Published by Legal Research Development An international Refereed e- Journal
LEGAL
PROVISIONS REGARDING CONVERSION OF AGRICULTURAL LAND TO NON-AGRICULTURAL LAND
*Payalben B. Patel
Abstract
Agriculture Land is to
be used for Non-agriculture purpose – Anything can work for the betterment of
agriculture; this does not require the approval of the Collector – If a
residential house is built on agricultural land but no farming is done, that
house cannot be considered as a farmhouse – No Objection Certificate – it is
not necessary to get NA permission for personal residence or agricultural
development in rural areas – “Bona Fide industrial purpose” – The third party
has no right to object to the non-cultivation permission procedure – “Tatkal
Binkheti Yojana”
(Immediate Non-agriculture Scheme) – Procedure – Checklist – Conditions to be
fulfill for obtaining Non-agriculture permission – Landmark Judgments.
Key Word:
Agriculture Land & Non-agricultural, Legal Provisions.
----------------------------
If
the agricultural land is to be used for non-agricultural purposes i.e. if
farmer wants to build on the agricultural land or to use it for
non-agricultural purpose, then the permission of the Government has to be
required.[1]
If
the holder of agricultural land wants to use the agricultural land or any part
of the agricultural land for non-agricultural purposes, then the Collector
(for, corporation, cantonment area & notified area) also District Panchayat
for all rural areas except if the District Panchayat has given such rights to
the Taluka Panchayat, pre-permission provision has been made for that. The
decision to approve / reject pre-permission applications for the purpose of
such non-cultivation remains to be taken within a time limit of 3 months.
Similarly, when a person applies for development permission, a decision has to
be taken within 3 month.[2]
When
the applicant wants to assign non-agricultural act of his agricultural land, at
the time of application to the concerned Collector, when the Collector allows
such non-cultivation, when he checks it whether only the land titles are under
land acquisition? Whether urban land is acquired under the ceiling? Whether
farm land ceiling restrictions apply? Is there any dispute over the ownership
of land or any other matter? Is there any government debt? Are there any
violations of roads, lines, control or rules of such land by the Executive
Engineer? Whether such land is a restricted power new condition or enumeration
or other law? In addition, if the land is under new condition / restricted
authority during the inspection, the competent authority has to take action
regarding recovery of its premium and conversion tax and determination of
non-agricultural shape. Such approval is given by the concerned Collector after
the preface of money by the applicant regarding premium or conversion tax and
non-agricultural amount deposited in the treasury.
When
an owner of agricultural land applies for non-agricultural permission, a copy
of the required construction permission for the purpose given by the Municipal
Corporation / Nagar Palika / Urban Development Authority / Area Development
Board along with the application and a copy of the map of the plan approved
earlier. Non-agricultural application could be made to the competent authority
after obtaining necessary permission from Municipal Corporation / Nagar Palika
/ Urban Development Authority / Area Development Board. But now this law has
been amended and it has been decided that the applicant for building permission
should apply to the Corporation / Nagar Palika / Urban Development Authority /
Area Development Board as well as the Collector / District Development Officers
for non-cultivation permission under Section - 65. And a copy of the proposed
layout plan must be attached with this application.
Provision
has been made for the cultivated lands not to be used by the framer except for
farming. Thus anything can work for the betterment of agriculture; this does
not require the approval of the Collector. The farm house can be used as a
dwelling house for keeping farm implements, keeping cattle, including or
farming with servants. Such a farm house should be on the farmer's own land. It
can also be used as a warehouse for storing crops. Permission is not required
to construct the building. Such a farm house cannot be built for renting out to
others, i.e. it cannot be rented out to others.[3]
The farm house can build itself or the calculator. Farm house non-farming
itself is not considered a waste. It does not matter if the farmer lives in
another village and uses his agent for all the farming work.
