STATE OF GOA & ANR. versus DR. ALVARO ALBERTO MOUSINHO DE NORONHA FERREIRA on 24 September 2019

[2019] 15 S.C.R. 651

STATE OF GOA & ANR.

v.

DR. ALVARO ALBERTO MOUSINHODE NORONHA FERREIRA

(Civil Appeal No. 7576 of 2019)

SEPTEMBER 24, 2019

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ]

Goa, Daman & Diu Land Revenue Code, 1968: s 32 –Conversion of land from agricultural to non-agricultural – Paymentof conversion charges – Calculation of, on the basis of the ratesapplicable at the time of making of the application or on the datewhen the order allowing conversion of land was issued – Held:Payment of conversion fees arises only when a decision is takento grant a Sanad, thus, the relevant date for fixing the conversioncharges will be the date on which the decision is taken to grantthe Sanad – On facts, the date appears to be 19.09.2013 – Amountdetermined by the Collector was deposited by the land owners on09.10.2013 though under protest – Appellants rightly imposed theconversion charges as on the date of decision to grant Sanad –Respondent not entitled to challenge the levy of these conversioncharges in view of his own acts, deeds and conduct – Goa LandRevenue Code (Amendment) Act, 2013.

Allowing the appeal, the Court

HELD: 1.1 The question of payment of conversion feesarises only when a decision is taken to grant a Sanad. Therefore,the relevant date for fixing the conversion charges will be thedate on which the decision is taken to grant the Sanad. In theinstant case, that date appears to be 19.09.2013. The amountdetermined by the Collector was deposited by the land ownerson 09.10.2013 though under protest reserving their right tochallenge the fixation of the date on which the conversioncharges were to be levied. [Para 14] [658-E-F]

1.2 Section 32 of the Goa, Daman & Diu Land RevenueCode, 1968 lays down certain timelines and gives a right to theland owners to file an appeal if the timeline is not adhered to by

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Athe department. The application in the present case was filedon 08.03.2013 and 60 days expired on 07.05.2013. The landowner could have filed an appeal immediately thereafter to theappellate authority which was obliged to decide it within 30 days.This was not done. In fact, even after the amendment was madeon 22.05.2013, no appeal was filed. No doubt, there is a delayBin terms of the timelines laid down in Section 32 but the delaycannot be said to be too much. Furthermore, the respondentwaived any rights which may have accrued to them in terms ofSection 32 by not filing an appeal. Further, the respondent hasacquiesced and consented to conversion charges being paid inCaccordance with the amended provisions by filing the affidavit-cum-indemnity bond. [Para 17] [659-C-F]

1.3 The respondent had only sought permission forconversion of 16014 sq. mtrs. of land but on consideration ofthe plan submitted by the respondent before the Town andDCountry Planning the total requirement of land was 25368.50 sq.mtrs. and, therefore, permission was granted for this 25368.50sq.mtrs. The confusion arose because of the area which theapplicant applied for and this led to delay in the decision of thematter. Though from the record it is not very clear on which datethe application was filed for conversion of the excess 9354.50Esq. mtrs. of land but the finding of the High Court is clear thatthe application for this additional area which came to be includedby a separate addendum to the original application was filed onlyafter the amendment came into force. This portion of thejudgment has not been challenged by the respondent. It is, thus,Fapparent that the land actually required to be converted was25368.50 sq. mtrs. and, therefore, a complete application couldbe said to have been filed only after the addendum was added.Even if the addendum is ignored, it is obvious that by applyingfor a smaller area than what was actually required, the respondent

and his family members themselves created a confusion whichGalso was partly responsible for the delay in grant of permission.This is not a case where the delay is very large and therespondent also contributed to the delay by not applying for theconversion of the entire extent of land in one go. Furthermore,the respondent did not even file an appeal. [Para 19-21] [660-HC-G]

1.4 The affidavit-cum-indemnity bond filed by therespondent, there was no coercion in the matter. The respondentwas not forced to file such an affidavit. They may have beenasked to do so but they could have refused to file it. Nothinghas been placed on record to even remotely undertake thatundue pressure was put upon the respondent to file such anaffidavit. In this affidavit he undertook to pay the conversioncharges as demanded. He also undertook not to challenge theimposition of conversion charges. Most importantly, he alsoundertook not to sue for recovery of any excess conversioncharges. The respondent deposited this amount, though underprotest. Thereafter, he obtained all necessary permissions andafter Sanad and all other documents were prepared, he choseto challenge the order. The respondent cannot be permitted tochallenge the levy of conversion charges at the rates, postamendment, on account of his acts, deeds and conduct andacquiescence to the said order. Thus, the appellants rightlyimposed the conversion charges as on the date of decision togrant Sanad. The judgment of the High Court is set aside. [Para22-24] [660-H; 661-A-D]

Union of India & Anr. v. Mahajan Industries Ltd. &Anr. (2005) 10 SCC 203 - distinguished.

