PATEL PURBAI HARJI v. KUTCH DISTRICT PANCHAYAT — 1976 DIGILAW 174 (GUJ)

A. P. RAVANI, J. ( 1 ) THE petitioners are the owner of land of Survey No. 188 of village Sukhpar taluka Bhuj admeasuring 4 acres and 10 gunthas. Out of this land the petitioners applied for permission for non-agricultural use of the land admeasuring 2 acres and 5 gunthas they obtained the permission as per order (Annexure B) dated January 30 1978 passed by the District Development Officer (DDO ). District Panchayat Kutch-Bhuj. One of the conditions imposed upon the petitioner while granting N. A. permission is that a plot of land admeasuring 736. 71 sq. mt. will have to be kept reserved for public purposes. It is an admitted position that this much area of the land comes to about 10% of the total area of the land permitted to be used for nonagricultural purposes. Therefore it means that about 7000 sq. mt. of land is permitted to be converted for non-agricultural use. It is also clear from the record of the case that the permission is granted to use the land for residential purpose. The petitioner has made it clear that he has sold away all other plots except the plot which is required to be kept reserved for public purposes. ( 2 ) THE petitioners contend that condition No. 14 in the order by which he is required to keep the land admeasuring 736. 71 sq. mt. reserved for public purposes is illegal and void and the respondent authorities had no right to impose such condition. The petitioners contend that in view of the provisions of of Section 67 of the Bombay Land Revenue Code no such condition could have been imposed. Section 67 of the Bombay Land Revenue Code reads as follows:"67 Nothing in Sections 65 65 and 66 shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the Collector subject to any rules made in this behalf by the State Government". Relying on the phrase subject to any rules made in this behalf by the State Government it is contended that there is no such rule which provides that 10% of the land should be kept reserved for public purposes. Therefore condition imposed is without any authority of law and hence the same should be struck down. Relying on the phrase subject to any rules made in this behalf by the State Government it is contended that there is no such rule which provides that 10% of the land should be kept reserved for public purposes. Therefore condition imposed is without any authority of law and hence the same should be struck down. Assuming that there is no such rule as contended by the counsel for the petitioners even then the reading of Section 67 does not lead to the inference that before imposing any such condition there must be some rule enabling the authority to impose such condition. The Section on the contrary provides that terms or conditions as may be prescribed by the Collector be imposed subject to the rules made in that behalf by the Government. It would mean that if there be any rules the condition would have to be consistent with the rules. If there is no rule then it does not mean that no term or condition can be imposed. In the absence of rule what will be required to be seen will be as to whether the term or condition imposed is reasonable or not. By no stretch of reasoning it can be said that the condition imposed to the effect that 10% of the land be kept reserved for public purposes is in any way unreasonable. It is made clear in the affidavit-in-reply that even under the provisions of Town Planning Act about 22% of the land should be kept open for the purposes of road and other public purposes. The District Panchayat Bhuj has passed Resolution No. 56/6 (Annexure A) dated 23 by which it is resolved that certain conditions be imposed while granting permission for non-agricultural use of the land. One of the conditions mentioned in the Resolution is that over and above the land required to be kept open for the purpose of road 10 of the area of the total land should be kept reserved for public purposes such as parking place play-ground and for doing some religious and social activities etc. This condition has been incorporated in the order (Annexure B) dated January 30 1978 passed by the DDO. If the Panchayat has adopted this as a matter of policy then no exception can be taken for the same. Moreover this condition is quite reasonable also. This condition has been incorporated in the order (Annexure B) dated January 30 1978 passed by the DDO. If the Panchayat has adopted this as a matter of policy then no exception can be taken for the same. Moreover this condition is quite reasonable also. On the contrary not to keep any land open for public purposes would lead to inconvenience for the people residing in near-by area. ( 3 ) IT is contended that the condition imposed is discriminatory inasmuch as in other cases no such condition is imposed. In this behalf averments are made in para 7 of the petition. The petitioners proceed on the footing that imposition of such conditions would amount to compulsory acquisition of land without paying any compensation whatsoever. It is stated in the petition that no such condition is placed any-where in the State of Gujarat and the people of village Sukhpur and particularly the petitioners are denied the equal protection of law guaranted under Article 14 of the Constitution. ( 4 ) THE contention is based on total misconception of the condition imposed by the authorities. The condition restricts the user of the land. It does not take away the ownership right or the petitioner nor does it interfere with the possession of the petitioners. The condition only requires the petitioners to keep the land reserved for particular purposes. In these affidavit-in-reply filed on behalf of the DDO it is made clear that such conditions are being imposed throughout the State of Gujarat and the condition imposed is quite reasonable. In this view of the matter the contention sought to be raised on the basis of discrimination has got to be rejected. ( 5 ) THE petitioners have contended that the condition imposed infringes their fundamental right guaranteed under Article 31 of the Constitution of India as it was in operation at the time when the order was passed and when the petition was filed. Apart from this it is alternatively contended that the petitioners right guaranteed under Article 300-A of the Constitution is affected on account of the imposition of such condition. Again this argument has its roots in the misconception about the nature of the condition. By imposing the aforesaid condition the petitioners property is not taken away. Apart from this it is alternatively contended that the petitioners right guaranteed under Article 300-A of the Constitution is affected on account of the imposition of such condition. Again this argument has its roots in the misconception about the