Bombay High Court
Smt. Gangabai Gopaldas Mohta vs State Of Maharashtra on 8 December, 2008
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No.. 5733 OF 2007
Smt. Gangabai Gopaldas Mohta,
aged about 99 years, doing household
work, at present r/o Mohta Mill
Compound, Akola, Tq. & District - Akola. .... PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary,
Revenue & Forest Department,
Bombay - 32.
2. Shri Narayan Rane,
Minister, State of Maharashtra,
Revenue and Forest Department,
Mantralaya, Bombay - 32.
3. The Collector,
Akola District, Akola.
4. The Agricultural Produce Market
Committee, Murtizapur, through its
Secretary, r/o Murtizapur,
Tq. Murtizapur, District - Akola.
5. M/s. Ramdhan Rampratap,
a partnership firm, through Partner
Devkaran Agrawal, r/o Near S.T.
Stand, Murtizapur, Tq. Murtizapur,
District - Akola. .... RESPONDENT.
Mr. Anand Parchure, Advocate for the petitioner.
Ms. Tajwar Khan, Special Assistant Government Pleader for
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2
Respondent Nos. 1 to 3.
Shri G.B. Lohiya, Advocate for Respondent No.4.
Shri A.M. Gordey, Advocate for Respondent No.5.
.......
CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT : NOVEMBER 18, 2008.
DATE OF PRONOUNCING THE JUDGMENT : DECEMBER , 2008.
JUDGEMENT :
1. By this Writ Petition filed under Articles 226 and 227 of the Constitution of India, the Petitioner a government lessee in possession of land situated at Murtizapur has challenged the order dated 03.09.2007 passed by Respondent No.1 - State of Maharashtra, directing the land to be resumed and calling report from Respondent No.3 Collector for its allotment afresh in favour of Respondent Nos. 4 and 5, as per law. The Petitioner is about 99 years old and therefore, as requested, Writ Petition was taken up for final hearing at admission stage itself. Rule made returnable forthwith. Heard finally by consent of the parties.
2. Facts in the matter are not much in dispute. The land which forms subject matter of present Writ Petition was initially leased out to predecessors in title of Petitioner namely "New Mofussil ::: Downloaded on - 09/06/2013 14:07:46 ::: 3 Company Limited" on 04.08.1905 by Secretary of State of India in Council for a period of 30 years which contemplated further renewal.
However, total period thereof was not to exceed in aggregate 90 years.
On 19.03.1937 the said lease was renewed for a period of next 30 years i.e. up to 31.12.1964. The last renewal is as per the order passed in 1980 and for period unto 31.12.1994. The orders of last renewal have been passed on 29.01.1980 whereby earlier orders of resumption dated 31.05.1971 passed by Respondent No..1, were cancelled and renewal was ordered. The Petitioner mentions that it was for period of 30 years w.e.f. 01.01.1963 i.e. unto 31.12.1993. On 14.06.1988, upon an application of Respondent No. 4 Agriculture Produce Market Committee (APMC), the Officer on Special Duty reviewed this order dated 29.01.1980 and held that the Petitioner has used the land for purpose other than the one for which it was leased out, and therefore, ordered resumption. The said order was challenged in Writ Petition No. 1608/1988 before this Court and on 16.04.1992 this Court dismissed that Writ Petition. This dismissal of Writ Petition was questioned in Letters Patent Appeal No. 70/1992 and the Division Bench of this Court on 19.07.2006 allowed that Appeal and remanded the matter back to Respondent No..1 to ::: Downloaded on - 09/06/2013 14:07:46 ::: 4 consider the application filed by Respondent No..4 afresh in accordance with the provisions of law. Said review was undertaken by Respondent No..1 on 14.06.1988 in response to application dated 01.03.1980 filed by Respondent No..4 A.P.M.C. Respondent No..4 an Authority constituted under the provisions of Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967 wanted the said land for its own purpose and expansion. Respondent No. 5 was leased out part of land by Petitioner for running a Ginning & Pressing Mill and therefore, Respondent No..5 had also moved application to Respondent No..1 for cancellation of orders of renewal in favour of Petitioner.
