dated 24/02/2010 passed by the Respondent No.2 i.e. the Collector, Nashik by
which order the application filed by the predecessor of the Petitioner for grant
of permission to transfer the land and for its conversion from agricultural to
nonagricultural came to be allowed on the terms and conditions mentioned
therein. The terms and conditions mentioned in the impugned order entail the
payment of unearned income to the State Government, as also the condition
that the land in question would continue to remain as Occupancy Class II land.
The Petitioner is principally aggrieved by the aforesaid condition mentioned in
the impugned order.
In the instant case it would have to be borne in mind that the land in
question was allotted to the father of the original owner Namdeo Bankar on a
new and impartible tenure i.e. Class II. The father of the said Nameo Bankar
had also executed a Kabuliyat wherein he had given an undertaking that the
allottee and his successor were bound by the terms and conditions of the
allotment and that if he commits a breach, he is liable to be evicted. Hence the
instant case is not a case where the renewal of lease was sought but is the case
where the original allottee had sought permission to transfer and for
conversion of the agricultural land to nonagricultural. In so far as the said
aspect is concerned, the GR dated 08/09/1983 regulates the transfer and
conversion of agricultural lands belonging to Class II. The said GR therefore
supplements the Maharashtra Land Revenue Code in so far as the transfer and
conversion of the land belonging to agricultural Class II is concerned. Hence
the instant case can be distinguished on facts from the case before the Division
Bench.
24 It would also have to be noted that the Petitioner and original
Owner by their conduct are now estopped from contending that the said GR
dated 08/09/1983 has no application. It is required to be noted that the
Petitioner/original Owner has applied for conversion in the year 1989 as per
the then extant policy. The original owner and the Petitioner had prosecuted
the proceedings before the authorities and this Court also as regards quantum
of the unearned income payable under the said GR for transfer and conversion
of the land. The original owner and the Petitioner have also shown their
willingness to pay the unearned income and in fact have now deposited the
said unearned income with the Collector, Nashik. It was also contended on
behalf of the Petitioner in the said Writ Petition No.5740 of 2007 that the GR
dated 08/09/1983 has been fully implemented, meaning thereby that the
applicability of the said GR was accepted. The aforesaid facts therefore act as
an estoppel against the Petitioner and the original owner from contending that
the said GR dated 08/09/1983 would have no application. The conduct of the
Petitioner amounts to approbation and reprobation i.e. on one hand apply
under the said GR for transfer and conversion whereas on the other hand
contend that it is not liable to pay unearned income as premium which is
contemplated by the said GR. It also cannot be lost sight of that the tenor of
the above Petition is only as regards the challenge to the condition appearing
in the impugned order dated 24/02/2010 passed by the Collector, Nashik
wherein it is stated that the transferee would continue to occupy the land as a
Class II Occupant. The Petitioner or the original Owner therefore never did
once question the applicability of the said GR dated 08/09/1983 and therefore
the submissions advanced on the basis of the judgment of the Division Bench
cannot be countenanced in the facts of the instant case. The judgment in
Mohinder Singh Gill's case (supra) would also have no application having
regard to the facts of the instant case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6747 OF 2016
M/s. Niketan Land and Estate Pvt. Ltd.
v
State of Maharashtra
CORAM : R. M. SAVANT, J.
Pronounced on : 10th January 2017
1 Rule with the consent of the learned counsel for the parties made
returnable forthwith and heard.
2 The writ jurisdiction of this Court is invoked against the order
dated 24/02/2010 passed by the Respondent No.2 i.e. the Collector, Nashik by
which order the application filed by the predecessor of the Petitioner for grant
of permission to transfer the land and for its conversion from agricultural to
nonagricultural came to be allowed on the terms and conditions mentioned
therein. The terms and conditions mentioned in the impugned order entail the
payment of unearned income to the State Government, as also the condition
that the land in question would continue to remain as Occupancy Class II land.
The Petitioner is principally aggrieved by the aforesaid condition mentioned in
the impugned order.
3 The factual matrix involved in the above Petition can in brief be
stated thus :
The subject matter of the application filed by one Namdeo Eknath
Bankar was the land bearing Survey No.836 at Nashik. The said land was
allotted in the year 1949 by the State Government to the father of the said
Namdeo Bankar on new and impartible tenure on permanent grant basis. The
father of the said Namdeo Bankar had accordingly executed a Kabuliyat in
form FI in terms of the requirements mentioned in the allotment letter. The
said Kabuliyat which is in the nature of an undertaking would be referred to in
the instant judgment a bit later.
In so far as the categorization of lands into Class I and Class – II is
concerned, the same finds place in Section 29 of the Maharashtra Land
Revenue Code. The said Section also sets out the attendant attributes of the
lands belonging to each of the aforesaid categories. The said Section 29 is
reproduced herein under for the sake of ready reference :
“Section 29: Classes of persons holding land.
(1) There shall be under this Code the following
classes of persons holding land from the State, that is
to say
(a) Occupants – Class I
(b) Occupants – Class II
(c) Government lessees.
(2) Occupants Class I shall consist of persons who –
(a) hold unalienated land in perpetuity and without
any restrictions on the right to transfer;
(b) immediately before the commencement of this
Code hold land in full occupancy or Bhumiswami rights
without any restrictions on the right to transfer in
accordance with the provisions of any law relating to
land revenue in force in any part of the State
immediately before such commencement; and
(c) notwithstanding any notification or order issued
under Section 150 of the Madhya Pradesh Land
Revenue Code, 1954, are holders of land in Bhumidhari
rights in any local area in Vidarbha and are permitted
hereafter, subject to the rules made by the State
Government in this behalf, on payment of a premium
(not exceeding three times the assessment payable in
respect of such land) to be included in occupants Class
I.
