JUDGMENT J. B. PARDIWALA, J. 1. This appeal under Clause-15 of 30 the Letters Patent is at the instance of a unsuccessful applicant of a Writ Application under Article 226 of the Constitution of India and is directed against the order dated 22.03.2011 35 passed by the learned Single Judge of this Court by which his Lordship rejected the Writ Application. 2. The facts leading to the filing of 40 this appeal can be summarized as under :- 2.1 The appellant herein is an Industrial Co-operative Society. The society was formed in or around 1979 for the purpose of setting up an industrial township and for the purpose of allotting plots to its members/industrialists and to provide infrastructure for setting up an industrial unit at a minimum possible rate. For setting up the industrial township, the appellant-society: purchased lands in villages of Sachin, Vanz, Lajpore, Bhatia and Popada Villages of Taluka Charyasi, Dist: Surat. 2.2 Pursuant to the representation I by the appellant-society and in view of the order passed by this Court in Special Civil Application Nos.1145 of 1981, 2379 of 1984 and 2433 of 1986 filed by the appellant-society, a Notification was published by the State Government dated 25.01.1988 designating the lands in question as being included in General Industrial Zone. Thereafter, the State of Gujarat issued a Notification dated 14.11.1991 under Section 88(1)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, specifying the land in question as being reserved for nonagricultural and industrial purpose. On of 29.01.1994, the respondent-Authority granted development permission under Section 29 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Town Planning Act" for short). Thereafter, permission for amalgamation in respect of the lands of the society, in the villages of Sachin, Vanz, Bhatia, Lajpore and Popada was sought, which was 411 granted by Surat Urban Development Authority ("SUDA"• for short) on 04.12.1997. Pursuant thereto, the development permission for plotting of the said lands was also granted vide order dated 04.12.1997. 2.3 On the strength of the said development permission dated 04.12.1997, substantial development was undertaken and infrastructure in the form of roads, leveling of lands, facilities of electricity etc. was provided by incurring expenditure to the tune of crore of rupees. Pursuant thereto, the development permission for plotting of the said lands was also granted vide order dated 04.12.1997. 2.3 On the strength of the said development permission dated 04.12.1997, substantial development was undertaken and infrastructure in the form of roads, leveling of lands, facilities of electricity etc. was provided by incurring expenditure to the tune of crore of rupees. 2.4 Around 1600 members of the society have been allotted plots in the said industrial township pursuant to the development permission sanctioning layout vide order dated 04.12.1997. The plans for construction on several plots were sanctioned by SUDA. Around 350 industries have already started functioning. The industries include textile units, industrial machinery workshops, paper mills, ice factory, etc. 2.5 In the year 2003, vide communication dated 11.08.2003, the SUDA cancelled the development permission dated 04.12.1997 granted for plotting of the land of the society on the ground that the conditions more particularly Condition Nos.2, 27 and 28 as contained in the development permission dated 04.12.1997, had not been complied with by the members of the society. The appellant-society, being aggrieved by the said order cancelling the development permission dated 04.12.1997, preferred Special Civil Application No.13259 of 2003 in this Court. The record reveals that the said petition was disposed of by the learned Single Judge of this Court as SUDA thought fit to withdraw the order dated 11.08.2003 which was impugned in the said petition. The learned Single Judge disposed of the petition vide order dated 16.12.2003 in the following terms :- HM/: M. D. Pandya, learned Counsel for respondent No.2 - Surat Urban Development Authority seeks leave to place on record a copy of the order dated December 15, 2003 passed by the Chief Executive Officer of respondent No.2 withdrawing the order dated August 11. 2003 (Annexure-A to the petition) impugned in the present petition without prejudice to the rights of Surat Urban Development Authority - respondent No.2 to take any action in future if warranted by law and on facts in accordance with law. Leave as prayed for is granted. 25 2. In view of the above, Mr. Sanjanwala, learned Senior Counsel seeks leave to withdraw this petition with liberty to challenge the action, if any, which may be taken by the respondent No.2 in future in respect of the subject matter of this petition. Leave as prayed for is granted subject to the liberty as prayed for. 3. 25 2. In view of the above, Mr. Sanjanwala, learned Senior Counsel seeks leave to withdraw this petition with liberty to challenge the action, if any, which may be taken by the respondent No.2 in future in respect of the subject matter of this petition. Leave as prayed for is granted subject to the liberty as prayed for. 3. The petition is accordingly disposed of as withdrawn. Notice is discharged with no order as to costs" 2.6 It would not be out of place, at this stage, to state that one of the grounds for cancellation of the development permission dated 04.12.1997 which was made the subject matter of challenge by the appellant society in Special Civil Application No.13259 of 2003 was that nonagricultural usage permission under Section 65 of the Lands Revenue Code was not obtained according to Condition No.2 as imposed in the development permission. However, after 2003, the SUDA conceded to the legal position that no such permission was required and accordingly, around fifty permissions for construction on the said plots were granted without insisting on such a permission under Section 65 of the Bombay Land Revenue Code. After the issue was set at rest in the year 20 2003, the respondent, once again, raised the same issue vide communication dated 20.07.2010 by which the development permission for construction was rejected on the ground 25 that N.A. Use Permission had not been obtained and produced. The appellant society preferred a detailed representation dated 15.09.2010, but SUDA thought fit not to reply or 30 consider the said representation. 2.7 The appellant-society, therefore, was constrained to prefer Special Civil Application No.2563 of 2011 35 challenging the action of SUDA, rejecting the development permission on the ground of not producing N.A. Use Permission. 2.8 It appears that before the learned Single Judge, the hone of contention on behalf of the appellant-society was that since development permission under Section 29 of the Gujarat Town Planning Act dated 04.12.1997 had been obtained, the appellant-society was not obliged in law to obtain any others permission under any other law. The said submission was based relying upon Section 117(a) of the Gujarat Town Planning Act (as it stood on 04.12.1997). The said submission was based relying upon Section 117(a) of the Gujarat Town Planning Act (as it stood on 04.12.1997). A judicial pronouncement in the case of karimbhai kalubhai Belim and others v. State of Gujarat and others reported in 1996(1) GLR 659 rendered by the learned Single Judge of this Court was pressed into service. In the said decision, it has been laid down as a proposition of law that once the development permission is granted under Section 29(1) of the Act, Section 117 thereto comes into operation and it does not require any other permission under any other law. In the said decision, it has been held that even permission under Section 65 of the Bombay Land Revenue Code would not be necessary with respect to a land, if the development permission under Section 29 of the Act was obtained. 2.9 The aforesaid submission failed to find favour with the learned Single Judge, as according to the learned Single Judge, the development permission dated 04.12.1997 granted in favour of the appellant-society under Section 29 of the Act had been granted only for the purpose of Sub-plotting and not for the purpose of putting up any construction on the same. The learned Single Judge, took the view that the development permission dated 04.12.1997 could not be construed as one for construction as the word "construction" had been scored off and the development permission was granted only for the Sub-plotting according to the layout plan submitted by the society. The decision of a Coordinate Bench in the case of Karimbhai Kalubhai Belim and others (supra) was distinguished by the learned Single Judge holding that Section 117(a) of the Gujarat Town Planning Act had already been deleted in the year 1999. Therefore, according to the learned Single Judge, after 1999, 15 if any permission for construction is prayed for then N.A. Use Permission from the Competent Authority is mandatory. 3. The learned Single accordingly rejected the Application. 4. Feeling aggrieved and dissatisfied with the order passed by the learned Single Judge, the appellant-society has come up with this appeal. 