3. There was some Civil litigation filed by the Petitioner against the said Respondent No..5 and ultimately a compromise decree was passed in First Appeals No. 43/1978 and 142/1977 whereby Respondent No..5 was put under obligation to vacate and deliver possession to Petitioner on or before 31.12.1990. As he did not vacate Execution Case No. 1/1991 was filed by the present Petitioner against him. Petitioner alleges that in this Execution case Respondent No..5 with the influence of Respondent No..2 arranged & filed an ::: Downloaded on - 09/06/2013 14:07:46 ::: 5 objection through Sub Divisional Officer, Murtizapur on 31.07.2007.
The Petitioner states that this was done only to arrest execution of warrant of possession which was already issued.
4. Thereafter Respondent No..2 issued notice to Petitioner for hearing on application filed by Respondent No..4 A.P.M.C. as per directions of this Court in Letters Patent Appeal No. 70/1992.
According to Petitioner, this was also to help Respondent No..5 to prolong or postpone execution of decree. The Petitioner could not attend the hearing as notice thereof was of very short duration and then the hearing was adjourned to 05.02.2007. But again due to short notice, hearing could not take place. Further hearing was on 15.03.2007 and Petitioner received notice thereof on 12.03.2007.
Subsequently on 14.03.2007 she received notice that hearing was scheduled on 17.03.2007 instead of 15.03.2007 and then she received notice dated 01.06.2007 for hearing on 06.06.2007. The Petitioner on each occasion could not even arrange for railway reservations and sent telegram to Respondent No..2 in this respect, and sought advance notice of at least one month. Petitioner was then by notice dated 06.06.2007 called upon to file written notes of argument, which she ::: Downloaded on - 09/06/2013 14:07:46 ::: 6 submitted on 14.06.2007 by R.P.A.D. and raised preliminary objection about the locus of Respondent No..4 and also maintainability of application for review at its instance, because Respondent No..4 did not pass any resolution and authorize filing of review. The Petitioner requested for detailed opportunity of hearing and its the contention of the Petitioner that without deciding her preliminary objection and without giving her opportunity of hearing, the Respondent No..2 passed order on 03.09.2007, which Petitioner received on 08.10.2007.
It is this order which the Petitioner has questioned in the present Writ Petition.
5. I have heard Advocate Shri Anand Parchure, for Petitioner, learned Special Assistant Government Pleader Tajwar Khan for Respondent nos. 1 to 3, Advocate Shri G.B. Lohiya, for Respondent No..4 and Advocate Shri A.M. Gordey, for Respondent No..5.
6. After stating the facts, Advocate Parchure has contended that as the Respondent No.5 wanted to avoid execution of decree, he manipulated the application for review and also filed his own application before Respondent No.2 for review of order of renewal of ::: Downloaded on - 09/06/2013 14:07:46 ::: 7 lease dated 29.01.1980. He contends that said application allegedly moved by Respondent No.4 was not legal and valid, and similarly Respondent No.5 facing decree of eviction and execution filed by the Petitioner, could not have moved any application before Respondent No.2. He further contends that Petitioner had applied for opportunity of hearing, but the same was not given to her, and the matter was decided hastily only to oblige Respondent nos. 4 and 5. He argues that because of provisions of Section 337 read with Section 29[2][c] of the Maharashtra Land Revenue Code, 1966 the Petitioner did not remain only a lessee, but became an occupant and as such, the action of resumption of land as taken by Respondent nos. 1 and 2 is without jurisdiction. He further points out that as per the lease, rights given to Petitioner were transferable and hence, there is no breach. The order of renewal has been passed on 29.01.1980 and as such lease having been renewed unto 31.12.1994 breach, if any, stood condoned and Respondent No..1 waived its right in that respect. He therefore, states that the entire action is non-est and also in breach of principles of natural justice. He points out that though period of lease has expired on 31.12.1994, in view of the legal position, Respondent nos. 1 and 3 have continued to accept rent every year from Petitioner and the rent ::: Downloaded on - 09/06/2013 14:07:46 ::: 8 has been received till the year 2000 by them. He contends that the petition therefore, needs to be allowed.
7. Advocate Shri Gordey, for Respondent No. 5 states that there was breach prior to last renewal of lease and vide communication dated 16.02.1949 the Government of Central Provinces at Berar condoned that breach of using the premises for oil mill, subject to lessee agreeing to pay annual ground rent of Rs.1931/-
so long as the lease is used for oil mill as recommended by the Collector. The Government on 17.7.1971 canceled the lease and ordered resumption because of change of user and on 31.8.1971 the Petitioner applied to Secretary, Government of Maharashtra for revocation of that order and for investigation to find out whether any breach has been committed or not. On 29.01.1980 the Minister of State for Revenue, passed order canceling the said order dated.