(3) Occupants Class II shall consist of persons who,
(a) hold unalienated land in perpetuity subject to
restrictions on the right to transfer;
(b) immediately before the commencement of this
Code hold
(I) land in Vidarbha in Bhumiswami rights
with restrictions on the right to transfer or in
Bhumidhari rights under the Madhya Pradesh Land
Revenue Code, 1954; and
(ii) elsewhere hold land in occupancy rights
with restrictions on the right to transfer under any
other law relating to land revenue; and
(c) before the commencement of this Code have
been granted rights in unalienated land under leases
which entitle them to hold the land in perpetuity, or for
a period not less than fifty years with option to renew
on fixed rent, under any law relating to land revenue
and in fore before the commencement of this Code;
and all provisions of this Code relating to the rights,
liabilities and responsibilities of Occupants Class II
shall apply to them as if they were OccupantsClass II
under this Code.”
Hence a reading of the aforesaid provision indicates that in so far
as Class II land is concerned, it is subject to restrictions on the right to transfer.
4 The transfer of agricultural lands belonging to Class II, that is held
on restricted tenure and their conversion from agricultural to nonagricultural
user is regulated by the Government Resolutions passed from time to time. In
the instant case there is no dispute about the fact that the Government
Resolution dated 08/09/1983 is applicable. The said Government Resolution
(“GR” for short) contemplates 50% of the unearned income to be paid as
premium for such transfer and conversion. In terms of the said GR an
application is required to be made to the Commissioner of the concerned
Revenue Division.
5 The original owner Shri Namdeo Bankar filed an application dated
19/09/1989 for transfer and conversion of the land from agricultural to nonagricultural.
The said Bankar was informed by the office of the Respondent
No.2 that he should deposit an amount of Rs.59,52,000/ as premium on
account of unearned income for permission to sell/transfer the land and its
conversion from agricultural to nonagricultural.
6 Aggrieved by the said computation the said Namdeo Bankar filed
an Appeal under Section 247 of the Maharashtra Revenue Code, 1966 (for
short “MLR Code”) before the Respondent No.1. The Secretary and Officer on
Special Duty (“Secy. & OSD” for short) acting on behalf of the Respondent No.1
partly allowed the said Appeal and held that out of the ready reckoner value as
on 01/01/1997 and the agreement to sale value, the higher of the two should
be taken and 75% of the amount as unearned income should be charged. After
the said order dated 09/08/2002 came to be passed by the Respondent No.1,
the Respondent No.1 had informed the said Namdeo Bankar that it is taking
steps to review the said order dated 09/08/2002 passed by the Secy. & OSD. It
seems that in view of the order dated 09/08/2002 the said Namdeo Bankar
had filed a Writ Petition in this Court being Writ Petition No.9688 of 2003 for
implementation of the said order dated 09/08/2002. It seems that thereafter
the said Namdeo Bankar was called for hearing in respect of the suo moto
review undertaken by the State Government. The said Writ Petition No.9688 of
2003 was accordingly withdrawn. The then Hon'ble Minister for Revenue who
heard the review by his order dated 07/02/2007 allowed the said review
application and consequently modified the order passed by the Secy. & OSD
dated 09/08/2002. It was held by the then Hon'ble Minister that the amount
should be recovered as an unearned income with interest as per GR dated
08/07/1999.
7 Being aggrieved by the said order dated 07/02/2007 the partner
of the Petitioner herein as the Power of Attorney of the said Namdeo Bankar
filed Writ Petition No.5740 of 2007 in this Court. The said Writ Petition was
heard by a learned Single Judge who, in view of the agreement reached
between the parties, set aside the condition imposed by the then Hon'ble
Minister and consequently the Petitioner was directed to pay the principal sum
as computed in the order of the Appellate Authority i.e. the Secy. & OSD along
with interest at the rate of 12% from 1998 to 2002 and at the rate of 9% from
2002 till 2007. However, what is significant in the context of the challenge
raised in the above Writ Petition is the fact that the partner of the Petitioner
herein had filed the said Writ Petition as a Power of Attorney of the original
owner Namdeo Bankar. Another important aspect of the said Petition was that
a contention was urged on behalf of the Petitioner that the order passed by the
“Secy. & OSD” fully implements the GR dated 08/09/1983 and that the Hon'ble
Minister had imposed certain conditions which are patently unsustainable. The
learned Single Judge in his order dated 21/01/2008 has observed that if the
amount of earned income is remitted, then the authorities to take necessary
steps so that the purchaser/transferee of the land holds the same on the terms
and conditions as stipulated in the order of allotment, meaning thereby that
the transferee would hold the land on the same terms and conditions which are
stipulated in the original order of allotment. In the instant case, the same
would mean Class II occupancy that is the land held on restricted tenure. The
relevant extract of the said order is reproduced herein under for the sake of
ready reference :
“All sums as computed with interest shall be remitted
within a period of six weeks from the date a revised
computation/calculation is forwarded and received. If
remittance is made within this period, the concerned
authorities to accept the same as full and final
settlement of the claim towards unearned income and
Authorities to take necessary steps so that the
Purchaser/Transferee of the land holds the same on the
terms and conditions stipulated in the order of
allotment.”
(emphasis supplied)
8 In view of the discrepancy in the figure mentioned in the said
order dated 21/01/2008, a Review Petition was filed for correcting the figure
i.e. the principal amount which was payable by the said original owner. The
said Review Petition accordingly came to be allowed by the order dated
21/04/2008 and the principal sum accordingly came to be corrected. The
recording of the consent on behalf of the State was also set aside.