Union of India & Ors. v. Dev Raj Gupta & Ors. (1991)1 SCC 63 ; Ansal & Saigal Properties (P) Ltd. & Ors.v. L. & D.O. & Ors. (1998) 74 DLT 152 - referredto.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7576of 2019.

From the Judgment and Order dated 13.10.2016 of the DivisionBench of the High Court of Bombay at Goa in Writ Petition No. 262of 2014.

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APratap Venugopal, Ms. Surekha Raman and Ms. Viddusshi forM/s. K J John and Co., Advs. for the Appellants.

Dhruv Mehta, Sr. Adv., Yashraj Singh Deora, Ms. Anupma,Anmol Mehta, Ms. Sonal Mashankar, Shyam Agarwal, Advs. for theRespondent.B

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. Leave granted.

2. The following question arises for decision in this appeal.C

“Whether conversion charges payable for conversion of land fromagricultural to non-agricultural should be calculated on the basisof the rates applicable at the time of making of the applicationor on the date when the order allowing conversion of land wasissued?”D

3. Facts necessary for decision of the case are that therespondent and three of his family members applied to the State forpermission to convert some agricultural land measuring 16014 sq. mtrs.on 08.03.2013. This application was acknowledged by the Office ofthe Deputy Collector on 29.04.2013. Inspection of the land was carriedEout on 15.05.2013 and the Mamlatdar submitted his report to the DeputyCollector on 16.05.2013. Thereafter, a report was submitted by theTown and Country Planning Department on 21.05.2013.

4. On 22.05.2013, amendment was made in the Goa, Daman &Diu Land Revenue Code, 1968 (hereinafter referred to as ‘the Code’)Fby the Goa Land Revenue Code (Amendment) Act, 2013 and the ratesof conversion were revised and increased substantially.

5. The Deputy Conservator of Forest, Margao submitted hisreport with regard to the conversion on 04.06.2013. On 09.07.2013, theDeputy Collector wrote to the Mamlatdar for some information, whichGinformation was supplied by the Mamlatdar to the Deputy Collectoron 15.07.2013. On 19.07.2013, the respondent submitted an affidavitagreeing to pay the conversion charges as asked for and also undertooknot to sue for refund of conversion charges. On 19.09.2013, acommunication was sent to the respondent and his family members toHdeposit the amount as per the enhanced rates. On 09.10.2013, the

respondent deposited the amount of conversion charges, as demandedand thereafter, Sanad granting permission for conversion of land wasissued on 19.11.2013.

6. Thereafter, the respondent filed writ petition claiming refundof the excess amount, as according to the respondent, the conversioncharges should have been fixed as per the rates applicable on the dateof application i.e. 08.03.2013. The High Court partly allowed the writpetition in the following terms:

“(ii) The impugned communication dated 19.09.2013 standsquashed and set aside.

(iii) The respondents are directed to calculate the conversionfees payable by the petitioner in the light of theobservations made herein above and refund the excessamount, if any, to the petitioner together with interestthereon at the rate of 8% per annum from the date ofsuch payment up to the actual payment.”

The High Court, however, held that this order applied only to16014 sq. mtrs. and for the remaining area 9354.50 sq. mtrs. whichwas added by a separate addendum after the amendment came intoforce on 22.05.2013, the respondent herein shall be liable to pay revisedrates. The High Court relied upon the judgments of this Court in thecase of Union of India & Anr. vs. Mahajan Industries Ltd. &Anr.[ 1], Union of India & Ors. vs. Dev Raj Gupta & Ors.[2], and thejudgment of the Delhi High Court in the case of Ansal & SaigalProperties (P) Ltd. & Ors. vs. L. & D.O. & Ors.[3]

7. As far as the judgment in Mahajan Industries case (supra)is concerned, the judgment is based on the concession of the counselfor the appellant that he did not dispute the correctness of the judgmentof the Delhi High Court in Ansal & Saigal Properties (P) Ltd.(supra). The Court further held that in terms of the said judgment thecrucial date for calculating the conversion charges is the date of receiptof the application. This Court further held that the application filed bythe original owners on 25.03.1981 through their general power of 1 (2005) 10 SCC 203

2 (1991) 1 SCC 63

3 (1998) 74 DLT 152

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Aattorney for change of land use had never been rejected and was stillpending and it was in these circumstances that the Union of India wasdirected to take a final decision on conversion of land use asexpeditiously as possible but conversion charges would be payable ason the date of application for conversion. According to us, this judgmentis based on a concession and cannot be used by the respondent andBhas been wrongly relied upon by the High Court.