31.05.1971 and restored back the lease-hold rights of Petitioner.
Accordingly on 26.03.1980 the lease was renewed for period of 30 years commencing from 1.1.1964. He states that said period of 30 years expired on 31.12.1994 and thereafter, no lease deed could have been executed in favour of the present Petitioner. He therefore, states ::: Downloaded on - 09/06/2013 14:07:46 ::: 9 that in these circumstances, challenge in the present petition is rendered merely academic as maximum period of lease of 90 years expired on 31.12.1994.
8. Because Respondent No. 4 APMC needed the land, it applied for review of the order passed by the Hon'ble Minister on 29.1.1980 vide its application dated 1.3.1980. The review was opposed by the present Petitioner and ultimately on 20.04.1988, the matter was heard.
Orders came to be passed on 14.06.1988 and review applied for by Respondent No.4 APMC was allowed and matter was sent to Collector, Akola for further action. Writ Petition No. 1680/1992 filed by the Petitioner challenging that order was dismissed on 16.04.1992. Petitioner then filed Letters Patent Appeal No.17/1992 which came to be allowed on 19.07.2007 after noticing that Special Officer who passed order on 14.6.1998 had no jurisdiction. The matter was sent back to Government for considering application of review made by Respondent No.5. It is in this background that the Hon'ble Minister passed order impugned herein on 3.9.2007. He states that in these circumstances, the Petitioner has no right even to maintain present petition. He points out that the ::: Downloaded on - 09/06/2013 14:07:46 ::: 10 Respondent No..5 had independently moved separate application for grant of lease in its favour, and that application was also pending before the State Government at the relevant time.
9. In order to point out nature of occupation of present Petitioner, learned Advocate Shri Gordey, as also Advocate Shri Lohiya and learned Special Assistant Government Pleader Ms. Tajwar Khan, invited attention to various provisions of Maharashtra Land Revenue Code, 1966 and Madhya Pradesh Land Revenue Court, 1954. They contend that the provisions of all these enactments contemplate "government lessee" as distinct class by itself and he cannot be occupant Class-I or occupant Class-II. It is their contention that "tenant" is altogether separate entity and concept, in these statutes.
Petitioner cannot be either occupant Class-I or Class-II or then a tenant. She is government lessee and her rights are squarely governed by provisions of Government Grants Act, 1895. They point out that last renewal in the present matter is of 1980 and it was for a period of 30 years, from 1.1.1965 which admittedly expired on 31.12.1994. In that view of the matter, the provisions of Maharashtra Land Revenue Code,1966 which came into force in the meanwhile, apply to this ::: Downloaded on - 09/06/2013 14:07:46 ::: 11 government grant & land and the said grant was in terms of Section 38 of the Maharashtra Land Revenue Code. As the total grant was only for 90 years, after 1994 there could not have been and there is no renewal in favour of Petitioner. The Petitioner has no right to continue to occupy the suit land and as such the present petition is misconceived. They also point out that the breach of conditions has been noticed in 1971 and the said breach has not been condoned by the government. However, according to them after expiry of total lease period, the said aspect of breach becomes insignificant and irrelevant. They also point out that the Petitioner herself made efforts to alter her status from that as government lessee to "occupant", but those efforts have not succeeded till date. It is further stated that on 4.6.1985 the Revenue Authorities rejected such application of Petitioner, and Petitioner has not challenged said order further.
10. Ms. Khan, learned Special A.G.P. specifically points out that the impugned order has been passed in view of the expiry of lease in the year 1994 and proposals called for Collector are as per requirement of Maharashtra Land Revenue Disposal of Government Land Rules, and the same shall be processed strictly in accordance ::: Downloaded on - 09/06/2013 14:07:46 ::: 12 with those Rules and Maharashtra Land Revenue Code. She states that the government is not giving any preference to any body in violation of law and Petitioner is not being victimised at all in the matter.
11. Advocate Shri Parchure, in his brief reply has stated that the Petitioner has challenged order dated. 4.6.85 by filing appeal before the Divisional Commissioner, Amravati and said appeal is still pending.
He further points out that the lease amount has been accepted from Petitioner every year up to 2000, and as such the contentions that Petitioner has no right to maintain this petition or than to continue to occupy the land in dispute are without substance.