5. Submissions on behalf of the appellant-society :- 5.1 Mr. 3. The learned Single accordingly rejected the Application. 4. Feeling aggrieved and dissatisfied with the order passed by the learned Single Judge, the appellant-society has come up with this appeal. 5. Submissions on behalf of the appellant-society :- 5.1 Mr. S.H. Sanjanwala, the learned Senior Advocate appearing for the appellant, vehemently, submitted 35 that the learned Single Judge committed a serious error in rejecting the Writ Application by not following the dictum as laid down by this Court in the case of Karimbhai Kalubhai Belim and others (supra). Mr. Sanjanwala submitted that the learned Single Judge committed a serious error of law in not appreciating the fact that once layout is sanctioned and Sub-plotting is done according to the development permission dated 04.12.1997, the plots so formed would be industrial plots and therefore, at a later stage, when development permission for construction is prayed for on such plots, the N.A. Use Permission would not be required in view of Section 117(a) as it stood at the relevant point of time, (subsequently deleted vide GUJ 2 of 1999, with effect fron1 01.05.1999), the Sub-plots so formed derived the status of industrial plots and at the relevant point of time, no permission under any other law was required to be obtained. Mr. Sanjanwala also submitted that In view of the Notification dated 14.11.1991 passed by the State Government under Section 88(1)(b) of the Tenancy Act, the lands have been specifically designated for non-agricultural and industrial use, and 25 therefore, the lands cease to be agricultural lands as a result of which, there is no requirement to obtain permission under the Bombay Land Revenue Code. 5.2 Mr.Sanjanwala pressed into service a recent decision rendered by this Bench on the very said issue in the case of Smt. Jyotsanaben C. Patel v. State of Gujarat and another rendered in Special Civil Application No.6691 of 1996 dated 12.03.2012. Mr.Sanjanwala, relying upon the said decision delivered by this very Bench, submitted that the view taken by the learned Single Judge of this Court in the case of Karimbhai Kalubhai Belim and others (supra) has been held to be the correct approach and the correct proposition of law laid down on the subject. According to Mr. Mr.Sanjanwala, relying upon the said decision delivered by this very Bench, submitted that the view taken by the learned Single Judge of this Court in the case of Karimbhai Kalubhai Belim and others (supra) has been held to be the correct approach and the correct proposition of law laid down on the subject. According to Mr. Sanjanwala, the issue involved in the present appeal stands squarely covered by the decision of this very Bench rendered in the case of Smt. Jyotsanaben C. Patel v. State of Gujarat and another (supra). Mr.Sanjanwala, in the circumstances, prays to set aside the order passed by the learned Single Judge and allow the present appeal. 6. Submissions on behalf of the SUDA :- 6.1 Mr. Prasant G. Desai, the learned Senior Advocate appearing with 211 Mr.Munshaw, learned Advocate for the respondent No.2-SUDA, vehemently opposed this appeal and submitted that the learned Single Judge committed no error. not to speak of any error of law, in rejecting the Writ Application taking the view that N.A. Permission for construction is mandatory, despite the fact that the development permission under Section 29 of the Town Planning Act had been granted way-back in the year 1997, wherein Section 117(a) of the Act was also in force. 6.2 According to Mr. Desai while sanctioning the layout plan on 04.12.1997, a specific condition was incorporated in the sanctioned letter, being Condition No.2 that before using the land for non-agricultural purpose, the appellant was obliged in law to obtain non-agricultural permission under Section 65 of the Bombay Land Revenue Code and it is only thereafter that the necessary plans for construction could be approved. In the absence of the requisite N .A. Permission, the construction could be treated as unauthorized or illegal. Mr. Desai also laid stress on Condition No.22 of the development permission which provides that the plan has been sanctioned only for layout and Sub-plotting and before making any construction, the appellant society or any individual plot-holder is obliged to obtain the permission for construction. 6.3 Mr. Desai submitted that the word "development" as defined in Section 2, Clause-(viii) of the Act, 1976 not only includes the construction of a building, but, also includes layout 21 and sub-division of land. 6.4 When the layout was sanctioned, the total area of the land was 34,73,546 sq. mtrs. and Section 117(a) was in force. 6.3 Mr. Desai submitted that the word "development" as defined in Section 2, Clause-(viii) of the Act, 1976 not only includes the construction of a building, but, also includes layout 21 and sub-division of land. 6.4 When the layout was sanctioned, the total area of the land was 34,73,546 sq. mtrs. and Section 117(a) was in force. Section 117(a) came to be deleted by the Gujarat Act No.2 of 1999, and therefore, reliance placed by the appellant-society on the decision rendered in Karimbhai Kalubhai Belim and others (supra) is not justified. According to Mr. Desai, the permission for construction was applied on 21.04.2010 and that at the relevant point of time, Section 117(a) of the Act 35 had already stood deleted. 6.5 Even according to the Rule-3.1 of the G.D.C.R., the application for development permission has to be in Form No. C or, or From No. C(a). In Form No. C(a), there is a specific clause as regards N.A. Permission. It was also submitted that the State Government has also issued a Circular in respect of N.A. Permission which includes the area of Municipal Corporation, Urban Development and Area Development Authority, notified area and cantonment area. 6.6 Mr. Desai, further submitted that the submission on behalf of the appellant-society that in view of the fact that the land has been reserved or earmarked for industrial use, therefore, no N.A. Permission is required to be obtained under Section 65 of the Bombay Land Revenue Code is without any merit. Section 65 of the Bombay Land Revenue Code operates independently and there is no provision either under the Bombay Land Revenue Code or under the Gujarat Town Planning Act which provides that if the land is included in the town planning scheme or earmarked for residential commercial or industrial use, it will automatically partake the character of being a non-agricultural land. According to Mr.Desai, if such an interpretation is accepted as sought to be canvassed by the appellant in that case, in a town planning scheme, where residential use is permitted, there would not be any need of applying permission under Section 65 of the Bombay Land Revenue Code and thereby, rendering Section 65 of the Code almost otiose. Mr.Desai, in such circumstances, prays of or dismissal of the appeal. 7. Mr.Desai, in such circumstances, prays of or dismissal of the appeal. 7. Having heard the learned Counsel for the respective parties and having gone through the materials on record, the following questions fall for our consideration in this appeal :- (A) Whether the Authority while granting development permission for layout and Sub-plotting under Section 29(1) of the Act vide order dated 04.12.1997 was justified in law in imposing a condition that before putting up construction on the plot, the N.A. Permission from the Competent Authority shall be obtained despite the fact that Section 117(a) of the Act was very much in force on the date when development permission was accorded. (B) Whether the view taken by the learned Single Judge that as Section 21 117(a) of the Act came to be deleted with effect from 01.05.1999 and the permission for construction was prayed for by the appellant after 1999 then in such circumstances, the appellant is not entitled to claim the benefit of Section 117(a) of the Act, at this stage, could be termed as the correct view or approach. (C) If according to Section 2 (viii) of the Act, layout and Sub-division of any land amounts to 'development', as defined under Section 2(viii) of the Act and at the relevant point of time, when the Authority under the Act accorded permission for development of layout and Sub-plotting, no permission under Section 65 of the Bombay Land Revenue Code, 1879 was insisted upon then 41 whether the Authority is justified in law in asking the appellant to obtain the N.A. Permission under Section 65 of the Bombay Land Revenue Code before granting permission for construction on the plot. 8. 