If
a joint family has built a farmhouse to cultivate the land of a nearby plot
well and one of its members is engaged in another business or trade, then it is
not considered as non-agricultural.[4] If
a shed is built to monitor and protect the fruit crop and a bull cart or
tractor is rented, it cannot be considered as non-agricultural use.[5]
But the occupier builds and rents many sheds in his land and if those sheds are
more than 1/4 of the area of his land then it is considered as non-agricultural
use and all the land becomes non-cultivable.[6] If
a residential house is built on agricultural land but no farming is done, that
house cannot be considered as a farmhouse.
Provision
regarding non-agricultural use of agricultural land has been made in Sections
65, 67 and 68 of the Bombay Land Revenue Code, 1879. If the occupant of the
land intends to use the land for agricultural purposes or any part thereof for
non-agricultural purposes must be obtaining permission of the Collector or the
competent authority.[7]
There
is a time limit of three months for deciding the application for
non-agricultural use. As well as the
competent authority decides to grant non-cultivation permission after obtaining
"No Objection Certificate" from various departments and offices for
granting non-cultivation permission.
Ø it
is not necessary to get NA permission for personal residence or agricultural
development in rural areas[8]:
Use
of non-agricultural land without the permission of the competent authority
subject to the conditions and proposals placed down by the State Government for
residential use only. Only if the account holder of the agricultural land uses
it himself, he does not have to get permission. The manner in which an account
holder can transact in respect of land after obtaining permission for non-cultivation
of land under section 65(1) is also valid.
Thus,
subject to any proposals and conditions placed down by the State Government,
when an account holder's own land is in a rural area and such area is not
within the integrated urban area or town (municipal) or declared area or
industrial estate. If it is not within a radius of 5 km from the limit and such
account holder wants to use his land or any part of it for residential purpose
only, he will not be required to get the permission of the Collector under
Section 65 (1).
Ø N.A.
for bona fide industrial purpose. Prior permission is not required[9] :
Able
to comply with all conditions if the owner of the land used for agricultural
purposes or any non-agricultural use (other than for industrial purposes)
wishes to use such land or any part thereof for any bona fide industrial
purpose other than production or storage of any chemical or petrochemicals. To
get the permission of the officer (Collector).
Land
as required for "Bona Fide industrial purpose" and lands of new and
indivisible condition are also often used for bona fide industry. There is a
provision to obtain prior permission of the competent authority before
transferring new and indivisible conditional lands for any purpose including
non-agricultural industrial use or for non-agricultural use by modification.
According to this provision, in such cases, if action is taken accordingly,
there will be a delay in acquiring land for bona fide industrial purpose. In
order to avoid such delay, provision has been made in the Computation Act for
retrospective approval in Sections 43 and 63. Provision has been made by the
State Government to allow such provision in respect of new and undivided
condition lands only for lands as per requirement for bona fide industrial
purpose subject to prescribed conditions.
Ø
The third party has no right to
object to the non-cultivation permission procedure:[10]
To
get the permission of the competent authority to use the land for agricultural
purpose for non-agricultural purpose. According to which, if the occupant of
the land intended for agricultural purposes or any part thereof intends to use
it for non-agricultural purposes, the Collector is required to obtain the
permission of the competent authority is determined. The competent authority
decides to grant non-cultivation permission after obtaining "No Objection
Certificate" from various departments / offices for granting
non-cultivation permission. If the agricultural land is to be used for
non-agricultural purposes, if one wants to build on agricultural land or if it
is to be used for non-agricultural purpose, permission of the Government has to
be sought. Provision has been made to obtain prior permission of the Collector
and the District Panchayat for the rural area if the occupant of the land
intends to use the land or any part of it for non-agricultural purposes. The
decision to approve / reject applications for prior permission for such
non-agricultural purposes is taken within a period of 3 months.
Proceedings
may be established under Section 65 of the Bombay Land Revenue Code for
conversion of non-agricultural land by a person whose name has been entered and
is running in 7/12. Thus, objections are being raised against the action /
order as per section- 65 initiated by the persons running in 7/12 by a third
party whose name has not been entered or is not running in 7/12. Considering
such objections, the Collector or the District Panchayat also takes action and
the proceedings under Section 65 are debarred. In fact, the Collector, District
Panchayat or any revenue officer does not have the power and authority to
decide on the title. The proceedings under section 65 are proceedings relating
to land and not to title.