He contends that acceptance of rent thereafter amounts to creation of fresh lease and hence Petitioner is entitled to continue in occupation and also point out that his status was as occupant and he cannot be evicted. He points out that the Petitioner has written letters on 8.11.1999 and 7.1.1995, requesting to change her category from that of government lessee to occupant, and those request letters are also pending.
::: Downloaded on - 09/06/2013 14:07:46 ::: 1312. The arguments show that the fact that total period of lease was of 90 years is not in dispute. The lease began from 1.1.1905 and I find that said document specifically stipulated that renewal is possible, but the total period of lease including initial grant and the renewals shall not exceed 90 years. This stipulation exists in first renewal granted on 19.03.1937 for the period 1.1.1935 to 31.12.1964.
Thus period of 60 years was over on 31.12.1964 and hence as per the stipulation the last renewal could have been only for 30 years i.e. unto 31.12.1994 so as to complete the period of, 90 years from 1.1.1905.
The Petitioner has purchased the lease hold rights in respect of this land on 24.4.1947. The communication dated. 16.02.1949 of Under Secretary, to Government of Central Provinces and Berar shows that lessee at that time was using premises for oil mill, but then the government condoned that breach, if lessee agreed to pay ground rent of Rs. 1931/-. On 31.05.1971 the State Government exercised its rights to re-enter, after coming to know that there was further change of user and land was put to use for still other purposes.
13. As per lease deed dated 4 August 1905 the initial grant is for period of 30 years from first day of January 1905 and the renewal ::: Downloaded on - 09/06/2013 14:07:46 ::: 14 contemplated is for term of 30 years with express stipulation that "the Secretary of state will at the end of the term of years hereby granted and so on from time to time of years hereby thereof at the end of each successive further term of years as shall be granted at the request and cost of the Lessee execute to the Lessee a new lease of the premises hereby demised by way of renewal for term of 30 years provided always that such renewed terms of years as shall be granted shall together with the original term of year not exceed in the aggregate the period of 90 years and (the rent of said premises hereby demised being hereby expressly made subject to enhancement on the granting of each renewed lease) that such renewed leases shall be granted ..--...". In the renewed deed of lease executed on 19th March 1937 the said clause reads "and also that the lessor will at the end of the terms of years hereby granted and soon from time to time thereafter at the end of each successive further terms of years as shall be granted at the request and cost of the lessee execute to lessee a new lease of the premises hereby demised by way of renewal for the term of 30 years provided always that such renewed term of years as shall be granted shall together with original term of years not exceed in the aggregate the period of 90 years from the first day of January 1905 and the rent of the....-----.......".In the renewal of lease ::: Downloaded on - 09/06/2013 14:07:46 ::: 15 executed on 26th March 1980 the said clause reads "and also that the lessor will at the end of the last terms of years hereby granted and seen from time to time thereafter at the end of each successive further terms of years as shall be granted at the request and cost of the lessee execute to lessee a new lease of the premises hereby demised by way of renewal for the term of 30 years provided always that such renewed term of years as shall be granted shall together with original term of years not exceed in the aggregate the period of 90 years from the first day of January 1905 and the rent of the....-----.......". Thus intention of parties to restrict the total duration of lease i.e. original with its renewals to 90 years his explicit and hence it is apparent that after expiry of last renewal on 31st December 1994 no further renewal in the matter lease/was possible.
14. In Anant Mule vs. State of Maharashtra reported at 2007(3) Bom. C.R. 690, I had the occasion to consider the following precedents relevant also in this matter. In 2004 (1) SCC 1=AIR 2004 S.C. 32
-State of U.P. and others, v. Lalji Tandon (Dead), on the argument about perpetual lease, in paragraph 13 & 17 Hon'ble Apex Court observes: --
::: Downloaded on - 09/06/2013 14:07:46 ::: 16"13. In India, a lease may be in perpetuity. Neither the Transfer of Property Act nor the general law abhors a lease in perpetuity. (Mulla on the Transfer of Property Act, Ninth Edition, 1999, p. 1011). Where a covenant for renewal exists, its exercise is, of course, a unilateral act of the lessee, and the consent of the lessor is unnecessary. (Baker v. Merckel (1960) 1 All ER 668, also Mulla, ibid, p. 1204).