nature of the condition. By imposing the aforesaid condition the petitioners property is not taken away. What is done is only to the extent of 10 of the total area of land permitted to be converted into non-agricultural use the right of the petitioners is regulated and they are not permitted to use this much land for residential purposes. It must be noted that the petitioners land was agricultural land. They have no vested right to get their land converted for agricultural use when they applied for permission to use the land for non-agricultural purposes the same can be granted subject to reasonable conditions and subject to the rules and regulations. One of the conditions usually imposed in such cases is that certain portion of the land be kept reserved for public purposes. This does not amount to taking away the petitioners property and hence the argument based on the provision of Article 31 of the Constitution and on the provisions of Article 300 of the Constitution has no merit and has got to be rejected. The petitioners contended that although the land may have to be reserved for public purposes they will have to pay non-agricultural assessment of the land. It is quite natural because they continue to be the owners and in occupation of the land. On this ground the condition can-not be said to be in any way unreasonble. ( 6 ) EARLIER on July 25 1984 the matter was called out for final hearing. On that day the petitioners requested that the DDO Bhuj be added as respondent No. 3 and the Court granted permission to add DDO as respondent No. 3. Now when the petition is called out for final hearing the petitioners have submitted an amendment of the petition. The amendment application is given at a belated stage and no purpose would be served by granting the amendment. Hence the amendment application requires to be rejected. However in order to avoid any misapprehension on this ground for the sake of abundant caution I would deal with the contentions raised in the amendment application also. The amendment application is given at a belated stage and no purpose would be served by granting the amendment. Hence the amendment application requires to be rejected. However in order to avoid any misapprehension on this ground for the sake of abundant caution I would deal with the contentions raised in the amendment application also. ( 7 ) IT is contended that the District Panchayat had no authority to make suggestion with regard to the nature of the condition to be imposed while granting non-agricultural use permission. This ground has reference to Resolution No. 56/6 dated December 23 1976 passed by the District Panchayat Bhuj and a copy of the same is produced at Annexure A to the petition. The Panchayat is very much concerned with the-proper development of village site lands. The Panchayat has to sec that proper accommodation is made for certain public purposes. It is not pointed out that the proper development of village site lands and the orderly construction of residential premises would not fall within the functions of the District Panchayat. Therefore it cannot be said that the Panchayat has no authority to pass such order. Other two grounds sought to be added have reference to the plea of discrimination. It is contended that in this particular village such condition is not imposed upon other owners and occupants of the land when they are granted permission for non-agricultural use of the land No details with regard to the orders passed in respect of the land owned by the persons named in the application for amendment are given. No number or date of the order is mentioned nor the Survey Nos. of the land are mentioned. Further the extent of the area permitted to be put to non-agricultural use is also not mentioned. Even approximate year in which the order was passed is not mentioned. Only in the case of one Shivji Nanji it is stated that the permission was granted at the same time when the permission in respect of the land owned by the petitioners was given. Those are not sufficient particulars for raising the plea of discrimination. In the absence of sufficient particulars it would be futile to call upon other side to answer the same. Those are not sufficient particulars for raising the plea of discrimination. In the absence of sufficient particulars it would be futile to call upon other side to answer the same. ( 8 ) IN fairness to the petitioners it must be said that they have stated categorically in the amendment application that they have sold all the plots of land except the plot of land ordered to be kept reserved for public use. This conduct of the petitioners is also sufficient to deny them the reliefs sought for by them. They have taken the benefit under the order. Now they want further benefit without exposing themselves to the benefits being taken away granted by the order. By their conduct 4 hey have made it impossible that the N. A. permission in its entirety be cancelled. They want that only this condition be removed. Assuming that this condition is unreasonable then the authorities may be directed to cancel the N. A. permission in its entirety but not to remove the condition which the petitioner feels inconvenient. There-fore in this view of the matter also the amendment application cannot be granted. ( 9 ) IT is contended that it is not necessary to keep their land reserved for public purposes because the population of the village is only 6413 as per the 1981 census. How much of the land will be necessary for public purposes in a particular village is for the local authorities to decide. As a matter of policy the District Panchayat has laid down as per Resolution (Annexure A) that whenever any land is permitted to be converted and used for non-agricultural use 10 of the total area of the land be kept reserved for public purposes. It is quite reasonable. It is not shown in the petition that in the village Sukhpur how much area of the land is put to non-agricultural use meaning thereby for residential purposes commercial purposes and for industrial purposes. It is not shown that more than 10% of such area is also reserved for public purposes and even then the petitioners are required to keep 10% of their land for public purposes. In this view the matter also this ground also fails. ( 10 ) NO other contention is raised. ( 11 ) IN the result the petition fails and the same is rejected. Rule discharged with no order as to costs. In this view the matter also this ground also fails. ( 10 ) NO other contention is raised. ( 11 ) IN the result the petition fails and the same is rejected. Rule discharged with no order as to costs. Interim relief stands vacated. ( 12 ) IN view of the order passed in the main petition the civil application (for amendment) is rejected. Rule discharged C. A. for amendment rejected. .