8. In Dev Raj Gupta’s case (supra), there were variousquestions raised. One of the questions was – when was the applicationproperly constituted; and the other was, what was the appropriate datefor fixing the conversion charges? The High Court held that a properCapplication for conversion had been filed by the land owners on15.02.1978. The High Court further held that in view of the provisionin the Master Plan declaring the area in question in which the leasedland was situate as commercial zone, there was automatic and statutoryconversion and no application for conversion was necessary. It wasDalso held that it was the rate of 1978 which would apply and not therate of April, 1981. This Court held that an application for conversionwas required and a proper application in this behalf was filed only on27.02.1981. This Court held that the sanction was given by the authorityconcerned to convert the user of land on 12.01.1984 and the Union ofEIndia had failed to explain the delay of 3 years in replying to theapplication for conversion filed on 27.02.1981 and it was in these factsit was held that the conversion charges should be fixed as on 27.02.1981.

9. As far as the judgment of the Delhi High Court in the case ofAnsal & Saigal Properties (P) Ltd. (supra) is concerned, on carefulFperusal of the same we find that that judgment has been delivered inthe facts of the case. There was no provision for levying of conversionfees from a particular date. In the present case, Section 32 of the Codeis applicable and there was no such provision before the Delhi HighCourt. Therefore, in our view, that judgment has no applicability to thefacts and circumstances of the case.G

10. As far as the present case is concerned, we may makereference to the relevant provisions of Section 32 of the Code whichreads as follows:

“32. Procedure for conversion of use of land from oneHpurpose to another. –

(1) xxxxxx

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(2) The Collector, on receipt of an application, - (a) shall acknowledge the application within seven days; (b) xxxxxxxxx

(c) may, after due enquiry, either grant the permissionBon such terms and conditions as he may specifysubject to any rules made in this behalf by theGovernment; or refuse the permission applied for,if it is necessary so to do to secure the public health,safety and convenience or if such use is contraryCto any scheme for the planned development of avillage, town or city in force under any law for thetime being in force and in the case of land which isto be used as building sites in order to secure inaddition that the dimensions, arrangement andaccessibility of the sites are adequate for the healthDand convenience of the occupiers or are suitable tothe locality; where an application is rejected, theCollector shall state the reasons in writing of suchrejection.

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(3) The Collector shall take a decision on the application withina period of sixty days from the date of receipt of the applicationand in case of his failure to do so, the person shall have the rightto make an appeal to the Secretary (Revenue) to theGovernment who shall dispose of the appeal within a period ofthirty days from the date of filing of appeal.

(6) When the land is permitted to be used for a non-agriculturalpurpose, a sanad shall be granted to the holder thereof in theprescribed form, on payment of fees at the following rates,namely:- G

xxxxxxxxx (Rates are prescribed)

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(7) xxxxxxxxx”

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11. It would be pertinent to mention that vide amendment dated22.05.2013, sub-section (6) was amended providing different commercialrates for different areas and for different purposes. We are concernedwith clause (ii) of sub-section (6) of Section 32 which reads as follows:

“(ii) When the land is permitted to be used from one purpose toBanother, a sanad shall be granted to the holder thereof in theprescribed form, on payment of the fees hereinbelow:-”

12. A careful analysis of Section 32 shows that on receipt of anapplication, the Collector shall acknowledge the application within 7days, if it is not otherwise returned. Clause (c) of sub-section (2) ofCSection 32 empowers the Collector either to grant or refuse permission.Sub-section (3) is important and provides that the Collector should takea decision on the application within a period of 60 days from the dateof receipt of the application. In case, the Collector fails to take a decisionwithin 60 days then the person has a right to file an appeal to theSecretary (Revenue), who is duty bound to dispose of the appeal withinD30 days of the filing of the appeal.

13. Sub-section (6) clearly lays down that once permission isgranted to use the land for non-agricultural purpose, a Sanad is to begranted to the holder thereof on payment of fees prescribed in the Codeitself. Even after amendment, the position virtually remains the same.E

14. The question of payment of conversion fees arises only whena decision is taken to grant a Sanad. Therefore, the relevant date forfixing the conversion charges will be the date on which the decision istaken to grant the Sanad. In the present case, that date appears to be19.09.2013. The amount determined by the Collector was deposited byFthe land owners on 09.10.2013 though under protest reserving their rightto challenge the fixation of the date on which the conversion chargeswere to be levied.

15. As far as the present case is concerned, the application wasadmittedly submitted on 08.03.2013. The perusal of the record revealsGthat on 29.04.2013 the Field Surveyor prepared a note that theapplication is in order and the copies of the same be forwarded to theDeputy Conservator of Forest, Margao, Mamlatdar, Salcete, Town &Country Planning Department, Salcete with a request to the respondentand his family members to be present for inspection of the site proposed.HIt would also be relevant to point out that after the officers submitted the reports, as required, the respondent submitted an affidavit-cum-indemnity bond on 19.07.2013. The relevant portion of the same readsas follows:

“7. I further say that, myself along with my said brother shallnot request the Government for the refund of conversion feesor part of conversion fees paid hereinafter for conversion of saidland, except in case where we are not allowed to develop theland by any government authority and or agency.”