8. In order to appreciate the aforesaid questions involved in this appeal, it will be appropriate to refer to the provisions contained in Sections 2(viii), 27, 29 and 117 of the Act, (as it was in force on the date of grant of development permission in the year-1997) :- "Section-2(viii) "development", with all its grammatical variations and cognate expressions, means the carrying out of any building, engineering, mining, or other operations in, 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;" "Section-27: Application of permission for development :- Any person, not being the Central Government or a State Government intending to carry out any development in any building or in or over any land within the limits of a development area on or after the date referred to in Section 26, shall, except where such 5 development is for any of the purposes specified in the proviso to that Section, make an application in writing to the appropriate Authority for permission for Such development in such form and containing such particulars and accompanied by such documents as may be prescribed and by such scrutiny fees as may be prescribed by regulations]. " "Section-29: Grant or refusal of permission :- (1) On receipt of an application under Section 27 or Section 28, the appropriate Authority shall furnish the applicant with a written., acknowledgment of its receipt and after satisfying itself that the development charge [and scrutiny fees], if any, payable by the applicant has been paid and after making such inquiry as it thinks fit may, subject to the provisions of this Act, by order in writing- (i) grant the permission with or without any condition; or 21 (ii) grant the permission, subject to any general or special orders made by the State Government in this behalf; or (iii) refuse to grant the permission. (2) Any permission under Sub-Section (1) shall be granted in the prescribed form and every order granting permission subject to conditions or refusing permission shall slate the grounds for imposing such conditions or for such refusal. (3) Every order under Sub-Section (1) shall be communicated to the applicant in the manner prescribed by regulations. (2) Any permission under Sub-Section (1) shall be granted in the prescribed form and every order granting permission subject to conditions or refusing permission shall slate the grounds for imposing such conditions or for such refusal. (3) Every order under Sub-Section (1) shall be communicated to the applicant in the manner prescribed by regulations. (4) If the appropriate Authority fails to communicate its order to the applicant within three months from the date of receipt of the application, such permission shall be deemed to have been granted to the applicant on the expiry of the said period of three months. (5) If any person carries on any development work or retains the use of any building or work or continues the use of land in contravention of the provisions of Section 27 or Section 28 or of any permission granted under Sub-Section (1) of this Section, the appropriate Authority may direct such person, by notice in writing, to stop further progress of such worker to discontinue any use and may, after making an inquiry in the prescribed manner, remove or pull down any building or work carried out and restore the land to its original condition or, as the case may be, take any measures to stop such use. 25 (6) Any expenses incurred by the appropriate Authority under Sub-Section (5) shall be a sum due to the appropriate Authority under this Act from the person in default. .. "SECTION 117 : Effect of other laws. Notwithstanding anything contained in any other law for the time being in force- (a) when permission for development in respect of any land has been obtained under this 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 such other law for such development has no been obtained; (clause(a) deleted by GUJ 2 of 1999) 5 (b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained." 9. The definition of the term "development" as defined under Section 2(viii) makes it very clear that it not only includes carrying out of any building, or other operations in, or 10 over, or under land, but also includes layout and Sub-division of any land. This is suggestive of the fact that in the year-1997, when the development permission was granted by the Authority, 25 it was for the purpose of layout and Sub-plotting. 10. Section 27 of the Act also makes it clear that any person who intends to 30 carry out any development in any building or in or over any land within the limits of a development area then such person is obliged to make an application for such development in 35 such form which would contain all necessary particulars. It goes without saying that the development permission granted in favour of the appellant for layout and Sub-plotting in the year-1997 was pursuant to the application preferred by the appellant under Section 11. Under Section 29 of the Act, the Authority granted permission for layout ; and Sub-plotting subject to certain terms and conditions and one of the conditions imposed was to obtain N .A. Permission from the Competent Authority under Section 65 of the Bombay Land Revenue Code as and when the land was to be used for non-agricultural purpose. 12. Therefore, the first question that falls for our consideration is whether the Authority was justified in imposing such a condition which is sought to be now relied upon when the members of the appellant society have prayed for G sanctioning of plans for construction on the plot. The very same issue had come up before us for consideration in Special Civil Application No.6691 of 1996(Smt. Jyotsanaben C. Patel v. State ; of Gujarat and another) decided on 12.03.2012. In that case, the petitioner owned and possessed land of a final plot of Town Planning Scheme No.2 of Anand. The said Town Planning Scheme I was finalized before the year-1985. On the finalization of the scheme, the petitioner had made an application to the Anand Area Development Authority for grant of development permission ; under Section 29 of the Act. The AADA granted development permission permitting the petitioner to construct in accordance with the plan submitted. The said Town Planning Scheme I was finalized before the year-1985. On the finalization of the scheme, the petitioner had made an application to the Anand Area Development Authority for grant of development permission ; under Section 29 of the Act. The AADA granted development permission permitting the petitioner to construct in accordance with the plan submitted. As some changes were required to be made in the proposed construction of the buildings, the petitioner had preferred an application for revision of the development permission and after examining various aspects, the AADA granted revised development permission on 29th April, 1986. In the said permission, it was further written that the revised permission was granted for construction subject to the responsibility of obtaining approval of the Revenue Department at the instance of the petitioner. 13. In Smt. Jyotsanaben C. Patel (supra), the petitioner completed the construction according to the revised development permission, but had not obtained N.A. Permission under Section 65 of the Bombay Land Revenue Code. According to the Authority, the petitioner had committed breach of the conditions imposed in the order of the 20 development permission and accordingly issued a show-cause-notice upon the petitioner as to why the construction which was put up by the petitioner should not be removed. The Authority ultimately directed removal of the construction which was put up by the petitioner. The Revision Application before the State-respondent filed by the petitioner also failed and finally the matter reached this Court. The petitioner placed reliance on the decision rendered by the learned Single Judge of this Court in the case of Karimbhai Kalubhai Belim and others v. State of Gujarat and another reported in 1996(1) GLR 659 . The ratio as propounded in the case of Karimbhai Kalubhai Belim(supra) is that once permission is granted under Section 29(1) of the Act, no further permission for its non-agricultural use under the Bombay Land Revenue Code was required. This proposition of law was laid down relying on Section 117(a) of the Act as it stood before its deletion in the year 1999. 14. The issue before us while deciding Special Civil Application No.6691 of 1996 was as to whether the 1U decision in the matter of Karimbhai Kalubhai Belim (supra) laid down the correct proposition of law and whether the ratio was applicable to the facts of the case of Smt. Jyotsanaben C. Patel 15 (supra). 14. The issue before us while deciding Special Civil Application No.6691 of 1996 was as to whether the 1U decision in the matter of Karimbhai Kalubhai Belim (supra) laid down the correct proposition of law and whether the ratio was applicable to the facts of the case of Smt. Jyotsanaben C. Patel 15 (supra). While deciding Special Civil Application No.6691 of 1996, we also took into consideration a Division Bench decision rendered in Letters Patent Appeal No.205 of 1999 decided on 17th December, 2003 in which the said Division approved the judgment of Karimbhai Kalubhai Belim (supra). 