Wednesday, 30 October 2019

How to prove that collector has granted deemed permission for non agricultural use of land?

Whosoever is desirous of getting conversion of agricultural land to use it for non-agricultural purpose, has to apply to the Collector for permission in accordance with the form prescribed. In terms of clause (a) of sub-section (2) of Section 44 of the Code, the Collector on receipt of such application has to give an acknowledgment within a period of seven days. In terms of sub-section (3), if the Collector fails to inform the applicant to his decision within ninety days from the date of acknowledgment of the application, the permission applied for is deemed to be have been granted subject to any condition prescribed in the rules made by the State Government in respect of such use.

7. We find that the production of acknowledgment granted in terms of clause (a) of sub-section (2) of Section 44 of the Code about receipt of application, is very crucial. The deeming fiction is conditional and it would not operate unless the acknowledgment evidencing the date of receipt of the application tendered, is produced or otherwise such date is proved. The burden is upon the person who wanted to claim benefit of it, to prove that the condition is satisfied. In the absence of such acknowledgment being produced on record to the satisfaction of the Court, it is not possible to record the finding that the application was not decided within a period of ninety days from the date of it's receipt. The petitioner has failed to discharge burden of establishing that the application was given on 01/03/2006. The condition is not satisfied and, therefore, it cannot be held that either the permission is deemed to have been granted or that the rejection of the application was not within a period of ninety days.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1422 of 2007

Decided On: 29.03.2019

 Rajendra  Vs.State of Maharashtra and Ors.

Hon'ble Judges/Coram:
R.K. Deshpande and S.M. Modak, JJ.

Citation : 2019 (5)MhLJ 348




1. By consent of the learned Counsels appearing for the parties, the matter is finally heard, as it was admitted on 18th September, 2017.

2. The petition challenges the communication dated 05/06/2006 rejecting the application of the petitioner filed under Section 44 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as 'Code' for the sake of brevity) for grant of permission to convert the agricultural land for non-agricultural use. The reason assigned is that the petitioner has failed to obtain 'no objection certificates' from the Town Planning Department as well as from the Tahsildar Ramtek.

3. According to the petitioner, the application dated 01/03/2006 in the prescribed form for grant of permission under Section 44(1)(a) of the Code was submitted in respect of land Survey No. 34/1, Tahsil Ramtek, District Nagpur and in terms of subsection (3) of Section 44 of the Code. If such application is not decided within a period of 90 days, the permission is deemed to have been granted. According to the petitioner, the period of 90 days expired on 02/06/2006 and the order of rejection was passed on 05/06/2006. Reliance is placed upon the decision of the Division Bench of this Court in the case of Ganesh Ginning and Pressing Company Ltd.. Jalna vs. State of Maharashtra and others. reported in MANU/MH/0603/2005 : 2005(4) Mh.L.J. 263.

4. The petition is opposed by the respondents on the ground that 'no objection certificates' were not obtained from two authorities and that the land was proposed to be reserved as per the Government Circular dated 28/11/1987 for Sanskrit University, Ramtek. It is also the reason stated in the reply filed to this petition that the Government has directed to prohibit the sale transaction and also not to give non-agriculture permission. It is also the stand that the permission from M.S.E.B. was not obtained.

5. Essentially, the question involved in the present petition is whether the permission is deemed to have been granted to the petitioner for non-agricultural purpose in respect of Survey No. 31/1, Tahsil Ramtek, District Nagpur in terms of sub-section (3) of Section 44 of the Code.

6. The question of procedure for conversion of use of the land from one purpose to another is governed by Section 44 of the Code. The provisions of sub-sections (1), (2) & (3) of Section 44 of the Code, being relevant, are reproduced below.

"44. Procedure for conversion of use of land from one purpose to another-

(1) Subject to the provisions of sub-section (2) of section 42, if an occupant of unalienated land or a superior holder of alienated land or a tenant of such land-

(a) which is assessed or held for the purpose of agriculture, wishes to use it for a non-agricultural purpose, or

(b) if land is assessed or held for a particular non-agricultural purpose, wishes to use it for another non-agricultural purpose, or

(c) desires to use it for the same non-agricultural purpose for which it is assessed but in relaxation of any of the conditions imposed at the time of grant of land or permission for such non-agricultural purpose, such occupant or superior holder or tenant shall, with the consent of the tenant, or as the case may be, of the occupant or superior holder, apply to the Collector for permission in accordance with the form prescribed.