9 It seems that after the Review Petition came to be disposed of, the
partner of the Petitioner, as Power of Attorney of the original owner i.e. the
said Namdeo Bankar, addressed a letter dated 02/05/2008 that the Petitioner
is ready and willing to deposit the amount mentioned in the order dated
21/01/2008. The Petitioner sent a cheque for an amount of Rs.9,24,185 along
with a forwarding letter. It seems that the Collector, Nashik issued a letter to
the Tahsildar regarding acceptance of the said amount but it was stated that
the said amount would be subject to and without prejudice to the rights of the
Government, as it was in the process of filing an Appeal against the said order
dated 21/01/2008 passed in Writ Petition No.5740 of 2007. The Petitioner in
view of noncompliance of the said order dated 21/04/2008 filed a Contempt
Petition in this Court being Contempt Petition No.269 of 2008. Against the
said order dated 21/01/2008 the State Government filed an LPA being No.410
of 2008 impugning the order dated 21/01/2008 as also the order dated
21/04/2008 passed in the Review Petition. The said LPA came up for hearing
before a Division Bench of this Court. The Division Bench by its judgment and
order dated 18/08/2009 dismissed the said LPA principally on the ground that
the powers of review could not have been exercised by the Hon'ble Minister
when the order dated 09/08/2002 was passed by the Secy. & OSD.
10 In the context of the present Writ Petition it would have to be
noted that the focus before the Division Bench was as regards computation of
the unearned income which can be seen from paragraph 11 of the judgment of
the Division Bench. The State Government had in the said LPA challenged the
computation of unearned income as set out in the order passed by a learned
Single Judge dated 21/01/2008. The Division Bench found fault with the
order passed by the Hon'ble Minister on the ground that during pendency of
the review for 7 years there would obviously have been substantial variation in
the market value of the property which the Hon'ble Minister had also lost sight
of. According to the Division Bench the Secy. & OSD had rightly fixed
01/01/1997 as the date for market value of the property. The Division Bench
further held that the Hon'ble Minister had taken a pedantic view by holding
that the valuation is to be calculated as on the date of the order irrespective of
the period for which the application is kept pending by the State Government.
The Division Bench accordingly confirmed the order dated 21/01/2008
(wrongly mentioned in the judgment of the Division Bench as Order dated 7th
August 2006) and held that it was not necessary to consider the order passed
in Review dated 21/04/2008. Hence the order dated 21/01/2008 passed by
the learned Single Judge was confirmed. What is pertinent to note is that the
Division Bench did not deal with the issue of conversion of Occupancy Class II
to Occupancy Class I i.e. old tenure as was directed by the Secy. & OSD, as it
was not required to do so in view of the order passed by the learned Single
Judge of this Court which directed that the transferee would hold the same on
the terms and conditions stipulated in the order of allotment. The said
paragraph 11 of the judgment of the Division Bench is reproduced herein
under for the sake of ready reference.
“Even on merit, in our considered opinion, the
impugned order cannot be sustained. Section 253(2) of
the Maharashtra Land Revenue Code, 1966 restricts
review of the order to three grounds (I) discovery of
new and important matter or evidence (ii) some
mistake or error apparent on the face of the record (iii)
any other sufficient reason. In the instant case, the
reason stated in the order by the Hon'ble Minister for
exercising power of review is that the appellant
authority had ignored Government order (Revenue and
Forest Department) dated 8th September 1983 while
deciding the appeal. This observation is factually
incorrect as can be seen from the order of the appellate
authority. The appellate authority noted the
Government order (Revenue and Forest Department)
dated 8th September 1983 that while fixing valuation of
unearned income current valuation of market rate is to
be considered. He further noted that the order did not
specify the date of valuation whether the date of the
application or the date of the order granting
permission. In his well reasoned order, the appellate
authority has held that if the application for conversion
is decided within reasonable time after it is made, no
dispute can arise. However, in the instant case, the
decision for granting permission was being taken 7
years later. During such long period, there can be
substantial variation in the market value of the
property. The appellate authority then noted that the
applications filed by the appellant in the year 1989 and
1995 were not on record. Only the application dated
12th December 1996 was on record. Therefore for the
purpose of calculating valuation at the market rate, he
fixed the date of 1st January 1997. The Hon'ble
Minister in his order of review, without discussing this
aspect of the matter has taken a pedantic view and held
that the valuation is to be calculated as on the date of
the order irrespective of length of the period for which
the application is kept pending by the Government
without taking decision. This view taken by the
Hon'ble Minister, in our opinion is neither correct nor
reasonable.”
11 After the disposal of the LPA by the Division Bench the Collector
Nashik has by passing the impugned order dated 24/02/2010 permitted
transfer and conversion from agricultural to nonagricultural interalia on the
terms and conditions mentioned in the said order. One of the conditions is that
the transferee would continue to hold the land as Occupancy Class II i.e. on the
same conditions as at the time of allotment which was made to the father of
the said Namdeo Bankar. It is principally aggrieved by the said condition that
the Petitioner above named who claims to have stepped into the shoes of the
original owner Namdeo Bankar, has filed the above Writ Petition.
12 It seems that pending the above Petition the Petitioner had filed a
fresh application on 15012015 before the Collector, Nashik on the same lines
as the earlier application filed in the year 1989. The said application has
been rejected by the Collector, Nashik in view of the order dated 24/02/2010
passed by him which order is the subject matter of the instant proceedings.
The aforesaid fact has been brought to the notice of this Court vide written
submissions filed on behalf of the State Government. As indicated above, it is
the said order dated 24/02/2010 passed by the Collector, Nashik and especially
the condition mentioned therein which is taken exception to by way of the
above Writ Petition.