15. In such circumstances, we took the view that the condition which had been imposed in that case of obtaining N.A. Permission under Section 65 of the Bombay Land Revenue Code was not a lawful condition within the meaning of Section 29(1) of the Act for two reasons; (i) that no ground was assigned as required under Sub-Section (2) of Section 29 and (ii) in order to impose any condition in terms of Section 29( I), the Authority vested with the power to grant permission must have the lawful right to impose such condition on consideration of the requirement of the Act. We also took the view that if the Authority while granting permission makes a general observation that the applicant should take some other permission which is required under other law over which the Authority under Section 29(1) had no power to investigate, such imposition of condition cannot be said to be one under Section 5 29(1) of the Act. 16. In this context, we may profitably refer to the observations and findings recorded by us in the case of Smt. Jyotsanaben C. Patel(supra) :- "10. At this stage, it may not be out place to mention here that although Sub-Section (a) has been subsequently 15 deleted, in the case before us, at the relevant point of time, the said Sub-Section (a) was very much subsisting and as such, the petitioner should get the benefit of Sub-Section (a) of Section 117, if available. 11. A plain reading of Section 29 of the Act makes it abundantly clear that permission under Section 29 of the Act 25 may be with or without any condition. However as laid down in Sub-Section (2), in case any permission is granted subject to condition, the appropriate Authority shall state the grounds for imposing such condition. 12. 11. A plain reading of Section 29 of the Act makes it abundantly clear that permission under Section 29 of the Act 25 may be with or without any condition. However as laid down in Sub-Section (2), in case any permission is granted subject to condition, the appropriate Authority shall state the grounds for imposing such condition. 12. In the case before us, the Authority by its order dated April 28, 1986 granted permission to the petitioner for making construction as per revised plan subject, however to the responsibility of obtaining approval of the Revenue Department resting finally with the applicant. Therefore, on the face of it, while granting such permission, a conditional clause is added which casts a responsibility upon the applicant to obtain approval of Revenue Department. However, no ground has been assigned why such 5 condition has been imposed. 13. After hearing the learned Counsel for the parties and after going through the provisions contained in 10 Section 29 of the Act, we are of the firm view that the condition that has been imposed in this case, as indicated above, was not a lawful condition within the meaning of Section 29(1) of the Act. The reason being that (i) no ground was assigned why such condition was imposed as required under Sub-Section (2) of Section 29 ; and (ii) in order to impose any condition in terms of Section 29(1), the Authority vested with the power to grant permission must have the lawful right to impose such condition on consideration of the requirement of the Act; but if the Authority while granting permission makes a general observation that the applicant should take some other permission which is required under other law over which the Authority under Section 29(1) had no power to investigate, such imposition of condition cannot be said to be one under Section 29(1) the Act. Even such imposition of condition to take permission under other Statute was 35 contrary to the provision contained in Section 117(a) of the Act as it stood at that point of time because the law itself specified that once permission was given under the Act, no other permission was required to be taken under any other law. 14. We, therefore, find substance in the contention of Mr. 14. We, therefore, find substance in the contention of Mr. Patel, the learned Counsel appearing for the petitioner; that the aforesaid imposition of condition was not one within the scope 5 of Section 29(1) of the Act but way a general observation which was on the face of it contrary to the provisions of Section 11 7(a) of the Act. 15. We find that the view taken by the learned Single Judge in the case of Karimbhai Kalubhai Belim & Ors. v. State of Gujarat & Anr. reported in 1996 (1) GLR 659 is the correct approach and a Division bench of this Court in the case of Collector v. Triveni Park Co-operative Housing Society Ltd. in Letters Patent Appeal No.205 of 1999 has specifically approved the aforesaid view taken in the case of Karimbhai Kalubhai Belim (supra). 16. On consideration of the entire materials on record, we, therefore, hold that in this case, once permission has been granted under Section 29(1) of the Act, in view of the then provision of Section 11 7( a) of the Act, there was no necessity of taking permission under 311 any other Authority and the so-called condition imposed in the revised order under Section 29(1) of the Act was not a condition lawfully imposed under Section 29(1) of the Act, it being not 3S supported by any reason, disclosure of which was mandatory under Section 29(2) of the Act and at the same time, beyond the power of investigation of an Authority under the Act; thus, the same should be ignored. ". 17. In the present case also, the development permission for layout and Sub-plotting was granted vide order dated 04.12.1997 and in the said permission, a condition was imposed that before putting the land for nonagricultural use, necessary permission under Section 65 of the Bombay Land Revenue Code shall be obtained otherwise in the absence of such permission if any construction is put up, the same would be without any valid sanction and would be termed as unauthorized or illegal. If we apply the ratio of Karimbhai Kalubhai Belim (supra) which has been approved by us in the case of Smt. Jyotsanaben C. Patel(supra) to the facts of the present case then in such circumstances, we have no hesitation in coming to the conclusion that in the year 1997, when Section 117(a) of the Act was in force, the Authority could not have imposed such a condition, as no ground has been assigned as to why such condition was imposed as required under SubSection (2) of Section 29 and the Authorites vested with the power to grant permission did not possess the lawful right to impose such condition on consideration of the requirement of the Act. Such imposition of condition to take permission under other Statute was contrary to the provision contained in Section 117(a) of the Act as it stood at that point of time because law itself specified that once permission was given under the Act, no other permission was required to be taken under any other law. 18. In the present case, having regard to the stance of the SUDA, it is abundantly clear that while refusing the development permission for construction on the ground that the appellant has not obtained N.A. Permission under Section 65 of the Bombay Land Revenue Code, the Authority has relied upon the condition imposed in first development permission dated 04.12.1997. 19. The aforesaid stance is made abundantly clear by the SUDA in the following words as reflected from its affidavit-in-reply. We quote the averments made by the SUDA in its reply as under :- "The respondent No.4 most respectfully submits that in the instant case the petitioner Society was granted development permission by Surat Urban Development Authority under the provisions of Gujarat Town Planning & Urban Development Act on 04/12/1997 and one of the conditions (Condition No.2) was to obtain non agricultural usage permission under the provisions of Section-65 of Bombay Land Revenue Record from the concerned Authority, 30 otherwise the development/construction would be treated as unauthorized and illegal. " 20. Thus, the aforesaid stance of the SUDA makes it very clear that while insisting for N.A. Permission as on today, the SUDA is still relying on the condition which was laid in the year 1997 at the time when development permission for layout and Sub-division of plot was granted under Section 29 of the Act. " 20. Thus, the aforesaid stance of the SUDA makes it very clear that while insisting for N.A. Permission as on today, the SUDA is still relying on the condition which was laid in the year 1997 at the time when development permission for layout and Sub-division of plot was granted under Section 29 of the Act. It is not the stance of the SUDA that as Section 117(a) of the Act stood deleted in the year 1999 and the permission for construction is being 5 prayed for after the deletion of Section 117(a) of the Act, N.A. Permission from the Competent Authority is necessary before the plans could be sanctioned. Thus, even as on today, the SUDA has tried to justify the imposition of the condition for N.A. Permission despite the fact that the said permission was imposed when Section 117(a) of the Act was in force. 