(2) The Collector, on receipt of an application,-

(a) shall acknowledge the application within seven days;

(b) may, unless the Collector directs otherwise, return the application if it is not made by the occupant or superior holder or as the case may be, the tenant or if the consent of the tenant, or as the case may be, of the occupant or superior holder has not been obtained, or if it is not in accordance with the form prescribed;

(c) may, after due enquiry, either grant the permission on such terms and conditions as he may specify subject to any rules made in this behalf by the State Government; 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 contrary to any scheme for the planned development of a village, town or city in force under any law for the time being in force and in the case of land which is to be used as building sites in order to secure in addition that the dimensions, arrangement and accessibility of the sites are adequate for the health and convenience of the occupiers or are suitable to the locality; where an application is rejected, the Collector shall state the reasons in writing of such rejection.

(3) If the Collector fails to inform the applicant of his decision within ninety days from the date of acknowledgement of the application, or from the date of receipt of the application-if the application is not acknowledged, or within fifteen days from the date of receipt of application for a temporary change of user or where an application has been duly returned for the purposes mentioned in clause (b) of sub-section (2), then within ninety days or as the case may be, within fifteen days from the date on which it is again presented duly complied with, the permission applied for shall be deemed to have been granted, but subject to any conditions prescribed in the rules made by the State Government in respect of such user."

Whosoever is desirous of getting conversion of agricultural land to use it for non-agricultural purpose, has to apply to the Collector for permission in accordance with the form prescribed. In terms of clause (a) of sub-section (2) of Section 44 of the Code, the Collector on receipt of such application has to give an acknowledgment within a period of seven days. In terms of sub-section (3), if the Collector fails to inform the applicant to his decision within ninety days from the date of acknowledgment of the application, the permission applied for is deemed to be have been granted subject to any condition prescribed in the rules made by the State Government in respect of such use.

7. We find that the production of acknowledgment granted in terms of clause (a) of sub-section (2) of Section 44 of the Code about receipt of application, is very crucial. The deeming fiction is conditional and it would not operate unless the acknowledgment evidencing the date of receipt of the application tendered, is produced or otherwise such date is proved. The burden is upon the person who wanted to claim benefit of it, to prove that the condition is satisfied. In the absence of such acknowledgment being produced on record to the satisfaction of the Court, it is not possible to record the finding that the application was not decided within a period of ninety days from the date of it's receipt. The petitioner has failed to discharge burden of establishing that the application was given on 01/03/2006. The condition is not satisfied and, therefore, it cannot be held that either the permission is deemed to have been granted or that the rejection of the application was not within a period of ninety days.

8. Shri Kshirsagar, learned Counsel appearing for the petitioner invited our attention to the communication dated 05/06/2006 issued by the Sub-Divisional Officer, Ramtek recommending for grant of permission in which it is stated that the application was made on 01/03/2006. It is urged that the petitioner has been continuously insisting that the application is dated 01/03/2006. In the communication dated 05/06/2006 along with the rejoinder filed by the petitioner, it is stated that the application was made on 06/03/2006. In view of this, it is a disputed question of fact as to, whether the application was given on 01/03/2006 or 06/03/2006. Merely because application is dated 01/03/2006, it does not follow that it was tendered on that date. The rejection on 05/06/2006 was within a period of ninety days if the 06/03/2006 is to be considered. We are unable to enter into such controversy, particularly in the absence of the petitioner producing acknowledgment under clause (a) of sub-section (2) of Section 44 of the Code.

9. The ratio of the decision in the case of Ganesh Ginning & Pressing Company, (cited supra), cannot be disputed. However, in the present case, we can see that the application bears date of 01/03/2006. We put a specific question to the learned Counsel for the petitioner to point out us a specific pleading in the petition that the application was tendered on 01/03/2006. We also asked the learned Counsel whether the acknowledgement, as prescribed under clause (a) of sub-section (2) of Section 44 of the Code reproduced above, was refused. The learned Counsel is unable to point out to us any specific averment that the application dated 01/03/2006 was tendered in the Office of the Collector on 01/03/2006 itself or that the Office of the Collector has refused to provide such acknowledgment. The burden is upon the petitioner to aver and prove the fact which would make him entitled to relief claimed. The petitioner has failed to satisfy the Court on these facts. In our view, therefore, the provisions for grant of deemed permission under sub-section (3) of Section 44 of the Code is not at all attracted. The rejection by the Collector on 05/06/2006 cannot, therefore, be faulted.

10. In the result, the writ petition is dismissed. Needless to say that the petitioner shall be at liberty to file fresh application which shall be considered in accordance with law.

11. Rule is made absolute in the above terms with no order as to costs.


Print Page

No comments:

Post a comment