Where the principal lease executed between the parties containing a covenant for renewal, is renewed in accordance with the said covenant, whether the renewed lease shall also contain similar clause for renewal depends on the facts and circumstances of each case regard being had to the intention of the parties as displayed in the original covenant for renewal and the surrounding circumstances. There is a difference between an extension of lease in accordance with the covenant in that regard contained in the principal lease and renewal of lease, again in accordance with the covenant for renewal contained in the original lease. In the case of extension it is not necessary to have a fresh deed of lease executed; as the extension of lease for the term agreed upon shall be a necessary consequence of the clause for extension. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised, a fresh deed of lease shall have to be executed between the parties. Failing the execution of a fresh deed of lease, another lease for a fixed term shall not come into existence though the principal lease in spite of the expiry ::: Downloaded on - 09/06/2013 14:07:46 ::: 17 of the term thereof may continue by holding over for year by year or month by month, as the case may be."
"17. Green v. Palmer (1944) 1 All ER 670, bears a close resemblance with the facts of the present case. There the parties had entered into a lease agreement for six months. One of the covenants in the lease read so - "The tenant is hereby granted the option of continuing the tenancy for a further period of six months on the same terms and conditions including this clause, provided the tenant gives to the landlord in writing four weeks' notice of his intention to exercise his option." The plea raised on behalf of the tenant was that the clause gave him a perpetual right of renewal.
Uthwatt, J. of Chancery Division held-
". . . . . . . .the first thing one observes is that, in terms, there is granted to the tenant a single option exercisable only once upon the named event, and the subject-matter of that option is an option "of continuing the tenancy for a further period of six months on the same terms and conditions including this clause." To my mind, what that means is this : the tenant is to be allowed once, and once only, the opportunity of continuing the tenancy continuing it for a further six months. Then we come to the critical words "on the same terms and conditions including this clause." As I read it, that means there is included in the new tenancy agreement a right in the tenant, if he thinks fit, to go on for one further six months, and when you have got to that stage you have finished with the whole matter. In other words, it comes to this : "Here is ::: Downloaded on - 09/06/2013 14:07:46 ::: 18 your present lease. You may continue that, but I tell you, if you continue it, you continue it on the same terms as you were granted the original lease. You may continue it for a further 6 months with the right to go on for another 6 months."
Upon that footing, in the events which have happened, all the landlord was bound to do under this arrangement was to permit the tenant to occupy for a period not exceeding 18 months in the whole from the time when the original lease was granted."
18. We find ourselves in full agreement with the view of the law taken in the decisions cited hereinabove. It is pertinent to note that the Respondent is not claiming a lease in perpetuity or right to successive renewals under the covenant for renewal contained in the 1887 lease. The term of 50 years under the 1887 lease came to an end in the year 1937 and the option for renewal was exercised by the Respondent as assignee of the original lessee which exercise was honoured by the lessor State executing a fresh deed of lease belatedly on February 20, 1945. This lease deed does not set out any fresh covenants, mutually agreed upon between the parties for the purpose of renewal. Rather it incorporates, without any reservation, all the covenants, provisos and stipulations as contained in the principal lease as if they had been herein repeated in full. Not only was a fresh deed of lease executed but the conduct of the parties also shows that at the end of the term appointed by the 1945 lease, i.e. in or around the ::: Downloaded on - 09/06/2013 14:07:46 ::: 19 year 1987, the lessor did not exercise its right of re-entry. On the other hand, the Respondent exercised his option for renewal. The officials of the appellant State, i.e. the Collector and the Board of Revenue, all recommended renewal and advised the State Government to expedite the renewal. The State Government was generally renewing such like leases by issuing general orders/instructions to its officers. At no point of time prior to the filing of the counter-affidavit, on the present litigation having been initiated, the State or any of its officers took a stand that the right of renewal, as contained in the principal deed of lease, having been exhausted by exercise of one option for renewal, was not available to be exercised again.
19. Now that the covenant for renewal has been referentially incorporated without any reservation in the lease deed of 1945 the exercise of option for renewal cannot be denied to the Respondent. However, in the lease deed to be executed for a period of 50 years commencing May 20, 1987, the covenant for renewal need not be incorporated and, therefore, the term of the lease would come to an end on expiry of 50 years calculated from May 20, 1987. This view also accords with the view of the law taken in Green v.
Palmer (supra)."