Thus,
in today's times, cases of filing false objections and appeals with the
intention of extorting money from third party owners by exerting unjustified
pressure on non-agricultural proceedings / orders initiated in a property have
increased, leading to unjustifiable harassment of property owners. Objections
raised by third parties to non-agricultural proceedings / orders initiated in a
property in this manner are also dealt with by the Revenue Officers which is
also outlawed, illegal and unconstitutional.
Ø
Tatkal
Binkheti Yojana :[11]
The
State Government has decided to introduce “Tatkal
Binkheti Yojana” (immediate non-agricultural scheme) for
districts of the state of Gujarat for municipal areas and lands for TP areas. The
state government has also issued administrative instructions and circulars for
the same. And the procedure for that has also been decided. Whose procedure is
as follows:-
Under Tatkal Binkheti Yojana, the applicant has to get
the opinions/ NOCs of all the concerned departments/offices himself and apply
for non-agriculture with that opinion. For which the applicant submits an
application for the opinion, the concerned department/office immediately
prepares a report on the matters pertaining to his department/office and give
it back to the applicant only.
Under Tatkal Binkheti Yojana, the list of primary details
i.e. the application form, the affidavit form, the confirmation deed to be
submitted by the applicant to the concerned department/office and the concerned
department/office immediately prepares a report on the matters pertaining to
his department/office and give it back to the applicant.
In the report on the petitions of the applicant under
Tatkal Binkheti Yojana, authority wasn’t to give an interim opinion in his
report or no objection certificate (NOC) using words like "to be
fit", "to act according to the rules", "to be
reduced". But in case of
such requests, the concerned authority has to give a self-explanatory opinion
after sufficient scrutiny to allow non-cultivation in the case, or specify that
there is no opinion to allow non-cultivation with specific reasons.
The application submitted by the applicant along with the
report / NOC of the concerned department/office under Tatkal Binkheti Yojana
has to be registered with the Tatkal Binkheti Yojana Register of the office
after the Collector office has verified the matter and confirmed that nothing
is incomplete. Then it has to be given
to the officer to take further action.
The Mamlatdar has to check the title of the land for
Tatkal Binkheti Yojana (immediate non-agricultural scheme) and if there is any
special matter, he has to mention it in his report.
Subject to the provisions of the Land Revenue Act as well
as the Land Revenue Rules, only opinion on the following issues is permitted.
The competent office has to give an opinion on the following matters.[12]
It is the responsibility of the revenue authority such as
the Collector, Deputy Collector or the Provincial Officer to issue a "No
Objection Certificate" in respect of title to the land mentioned in the
application.
Whether the land mentioned in the application is a
restricted land under the new condition, Ganot Act or any other law? If yes, whether the permission of the
Collector has been ordered to use the land mentioned in the application for non-agricultural
purposes? Whether the amount of premium fixed by the Collector has been
credited?
Whether the land mentioned in the application is under
acquisition? Whether the land mentioned in the application has been acquired by
the government under the Urban Land Ceiling Act?
Whether any procedure is pending on the issue of case,
dispute or appeal regarding the ownership of the land mentioned in the
application? Whether any government debt is due in the land mentioned in the
application?
Thus, after obtaining the above opinions from the
concerned department/office, the applicant can apply for non-cultivation
permission. The opinions obtained with
it have to be enclosed. By adopting the
above working method, the applicant can get the permission of non-agriculture
immediately i.e. in a very short period of time.
A
checklist of the number of copies required to be enclosed at the time of
application for Permission to carry out Non-Agricultural use (NA) of
Agricultural Land. In which information about it is displayed.[13] The
applicant is required to attach certified copies of the following proofs with
the application for non- agricultural permission:-
•
Checklist:
The entry from which the applicant has acquired the
ownership of the land, including the entry in the village form no. 6 with Copy
of all necessary change.
1.
Advanced copy of
Village Form No. 7/12.
2.