13 SUBMISSIONS OF THE LEARNED COUNSEL SHRI G S GODBOLE
ON BEHALF OF THE PETITIONER :
A] That the Collector Nashik could not have imposed the same
condition viz. that the transferee would continue to occupy the
land as Occupant Class II which condition has been set aside by
the Appellate Authority i.e. Secy. & OSD and confirmed by the
Division Bench of this Court in LPA No.410 of 2008.
B] That the order passed by the Secy. & OSD who was exercising
quasi judicial powers having been merged with the order passed
by the Division Bench of this Court and since the Secy. & OSD had
set aside the condition of the transferee holding land as Occupancy
Class II, the Collector, Nashik was bound to follow the order
passed by the Secy. & OSD and direct conversion of the land from
Occupancy Class II to Occupancy Class I i.e. unrestricted tenure.
Reliance is sought to be placed on the judgment of the Apex Court
in the matter of Kunhayammed and others v/s. State of Kerala
and another reported in (2000) 6 SCC 359.
C] That even an errouneous order is final and binding until it is set
aside in appropriate proceedings. In the instant case though it is
the case of the Respondents that the order dated 09/08/2002
passed by the Secy. & OSD in so far as it does away the condition
of the holding being Occupancy Class II and is, according to the
Respondents, in breach and violation of the GR dated 08/09/1983,
nevertheless the same would have to be followed and given effect
to. Reliance is sought to be placed on the judgment of the Apex
Court in the matter of V.S. Charati v/s. Husssein Nhanu Jamdar
(Dead) by LRs reported in (1999) 1 SCC 273.
D] That the delay in filing the above Writ Petition has been
occasioned in view of the fact that the original owner Namdeo
Bankar was involved in litigation with a third party and only after
the said litigation got over, on account of the consent decree, that
the above Petition could be filed. In support of the said contention,
reliance is sought to be placed on Paragraphs 11 and 17 of the
Writ Petition wherein the reasons for the delay have been
mentioned.
E] That the Collector, Nashik could not have imposed the condition of
payment of unearned income as no such condition is found in the
MLR Code. Reliance is sought to be placed on the judgment of
the Division Bench of this Court in the matter of Smt. Jaikumari
Amarbahadursingh & ors v/s. State of Maharashtra reported in
2009(1) ALL MR 343.
F] That assuming there is some delay, the same cannot come in the
way of the Petitioner laying a challenge to the order which is
patently illegal in the teeth of the order passed by the Division
Bench of this Court in LPA No.410 of 2008.
G] That the Respondents cannot challenge the order passed by the
Secy. & OSD in so far as it directs conversion of land from
Occupancy Class II to Occupancy Class I i.e. the old tenure on the
application of the principles of constructive resjudicata as the
Respondents did not challenge the order passed by the learned
Single Judge when the opportunity was there for them in the LPA.
Reliance is sought to be placed on the judgment of the Apex Court
in the matter of Forward Construction Co. and others v/s.
Prabhat Mandal (Regd.), Andheri and ors. reported in (1986) 1
SCC 100.
H] That the impugned order dated 24/02/2010 passed by the
Collector, Nashik cannot be supported by the reasons now
mentioned in the affidavit in reply. Reliance is sought to be placed
on the judgment of the Apex Court in the matter of Mohinder
Singh Gill v/s. Chief Election Commissioner, New Delhi reported
in 1978 (1) SCC 405.
14 SUBMISSIONS OF THE LEARNED GOVERNMENT PLEADER SHRI
A B VAGYANI ON BEHALF OF THE REPONDENT NOS.1 TO 3.
i] That the condition on the basis of which the land was allotted is
clear from Form FI dated 01/08/1949 as well as from the
Kabuliyat, the said documents interalia disclose that the land
would be of new and impartible tenure i.e. Class II.
ii] That the Secy. & OSD had exceeded his jurisdiction by directing
that the transferee would hold land as per the old tenure i.e. Class
I. This was in breach and violation of the GR dated 08/09/1983
which regulates the transfer and conversion of agricultural land
allotted by the State Government on Occupancy Class II basis. The
order passed by the Secy. & OSD is therefore without jurisdiction
in so far as it directs conversion of the land from Occupancy Class
II to Occupancy Class I. The said order being without jurisdiction,
no cognizance of the same could be taken. Reliance is sought to
be placed on the judgment of the Division Bench of the Delhi High
Court in the matter of Ritz Theatre v/s. Income Tax Officer
reported in 2010 LawSuit (Del) 3771 and the judgment of a
learned Single Judge of the Andhra Pradesh High Court in the
matter of Hyderabad Allwyn Metal Works Limited v/s. Collector
of Central Excise reported in 1977 LawSuit(AP) 146.
iii] That the learned Single Judge in Writ Petition No.5740 of 2007
has in terms observed that on payment of premium by the original
owner the transferee would occupy the land on the terms and
conditions stipulated at the time of original allotment implicit in
the said recording is the fact that the transferee would hold the
land as Occupant Class II.
iv] That the reasons mentioned in paragraph 17 for the delay in filing
the above Writ Petition cannot be accepted and the fact that the
Petitioner has filed the above Writ Petition after a delay of about 5
years implies that the Petitioner has acquiesced in the order passed
by the Collector, Nashik and waived his rights if any. Reliance is
sought to be placed on the judgment of the Apex Court in the
matter of Tridip Kumar Dingal and others v/s. State of West
Bengal and others reported in (2009) 1 SCC 768.