21. However, the learned Single Judge appears to have taken a different view of the matter considering two aspects. First, that the development permission was granted on 04.12.1997 i.e. at the relevant point of time, when Section 117(a) of the Act was in force and secondly, the development permission for construction on the plot is being prayed for after 1997 i.e. when Section 117(a) of the Act is not in force as it stood deleted vide GUJ 2 of 1999, with effect from 01.05.1999. Thus, according to the learned Single Judge, if the appellant wants permission for construction as on today, more particularly, when Section 117(a) of the Act is not in force then the ratio as propounded in the case of Karimbhai Kalubhai Belim (supra) would not help the appellant in any manner. The learned Single Judge has also taken the view that the first permission accorded in the year 1997 was a development permission for layout and Sub-plotting whereas the permission which is being prayed for as on today, is for construction and therefore, the construction permission could be granted only if there is a valid N.A. Permission obtained by the appellant from the Competent Authority under Section 65 of the Bombay Land Revenue Code. 22. We have taken note of the findings recorded by the learned Single Judge while rejecting the application. 22. We have taken note of the findings recorded by the learned Single Judge while rejecting the application. The distinguishing feature so far as the facts of Smt. Jyotsanaben C. Patel (supra) is concerned, if compared with the facts of the present case, then Smt. Jyotsanaben C. Patel (supra) was decided on the basis of Section 117(a)of the Act as it stood at the relevant point of time and in the case of Smt. Jyotsanaben C. Patel (supra), 20 construction was also completed before the deletion of Section 117(a) of the Act. So far as the present case is concerned, Section 117(a) stood deleted in 1999, but the appellant was unable to 25 obtain any development permission for construction before deletion of Section 117(a) of the Act. 23. It was sought to contend by Mr. Desai, the learned Senior Advocate appearing for the SUDA that perhaps the ratio as laid down in the case of Karimbhai Kalubhai Belim (supra) which has been subsequently confirmed by this very Bench in the case of Smt. Jyotsanaben C. Patel (supra) could have helped the appellant provided Section 117(a) of the Act would have still remained in force, but the appellants have prayed for development permission for construction at a stage when 117(a) of the Act is not in force. 24. Thus, the second question that falls for our consideration is whether deletion of Section 117(a) of the Act would make any difference so far as the present case is concerned and whether on the strength of the same, the Authorites could insist first for N.A. Permission. 25. We have already discussed above that so far as the stance of the SUDA is concerned, they are relying upon the 15 condition which was imposed way back in the year 1997. In the year 1997, when the permission was granted, Section 117(a) of the Act was in force. Even assuming for the moment that the development permission for construction is being prayed for as on today, when Section 117(a) of the Act is not in force, in our opinion, would not make any difference. In the year 1997, when the permission was granted, Section 117(a) of the Act was in force. Even assuming for the moment that the development permission for construction is being prayed for as on today, when Section 117(a) of the Act is not in force, in our opinion, would not make any difference. We are taking this view relying on our own decision in the case of Smt. Jyotsanaben C. Patel (supra) that the insistence on the part of the SUDA for N.A. Permission under Section 65 of the Bombay Land Revenue Code before granting the permission for construction is not justified in law, as the Authority vested with the power to grant permission does not possess the lawful right to impose such condition, more particularly when the same is not being supported by any reason, disclosure of which is mandatory under Section 29(2) of the Act and at the same time, beyond 10 the power of investigation of an Authority under the Act. 26. We have also examined the entire matter from a different perspective. The SUDA i.e. the Authority under the Act is insisting for a valid N.A. Permission under Section 65 of the Bombay Land Revenue Code before the plans are sanctioned and the appellant could be permitted to put up construction on the plot. According to the Authority as reflected from the averments made in its affidavit-in-reply, the SUDA is constituted under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 and is under the administrative control and 15 supervision of respondent No.1 i.e. the State of Gujarat. According to the SUDA, the agricultural land cannot be permitted to be put for non-agricultural purpose without non-agricultural usage permission granted by the Collector as envisaged under the provisions of Section 65 of the Bombay Land Revenue Code. At this stage, we would like to quote the exact averments made 25 by the SUDA in its affidavit-in-reply. According to the SUDA, the agricultural land cannot be permitted to be put for non-agricultural purpose without non-agricultural usage permission granted by the Collector as envisaged under the provisions of Section 65 of the Bombay Land Revenue Code. At this stage, we would like to quote the exact averments made 25 by the SUDA in its affidavit-in-reply. The averments are as under :- "It is further stated that the agricultural land cannot be permitted to be put for non agricultural purpose without non agricultural usage permission granted by the Collector as envisaged under the provisions of Section-65 of the Bombay Land Revenue 35 Code, 1879 and a copy there of is annexed herewith and marked as Annexure-A. The respondent No.4 further states that the provisions of Section-65(a) provides for procedure if the occupant wishes to apply his land from one agricultural purpose to another agricultural purpose while Section-66 of the said Code are with regard to penalty for using agricultural land without permission. In other words, the agricultural land cannot he used for any other purpose without obtaining non agricultural usage permission from the Collector or competent Authority. The respondent No.4 humbly submits that Surat Urban Development Authority has no power to convert the agricultural land into non agricultural land and therefore, while granting development permission in response to is application it is always first and foremost condition to obtain non agricultural usage permission under the provisions of Section-65 of Bombay Land Revenue Code from the concerned 211 Authority before putting the agricultural land into non agricultural purpose. It is submitted that it is also categorical condition that no construction/ development without such non agricultural usage permission would be unauthorized and illegal. It is submitted that the application for development permission is considered by Surat Urban Development Authority under the provisions of Section-27, 29(1)(1),29(1)(2), 29(1)(3) and 49(1) of the Gujarat Town Planning & Urban Development Act, 1976. It is pertinent to note that any construction in violation of the terms & conditions imposed by the respondent No.4 is unauthorized." 27. Thus, according to the SUDA. it has no power to convert the agricultural land into non-agricultural land and therefore, while granting development permission for construction in response to application, they are justified in insisting for a valid permission of N.A. 28. Thus, according to the SUDA. it has no power to convert the agricultural land into non-agricultural land and therefore, while granting development permission for construction in response to application, they are justified in insisting for a valid permission of N.A. 28. We are unable to appreciate this stance of the SUDA for the simple reason that if the SUDA has no power to grant permission for construction without N.A. Permission then why in the first place, the SUDA granted permission for layout and Sub-division In of the plots without insisting for N.A. Permission under Section 65 of the Bombay Land Revenue Code. We are taking this view on the simple proposition that if layout and division 15 of plot also amounts to development, according to the definition of the term "development" as provided under Section 2(viii) of the Act then it could easily be said that such development 20 permission was for non-agricultural purpose and if it was so then why N.A. Permission under Section 65 of the Act was not insisted upon at that very stage. It is preposterous to suggest that land 25 could be said to have been used for non-agriculture purpose only when construction is put up on the plot and not at the stage when layout and Subdivision of land is sanctioned under Section 29 of the Act as a result of which infrastructure like roads, drainage, sewage disposal, water supply, other public utility amenities and services including supply of electricity and gas is already provided and more particularly having regard to the definition of the term "development' under the Act. 29. We would like to fortify our aforesaid view by considering the object of the Bombay Land Revenue Code and also relying on few relevant provisions of the Bombay Land Revenue Code. 30. The Bombay Land Revenue Code is the Act which deals with collection of revenue and the purpose to which the land may be used. The In Bombay Land Revenue Code has no other social purpose except the regulation of the user of the lands. In cases arising out of the provisions of Section 65 of the