Advanced copy of
Village Form No. 8(a).
3.
A copy of the
Collector's order to convert the new conditional land to the old condition for
non-agricultural purpose and a copy of the receipt of payment of premium if the
new conditional land is eligible for premium.
4.
A copy of the
payment receipt of measurement fee for land which is to be cultivated.
5.
If it is a charge
on the land, No due certificate must be required. (Certificate issued by
lending institution/bank).
6.
T.P. form “F”
regarding allotment of internal area.
7.
Certificate of Zone
issued by the Chief Executive Officer in the Urban / Area Development Authority
area.
To get non- agricultural permission, the applicant is required to fulfill the
following conditions:[14]-
·
A measurement sheet
issued by the District Inspector of Land Records (DLR) on which the extent of
the original comment should also be indicated. The plan and layout plan
submitted by the applicant regarding the land must be approved at the competent
level.
·
The applicant is
required to get the construction plan approved by the competent authority
before starting construction on his land. But the applicant will not be able to
get go away for such construction without obtaining non-agricultural
permission.
·
In urban areas
where town planning scheme has been approved, construction must be carried out
in accordance with the rules of GDCR and zoning.
·
It is necessary to
make provision for disposal of wastewater in terms of health and hygiene as per
the approved map.
·
The applicant is
required to maintain the distance between the constructions from the center of
the road considering the type of road under the Urban Development Rules.
·
If permission is
sought for industrial purpose, further action can be taken after obtaining
necessary approval from the District Industry Officer before construction.
·
Further action can
be taken by obtaining necessary approval of District Magistrate for non-agricultural
permission for floor mill, touring, cinema / theater.
·
Further action can
be taken after obtaining the necessary approval of the District Magistrate
before starting construction work on non-agricultural permits for pumping
petrol, diesel, kerosene, CNG, LPG.
·
Under the Indian
Explosives Act, further action may be taken after obtaining the necessary
approval of the District Magistrate before taking non-agricultural action for
manganese, fireworks, firewood.
·
If the land related
to non-agricultural permission is close to the railway boundary, construction
can be done leaving a space of 50 meters from the railway boundary.
·
If the land for
non-cultivation permission is close to the jail, it is necessary to leave a
distance of 15 meters and construct.
·
Power grid wires /
high tension power from non-agricultural land perimeter or from side to side if
poles are erected to comply with the rules applicable thereto and construction
accordingly.
·
Land which is
sought for non-cultivation if 50 km around the aerodrome. When it falls within
the radius of, it is necessary to obtain the "No objection
certificate" required from the point of view of construction height and
aerodrome from the Civil Aviation Department and follow the rules of the Civil
Aviation Department.
·
Construction can be
done outside the radius of 200 meters from the Indian Air Force airport and
installation.
·
In case of land
near the well of ONGC, the applicant is required to follow the relevant rules.
In case of land near Narmada Canal / Other Irrigation Canal, the applicant is
required to follow the rules regarding distance to be maintained for the
proposed construction.
·
The applicant is
required to comply with the existing provisions of maintaining a distance of
100 meters from the ancient monument declared as PROTECTED MONUMENTS under the
laws of the Central Government or the State Government where necessary.
·
Where necessary,
the applicant is required to comply with the provisions of the Wildlife
protection Act, regarding the distance to be maintained from the boundaries of
any area declared as a sanctuary or national park.
·
Thus, the applicant
is required to strictly follow the above instructions in obtaining
non-agriculture permission, and if the applicant fails to comply with the above
conditions, legal action may be taken by the government office.
Ø
Provision for conversion / use of
non-agricultural land from one purpose to another[15]:
When
the account holder of land held for any non-agricultural purpose wants to use
such land or any part of it for any non-agricultural purpose for any other
non-agricultural purpose, he should first obtain the permission of the
competent authority (Collector). Under
the general circumstances, the provision and procedure for conversion of
agricultural land to non-agricultural land is the same as for the use of
non-agricultural land from one purpose to another. A time limit of three months
has been fixed for deciding applications for non-agricultural use. The
competent authority decides to grant non-cultivation permission after obtaining
"No Objection Certificate" from various departments / departments /
offices for granting non-cultivation permission.