CONSIDERATION :
15 Having heard the learned counsel for the parties, I have
considered the rival contentions. At the outset it would be necessary to deal
with the issue of delay and laches, which is a ground urged on behalf of the
Respondents whilst opposing the above Writ Petition. The impugned order
passed by the Collector, Nashik is dated 24/02/2010 and the instant Petition
has been filed on 14/07/2015. The reasons for the delay are mentioned in
paragraphs 11 and 17 of the Petition. The sum and substance of the reasons in
the the said paragraphs is that after the dispute between the 3rd party and the
original owner got over on account of the Consent Decree passed in the suit,
that the above Writ Petition could be filed by the Petitioner. Before testing the
said reasons it would be necessary to take into consideration a few facts. The
averments made in paragraphs 11 and 17 do not disclose as to when the
Petitioner has acquired the rights in the land in question from the original
owner Namdeo Bankar. The nature of the transaction between the Petitioner
and the said Namdeo Bankar has also not been mentioned. However, the fact
remains that the partner of the Petitioner as the Power of Attorney of the said
Namdeo Bankar had filed Writ Petition No.5740 of 2007 before a learned
Single Judge of this Court challenging the order dated 07/02/2007 passed by
the Hon'ble Minister. The Petitioner thereafter had also filed Contempt Petition
No.269 of 2008 in this Court, as also prosecuted LPA No.410 of 2008 on behalf
of the original owner Namdeo Bankar. Hence it was the Petitioner who was in
the forefront in prosecuting the proceedings before this Court as well as the
authorities below. It was also the Petitioner who had issued notice etc. for
compliance of the order passed by the learned Single Judge.
16 Now coming to the justification for the delay in filing the Writ
Petition as averred in paragraphs 11 and 17. The record discloses that the suit
was filed by the original owner against the Petitioner and its partners for
declaration and injunction. The said suit was originally numbered as Regular
Civil Suit No.603 of 2012 and thereafter numbered as Special Civil Suit No.383
of 2014. The said suit was compromised and Consent Decree came to be
passed on 04/12/2014. The said Consent Decree discloses that in the land in
question plots were carved out and certain plots were to go to the original
owner i.e. the said Namdeo Bankar. However, by the averments made in
paragraphs 11 and 17 an impression is sought to be created that the owner had
some dispute with a third party when in fact the suit in question was filed
against the Petitioner herein. The said fact is also required to be considered in
the context of the fact that it was the Petitioner who was in the forefront of
prosecuting the proceedings before the authorities as well as in this Court right
up to the year 2009 as the Power of Attorney of the original owner. As
indicated above, the order passed by the Collector, Nashik is dated
24/02/2010; the suit appears to be filed in the year 2010 and the same got
settled in the year 2014. Hence in so far as the said order dated 24/02/2010 is
concerned, there was absolutely no impediment for either the original owner
or the Petitioner to challenge the said order passed by the Collector, Nashik.
However, beyond stating that the original owner was involved in the litigation
with a third party, there is no explanation as to why there is delay of about 5
years in filing the above Writ Petition challenging the said order dated
24/02/2010. The aforesaid facts therefore imply that the order passed by the
Collector, Nashik was acceptable to the original owner i.e. the said Namdeo
Bankar as also to the Petitioner and that the present challenge is therefore
speculative in nature and by way of taking a chance.
17 In so far as the aspect of delay and laches is concerned, there is
another aspect that cannot be lost sight of i.e. the Petitioner in spite of the
order dated 24/02/2010 once again applied on 15/01/2015 to the Collector,
Nashik for the same relief. The said application has been rejected by the
Collector, Nashik by his order dated 27/11/2015. The said application filed by
the Petitioner would therefore have to be attributed to the fact that the
Petitioner was very well aware that there was a delay in challenging the order
dated 24/02/2010 passed by the Collector, Nashik, and therefore wanted to
close the gap in so far as the said delay is concerned. In my view, having
regard to the reasons mentioned in paragraphs 11 and 17 of the Petition as
also the aforesaid fact, the same do not justify the delay in filing the above Writ
Petition, and therefore, do not commend acceptance. The above Writ Petition
would accordingly have to be dismissed on the ground of delay and laches and
is accordingly dismissed on the said ground.
18 However, it would also be necessary to deal with the matter on
merits. The bone of contention as indicated herein above in the instant
proceedings is the condition mentioned in the order dated 24/02/2010 passed
by the Collector, Nashik which is to the effect that the transferee would
continue to hold the land as Occupant Class II. In assailing the said condition,
reliance is sought to be placed by the Petitioner on the order dated
09/08/2002 passed by the Secy. & OSD in which order the said condition has
been done away with. However, in so far as the said condition is concerned, a
few background facts would have to be noted. There is no dispute about the
fact that the land in question was allotted to the father of one Namdeo Bankar
in the year 1949 on the basis of new and impartible tenure i.e. Occupancy
Class II. The said fact is fortified by the entry made in the Village Form No.VI,
Form FI and Kabuliyat. The allottee i.e. the father of the said Namdeo Bankar
has stated in the Kabuliyat that the said land has been granted to him in
perpetuity from 08/06/1949 subject to the provisions of the Maharashtra Land
Revenue Code, 1879 and subject to the further condition that neither he nor
his legal heirs shall at any point of time divide, mortgage, partition, sell,
transfer by any means and further condition that he would not transfer the
land as a whole or allow any part of it to be cultivated, used or occupied by
any other person so as to divide it without prior permission of the Collector. As
indicated above the transfer and conversion of agricultural lands allotted by
the State Government on the basis of Occupancy Class II is regulated by the
said GR dated 08/09/1983. The said GR postulates the terms and conditions
on which the transfer and conversion can be granted. One of the conditions is
that the transferee would continue to occupy the land as Occupant ClassII.
