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2011 DIGILAW 801 (BOM)

Kesrinath Jagannath Patil v. State of Maharashtra

2011-07-08

GIRISH GODBOLE, MOHIT S.SHAH

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Judgment :- GirishGodbole, J. Rule. By consent rule made returnable forthwith and the petition is taken up on board for hearing. The respective counsels for respondents waive service of Rule. 2. By the present Writ Petition filed under Article 226 of the Constitution of India, the petitioners are seeking the following substantive reliefs in terms of prayer clauses (a) & (b) in paragraph-19: “a) By an appropriate writ/order/direction of this Hon’ble court the Respondent No.2 be directed to consider the application dated 10/11/2011 (for N.A.permisson) filed by the petitioner in respect of suit property i.e. Land bearing Old Survey No.447, New Survey No.142, Hissa No. 4 admeasuring 4310 sq.meters situate lying and being at village Navghar Taluka and District Thane in the Registration District and Sub District Thane and now within the limits of Mira Bhayandar Municipal Corporation by following the procedure as laid down under the provisions of Maharashtra Land Revenue Code, 1966. (b) By an appropriate writ/order/direction of this Hon'ble court the Respondent No.3 be directed to consider the application dated 25/1/2010(for mutation in the 7/12 Extract) of the petitioner in respect of suit property i.e land bearing Old survey no.447, New Survey no.142, Hissa no.4 admeasuring 4310 sq.meters situate lying and being at village Navghar Taluka and District Thane in the Registration District and Sub District Thane and now within the limits of Mira Bhayandar Municipal Corporation in favour of the petitioner by following due process of law as laid down under the provisions of Maharashtra Land Revenue Code, 1966.” 3. The case of the petitioners can be summarized as follows: A) The Petitioners claim to be owners of land bearing Old Survey NO.447, new Survey No.142, Hissa No.4 admeasuring 4310 sq.meters situated at village Navghar, Taluka and District Thane within the limits of Mira Bhayandar Municipal Corporation. The case of the petitioners can be summarized as follows: A) The Petitioners claim to be owners of land bearing Old Survey NO.447, new Survey No.142, Hissa No.4 admeasuring 4310 sq.meters situated at village Navghar, Taluka and District Thane within the limits of Mira Bhayandar Municipal Corporation. B) By an agreement dated 15.4.1995 and Development Agreement dated 31.12.2007 and Deed of Confirmation dated 26.8.2008 the petitioners had agreed to sell their rights in the aforesaid land and other lands of the petitioners in favour of M/s Kanakia Spaces Pvt.Ltd and said M/s Kanakia Spaces Pvt.Ltd in turn executed Development Agreement dated 7.11.2010 and Deed of Confirmation dated 4.10.2008 in favour of M/s Strawberry Construction Pvt.Ltd. Respondent no.4 company was claiming to be a superior holder in respect of lands in revenue village Bhayandar, Mire and Ghodbunder and the said claim is made on the basis of a Deed of Indenture dated 7/11/1870 executed in favour of the precedessor in title of the respondent no.4 by the then Secretary of the State for Indian Council, followed by the deeds of assignment dated 15/2/1943 and 22/3/1945 executed in favour of the respondent no.4. In a dispute arising out of the mutation entries, the name of the respondent no.4 was removed from the occupant column of record of rights and was entered in other rights columns. Subsequently in proceeding under the Salesettee Estate (land Revenue Exemptions and Abolition) Act 1951 an order dated 28/1/1989 was passed by the Resident Deputy Collector, Thane and subsequently the Revenue Minster of Government of Maharashtra, passed an order dated 28/4/2008 directing that an enquiry under section 2 of the aforesaid Act should be completed. Pursuant to this order, on 5/9/2008 the District Collector, Thane passed an order in favour of the respondent no.4 company and the name of the respondent no.4 company was directed to be entered in the column of occupant in the 7/12 extract which is the revenue record. C) The aforesaid order of the District Collector, Thane passed on 5/9/2008 was challenged by filing writ petitions in this Court being Writ Petition Nos.6986/2008, 6994/2008 and 7012/2008 wherein learned Single Judge of this Court passed order dated 14/10/2008 directing the respondent Nos. C) The aforesaid order of the District Collector, Thane passed on 5/9/2008 was challenged by filing writ petitions in this Court being Writ Petition Nos.6986/2008, 6994/2008 and 7012/2008 wherein learned Single Judge of this Court passed order dated 14/10/2008 directing the respondent Nos. 1 and 2 therein (State of Maharashtra and Mira Bhayander Municipal Corporation) not to effect any