Bombay Land Revenue Code, they essentially purport to restrict an individual right, namely, right of an individual to put his land to a particular use. The In Bombay Land Revenue Code has no other social purpose except the regulation of the user of the lands. In cases arising out of the provisions of Section 65 of the Bombay Land Revenue Code, they essentially purport to restrict an individual right, namely, right of an individual to put his land to a particular use. The question involved in such cases does not have wider social implications unlike other land laws which have been enacted with a view to achieve certain social purposes. The Bombay Land Revenue Code essentially deals with entries in the revenue records which are for fiscal purposes and which do not confer any right title or interest over the property. Thus, if the land is an agricultural land and is sought to be put to non- agricultural use then in such circumstances, prior permission of the Competent Authority under Section 65 of the Bombay Land Revenue Code is required. However, it is apposite to state that Section 65 of the Bombay Land Revenue Code will apply provided the land is an agricultural land capable of being used for the purpose of agriculture and which is actually being used for the purpose of agricultural operation. In our view, land could not be termed as an agricultural land only for the reason that in the record of rights, the same has been shown as agricultural land. We may now look into Section 65 of the Bombay Land Revenue Code in detail :- "65. Uses to which occupant of land for purposes of agriculture may put his land. - (1) Any occupant of land assessed or held for the purpose of agriculture is entitled by himself his servant 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 purpose aforesaid. Procedure if occupant wishes to apply his land to any other purpose. But, If any occupant wishes to use his holding or any part thereof for any other purpose the Collector's permission shall in the first place be applied for by the occupant. The Collector on receipt of such application, (a) shall send to the applicant a written acknowledgment of its receipt. But, If any occupant wishes to use his holding or any part thereof for any other purpose the Collector's permission shall in the first place be applied for by the occupant. The Collector on receipt of such application, (a) shall send to the applicant a written acknowledgment of its receipt. and (b) may after due inquiry, either grant or refuse the permission applied for :- Provided that where 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; such period shall, if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application. Unless the Collector shall in particular instances otherwise direct, no such application shall be recognized except it be made by the occupant. (2) Notwithstanding anything contained in sub-Section (1) but subject to any terms and conditions laid down by the State Government in this behalf, where an occupant has his holding in an area comprising a gram and such area is not within an urban agglomeration or within a radius of five kilometers from the limits of a municipal borough or notified area or industrial estate and such occupant wishes to use his holding or a part thereof only for a residential propose, it shall not be necessary for him to obtain permission of the Collector under Sub-Section (1). Explanation.-For the purposes of this Section- (i) "gram" means a gram within the meaning of the Gujarat Panchayats Act, 1961 (VI of 1962); (ii) "industrial estate" means an industrial estate within the meaning of the Gujarat Industrial Development Act, 1962 (XXIII of 1962); (iii)" municipal borough" or "notified area" means respectively, a municipal borough or a notified area within the meaning of the Gujarat Municipalities Act, 1963 (34 of 1964); (iv) "urban agglomeration" means an urban agglomeration within the meaning of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976)." 30. Sub-Section (1) prescribes uses to which a holder of land can put to his land which is either assessed or held for the purpose of agriculture. Sub-Section (1) prescribes uses to which a holder of land can put to his land which is either assessed or held for the purpose of agriculture. He is entitled, either by himself, his servants, tenants, agents or other legal representatives, to-- (i) erect farm-buildings; (ii) construct wells or tanks; or (iii) make any other improvements thereon, for the better cultivation of land, or its more convenient use for the purpose aforesaid. [2] Where an occupant wishes to use his holding or any part thereof for any other purpose, permission of the Collector shall in the first place be applied by the occupant. [3] On receipt of such an application, the Collector shall,- (i) Send to the applicant a written acknowledgment of its receipt, (ii) After due inquiry may, either grant or refuse the permission. 31. Thus, the plain reading of Section 65 of the Code makes it very clear that if any occupant of land assessed or held for the purpose of agriculture wishes to use his holding or any part thereof for any other purpose, the Collector's permission shall, in the first place, be applied for by such occupant. The State Government vide Notification dated 14.11.1991 already specified the lands designated for nonagricultural & industrial use. Apart from the above, before putting the land to non-agricultural use, if Section 65 permission is a must then could it be said that when development permission under Section 29 of the Act was granted for layout and Sub-division of the plot, the land was already put for non agricultural use because layout and Subdivision plot is included in the definition of the term "development". The answer unquestionably has to be in the affirmative. If there was already a development in the year 1997 for nonagricultural use without permission under Section 65 of the Bombay Land Revenue Code then in our view, the SUDA is not justified in insisting for N.A. Permission, now at this stage, when construction is to be made on the plot. 32. Whether a particular land is 40 agricultural land or not must depend on the general nature or character of the land and in order to ascertain the general nature or character of the land, various factors would have to be taken into account. 32. Whether a particular land is 40 agricultural land or not must depend on the general nature or character of the land and in order to ascertain the general nature or character of the land, various factors would have to be taken into account. The development and use of the land in the adjoining area and the surroundings and situation of the land would be an important factor which would have a bearing on the question whether the land is agricultural land or not. This factor may affect the land and its capacity of being used for agriculture and would also indicate the purpose for which the land would ordinarily be likely to be used. The physical characteristics of the land would be another factor to be taken into account. The physical characteristics may show the general nature of character of the land particularly in regard to its adaptability for being used for agricultural purpose. Then the intention of the owner as gathered from all the relevant circumstances would also have a bearing on the general nature or character of the land. In the present case, the plots in question are part of industrial township. The land in question was designated as an industrial zone by way of Notification dated 25.01.1988. Thereafter, vide Notification dated 14.11.1991 passed under Section 88(1)(b) of the Act, 1948, the land in question was being reserved for non-agricultural and industrial purpose, and thereafter, there has been substantial development on the land in question and around 300 industries are in operation today without there being any nonagricultural use permission as in the, litigation between the parties way-back in the year 2003, the SUDA had conceded that no N.A. Permission was required before the plans for construction could be sanctioned and accordingly, the order cancelling the development permission which was made a subject matter of challenge in Special Civil Application No.13259 of 2003 was ultimately withdrawn by the SUDA. 33. In this context, we may profitably refer to two decisions of the Supreme Court to fortify our view. (i) Malankara Rubber and Produce Co. and others v. State of Kerala reported in (1972) 2 SCC 492 and (ii) Ramji Sharma Alias Ramji Babu v. State of Bihar and others reported in (1996) 10 SCC 671 . 34. In Malankara Rubber and Produce Co. (i) Malankara Rubber and Produce Co. and others v. State of Kerala reported in (1972) 2 SCC 492 and (ii) Ramji Sharma Alias Ramji Babu v. State of Bihar and others reported in (1996) 10 SCC 671 . 