and recover unearned income at 75% from respondent Nos. 1 & 2 or their successors in interest as per law. The necessary action in this respect shall be initiated within next eight weeks.

15. We also direct respondent Nos. 3 & 4, not to permit any agricultural land to be transferred or to be put to non-agricultural use until further orders of this Court in the matter at the instance of owner who earlier held it as tenant under 1958 Act without compliance with Government Resolution dated 08.09.1983.

16. As the grievance made by the petitioner is in public interest, we direct the Registry of this Court to register a Public Interest Litigation on the strength of this judgment. A copy of present petition (both sets) shall be kept on record of that PIL for further reference.

17. We request Shri Anand Parchure, Shri Deshpande, learned counsel and Ms. Mehta, learned AGP to continue to assist the Court in that PIL.

18. Writ Petition is accordingly allowed and disposed of. Rule is made absolute in above terms. However, in the facts and circumstances of the case, there shall be no order as to costs.




Print Page

No comments:

Post a comment