changes in the record of rights by changing the mutations nor effect any changes in the 7/12 extracts and by an order dated 21/10/2008, it was directed that all the parties concerned shall maintain status quo in respect of the revenue records of the entire property. Subsequently, the aforesaid 3 writ petitions and several other writ petitions, which were heard together, were admitted by the learned Single Judge by order dated 24/4/2009 and by an interim order, earlier orders dated 14/10/2008 and 21/10/2008 were directed to be continued. In paragraph-9 of the petition, it is stated thus : “Needless to say the said orders governs the land in the present writ petition also.” D) The petitioners therefore, decided to approach the respondent No. 4 to amicably settle the matter and accordingly the respondent No. 4 executed a document title as 'Deed of Release” on 9/3/2011 in favour of M/s Strawberry Constructions Pvt. Ltd and released the rights of respondent no. 4 for consideration of Rs.39,75,100/- (though para 10 of the petition wrongly refers consideration as Rs. 36,00,000/-). The said Deed of Release is produced at Exh G (page 111 of the petition). Perusal of the said Deed of Release however shows that the same is not registered and a stamp duty of Rs.300/- is affixed to the said instrument. E) The respondent No. 4 Estate Investments Company Pvt. Ltd. also issued letter dated 15/11/2010 (Exh H to the petition) indicating its no objection for granting permission for conversion of the lands indicated in the said no objection letter from agricultural user to non-agricultural user. Supported with such no objection letter the Constituted Attorney of the petitioners M/s Strawberry Constructions Pvt.Ltd submitted application under section 44 of the Maharashtra Land Revenue Code, 1966 to the Collector, Thane on 10.2.2011. A copy of the said application is annexed at Exhibit I to the petition. Supported with such no objection letter the Constituted Attorney of the petitioners M/s Strawberry Constructions Pvt.Ltd submitted application under section 44 of the Maharashtra Land Revenue Code, 1966 to the Collector, Thane on 10.2.2011. A copy of the said application is annexed at Exhibit I to the petition. The Constituted Attorney of the petitioners M/s Strawberry Construction Pvt. Ltd also submitted application dated 25.1.2010 to the Talathi of village Navghar District Thane (Exh J to the petition) thereby specifically requesting that no new entry should be made in the record of rights of the land in question since the Constituted Attorney is in possession of the land which was agreed to be transferred initially to M/s Kanakia Spaces Pvt.Ltd and thereafter to M/s Strawberry Constructions Pvt.Ltd. The averments in para 12 of the memo of writ petition which refer to the aforesaid application dated 25.1.2010 however state that the said application as submitted to respondent no.3 for changing the names in the record or rights., The said averments are however clearly contrary to the contents of the application dated 25.1.2010 at Exh J which in fact calls upon theTalathi not to make any changes or make any new entry in the record of rights of the land in question. F) By the impugned communication dated 15.2.2011 (Exh K), the Collector, Thane has declined to consider the said application of the petitioners on the ground that in writ Petition Nos. 6986/2008, 6994/2008 and 7-012/2008, the Hon'ble High Court has passed an order directing that status quo shall be maintained in respect of the revenue records of the entire property. 4. Mr. Sandesh Patil, learned advocate for the petitioners contends that since the respondent No. 4 in whose favour the order dated 5/9/2008 passed by the Collector, Thane, which was the subject matter of the challenge in the aforesaid 3 Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008, had subsequently given its no objection for conversion of the lands of the petitioners from agricultural user to non-agricultural user and since the respondent No. 4 had also executed the aforesaid Deeds of Release, the Collector was not justified in rejecting the application solely on the ground that the order of the High Court has directed maintaining status quo in respect of the entire property. In support of the said submission, Mr. In support of the said submission, Mr. Sandesh Patil, learned advocate for petitioners has placed strong reliance on the judgment of the Division Bench of this Court in Writ Petition No. 9055 of 2010 delivered on 22nd December, 2010 and it is submitted that similar directions should be issued. 