The said GR having been issued by the State Government can be modified or
varied only by the State Government and the officers exercising the powers
under the Maharashtra Land Revenue Code are required to follow the said GR
and not tinker with the terms and conditions mentioned in the said GR. In the
instant case, as can be seen, the Secy. & OSD in spite of the mandate of the said
GR dated 08/09/1983 has in breach and violation of the said GR directed
conversion of the land from Occupancy Class II to Occupancy Class I which was
impermissible. Hence it would have to be held that the order passed by the
Secy. & OSD to the said extent is illegal as having been passed without
jurisdiction and therefore the said condition though in favour of the Petitioner
herein would be of no avail.
19 Now coming to the contention as urged on behalf of the Petitioner
that the order passed by the Secy. & OSD holds the field and the Petitioner is
therefore entitled to conversion from Class II to Class I. As indicated in the
earlier part of this Judgment, the said Namdeo Bankar had vide his application
dated 19/09/1989 applied to the Collector, Nashik for transfer of the land and
its conversion to nonagricultural user. The Collector, Nashik vide letter dated
24/01/2001 informed the said Namdeo Bankar to deposit a sum of
Rs.59,52,000/ as premium payable towards permission to transfer the land
and its conversion into nonagricultural user. The said Namdeo Bankar
challenged the said letter dated 24/01/2001 by filing an Appeal before the
Appellate Authority i.e. the Secy. & OSD. The Appellate Authority by its order
dated 09/08/2002 partly allowed the said Appeal and directed that 25% of the
premium/nazarana should be charged as one time premium for conversion of
land from Class II to Class I i.e. the old tenure. This, as indicated herein above,
was in breach and violation of the GR dated 08/09/1983 as no such conversion
is permissible. The State Government therefore took the matter by way of
review. The then Hon'ble Minister for Revenue by his order dated 07/02/2007
reviewed the said order dated 09/08/2002 and set aside the said order and
directed that the valuation fixed by the Assistant Director Town Planning to
prevail, and the unearned income to be recovered as per GR dated 08/07/1999
and that the area under reservation of the Municipal Corporation shall be
excluded from the computation of the unearned income and that after the sale,
the transferee shall hold the land as Occupant Class II. It is against the said
order dated 07/02/2007 that the Petitioner had filed Writ Petition No.5740 of
2007 as the Power of Attorney of the said original owner Namdeo Bankar. The
said Writ Petition came to be disposed of by a learned Single Judge of this
Court by observing that if the remainder of the amount mentioned in the said
order dated 21/01/2008 is paid then the transferee would hold the land on the
same terms and conditions as mentioned in the original letter of allotment.
The said order came to be reviewed in so far as the amount mentioned therein
was concerned and the amount was accordingly corrected by exercising the
review jurisdiction. The State Government aggrieved by the said order dated
21/01/2008 as also the order passed on review dated 24/01/2008 filed LPA
No.410 of 2008. The said LPA filed by the State Government came to be
dismissed by a Division Bench of this Court. Whilst dismissing the said LPA, the
Division Bench granted its seal of approval to the computation made by the
Secy. & OSD in so far as the unearned income and payment of Nazrana is
concerned. The Division Bench accordingly confirmed the order dated
21/01/2008 passed by the learned Single Judge of this Court in Writ Petition
No.5740 of 2007 in which order the order passed by the Secy & OSD was
merged. As indicated above, the Division Bench did not deal with the issue of
conversion of land from Occupancy Class II to Occupancy Class I i.e. the old
tenure as it was not required to do so. Hence the order passed by the learned
Single Judge dated 21/01/2008 merged in the order passed by the Division
Bench. The Division Bench for the reasons mentioned in its order confirmed
the said order dated 21/01/2008 passed by the learned Single Judge. As
indicated herein above, the learned Single Judge whilst disposing of the Writ
Petition No.5740 of 2007 has in terms observed that the transferee would hold
the land subject to the same terms and conditions as were mentioned in the
original allotment. Hence in terms of the application of the doctrine of merger,
the order of the learned Single Judge having merged in the order of the
Division Bench, the transferee would continue to occupy the land as Occupant
Class II and the order dated 09/08/2002 passed by the Secy. & OSD cannot be
relied upon to contend that the condition of land being held as Occupancy
Class II having been done away with, the Petitioner is entitled to the
conversion of land to Occupancy Class I.
In fact as indicated herein above, before the learned Single Judge
in the said Writ Petition No.5740 of 2007, a contention was urged that the
order passed by the Secy & OSD fully implemented the GR dated 08/09/1983.
Hence in urging the said contention the Petitioner accepted the applicability of
the said GR and therefore now cannot be heard to urge a contention which
militates against the mandate of the said GR dated 08/09/1983. It is also
pertinent to note that the Petitioner has filed Contempt Petition No.269 of
2008 alleging breach and violation of the order dated 21/04/2008 passed by
the learned Single Judge. Hence the Petitioner also accepts that it is the order
of the learned Single Judge which operates in the field and which is required to
be complied with by the Respondents.
20 Now coming to the judgments cited on behalf of the Petitioner :
In Mohanlal Goenka's case (supra) the Judgment Debtor did not
raise any objection to the execution being proceeded with on the ground that
the Executing Court did not have jurisdiction to execute the decree. The Apex
Court in the said fact situation observed that the failure to raise such an
objection which goes to the root of the matter precludes the Judgment Debtor
from raising the plea of jurisdiction, on the application of the principles of
constructive resjudicata. The Apex Court observed that there were two
occasions when the Judgment Debtor raised the question of jurisdiction, he
however did not press the same with the result that the objection must be
taken to have been impliedly overruled.