15. In view of this legal position and intention of parties, mere acceptance of rent from Petitioners after expiry of lease & till 2000 ::: Downloaded on - 09/06/2013 14:07:46 ::: 20 does not confer any legal right for further renewal or to remain in occupation of the suit property. In Shanti Prasad Devi v. Shankar Mahto ( 2005 (5) SCC 543 = AIR 2005 S.C. 2905), Hon Apex Court considers question whether mere acceptance of rent from a lessee overstaying the lease period can be construed as consent of lessor to continuation of lease. Following observations are important: --
"17. We fully agree with the High Court and the first appellate Court below that on expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying 'assent' to the continuance of the lessee even after expiry of lease period. To the legal notice seeking renewal of lease, the lessor gave no reply. The agreement of renewal contained in clause (7) read with clause (9) required fulfillment of two conditions; first the exercise of option of renewal by the lessee before the expiry of the original period of lease and second, fixation of terms and conditions for the renewed period of lease by mutual consent and in absence thereof through the mediation of local Mukhia or Panchas of the village. The aforesaid renewal clauses (7) and (9) in the agreement of lease clearly fell within the expression 'agreement to the contrary' used in Section 116 of the Transfer of Property Act under the aforesaid clauses option to seek renewal was to be exercised before expiry of the lease and on specified conditions.::: Downloaded on - 09/06/2013 14:07:46 ::: 21
18. The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was required to be obtained by following a specified procedure i.e. on mutually agreed terms or in the alternative through the mediation of Mukhias and Panchas. In the instant case, there is a renewal clause in the contract prescribing a particular period and mode of renewal which was 'an agreement to the contrary' within the meaning of Section 116 of the Transfer of Property Act. In the face of specific clauses (7) and (9) for seeking renewal there could be no implied renewal by 'holding over' on mere acceptance of the rent offered by the lessee. In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was 'holding over' as a lessee within the meaning of Section 116 of the Transfer of Property Act".
16. Here, precedence given to provisions of Government Grants Act need to be noticed & I find it proper to reproduce paras 78 & 79 form AIR 1986 S.C. 872 --Express Newspapers Pvt. Ltd. v. Union ::: Downloaded on - 09/06/2013 14:07:46 ::: 22 of India, which aptly explain the same as under:--
"78. It is common ground that the perpetual lease was a Government grant governed by the Crown Grants Act, 1895, now known as the Government Grants Act. The Act is an explanatory or declaratory Act. Doubts having arisen as to the extent and operation of the Transfer of Property Act, 1882 and as to the power of the Government to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority, the Act was passed to remove such doubts as is clear from the long title and the preamble. The Act contains two sections and provides by S. 2 for the exclusion of the Transfer of Property Act, 1882 and, by S. 3 for the' exclusion of any rule of law, statute or enactment of the Legislature to the contrary. Ss. 2 and 3 read as follows :
"2. Transfer of Property Act, 1882, not to apply to Government grants -
Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed."
"3. Government grants to take effect .according to their tenor
- All provisions, restrictions, conditions and limitations over ::: Downloaded on - 09/06/2013 14:07:46 ::: 23 contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding."
79. It is plain upon the terms that S. 2 excludes the operation of the Transfer of Property Act, 1882 to Government grants. While S. 3 declares that all provisions, restrictions, conditions and limitations contained over any such grant or transfer as aforesaid shall be valid and shall take effect according to their tenor, notwithstanding any rule of law, statute or enactment of the Legislature to the contrary. A series of judicial decisions have determined the overriding effect of S. 3 making it amply clear that a grant of property by the Government partakes of the nature of law since it overrides even legal provisions which are contrary to the tenor of the document."
In 1973 (2) SCC 547=AIR 1973 S.C. 2520 -State of U.P. v. Zahoor Ahmad, and following observations made by Hon'ble Apex Court : --
"13. The lease in the present case was for the purpose of erecting a temporary rice mill and for no other purpose. The mere fact that the State is the lessor will not by (make?) it a Government grant within the meaning of the Government Grants Act. There is no evidence in the present case in the ::: Downloaded on - 09/06/2013 14:07:46 ::: 24 character of the land or in the making of the lease or in the content of the lease to support the plea on behalf of the State that it was a grant within the meaning of the Government Grants Act.