5. Onbehalf of the respondent No. 4 Estate Investments Company Pvt. Ltd. an affidavit in reply dated 21st April, 2011 sworn by Director of respondent No. 4 has been filed and the execution of the Deeds of Release dated 9/3/2011 has been admitted. In paragraph-8 of the said affidavit, it is stated that by executing the said Release Deed, the respondent No.4 had conveyed the right, title and interest which the respondent No.4 had to the said property. Similarly issuance of no objection letter by the respondent No. 4 to the Collector, Thane for conversion of lands in question from agricultural user to non-agricultural user is also admitted. 6. Shri S. N. Patil, learned Assistant Government Pleader appearing for respondent Nos. 1 to 3 has submitted that in view of the specific order of the learned Single Judge of this Court to maintain status quo in respect of entire property, the Collector was justified in refusing to entertain the application of the petitioners. 7. Though the petitioners have an alternate remedy of filing an appeal under section 247 of the Maharashtra Land Revenue Code, 1966 before the Divisional Commissioner of the concerned Revenue Division, since the applications filed by the petitioners has been dismissed by the Collector, Thane only on the ground of pendency of aforesaid 3 petitions in this court and the interim orders passed therein and since the question involved is in respect of the interpretation of the said interim orders, we have thought it fit not to relegate the petitioners to avail of such an alternate remedy and have therefore, decided the writ petition on merits. 8. By various averments in the memo of writ petition, the petitioners are relying upon the aforesaid Deeds of Release dated 9/3/2011 to contend that the rights of the respondent No. 4 as a superior holder stand released in favour of the petitioners. The petitioners are also relying upon the no objection letter dated 15.11.2010 issued by the respondent No. 4 for conversion of the lands for non user. The petitioners are also relying upon the no objection letter dated 15.11.2010 issued by the respondent No. 4 for conversion of the lands for non user. The Deed of Release purports to release the rights in respect of the immovable property worth more than Rs. 100/- and even the consideration indicated therein is substantially more than Rs. 100/-. It is sought to be contended by Mr. Sandesh Patil, advocate for the petitioners that they are not claiming title through the Deed of Release and were independently claiming consideration of their applications on the basis of No Objection Certificate issued by respondent No. 4. However, in the face of averments in paragraphs- 10 and 12 of the petition, as also in ground (b) of the petition, it is not possible to accept the aforesaid submissions. In fact, a careful perusal of the instrument styled as Deed of Release (Exh G to the petition) shows that the same is not even executed in favour of the petitioners but is executed in favour of M/s Strawberry Construction Pvt. Ltd who claims to be the Constituted Attorney of the petitioners and whose director has affirmed the petition. 9. The earlier group of writ petitions namely, Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008, which seek to challenge the order dated 5/9/2008 passed by the Collector, Thane are pending and the interim order passed therein is operating. In the present case, however, the petitioners have chosen to accept the superior title of respondent No. 4 herein, which is evident from the averments in the petition, execution of the Deeds of Release and no objection certificates granted by the respondent No. 4. It is thus clear that the dispute between the petitioners and the respondent No. 3 has been settled and in view of the aforesaid peculiar facts, we propose to direct the Collector, Thane to consider the application of the petitioners for conversion of the lands from agricultural user to non-agricultural user by clarifying that the orders of the learned Single Judge of this Court in the aforesaid writ petitions being W.P. Nos. 6986/2008, 6994/2008 and 7012/2008 dated 14/10/2008 and 21/10/2008 and the order dated 24/4/2009 of the learned Single Judge in the group of writ petitions including the aforesaid 3 petitions will not preclude the Collector from considering the application of the petitioners in view of the fact that the respondent No.4 has granted a specific no objection for such conversion. It is however clarified that this should not be construed to be an order either accepting status of “superior” owner/holder claimed by the respondent No.4 or about the merits of the controversy involved in the group of writ petitions, which have been admitted by the learned Single Judge by order dated 24th April, 2009 and no equities of whatsoever kind shall be claimed by the respondent No.4 on the basis of or strength of this order. 