In Forward Construction Co.'s case (supra) one of the issues in
the said case was whether the Writ Petition filed in the High Court was barred
by the principles of resjudicata. The High Court negatived the said contention
on the ground that in the earlier Writ Petition the validity of the permission
granted under Rule 4(a)(i) of the Development Control Rules was not an issue,
that the earlier Writ Petition was not a bonafide one inasmuch as the Petitioner
was put up by some disgruntled builder. The said reasons did not find favour
with the Apex Court in view of Explanation IV to Section 11 of the Code of
Civil Procedure. The Apex Court held that any matter which might and ought
to have been made ground of defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in issue in such suit.
The Apex Court further held that an adjudication is conclusive and final not
only as to the actual matter determined but as to every other matter which the
parties might and ought to have litigated and have had it decided as incidental
to or essentially connected with the subject matter of the litigation and every
matter coming within the legitimate purview of the original action both in
respect of the matters of claim and defence. The principle underlying
Explanation IV is that where the parties have had an opportunity of
controverting a matter that should be taken to be the same thing as if the
matter had been actually controverted and decided.
The aforesaid judgments have no application in the facts of the
instant case where admittedly the State is not challenging the condition
appearing in the order of the Secy. & OSD dated 09/08/2002 but it is the
Petitioner aggrieved by the order dated 24/02/2010 passed by the Respondent
No.2 i.e. the Collector, Nashik who has filed the above Petition. The State
whilst opposing the above Petition is justifying the condition appearing in the
order passed by the Collector, Nashik namely that the transferee would
continue to occupy the land as Occupant Class II. The defence taken by the
State cannot be said to be hit by the principles of constructive resjudicata.
21 In so far as the judgment cited on behalf of the Petitioner in
Kunhayammed's case (supra) is concerned, the Apex Court in the said
judgment reiterated the proposition of law that the order passed by an inferior
Court, Tribunal or Authority merges in the order passed by the superior Court,
Tribunal or Forum which is final, binding and operative decree or order
wherein merges the decree or order passed by the Court, Tribunal or Authority
below. In the instant case, as indicated herein above, the order passed by the
Secy. & OSD has merged in the order passed by a learned Single Judge dated
21/01/2008 which in turn has merged in the order dated 18/08/2009 passed
by the Division Bench of this Court in LPA No.410/2008. If that be so, the
order passed by the Secy. & OSD dated 09/08/2002 in so far as it directs the
conversion of land from Occupancy Class II to Occupancy Class I cannot be
relied upon in the teeth of the directions which are contained in the order
passed by the learned Single Judge dated 21/01/2008 which can be said to be
confirmed by the Division Bench.
22 The matter can be looked at from another perspective. It is
required to be noted that the transfer and conversion of land from agricultural
to nonagricultural is regulated by the GR dated 08/09/1983. The said GR can
be said to be supplemental to the Maharashtra Land Revenue Code and
provides the mechanism as to how an application for transfer and conversion
of agricultural land is to be dealt with. The said GR postulates that the transfer
and conversion can be permitted on the terms and conditions which are
mentioned in the GR. One of the conditions mentioned is that the transferee
would continue to hold the land as Occupant Class II. The said GR does not
envisage the conversion of the Occupancy Class II to Occupancy Class I. Once
that be so, any order passed by the authority exercising powers under the
Maharashtra Land Revenue Code directing conversion of Occupancy Class II to
Occupancy Class I would be in breach and violation of the said GR. This has
precisely happened in the instant case as the Secy. & OSD has exceeded his
jurisdiction in directing the conversion of land from Occupancy Class II to
Occupancy Class I albeit on payment of 25% nazarana. Once the order can be
said to have been passed without jurisdiction, even if the said order was to
merge in the orders passed by the higher Courts then such an order would be
of no avail to the party who seeks to reap its benefit as it is well settled by the
judgments of the High Courts that there is no question of merger of the order
passed by the original authority which is void on account of infirmity for want
of jurisdiction. It has been held that the doctrine of merger has no application
in so far as an illegal order is concerned. In the case of Hyderabad Allwyn
Metal Works Limited (supra), the learned Single Judge of the Andhra Pradesh
High Court has referred to the judgment of the Apex Court in U.P. State v/s.
Mohd. Noor (AIR 1958 SC 86) and reproduced the following excerpt from the
said judgment :
“On the authorities referred to above it appears to us
that there may conceivably be cases and the instant case
is in point where the error, irregularity or illegality
touching jurisdiction or procedure committed by an
inferior court or tribunal of first instance is so patent
and loudly obtrucive that it leaves on its decision an
indelible stamp of infirmity or voice which cannot be
obliterated or cured on appeal or revision. If an inferior
Court or tribunal of first instance acts wholly without
jurisdiction or manifestly conducts the proceedings
before it in a manner which is contrary to the rules of
natural justice and all accepted rules of procedure and
which offends the superior Court may, we think, quite
proper exercise its power to issue the prerogative writ
of certiorari to correct the error of the Court or tribunal
of first instance, even if an appeal to another inferior
Court or tribunal was available and recourse was not
had to it or if recourse was had to it, it confirmed what
ex facie was a nullity for reasons aforementioned.”
23 In my view, the judgment in V.S. Charati's case (supra) would not
further the case of the Petitioner in so far as the challenge to the said condition
that the transferee could continue to occupy the land in question as Occupant
Class – II is concerned. In the said case the application under Section 43
1B(2) of the Bombay Tenancy and Agricultural Lands Act was filed by the
Appellant Landlord which came to be allowed by the Agricultural Land
Tribunal and resultantly the possession of the land was directed to be handed
over to the landlord. The Appeal filed before the Additional Commissioner by
the Tenant came to be dismissed. The order passed by the Additional
Commissioner was challenged by the Tenant before the High Court. The High
Court set aside the orders passed by the authorities below and rejected the
application filed by the landlord. The matter was carried to the Apex Court.