16. It was thereafter that the order dated 19.09.2013 was passed.After depositing the amount and taking necessary permissions, the writpetition was filed.

17. We are of the view that the situation in the present case istotally different from the cases referred to by the High Court. In thecases decided by this Court, there was no provision similar to Section32 of the Code. Section 32 lays down certain timelines and gives a rightto the land owners to file an appeal if the timeline is not adhered to bythe department. The application in the present case was filed on08.03.2013 and 60 days expired on 07.05.2013. The land owner couldhave filed an appeal immediately thereafter to the appellate authoritywhich was obliged to decide it within 30 days. This was not done. Infact, even after the amendment was made on 22.05.2013, no appealwas filed. No doubt, there is a delay in terms of the timelines laid downin Section 32 but the delay cannot be said to be too much. Furthermore,the respondent waived any rights which may have accrued to them interms of Section 32 by not filing an appeal. Further, the respondent hasacquiesced and consented to conversion charges being paid inaccordance with the amended provisions by filing the affidavit-cum-indemnity bond, referred to above.

18. It was contended by Mr. Dhruv Mehta, learned senior counselappearing for the respondent that this indemnity bond was a result ofcoercion by the authorities, who insisted on the said indemnity bond beingfiled before granting permission. We are not impressed with thisargument. In the writ petition filed by the respondent, the only avermentmade in this regard is that respondent was required to submit the saidindemnity bond to the Office of the Deputy Collector. The relevantportion of the writ petition reads as follows:

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A“7. On 19/07/2013, the Petitioner submitted Affidavit-cum-Indemnity Bond, which the Petitioner was required to submit tothe Office of the Deputy Collector (Revenue)……

8. At the time of presenting the said Affidavit-cum-IndemnityBond, the Petitioner’s representative was told, that the issuanceBof the Conversion Sanad, might be delayed further, as confusionhad arisen in the Office of the Deputy Collector (Revenue), inthe matter…...”

19. We also cannot lose sight of the fact that the respondent hadonly sought permission for conversion of 16014 sq. mtrs. of land butCon consideration of the plan submitted by the respondent before theTown and Country Planning the total requirement of land was 25368.50sq. mtrs. and, therefore, permission was granted for this 25368.50 sq.mtrs. The confusion arose because of the area which the applicantapplied for and this led to delay in the decision of the matter.

D20. Though from the record it is not very clear on which datethe application was filed for conversion of the excess 9354.50 sq. mtrs.of land but the finding of the High Court is clear that the applicationfor this additional area which came to be included by a separateaddendum to the original application was filed only after the amendmentcame into force. This portion of the judgment has not been challengedEby the respondent. It is, thus, apparent that the land actually requiredto be converted was 25368.50 sq. mtrs. and, therefore, a completeapplication could be said to have been filed only after the addendumwas added.

21. Even if we were to ignore the addendum, it is obvious thatFby applying for a smaller area than what was actually required, therespondent and his family members themselves created a confusionwhich also was partly responsible for the delay in grant of permission.This is not a case where the delay is very large and we are of theview that the respondent also contributed to the delay by not applyingGfor the conversion of the entire extent of land in one go. Furthermore,as pointed out above, the respondent did not even file an appeal.

22. It is in this factual background that we have to consider theaffidavit-cum-indemnity bond filed by the respondent. In our view, therewas no coercion in the matter. The respondent was not forced to fileHsuch an affidavit. They may have been asked to do so but they could have refused to file it. Nothing has been placed on record to evenremotely undertake that undue pressure was put upon the respondentto file such an affidavit. In this affidavit he undertook to pay theconversion charges as demanded. He also undertook not to challengethe imposition of conversion charges. Most importantly, he alsoundertook not to sue for recovery of any excess conversion charges.The respondent deposited this amount, though under protest. Thereafter,he obtained all necessary permissions and after Sanad and all otherdocuments were prepared, he chose to challenge the order. In our view,the respondent cannot be permitted to challenge the levy of conversioncharges at the rates, post amendment, on account of his acts, deedsand conduct and acquiescence to the said order.

23. In view of the above discussion, we hold that in the facts ofthe present case, the appellants rightly imposed the conversion chargesas on the date of decision to grant Sanad, which is the legal position.We further hold that the respondent was not entitled to challenge thelevy of these conversion charges in view of his own acts, deeds andconduct.

24. In view of the above, we allow the appeal, set aside thejudgment of the High Court dated 13.10.2016 and dismiss the WritPetition No.262 of 2014 filed by the petitioner (respondent herein).Pending application(s), if any, stands disposed of.

Nidhi Jain

Appeal allowed.

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