Writ Petition No.213 of 1998

27th June, 2000

Petitioner Counsel: Shri. M.S.SONAK
Respondent Counsel: Shri. H.R.BHARNE, Shri. N.N.SARDESSAI

JUDGMENT

REBELLO, J.:- Petitioner no.1 is an institution incorporated under the Reguamenta de Mazanias. Petitioner no.2 is a Mahajan of the Petitioner no.1 temple. By the present petition the petitioners contend that by virtue of the Goa Land Use (Regulation) Act, 1991, respondents 4 and 5 could not have used the land for a purpose other than agriculture. It is contended that though a permanent structure has been put up on the land, the respondents 1 and 2 have not taken any action. In these circumstances, they seek the reliefs as prayed for.

2. Respondents 4 and 5 have filed their reply. It is contended that respondent no.4 was a tenant of the suit property of which the petitioner no.1 was the landlord. The respondent no.4 has purchased the property under the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. Respondent no.4 applied for permission under Section 18K of the Act to sell 200 sq.metres of the land to respondent no.5. On the land sold there was a structure standing which was being used by respondent no.5 for the purpose of selling milk. Respondent no.5 is a Co-operative Society. It is contended that this is an activity directly connected to agriculture. Respondent no.5 has merely put up a pucca construction on the already existing structure with the permission of the Panchayat. On an application to the respondent no.2, the respondent no.2 granted permission by Order dated 22nd March 1996. The land sold is not being used for a purpose other than agriculture. Once that be the case, there was no requirement that the respondents 4 and 5 had to apply under Section 32 of the Goa Land Revenue Code. It is contended that the Deputy Collector/Sub-Divisional Officer has inquired into the matter. The affidavit filed by Shri R.V.Chikodi, Sub-Divisional Officer shows that a fine of Rs.500/- has been imposed on the ground that the construction was carried out without conversion about 3 years back.

3. The Legislative Assembly of Goa has enacted the Goa Land Use (Regulation) Act, 1991. Preamble to the Act indicates that it was enacted to provide for regulation of use of agricultural land for non-agricultural purposes. Though the Act was enacted in 1991, it has been given retrospective effect from 2nd November 1990. By virtue of Section 2 no land which is vested in a tenant under the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 shall be used or allowed to be used for any purpose other than agriculture notwithstanding anything contained in the Goa, Daman and Diu Town and Country Planning Act, 1974 or in any plan or scheme made thereunder or in the Goa Land Revenue Code, 1968. By the Explanation, the expressions "agriculture", "land" and "tenant" have the same meaning assigned to them as under the Goa, Daman and Diu Agricultural Tenancy Act. It is in this light that the Court must consider the contentions advanced on behalf of the respondents.

4. On behalf of the petitioners it is contended that user of the land is contrary to the provisions of the Goa, Daman and Diu Agricultural Tenancy Act. The Deputy Collector in his affidavit himself has taken a stand that the construction was carried out without conversion and that is why he has imposed a fine of Rs.500/-. At any rate, it is contended, that respondent no.5 has put it to a use other than for agriculture. This is prohibited under the provisions of the Goa Land Use (Regulation) Act. It is, therefore, contended that the Collector respondent no.1 is bound to take action. The respondent no.2 could not have approved the sale of land for a non-agricultural purpose.

Learned Government Advocate has clarified that for the purpose of Sections 29 to 33 of the Goa Land Revenue Code, the powers of the Collector are being exercised by the Deputy Collector of the respective areas under their jurisdiction.

5. On behalf of the respondents, their learned counsel firstly contends that no new structure has been put up. Once that be the case, taking permission under Section 32 of the Goa Land Revenue Code did not arise. Secondly it is contended that documentary evidence on record by itself including the Order of the Mamlatdar granting permission under Section 18K of the Goa, Daman and Diu Agricultural Tenancy Act, indicates that a structure was existing. It is further contended that considering the language of Section 2 of the Goa Land Use (Regulation) Act, there would be no power in the Collector to take any action because the Section starts with a non obstante clause, that is, 'notwithstanding anything contained in the Goa, Daman and Diu Town and Country Planning Act, 1974' apart from other Acts set out thereunder. In the instant case, it is contended, that the Deputy Collector has already acted under Section 33 by imposing a penalty. It is, therefore, contended that once the powers are exercised, nothing further needs to be done. In these circumstances, it is contended, that reliefs sought for in the petition are infructuous and the petition is liable to be dismissed.

6. It has been contended that Mamlatdar has granted permission to respondent no.5 to sell the land under Section 18K of the Agricultural Tenancy Act. Section 18K may now be reproduced:-

"18K. Restrictions on transfers of land purchased under this Chapter. - No land purchased by a tenant under this Chapter shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Mamlatdar;

Provided that no such sanction shall be necessary where the land is to be mortgaged in favour of the Government or a co-operative society for the purpose of a loan for effecting any improvement of such land."