The Apex Court held that Section 431E of the Bombay Tenancy and
Agricultural Lands Act will come into operation only in those cases where there
is a completed purchase in favour of the tenant. In the said case before the
Apex Court the proceedings under Section 32G of the Bombay Tenancy and
Agricultural Lands Act were earlier dropped in view of the fact that the
landlord was a minor. The contention urged on behalf of the Respondent –
Tenant that the Agricultural Land Tribunal was not right in dropping the
proceedings under Section 32G and that its order is bad in law was not
accepted by the Apex Court on the ground that the order of the Tribunal
having not been challenged by the Respondent Tenant, it became final and
binding on both the parties. The Apex Court observed that simply because it
may be wrong, would not thereupon become a nullity. It would continue to
bind the parties unless set aside. The said judgment would not have any
application in the facts of the present case where this Court has come to a
conclusion that the order passed by the Secy. & OSD being illegal in so far as it
directs the conversion of the land from Occupancy Class II to Occupancy Class
I, there can be no merger, and in fact the merger in the instant case is of the
order passed by the learned Single Judge in Writ Petition No.5740 of 2007 in
the judgment and order dated 18/08/2009 passed by the Division Bench in
LPA No.410 of 2008
In so far as Jaikumari Amarbahadursingh's case (supra) is
concerned, the lands involved therein were nazul lands in the erstwhile
Central Provinces area and erstwhile Berar area. The lands in question were
granted on lease basis to the grantees. The issue which arose for consideration
of the Division Bench of this Court was whether the demand of payment of
unearned income for renewal of the lease could be sustained. The Division
Bench held that the parties are bound by the terms of the lease. If the lease
does not keep the option to the Government to add, modify, alter or delete any
condition of the lease, then the discretion of the Government cannot be taken
forward unless the lessee put in possession of the land was to accept such
change. Similarly, if there is renewal clause in the lease the Government will
be obliged to renew the lease on the same terms and conditions. The Division
Bench observed that in the said case it was not open to the State Government
to delete the condition in the lease/grant which permitted the grantees to
transfer the lease plot and/or at the same time introduce a new condition for
the first time at the time of renewal of lease. The Division Bench held that
where the lease deed is silent about the governments power to add new
condition but the government is insisting to impose new conditions, there can
be no doubt that such insistence of the State Government is without authority.
On the other hand, if the nazul or previous lease contains condition
authorizing the Governmental authority to introduce new condition or is silent
about renewal clause, it will be open to the authority to introduce new
condition consistent with law enacted by State Legislature on the subject.
In the said case the unearned income was demanded on the basis
of the Government Resolutions applicable to the areas where the lands in
question were situated. The said judgment is relied upon to contend that the
demand for unearned income in the instant case is unjustified.
In my view, the judgment in Jaikumari Amarbahadursingh's case
(supra) would have no application having regard to the facts of the instant
case. In the instant case it would have to be borne in mind that the land in
question was allotted to the father of the original owner Namdeo Bankar on a
new and impartible tenure i.e. Class II. The father of the said Nameo Bankar
had also executed a Kabuliyat wherein he had given an undertaking that the
allottee and his successor were bound by the terms and conditions of the
allotment and that if he commits a breach, he is liable to be evicted. Hence the
instant case is not a case where the renewal of lease was sought but is the case
where the original allottee had sought permission to transfer and for
conversion of the agricultural land to nonagricultural. In so far as the said
aspect is concerned, the GR dated 08/09/1983 regulates the transfer and
conversion of agricultural lands belonging to Class II. The said GR therefore
supplements the Maharashtra Land Revenue Code in so far as the transfer and
conversion of the land belonging to agricultural Class II is concerned. Hence
the instant case can be distinguished on facts from the case before the Division
Bench.
24 It would also have to be noted that the Petitioner and original
Owner by their conduct are now estopped from contending that the said GR
dated 08/09/1983 has no application. It is required to be noted that the
Petitioner/original Owner has applied for conversion in the year 1989 as per
the then extant policy. The original owner and the Petitioner had prosecuted
the proceedings before the authorities and this Court also as regards quantum
of the unearned income payable under the said GR for transfer and conversion
of the land. The original owner and the Petitioner have also shown their
willingness to pay the unearned income and in fact have now deposited the
said unearned income with the Collector, Nashik. It was also contended on
behalf of the Petitioner in the said Writ Petition No.5740 of 2007 that the GR
dated 08/09/1983 has been fully implemented, meaning thereby that the
applicability of the said GR was accepted. The aforesaid facts therefore act as
an estoppel against the Petitioner and the original owner from contending that
the said GR dated 08/09/1983 would have no application. The conduct of the
Petitioner amounts to approbation and reprobation i.e. on one hand apply
under the said GR for transfer and conversion whereas on the other hand
contend that it is not liable to pay unearned income as premium which is
contemplated by the said GR. It also cannot be lost sight of that the tenor of
the above Petition is only as regards the challenge to the condition appearing
in the impugned order dated 24/02/2010 passed by the Collector, Nashik
wherein it is stated that the transferee would continue to occupy the land as a
Class II Occupant. The Petitioner or the original Owner therefore never did
once question the applicability of the said GR dated 08/09/1983 and therefore
the submissions advanced on the basis of the judgment of the Division Bench
cannot be countenanced in the facts of the instant case. The judgment in
Mohinder Singh Gill's case (supra) would also have no application having
regard to the facts of the instant case.
25 For the reasons aforestated, the challenge to the order dated
24/02/2010 passed by the Respondent No.2 must fail. The relief sought vide
prayer clause (b) is also rejected in view of the reasons mentioned in the
instant Judgment. The above Writ Petition is accordingly dismissed. Rule
discharged with parties to bear their respective costs of the Petition.
[R.M.SAVANT, J]
No comments:
Post a Comment