10. While considering an application for conversion from agricultural user to N.A. user under section 44 made by an occupant who is not a superior holder, the consent of the superior holder is required to be obtained, which the respondent No. 4 has already given. However as stated above, the aforesaid Deeds of Release dated 9/3/2011 does not appear to be registered under the Indian Registration Act, 1908 and apparently show that stamp duty of Rs. 300/- has been affixed to the said Deed which seeks to extinguish the right of the respondent No.4 as a superior holder in favour of M/s Strawberry Constructions Pvt.Ltd. The Collector while considering an application for conversion of lands under section 44 of the Maharashtra Land Revenue Code, 1966 exercises powers as “a person in charge of a public office” and shall also exercise his jurisdiction as “a person in charge of a public office” under section under section 33 of the Bombay Stamp Act, 1958 and apply his mind to the provisions of the said Act. Since the said instrument has been produced in the petition as Exh G we also deem it fit to exercise our power under section 33 (2) (b) of the Bombay Stamp Act, 1958 and direct the Collector, Thane to consider whether the said instrument is duly stamped and if not take further steps which are required to be taken under the said Act. 11. 11. In so far as the relief claimed by the petitioner in prayer clause (b) is concerned, as stated above, the averments made in para 12 of the petition to the effect that the respondent no.3 was requested to make mutation entry are in fact not supported by the contents of the application dated 25.1.2010 (Exhibit J to the petition) which in fact requests the Talathi not to make any change in the revenue records of the land in question. It is therefore clear that the relief claimed in terms of prayer clause (b) as against respondent no.3 is completely misconceived and cannot be granted. 12. We therefore dispose of the writ petition in terms of the following order: (a) The impugned letter/communication dated 15.2.2011 issued by the District Collector, Thane (Exh. K) is quashed and set aside. The District Collector, Thane is directed to consider the application submitted by the petitioners on its own merits and strictly in accordance with the provisions of the Maharashtra Land Revenue Code, 1966 and Maharashtra Land Revenue (Conversion Of The Use Of Land and N.A. Assessment) Rules, 1969 and the provisions of other relevant statutes/rules. (b) The District Collector, Thane is also directed to apply his mind and consider the provisions of section 33 of the Bombay Stamp Act, 1958 qua the aforesaid Deed of Release dated 9/3/2011 and take appropriate steps in accordance with law in that regard and submit a compliance report to the Divisional Commissioner and the State Government. The Registrar (Judicial) is directed to forward copy of this order to the Collector, Thane along with copy of the instrument styled as Deed of Release dated 9.3.2011 (Exhibit J to the petition). The Collector, Thane is directed to complete the said exercise within a period of two months from the date of receipt of copy of this order alongwith the said instrument. (c) The application of the petitioners for conversion of the lands from agricultural user to nonagricultural user shall be considered expeditiously within a period of 3 months from the date of production of an authenticated copy of this order before the Collector. (c) The application of the petitioners for conversion of the lands from agricultural user to nonagricultural user shall be considered expeditiously within a period of 3 months from the date of production of an authenticated copy of this order before the Collector. It is clarified that if there are any other defects/deficiencies in the applications filed by the petitioners, the Collector shall be free to raise objections in that regard and only after the said objections are duly met and cleared, the application for grant of N.A. permission will be processed and considered on merits in accordance with law. It is also clarified that this order may not be construed as a direction to the Collector to grant permission sought by the petitioners and the Collector will be free to take an appropriate decision in accordance with law, but shall not decline to entertain and consider the application of the petitioners on account of pendency of the aforesaid writ petition Nos. 6986/2008, 6994/2008 and 7012/2008 and other connected petitions and the interim orders passed therein. It is also clarified that no equities shall be created in favour of the respondent No. 4 herein on account of this order in the pending writ petition Nos. 6986/2008, 6994/2008 and 7012/2008 and they shall be heard and decided on their own merits without being influenced by this order. (d) the reliefs claimed in terms of prayer clause (b) of the writ petition is rejected. (e) Rule made absolute in aforesaid terms with no order as to costs.