15. In the present case the High Court correctly found on the facts that the Respondent after the determination of the leave held over. Even if the Government Grants Act applied Section 116 of the Transfer of Property Act was not rendered inapplicable. The effect of Section 2 of the Government Grants Act is that in the construction of an instrument governed by the Government Grants Act the court shall construe such grant irrespective of the provisions of the Transfer of Property Act. It does not mean that all the provisions of the Transfer of Property Act are inapplicable. To illustrate, in the case of a grant under the Government Grants Act Section 14 of the Transfer of Property Act will not apply because Section 14 which provides what is known as the rule against perpetuity will not apply by reason of the provisions in the Government Grants Act The grant shall be construed to take effect as if the Transfer of Property Act does not apply.
16. Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of Sections and. 3 of the Governments Grants Act is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion ::: Downloaded on - 09/06/2013 14:07:46 ::: 25 to impose any conditions, limitations, or restrictions in its grants, and the right privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law."
17. The position which therefore emerges is that after 31/12/1994 the Petitioners had/have no right to claim renewal and therefore, to claim any right to continue in occupation of leased premises i.e. suit land.
She can always be evicted in accordance with law and impugned order which seeks to resume the land in view of expiry of whole/total period of lease of 90 years therefore cannot be faulted with. The contention of Petitioner that as alienation has been permitted under the Lease Dead, Petitioner would be covered by definition of occupant class I by placing reliance upon unreported Division Bench judgment of this Court (Nagpur bench) in bunch of the writ petitions therefore is not relevant in present matter. Records show that Petitioner did not have full occupancy rights and therefore right to transfer the land itself. Reliance upon provisions of Section 337 of MLR Code,1966 is also misconceived in present facts. In any case, such contentions cannot be used to defeat the overriding effect given to provisions of Government Grants Act. Petitioner herself states that she ::: Downloaded on - 09/06/2013 14:07:46 ::: 26 has moved revenue authorities for changing her status as occupant class I holder and according to her that request is still pending. The pendency of said request has got no bearing on present matter and it only shows that as on today, State Government has not recognised her as occupant class I and hence matter needs to be viewed in the light of provisions of Government Grants Act. It also needs to be mentioned that Collector, Akola has rejected application of present Petitioner for grant of full occupancy rights on 4/6/1985 observing that she would get a right to transfer the land thereby and earn the profits from the rise in the price thereof. This order has become final as it was not challenged further by her. In view of expiry of lease period, the question of breach also becomes irrelevant at this stage because the effort of Respondent No. 4 and 5 was to have a review of the order dated 29/1/1980 directing renewal of lease in favour of present Petitioners till 31/12/1994. The impugned order passed on 14/6/1988 by Special Officer of State Government directed resumption of suit land back by Government and history of litigation ensuing thereafter has already come above.
::: Downloaded on - 09/06/2013 14:07:46 ::: 2718. The last renewal in favour of present Petitioner is from year 1965 & on 29/1/1980 i.e. after provisions of Maharashtra Land Revenue Code, 1966 came into force. As per Section 29 of MLR code, Government Lessee is distinct class by itself separate from Occupant class I & Occupant class II. The occupant class I holds an un-alienated land in perpetuity and without any restrictions on right to transfer.
Immediately before coming into force of MLR code he has to hold the land in full occupancy rights without any restriction on right to transfer. The occupant class II is a person who holds un-alienated land in perpetuity subject to restrictions on right to transfer. Section 2 (11) defines Government lessee to mean a person holding land from government under lease provided by Section 38. That Section permits Collector to lease under grant or contract any un-alienated unoccupied land to any person for such period, for such purpose and on such conditions as he may determine subject to rules made by State Government. The last renewal in favour of Petitioner is in exercise of this power under Section 38 and Petitioner has not disputed it.