34. In Malankara Rubber and Produce Co. (supra), the challenge before the Supreme Court was with regard to the vires of the Kerala Land Reforms Act, 1963 as amended by the Kerala Land Reforms (Amendment) Act, 1969 with the object of preventing the State from acquiring lands in the possession of the petitioners in excess of the ceilings imposed thereunder. One of the submissions on behalf of the State was that in Kerala within cities and municipalities, there were tracts of cultivated lands and merely because the Act was applied to the lands situated within cities and municipalities, it did not detract from its essential character as a measure of agrarian reform. It was also argued before the Supreme Court that lands were agricultural lands unless they were put to non-agricultural uses like the construction of building which would alter the physical character of the land, rendering it unfit for agricultural purposes. The Supreme Court in that case repelling the submission of the State made the following observations which in our opinion fortifies the view which we have taken in the present case :- "Whether lands are agricultural or not may depend also on their physical properties and situation. There may be rocky lands, sandy lands. hill sites, unculturable lands, forests etc. which by their very nature are not agricultural lands. So also lands comprised within a municipality specially in towns and cities cannot he styled agricultural lands because agricultural operations cannot be carried on there. Further the statements in the counter-affidavit do not follow the provisions of Sub-Sections (k) to (m) of Section 81 (1). To take an example, if an industrial or commercial undertaking owns several blocks of buildings situate close to each other with some land interspersed between them, it cannot be said that these lands are agricultural lands and can only- qualify for exemption only if they are notified to the District Collector and set apart for the industrial or commercial purpose of the undertaking. Similarly, a person- owning a house with lands surrounding it covered by a garden or an orchard within a municipality should not be left to the mercy of the Land Board to decide the extent of land necessary for the convenient enjoyment of the house and have the rest taken away from him. However laudable may be the object of the Legislature in attempting to settle landless persons on land obtained by the Land Reforms Act, the taking away of such lands in the circumstances mentioned above either from industrial or commercial undertakings or from the owner of house sites within a municipality for distribution among the landless cannot be said to effect agrarian reform. The Act insofar as it purports to acquire these lands cannot be upheld. " 35. In Ramji Sharma Alias Ramji Babu (supra), the question before the Supreme Court was as to whether the expression "land" as defined in the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 would include only the lands which were being used or capable of being used for agriculture or horticulture purposes or would also include the lands within the urban areas meant for building purposes. The Supreme Court while answering the aforesaid question made the following observations in Paragraphs-4 and 5 as under :- "it is well known that in and around the towns and urban areas at one point of time most of the lands were being used for agriculture or horticulture purposes. With growth of population and development activities slowly-slowly such agricultural lands are converted to uses which are nonagricultural. Many colonies have been developed by the side of the old cities which at one point of time were agricultural fields and crops used to be grown. But with passage of time and c/~v for more plots of land for construction of buildings they lost their original character and purpose. Many colonies have been developed by the side of the old cities which at one point of time were agricultural fields and crops used to be grown. But with passage of time and c/~v for more plots of land for construction of buildings they lost their original character and purpose. It appears that the framers of the Act were quite conscious of this aspect of the matte, that is why while defining 'land' they laid much emphasis in respect of the nature of use such land was being put to by saying that it meant land which is used or capable of being used for agriculture or horticulture or the homestead of the landholder; It need not be pointed out that the sole object of the Act is to put ceiling on the lands held by landholders for agriculture or horticulture purposes and to declare the areas beyond the ceiling as surplus which shall vest in the State Government. In this background neither it can be assumed nor it can be held that the framers of the Act had in mind even the lands which are in the heart of the cities meant for construction of buildings. It is a matter of common knowledge that even in areas which are completely urban in nature or even in colony some plots are lying vacant as no constructions have been made over the same for one reason or the other including financial constraint. Till constructions are made they are being used for growing some crops or fruits. But can it be said that such plots which are meant for building purposes shall be deemed to be land within the meaning of Section 2(f) of the Act? According to us, the answer is in negative. Whenever an application under sub-Section (3) of Section 16 is filed which is in respect of a land within the urban area, the Authorites or the High Court concerned should first examine what is the primary object for which such land was being used or is capable of being used. According to us, the answer is in negative. Whenever an application under sub-Section (3) of Section 16 is filed which is in respect of a land within the urban area, the Authorites or the High Court concerned should first examine what is the primary object for which such land was being used or is capable of being used. If it is found that the land was being retained by the transferred or was being transferred to another person for a purpose and object which is not connected with agriculture then an application under Sub-Section (3) of other hand, if the Authorites or the High Court are satisfied that the land which has been transferred is fully covered by the definition of land as given under Section 2(1) then provisions of the Act have to be applied for examining the question as to whether the applicant was entitled for retransfer in his favour from the transferee on the same terms and conditions. A Full Bench of the Patna High Court in the case of Fakir Mohd. v. Salahuddin, presided over by N.L. Untwalia, c.J. (as he then was) examined the scope of the expression 'land' as defined in Section 2(1) of Act. It was observed:- "The consensus of opinion - and, as I shall presently show, there is no conflict in any of the decisions - is that a parti piece of land belonging to a raiyat, an agriculturist, which is his homestead on which there is no dwelling house or any of the things as mentioned in the Explanation, is not a land covered by the Act. It has been further pointed out that a land fit for building purposes not connected with agriculture situated ordinarily and generally in town or bazaar areas, to which are applicable the provisions of the Transfer of Property Act. is not the• homestead of a landholder to make it a land within the meaning of Section 2(f)." (emphasis supplied) We are in agreement with the view expressed in the aforesaid judgment of the Full Bench. 5. So far the facts of the present case are concerned the High Court has rejected the contention that the land in question can be held to be land within the meaning of Section 2(f) merely because in the Kathian Entry it had been recorded as Bhit land. 5. So far the facts of the present case are concerned the High Court has rejected the contention that the land in question can be held to be land within the meaning of Section 2(f) merely because in the Kathian Entry it had been recorded as Bhit land. The High Court in the impugned order has observed :- "It goes without saying that all the urban lands at some point of time or the other were rural in nature where agricultural operations were carried on. Therefore, mere description of the land as a Bhit land by the survey Authorites would not be a conclusive proof that the land was agricultural in nature. The fast development and urbanisation of the town of Hazipur which has very recently been made a district, cannot be lost sight of. Therefore, I would accept the second contention of Mr. Krishna Prakash Sinha and hold that the pre-emptor has not succeeded in establishing his case that the disputed land was a land within the meaning of the provisions of the Act to which the provisions of Section 16 (3) would apply." In view of the findings recorded by the High Court that the lands which have been transferred were in the town of Hajipur and in the urban area, the application filed under Sub-Section (3) of Section 16 has been rightly dismissed. Accordingly, the appeal fails and it is dismissed. There shall be no orders as to cost." 36. Thus, it is very difficult for us to accept that the lands could still be considered as agricultural lands so that before making nonagricultural use, permission under Section 65 of the Bombay Land Revenue Code is required. We may again say at the cost of repetition that Section 65 of the 15 Bombay Land Revenue Code will come into