A perusal of the Section indicates that no land purchased by a tenant under this Chapter, shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Mamlatdar. The proviso only sets out that no sanction shall be necessary where the land is to be mortgaged in favour of the Government or co-operative society for the purpose of a loan for effecting any improvement of such land.

7. Does this Section provide for change of user of land from agricultural purposes to non-agricultural purposes or any other purpose ? Is Section 18K merely an embargo for transfer of land? Can such land which is transferred under Section 18K be put to any other use? For that purpose let us have a look firstly at Chapter IIA of the Act. Tillers' day is defined as the date of introduction of the Goa, Daman and Diu Agricultural Tenancy (Fifth Amendment) Bill, 1976. On tillers' day every tenant is deemed to have purchased from his landlord the land held by him as a tenant and such land shall vest on him free from all encumbrances subsisting on the said day. This of course is subject to other provisions of the Act. 18C is the Section providing the fixing or determining of the price of land. Section 18D sets out the purchase price payable for the land. Under Section 18I(1) notwithstanding any agreement or usage to the contrary in respect of any tenancy created after the tillers' day, a tenant shall be entitled within one year of such tenancy to purchase from the landlord the land held by him. Under Section 18J if the tenant does not purchase the land or the purchase has become ineffective, the land does not resume to the landlord. By virtue of sub-section(2) of Section 18J the category of persons in order of priority who can be allotted the land is set out. Therefore, the scheme is that the tenant becomes the owner. If the tenant does not exercise right to purchase or the purchase becomes ineffective, the land cannot go to the landlord but can be given to other category of persons who also have the right to purchase the land and become owners thereof.

8. The preamble to the Act sets out that it was enacted to provide for regulation of the terms of tenancy with respect to agricultural lands. The Act is a piece of agrarian legislation. The Act has been included in the Ninth Schedule to the Constitution of India. The Act, therefore, fell outside the challenge on the ground that it violated Part III of the Constitution of India. Once an Act is so included in the Ninth Schedule by virtue of Article 31B neither the Act nor any provisions shall be deemed to be void or ever to become void on the ground that such Act or provision is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part, that is, Part III of the Constitution of India. The intent of the Legislature and constitutional mandate, therefore, is that an Act which is in furtherance of the constitutional objective of conferring ownership rights on the tenants as a measure of agrarian reform should not be subjected to any challenge under Part III of the Constitution of India. By virtue of Chapter II persons lawfully cultivating land even if they were not lease holders within the meaning as understood in the Transfer of Property Act were also conferred rights. The definition of 'agriculture' was amended to include 'horticulture'. Therefore, can it be contended that the sale, gift, etc., as contemplated by Section 18K be for any purpose other than agriculture? If such an interpretation is accepted, the Act will cease to be an agrarian measure. If that be the case, the very object would be defeated. The entire purpose in enacting the Act would be frustrated. The object of the Act was not to enrich the tenant to sell the land after conferring ownership right to him. The object was to give him security to increase agricultural production and make the tenant self sufficient. Therefore, the exercise of power of transfer under Section 18K can only be permitted for the limited purpose, that is, if the land is going to be used for agricultural purposes as known to the Act. In other words the sale, transfer, etc., must be only for the purpose of carrying on operations which fall under the definition of 'agriculture' under the Tenancy Act. The Mamlatdar otherwise has no jurisdiction under Section 18K to grant permission to transfer by sale, gift, exchange, mortgage, lease or assignment. In the instant case, the mere fact that permission has been granted under Section 18K is of no avail. The sale must only be for the purpose of agriculture. Whilst granting conversion, the authority exercising powers under Section 32 will have to refuse permission if the applications for conversion of land is for a non-agricultural purpose not contemplated by the definition of 'agriculture' under the Goa, Daman and Diu Agricultural Tenancy Act, 1964. The permission under Section 18K can be granted only if there are ascertained parties before the Mamlatdar to whom the tenant wants to transfer. The Mamlatdar cannot grant permission in advance. He has to satisfy himself that the parties are bonafide and can carry on agricultural operations. The transfer if allowed, can only be to categories of persons set out in Section 18J. This to ensure that the objects of the Act are not frustrated.

9. Coming now to the second question. The Goa Land Use (Regulation) Act as its preamble indicates is to regulate the use of agricultural land for non-agricultural purposes. The Act restricts itself to those lands where there is relationship of landlord and tenant. It does not bring within its purview agricultural land which was not tenanted. The purpose and object of the Goa, Daman and Diu Agricultural Tenancy Act, was to give security to tenants with a view to increase agricultural output. The Land Use Act in furtherance of those objectives conferred on the tenants, has put restrictions whereby land meant for agriculture cannot be used for any other purpose than agriculture. The Land Use Act has also other significance. The Land Use Act protects the environment and ecology of the area. Agriculture in Goa includes horticulture, which are basically cashew gardens and rice lands. These are nature's lungs. To that extent it can also be said the Act is to preserve the ecology of Goa. The object therefore is to make the right to life more meaningful in its expanded form as guaranteed by Article 21 of the Constitution of India. The Act, therefore, protects these green areas which are nature's lungs. The right to live in a healthy environment with minimal disturbance of ecological balance and avoidable hazard to the cattle, homes and agricultural land and undue affectation of air, water and environment has been recognised.