Petitioner has failed to point out how she is trying to treat herself to be Occupant class I. MP Land Revenue Code, 1954 in its section 2 (6) defines Government Lessee to mean a person holding land from the ::: Downloaded on - 09/06/2013 14:07:46 ::: 28 State Government under section 164 thereof. Subsection 20 of Section 2 defines tenure holder to mean person holding land from State Government as Bhumiswami or Bhumidhari. It is not necessary to refer to all these provisions in detail because Section 164 (1) of this MP Land Revenue Code clearly states that a person who held land from State Government or to whom right to occupy land was granted by it and he was not entitled to hold that land as tenure holder was a "government lessee" in respect of such land. The Petitioner was not & never claimed to be a tenure holder. Section 164 (2) stipulates that such Government Lessee held land in accordance with the terms and conditions of the grant which is deemed to be a grant within the meaning of Government Grants Act, 1895. Prior to this MP Land Revenue Code, provisions of Berar Land Revenue Code, 1928 were applicable and Section 53 and 54 dealt with disposal of unoccupied land. The person who acquired a right to occupy land under Section 53 was called as occupant. Its Section 54 (2) provided that persons holding agricultural land as occupants or held rights in un-alienated nonagricultural land under the style of "occupant" or under lease permitting them to hold it in perpetuity, were to be recognised as occupants for Section 54. By this provision restrictions on their rights ::: Downloaded on - 09/06/2013 14:07:46 ::: 29 inconsistent with Berar land Revenue Code were removed. As suit land was never held in perpetuity by either the petitioner or her predecessors, She can not be recognised as "occupant" for this or in subsequent enactment including Section 337 of MLR Code. But then in present facts, it is important to note that Section 55 (1) (d) of Berar Code declared that provisions of Section 53 and Section 54 would not apply to land given out for industrial and commercial purpose under the statutory rules framed in 1894. Therefore Petitioner or her predecessors were never an "occupant". The land came to be given to predecessor in title of present Petitioner in year 1905 for industrial purpose. The same has to be presumed as according to statutory rules of 1894 mentioned in Section 55 (1) (d) above. In fact no arguments on these lines are advanced before me by Petitioner.
The very first agreement of lease executed in year 1905 shows that the holder of lease had no right to erect any building or to make any alteration in plot or to permit it to be used for any purpose other than one for which the lease was granted. Such user for other purposes enabled State Government to exercise right of re-entry as if there was no demise. It is obvious that after coming into force of Berar Land Revenue Code, 1928 , the Petitioner or her predecessor in title were ::: Downloaded on - 09/06/2013 14:07:46 ::: 30 not and could not have been recognised as occupant. Section 55 (4) of Berar Land Revenue Code, 1928 states that such persons were called as lessees from Government or Crown and grant in their favour was deemed to be a grant within the meaning of Crown Grants Act, 1895. This word "crown" has been later on replaced by word "Government" and the Act has become Government Grants Act, 1895.
Thus in present matter the status of Petitioner is as Government Lessee and her rights were regulated by Lease Agreements and provisions of Government Grants Act. Thus, when Section 337 of Maharashtra Land Revenue came into force as per earlier law i.e. M.P. Land Revenue Code the petitioner was not occupant & hence, can not be treated as occupant class-I as per law then in force in Vidarbha.
19. The consideration above is sufficient to show that questions of any malafides on part of Respondent No. 5 or legality or otherwise of intervention by Respondent No. 4 APMC are therefore rendered academic after 1995 in present matter. In impugned order diversion of land to other purposes by Petitioner to obtain personal gain for herself by commercially exploiting its potential has been mentioned and it has been found that it is necessary to resume the land back to ::: Downloaded on - 09/06/2013 14:07:46 ::: 31 Government. In paragraph 8 the contention of APMC that after 1/1/1995 Petitioner has no right left in the suit land has been mentioned and in operative part of the order it is also recorded that renewal period granted by order dated 29/1/1980 has also expired and those i.e. renewal orders are rendered meaningless and infructuous. The breaches and commercial exploitation has been found to be reason to deny any compensation to Petitioner.
Respondent No. 2 has observed that as Respondent No. 5 is tenant having its ginning factory and dal mill on suit plot, proposal to give that land to said Respondent No. 5 as per law should be submitted by Collector. Similarly, Collector is directed to submit proposal for allotting balance land to Respondent No. 4 APMC. Collector has also been directed to make inquiry about encroachers and subtenants on said land and to submit complete proposal in that respect. Earlier Respondent No. 2 has found that after report about existing position is received by the Government, rights of subtenants and demand, if any made by APMC can be considered as per Rules. The order clearly means that Collector has to submit appropriate proposal within the framework of law and the land is being allotted in accordance with provisions of MLR Code & Rules framed there under. The contention ::: Downloaded on - 09/06/2013 14:07:46 ::: 32 that any favour is being shown either to Respondent number 4 or to Respondent No. 5 is unsustainable when entire order is perused.
However by way of abundant precaution it is made clear that the further allotment or grant, if any, of suit land resumed by State Government shall be strictly within framework of law and as per declared policy of State Government.
20. Subject to clarification as given above, I do not find any merit in this Writ Petition. Same is accordingly dismissed with no order as to cost. Rule discharged accordingly.
JUDGE ******* *dragon/Rgd.
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