play provided the land is an agricultural land and for determining as to whether the land is agricultural or not, the entries in the revenue records and the assessment of the revenue by itself would not be conclusive. We may again say at the cost of repetition that Section 65 of the 15 Bombay Land Revenue Code will come into play provided the land is an agricultural land and for determining as to whether the land is agricultural or not, the entries in the revenue records and the assessment of the revenue by itself would not be conclusive. The true test to be applied for the purpose of determining whether a particular land is agricultural land or not, is not whether the land is capable of being used for agricultural purpose but whether having regard to the various factors to which we have referred earlier, the general nature or o character of the land is such that it can be regarded as agricultural land. If we consider the matter from this point of view, the plots in question cannot be termed as agricultural land. 37. We are not saying for a moment that the appellant is not obliged to get the plans approved from the Authority which must be in accordance with the o Rules and Regulations and if such plans are not in accordance with the law or the Rules or Regulations then the Authority would be justified in rejecting such plans and the permission for construction, but to insist for N.A: Permission as a condition precedent is not justifiable in the eye of law. 38. We are also of the view that the land is deemed to have been put to nonagricultural use and therefore, the assessment of the revenue will also be on the basis of the same. Therefore, the apprehension of the State Government that there will be a loss of revenue is not well-founded. It will always be open for the Authority to fix the assessment of revenue liable to be paid by such occupant of the plot as laid down under Rule 81 of the Gujarat Land Revenue (Amendment) Rules, 1977. In this context, we may look at 20 Rule-81 to the extent it is relevant. It reads thus :- "8.1 Rates of non-agricultural assessment :- (1) For the purpose of determining generally the rate of nun-agricultural assessment leviable, the collector shall from time to time by a notification in the Official gazette, divide villages towns and cities into the following classes :- (A) ........... (B) ........... (C) ........... (E) ........... It reads thus :- "8.1 Rates of non-agricultural assessment :- (1) For the purpose of determining generally the rate of nun-agricultural assessment leviable, the collector shall from time to time by a notification in the Official gazette, divide villages towns and cities into the following classes :- (A) ........... (B) ........... (C) ........... (E) ........... (2) The assessment shall then be fixed by the collector at the following rates with effect from the commencement of the revenue year 1976-77, namely ."- Rate per square metre per annum in paise." Non-agricultural Residential Industrial Commercial and other use 1 2 3 4 A 10 15 25 B 6 9 12 C 4 6 9 D 3 4 5 E 1 1 1 Provided that in respect of lands falling within the urban agglomerations to which the Urban Land (Ceiling and 25 Regulation) Act, 1976 applies, assessment at double the rates mentioned above shall be fixed so long as the land in question is not put to the non-agricultural use for which permission is granted or deemed to be granted. " 39. The source of power to impose land revenue flows from Section 48 of 35 the Bombay Land Revenue Code. It reads thus :- "48. Manner of assessment and alteration of' assessment - Prohibition of use of land for certain purposes - (1) The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of that /and- (a) for the purpose of agriculture. (b) for the purpose of building, and (c) for a purpose other than agriculture or building. (2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provision of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such Authority and subject to such rules as the state Government may prescribe in this behalf (3) Where land held free of assessment or condition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment. (4) The collector or a survey Officer may, subject to any rules made in this behalf under Section 214, prohibit the use for certain purposes of any unalienated land liable to the payment of land revenue and may summarily evict any holder who uses or attempts to use the same for any such prohibited purpose. 40. Section 48 makes it abundantly clear that the land revenue leviable on any land under the provisions of the Code shall be assessed or shall be deemed to be assessed considering the use of the land. In the present case, the use of the land is for the purpose of industry, and therefore, the user of such land will be liable to pay the land revenue which shall be fixed by the Authority according to the use as provided under Section 48 of the Code, therefore, there is no question of any loss of revenue. 41. Thus, in our opinion, the deletion of Section 117(a) of the Act in the year 15 1999 will not make any difference and merely on the said ground alone, it could not be said that the SUDA is justified in insisting for N.A. Permission before approving the plans for 20 construction. 42. We are not impressed by the submission of Mr.Desai that if interpretation as sought to be put forward by the appellant is accepted then in that case, in a Town Planning Scheme, where residential use is permitted, there would not be any need of applying for permission under Section 65 of the Bombay Land Revenue Code and thereby, rendering Section 65 of the Code almost otiose. We are mindful of the fact that Section 29 permission under the Act has to be is obtained only in those cases, where land is situated within the limits of development area and development area means an area declared to be a development area under Section 3 or, as the case may be and urban development area under Section 22. In the present case, as discussed above, the land could be said to have already been put to non-agricultural use, as development permission for layout and Sub-plotting was granted by the Authority under Section 29 of the Act and at that point of time, the Authority did not insist for any N.A. Permission and very rightly in our opinion. In the present case, as discussed above, the land could be said to have already been put to non-agricultural use, as development permission for layout and Sub-plotting was granted by the Authority under Section 29 of the Act and at that point of time, the Authority did not insist for any N.A. Permission and very rightly in our opinion. This is the main reason as to why the permission under Section 29 of the Act is put on a higher pedestal. Of course, the Legislature has thought fit to delete Section 117(a) of the Act, but that in our opinion will have no bearing so far as the present case is concerned. 43. We do not propose to say that no sooner the town planning scheme is finalized where residential use is permitted, on that ground alone there would not be any requirement of applying for permission under Section 65 of the Bombay Land Revenue Code. However, if the Authority has granted development permission under Section 29 of the Act and pursuant to that the land is subdivided or plotted and if various other infrastructures like roads, sewage etc. is provided then in such circumstances, the land would no longer remain an agricultural land and thereafter to insist for or to pray for N.A. Permission under Section 65 of the Code would be nothing but just a formality. 44. For the foregoing reasons, we hold that the SUDA is not justified in insisting for N.A. Permission under Section 65 of the Bombay Land 40 Revenue Code before granting permission for construction on the plot. It is, however, made very clear that each and every plot-holder shall be obliged to place before the Authorites the necessary plans and design for construction which must be in accordance with the bye-laws, Rules and Regulations prevailing as on today. The Authority shall consider the plans for construction and if they are otherwise found to be in accordance with the Rules and Regulations, then the necessary permission for construction shall be accorded without insisting for any order of N .A. under Section 65 of the Bombay Land Revenue Code. It is also needless to clarify that the assessment of revenue shall also be based as if the land is used for non-agricultural purpose i.e. for the purpose of industry. 45. The appeal succeeds and is hereby allowed. It is also needless to clarify that the assessment of revenue shall also be based as if the land is used for non-agricultural purpose i.e. for the purpose of industry. 45. The appeal succeeds and is hereby allowed. The judgment and order passed by the learned Single Judge is set aside. Special Civil Application No.2563 of 2011 is hereby allowed to the aforesaid extent. After this order is passed, Mr.Prasant Desai, the learned Senior Counsel appearing on behalf of the respondents prays for stay of operation of our aforesaid order. In view of what is stated hereinabove, we find no reason to stay our order. Prayer refused. Appeal Allowed.