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2019 DIGILAW 1412 (JHR)

Kaushalya Devi v. State Of Jharkhand

2019-08-09

SUJIT NARAYAN PRASAD

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JUDGMENT Sujit Narayan Prasad, J. - This writ petition is under Article 226 of the Constitution of India whereby and whereunder the notice dated 04.02.2017 issued under the signature of Circle Officer, Pirtanr, Giridih has been assailed by which the petitioner has been directed to deposit a sum of Rs.21,53,182.50/- inclusive of the penalty on account of using the land for the purpose of fuel outlet by changing the nature of land from agriculture to non-agriculture. 2. Mr. Prakash Chandra Roy, learned counsel for the petitioner has submitted that the impugned notice has been issued without providing any opportunity of hearing to the petitioner and as such the same is not sustainable. His further submission is that since the opportunity of hearing was not given, therefore, the said fuel outlet has been installed in an area of 0.28 acres as would appear from No Objection Certificate issued by the District Magistrate as contained under Annexure-3 to the writ petition but it is evident from the order passed by the authority casting liability upon the petitioner basing upon the audit report submitted by the office of Principal Accountant General, Jharkhand, Ranchi wherein the nature of land said to have been changed is 46 = decimal while actually it is 28 decimal, therefore, if the opportunity would have been granted to the petitioner before casting liability upon the petitioner of such a huge amount, the same could have been brought to the notice of the authority concerned. 3. Mrs. Chandra Prabha, learned SC-I assisted by Mr. Vishal Kumar Rai, learned AC to SC-I appearing for the State of Jharkhand has submitted by referring to the stand taken by the State respondent in the counter affidavit that the nature of land is agricultural but the petitioner after its purchase has converted its nature from agriculture to that of non-agriculture. Mrs. Chandra Prabha, learned SC-I assisted by Mr. Vishal Kumar Rai, learned AC to SC-I appearing for the State of Jharkhand has submitted by referring to the stand taken by the State respondent in the counter affidavit that the nature of land is agricultural but the petitioner after its purchase has converted its nature from agriculture to that of non-agriculture. The specific stand has been taken by the State-respondent that under the Khas Mahal Manual, the nature of land cannot be changed and if it has been changed, the concerned will have to make payment of an amount by way of Salami and as such, since the petitioner admittedly has changed the nature of land from agriculture to non-agriculture by installing the fuel outlet and the same has came into surface in an audit report of the Principal Accountant General, putting reliance upon the same, the Circle Officer has taken action by calculating the amount of Rs.21,53,182.50/-, to be paid by the petitioner to the State Exchequer and therefore, there is no illegality in the impugned order. 4. Having heard the learned counsel for the parties and after appreciation of their rival submissions, the fact in admission as per the statutory provision is that the nature of land pertaining to Khas Mahal land cannot be changed from agriculture to non-agriculture. 5. The petitioner is admitting and he has to admit since he is running a fuel outlet after getting No Objection Certificate under the Indian Explosive Act by the District Magistrate, Giridih on 28th March, 2006 for installation of a fuel outlet being a dealer of M/s Indian Oil Corporation Ltd. upon an area of 0.28 acres as would appear from Annexure-3 annexed to the writ petition. 6. The petitioner has not apprised this fact either to the revenue authority or the licensing authority and started running the fuel outlet over the land in question but when it has been surfaced in an audit conducted by the office of the Principal Accountant General in the financial year 2006-07 to 2012-13 then it came to the notice of the authority that the petitioner without resorting to the legal provision has converted the nature of land from agriculture to non-agriculture and got success in installing the fuel outlet in the area in question. 7. 7. It is also admitted fact that the petitioner has not been given opportunity of hearing and therefore, questioning the very calculation as also the area said to have been converted from agriculture to non-agriculture since the petitioner is claiming to install a fuel outlet upon 0.28 acres of land as would appear from Annexure-3 while in the calculation prepared by the competent authority on the basis of the audit conducted by the office of Principal Accountant General, the area shown therein is 0.46 = acre and therefore, prima facie it seems that there is discrepancy in the area where the nature of land is said to have been changed. 8. In that view of the matter, since the question of issuance of show cause notice has been agitated but simultaneously it is also admitted by the petitioner that the change in the nature of land of an area of 0.28 acres is not in dispute, therefore, the matter requires consideration by the authority with respect to the difference of area from 46 = decimal 28 decimal = 0.18 = acres, therefore, the matter is remitted before the competent authority-Deputy Commissioner, Giridih to adjudicate the amount of Salami as per law with respect to the area pertaining to 0.18 = acres. 9. The petitioner since has admitted the conversion of nature of land to the extent of 0.28 acres, therefore, the petitioner is directed to make payment of Rs.10,00,000/- (Rupees Ten Lakh Only) within a period of four weeks from today and if such amount would be paid, the Deputy Commissioner, Giridih will issue show cause notice to the petitioner within a period of two weeks from the date of receipt of such amount and after considering the response submitted by the petitioner, the same would be decided by him within a further period of four weeks from the date of such reply. 10. It needs to clarify that if the petitioner will not deposit the amount of Rs.10,00,000/- (Rupees Ten Lakh Only) as directed, the order of demand as has been made by virtue of notice dated 04.02.2017 will be enforced by the authority concerned. 11. The writ petition is accordingly, disposed of.