Ø Landmark
Judgments :
1.
Permission is not required for non- agricultural: If non-agricultural permission has been given under section-3
of Gujarat Town Planning and Urban Development Act, then no other permission is
required for use of non-agriculture even under section-65 of Gujarat Land
Revenue Code.[16]
2.
Permitted:
If the Collector fails to inform the applicant of his decision on the
application of the applicant within three months, the permission for which he
has applied will be deemed to have been granted.[17]
3.
Agriculture land
cannot be set aside for non-agricultural use without the prior permission of
the Collector:- While permitting it with effect from a later date the power to
impose penalty has been vested in the Collector under Section 67 of the Gujarat
Land Revenue Code.[18]
Ø Conclusion :-
The agricultural land is to be used for non-agricultural
purposes, then the permission of the Government has to be required. The
decision to approve / reject pre-permission applications for the purpose of
such non-cultivation remains to be taken within a time limit of 3 months.
When an owner of agricultural land applies for non-agricultural
permission, a copy of the required construction permission for the purpose
given by the Municipal Corporation / Nagar Palika / Urban Development Authority
/ Area Development Board along with the application and a copy of the map of
the plan approved earlier.
Provision has been made for the cultivated lands not to
be used by the framer except for farming. Thus anything can work for the
betterment of agriculture; this does not require the approval of the Collector.
Provision regarding non-agricultural use of agricultural land has been made in
Sections 65, 67 and 68 of the Bombay Land Revenue Code, 1879.
As well as the competent authority decides to grant
non-cultivation permission after obtaining "No Objection Certificate"
from various departments and offices for granting non-cultivation permission.
It is not necessary to get NA permission for personal residence or agricultural
development in rural areas.
N.A. for bona fide industrial purpose. Prior permission
is not required. The State Government has decided to introduce “Tatkal Binkheti
Yojana” (immediate non-agricultural scheme) for districts of the state of
Gujarat for municipal areas and lands for TP areas.
When the account holder of land held for any
non-agricultural purpose wants to use such land or any part of it for any
non-agricultural purpose for any other non-agricultural purpose, he should
first obtain the permission of the competent authority (Collector). If the
Collector fails to inform the applicant of his decision on the application of
the applicant within three months, the permission for which he has applied will
be deemed to have been granted.
***************************
*Ph. D.
Research Scholar: Department of Law, Saurashtra University, Rajkot - 360005, Gujarat.
[1] Bombay Land Revenue Code - 1879,
Sections 65.
[2] Section 29(4) of the Town
Planning Act.
[3] 22th Mumbai Law General page 793
& 796.
[4] Selected Decision BRT 1940.
[5] Selected Decision BRT Part-5
322/1943.
[6] Selected Decision BRT 18/1946.
[7] Bombay Land Revenue Code - 1879,
Sections 65.
[8] Section 65(b) of the Bombay Land
Revenue code.
[9] Section-65(b) of the Bombay Land
Revenue Code.
[10] Bombay Land Revenue Code-1879
section 65.
[11]
Gujarat Government, Revenue
Department Notification No. BKHP/1008/4/K on Dt. 01/07/2008.
[12]
Gujarat Government, Revenue
Department Notification No. BKHP/1008/4/K on Dt. 01/07/2008 (Schedule – 3).
[13] Gujarat Government, Revenue
Department Notification No. BKHP/1008/4/K on Dt. 01/07/2008.
[14] Ibid: (Schedule – 4).
[15]
Bombay Land
Revenue Code-1879 section 65(a).
[16]
Karimbhai Kalubhai v/s. State of Gujarat, 1996 (1) GLH 200 and 1996 (1) GLR
659.
[17]
Kalidas Umedrai v/s. State of
Gujarat, 1996 (2) CD 124.
[18]
Bhalchandra Chhotalal Joshi v/s. S.R.
Sub-Divisional Development Officer, Bharuch 18 (2) G.L.R. 313.
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