10. What is the intent of Section 2 of the Act? Does the expression 'notwithstanding anything contained in the Goa, Daman and Diu Town and Country Planning Act or in any plan or scheme made thereunder or in the Goa Land Revenue Code' mean, that the provisions of those Acts stand repealed in their entirety. The answer is obviously no. The provisions contained in those Acts to the extent that they are inconsistent with the provisions of the Goa Land Use (Regulation) Act, 1991 will only be repealed. What it means is, if under the provisions of the Goa, Daman and Diu Town and Country Planning Act or in any plan or scheme made thereunder or in the Goa Land Revenue Code where there are provisions for conversion of agricultural land to non-agricultural or any other purpose, prohibited by Section 2 of the Act, to that extent only the provisions of the other Acts stand repealed. All other provisions of those Acts would continue to apply. These will include the provisions whether in a Section or a sub-section to take action against unauthorised or illegal acts. To take an illustration, application for permission to convert land from one purpose to another is contemplated under Section 32 of the Land Revenue Code. On failure to take permission, powers are conferred under Section 33. Section 33, therefore, does not stand repealed. If, therefore, in contravention of Section 2 of the Goa Land Use (Regulation) Act, a person converts land from one purpose to another, Section 33 of the Land Revenue Code would still be available. Similarly the provisions of the Town and Country Planning Act would also be available. The Act itself does not provide for any provision for enforcement. The Act only prohibits conversions of tenanted agricultural lands, which otherwise could have been converted by invoking the provisions of Section 32 of the Land Revenue Code if it met the requirements of the Section. The authority under Section 32 of the Land Revenue Code is now prohibited from granting conversion. To that extent his powers are curtailed. Similarly under the provisions of the Town and Country Planning Act, the authorities cannot change the Regional plan or grant permission for development in these agricultural lands. We are, therefore, clearly of the opinion that any act by a tenant or a deemed purchaser or purchaser under a certificate or any person who purchases from a tenant or from a certificate holder or deemed purchaser, if he gets conversion by contravening the provisions of Section 2, the provisions of Section 33 of the Land Revenue Code and/or corresponding provisions of the Town and Country Planning Act will apply. Authorities under those Acts can revoke the development permission or conversion sanad.

11. Once having held that there are powers in the authorities under the said Acts, to enforce the provisions of the Land Revenue Code or the Town and Country Planning Act, the next question would be on the facts of this case whether it will be permissible for the Court to grant the reliefs as prayed for? Before that a few observations. On account of increasing population, there is a pressure on land. Regional plans are prepared to take care of needs for at least two or three decades, are being regularly altered only for the purpose of housing. This in the long run is bound to adversely affect the ecology and environment. Under Section 32, the Collector or the Sub-Divisional Officer has been conferred the power to be the watch-dog for the future generations who will inherit this land. They have the same right to its natural beauty as those who have presently inherited it. There are enough indicators to refuse conversion in order to secure public health, safety and conveniences. Besides if there are schemes for the planned development, they should be scrupulously followed.

12. Before us, as the pleadings now stand, on one hand is the stand taken by the petitioners and on the other hand is the reply of the respondents 4 and 5 who also place reliance on documents to show that there was a structure standing and it has only been reconstructed on the same plinth area. The material raises disputed questions of fact. Answer to that issue will also be an answer to the contentions raised by respondents 4 and 5 that no conversion was required as on that part of the land there was a construction. The mere fact as set out in the affidavit of the Deputy Collector at paragraph 7 that he has imposed a fine is also no answer. If the Deputy Collector had applied his mind to the provisions of the Goa Land Use (Regulation) Act and thereafter proceeded to decide the issue, the matter would be different. In the instant case the affidavit does not disclose that while imposing the fine the Deputy Collector applied his mind to the said provisions. In the light of that, it cannot be said that merely because fine has been imposed the matter ends there. We do not wish to pronounce further on the matter.

13. On the facts as they now stand it would be appropriate to refer the matter to the concerned Deputy Collector/ Sub-Divisional Officer exercising jurisdiction in the area to decide the issue according to law after giving to both the respondents 4 and 5 and the petitioners notice and thereafter to pass appropriate orders bearing in mind the provisions of the Goa Land Use (Regulation) Act, the permission granted under Section 18K of the Goa, Daman and Diu Agricultural Tenancy Act and the relevant provisions of Section 33 of the Land Revenue Code. While disposing of the matter the Deputy Collector may also bear in mind the contention raised on behalf of respondents 4 and 5 that even before the present construction there was a structure existing and that the structure is being used for agricultural purposes and to that extent there is no violation of the provisions of the Goa Land Use (Regulation) Act. The Deputy Collector to comply with these directions and dispose of the matter within 6 months from today.

14. Rule made absolute in terms of paragraph 13 of the Judgment.

15. In the circumstances of the case there will be no order as to costs.

Petition allowed.