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2013 DIGILAW 1763 (BOM)

Narayan v. Abhijit

2013-08-30

MRIDULA BHATKAR

body2013
JUDGMENT Oral Judgment: Rule. Rule made returnable forthwith. With consent heard finally at the stage of admission 2. Petitioner has filed this petition challenging the order passed by the executing Court in Special Darkhast No.13/2005 directing the petitioner himself to obtain a permission for the purpose of sale of the suit land. 3. The petitioner has filed a suit for specific performance of the suit land. Agreement of sale was executed by respondent i.e. judgment debtor in his favour. Suit was filed for execution of sale deed. The suit was decreed on the basis of consent terms filed by both the parties. Execution proceedings were filed by the petitioner i.e. decree holder in the executing Court vide Special Darkhast No.13/2005. This fact is not denied by the respondents. The respondents after filing the consent terms, refused to execute the sale deed in favour of the petitioner – decree holder, therefore, the petitioner filed execution proceedings i.e. Special Darkhast No.13/2005 before the executing Court. In the execution proceedings, respondents raised objection that the suit land falls under the benefited zone as per the provisions of Maharashtra Project Affected Persons Rehabilitation Act, 1999 (hereinafter referred as “said Act”) and in the absence of the permission of the Commissioner, under Section 12 of the said Act, the land cannot be transferred. On hearing the parties on this issue, the executing Court by its order dated 2.2.2012, directed decree holder to obtain necessary permission from the District Collector, Nanded. On 18.2.2012, the executing Court extended time to obtain a necessary permission from the competent authority. The petitioner moved application Exh.98 in darkhast proceedings mentioning therein that it is difficult for him to get the permission from the Collector within the specific period given by the Court and, therefore, he sought further time. Executing Court, by its order dated 5.3.2012 extended time for obtaining the necessary permission for sale transaction of the suit land. The petitioner has challenged the order dated 2.2.2012 and also order dated 5.3.2012 in this petition. 4. Learned Counsel for the petitioner has submitted that in view of Section 12 of the Act, the trial Court ought not to have directed the decree holder who is an old aged person to obtain permission from the Collector. He submitted that it is the owner i.e. the judgment debtor, who has to apply for such permission. 4. Learned Counsel for the petitioner has submitted that in view of Section 12 of the Act, the trial Court ought not to have directed the decree holder who is an old aged person to obtain permission from the Collector. He submitted that it is the owner i.e. the judgment debtor, who has to apply for such permission. However, the trial Court has saddled this responsibility on the petitioner which is against the position of law, as contemplated under Section 12 of the Act. 5. Learned Counsel for the respondents while opposing this petition, has submitted that this petition cannot be entertained by the Single Judge, as the reliefs of issuing writ of mandamus along with writ of certiorari are prayed. The Single Bench cannot invoke writ jurisdiction under Articles 226 and 227 of the Constitution by issuing writ of mandamus and writ of mandamus under Article 226 of the Constitution is the power vests only with the Division Bench. He further submitted that the decree holder – petitioner has not raised this point before the trial Court and he is precluded from raising objection to the direction given by the Court to him to obtain the permission. He submitted that there are certain post facto developments. The respondents have applied to the Commissioner for the permission of sale of the land and the said permission was refused by the Deputy Collector (Resettlement) by his order dated 15.2.2012 and in view of this refusal to sale/transfer the suit land, the petition has become infructuous. 6. At the out set it is made clear that the said order of refusal is not challenged and, therefore, that cannot be set aside. The petitioner will have to take out separate proceedings to challenge the said order. So, as on today, the order exists and stands. Yet the petition is maintainable and can be entertained. Apparently, it gives impression that it is illogical and contradictory, however, after scrutiny of the nature of the petition and issue involved in it, the relief survives and the petition does not become infructious. It is reiterated that the order of refusal passed by the Collector is not set aside. 7. The issue is short in the premises of Section 12 of the Act. A question raised is who should apply for the permission under Section 12 of the Act before the Court? It is reiterated that the order of refusal passed by the Collector is not set aside. 7. The issue is short in the premises of Section 12 of the Act. A question raised is who should apply for the permission under Section 12 of the Act before the Court? The submissions of the learned Counsel for the respondents that Section 12 of the Act is silent about the person who should apply to the Commissioner for the permission cannot be accepted. Relevant portion of Section 12 of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 is reproduced below : 12. (1) Notwithstanding anything contained in any law for the time being in force, no agricultural land in the villages or areas specified in the notification under section 11 shall, after publication of the notification in the Official Gazette, and until Collector makes a declaration to the effect that no further land in the benefited zone of any particular village or area therefrom is required for the purpose of this Act, be - (a) transferred whether by way of sale (including sale in execution of a decree of civil court or of an award or order of any other competent authority) or by way of gift, exchange, lease or otherwise; (b) ..... (c) ..... (d) ..... (e) ..... Sub section 12 (1) (a) of Section 12 of the Act states that unless and until the Collector makes a declaration, as envisaged in the Section, the land cannot be transferred by way of sale or by way of gift, exchange, lease or otherwise. The word “sale” is used and the word “purchase” is not used in Sub section (1) (a) of Section 12 of the Act. Thus, the section addresses to a transfer by way of sale and, therefore, it contemplates a person who is selling a property is required to apply for the permission of the Collector. A person, who has title over the land, should apply than a person who is an ostensible owner or the purchaser. As the order passed by the Deputy Collector, Nanded is also produced during the course of submission by learned Counsel for the respondents and is before the Court, the said order can be referred to. That order passed by the Deputy Collector, is not challenged in the writ petition but as it is produced it can be referred to. As the order passed by the Deputy Collector, Nanded is also produced during the course of submission by learned Counsel for the respondents and is before the Court, the said order can be referred to. That order passed by the Deputy Collector, is not challenged in the writ petition but as it is produced it can be referred to. In the said order, Deputy Collector has observed while refusing the permission that permission cannot be granted to deponent (petitioner herein), who is not a owner of the suit land. Further, the permission cannot be grated because the original owner has already mortgaged the land to the bank. Thus, one of the reasons for refusing the permission, it appears that the application was not made by the owner of the land. 8. Within the purport of the section 12, the order passed by the trial Court directing the decree holder i.e. the petitioner to obtain necessary permission for sale transaction, is illegal. 9. The learned Counsel for respondents argued that as the Deputy Collector has passed the order of refusal of the permission, nothing remains in the matter and the only alternative left is to file a fresh petition or to challenge the said order before the appropriate authority. I am not impressed by the submissions, as the order passed by the Deputy Collector, Nanded is in the caveat filed by the respondent which was filed due to the orders of the executing court. The learned judge ought to have directed the respondent to apply for permission to sale. Pursuant to the direction given by the trial Court petitioner moved the application seeking permission from the Commissioner and to obstruct the sale, the respondent has filed the caveat. As the order of the collector is not challenged here no mandatory relief directing respondent to submit application for permission to sale can be granted but relief in respect of the orders of the executing court which go to root does survive. 10. Learned Counsel for the petitioner has submitted that though he had applied for the permission of sale to the office of the Deputy Collector, Nanded, at the same time, the respondent has filed caveat for non-issuance of the sale permission under Section 12 of the Act. 10. Learned Counsel for the petitioner has submitted that though he had applied for the permission of sale to the office of the Deputy Collector, Nanded, at the same time, the respondent has filed caveat for non-issuance of the sale permission under Section 12 of the Act. In the impugned order of the Collector, in the column of claim, the subject matter mentioned was `non-issuance of sale permission under Section 12 of the Act in respect of those gut numbers’. The caveator, the present respondent is shown as the appellant and the petitioner is shown as non-caveator – respondent. Thus the order was passed by the Deputy Collector in the caveat application filed by the respondent. Thus, the respondent though has accepted the consent terms before the Civil Court was volte-face and with an intent to frustrate the consent decree, has filed the caveat before the Collector. This is a clear instance of taking false stand which cannot be anyhow tolerated in view of the sanctity of the court proceedings. It must be noted that this action of the respondent of filing caveat with a view to resist the issuance of sale permission under Section 12 of the Act discloses the dishonest intention of the respondent when he had entered into a consent terms before the Court and the trial Court, by accepting it, has decreed the suit. 11. Thus, in the above discussion, I am of the view that the impugned orders passed by the trial Court are to be quashed and set aside. 12. Writ Petition is partly allowed. The order dated 2.2.2012 below Exh.1 in Special Regular Darkhast No.13/2005 and order dated 5.3.2012 below Exh.98 in Special Regular Darkhast No. 13/2005, passed by learned C.J.S.D., Biloli are hereby quashed and set aside. Rule made absolute in terms of prayer clause (B) accordingly. 13. In view of the relief granted in terms of prayer clause (B) and the findings given by this Court on Section 12 of the Act, and as the order of Deputy Collector, Nanded is not yet challenged, writ of mandamus, as prayed for in prayer clauses (C) and (D) is not issued. However, the petitioner is given liberty to take out the proceedings against the said order of Deputy Collector, Nanded and then apply afresh to the competent Court seeking further directions.