Bombay High Court
Charisma Builders Ltd vs City Survey Officer And Anr on 21 December, 2021
Author: S.J. Kathawalla
Bench: S.J. Kathawalla, Milind N. Jadhav
NITIN
DINKAR
JAGTAP PA-Nitin Jagtap 1 / 10 WPL-7184-2020.doc
Digitally signed by
NITIN DINKAR
JAGTAP
Date: 2021.12.21 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
10:42:20 +0530
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 7184 OF 2020
Sudhir Vasu Shetty, )
Residing at Kamal Kunj, 1st Floor, )
Central Avenue Road, Chembur, )
Mumbai - 400 071 )... Petitioner
Versus
1. City Survey Officer, Chembur )
Topiwala Colony Compound, )
Sarojininaidu Marg, Mulund (West), )
Mumbai - 400 080 )
2. State of Maharashtra, )
(Revenue Department) )
Through the office of Government Pleader, )
High Court, Mumbai, PWD Building, Fort, Mumbai )... Respondents
ALONG WITH
WRIT PETITION (L) NO. 7193 OF 2020
Charisma Builders Limited, )
having its registered office at 1st Floor, Kamal Kunj, )
Central Avenue Road, Chembur, )
Mumbai - 400 071 )... Petitioner
Versus
1. City Survey Officer, Chembur )
Topiwala Colony Compound, )
Sarojininaidu Marg, Mulund (West), )
Mumbai - 400 080 )
2. State of Maharashtra, )
(Revenue Department) )
Through the office of Government Pleader, )
High Court, Mumbai, PWD Building, Fort, Mumbai )... Respondents
PA-Nitin Jagtap 2 / 10 WPL-7184-2020.doc
Mr.Rohaan Cama a/w. Mr. Kunal Mehta, Mr. Suraj Iyer, Mr. Mani Thevar i/b.
Ganesh & Company for the Petitioner in WPL No. 7184 of 2020.
Mr.Bhushan Deshmukh a/w. Mr. Kunal Mehta, Mr.Suraj Iyer, Mr. Mani Thevar i/b.
Ganesh and Company for the Petitioner in WPL-7193-2020.
Mr.Kedar Dighe, AGP for the State in WPL Nos. 7184 and 7193 of 2020.
CORAM : S.J. KATHAWALLA &
MILIND N. JADHAV, JJ.
RESERVED DATE : 27TH OCTOBER, 2021
PRONOUNCED DATE : 21ST DECEMBER, 2021
JUDGMENT (PER S.J. KATHAWALLA, J. & MILIND N. JADHAV, J. ) :
1. The present judgment disposes of two Writ Petitions filed by the abovenamed Petitioners, who for convenience are separately referred to as "Shetty" (Writ Petition (L) No. 7184 of 2020) and "Charisma" (Writ Petition (L) No. 7193 of 2020. There are minor factual differences in the two Petitions, but the material issues are the same and hence, both Petitions may be conveniently disposed of by this common judgment.
2. The short issue involved in the present Petitions is whether the orders of the City Survey Officer, Respondent No. 1 to the Petitions, refusing to mutate the names of the respective Petitioners in the revenue records, principally on the ground that permission of the Collector, Mumbai Suburban District was required as a pre- condition for carrying out the mutation, can be sustained.
PA-Nitin Jagtap 3 / 10 WPL-7184-2020.doc
3. In Shetty's case, there is a registered Conveyance Deed, by which the subject plot was transferred in the name of one Kamalbai Pathak. There is a form of sanad in the format specified under Schedule 'H', which records that the terms of the tenure of the occupancy in respect of the subject land is both transferable and heritable. This sanad is signed by the Collector. There are five such sanads for the various sub-plots annexed at Exhibits 'A1' to 'A5' of Shetty's Petition. Shetty claims rights to the property through the son of the aforesaid Kamalbai Pathak one Arun Pathak, who in turn has been bequeathed the property under a Will dated 26 th July 1986, which has been placed on record in Shetty's Petition. Shetty has purchased the property under a registered Conveyance Deed dated 28 th December 2001 from the aforesaid Arun Pathak. On 30 th March 2019, Shetty made an Application to the City Survey Officer, Chembur to enter his name in the Record of Rights in respect of the subject property. By the Impugned Order dated 24 th April 2019, the City Survey Officer rejected Shetty's Application on the grounds that the Property Card (which was in Kamalbai's name) bore a different name from that of Shetty's vendor i.e., the aforesaid Arun Pathak. Further, it was held that the said land being B1 category land, further action could not be taken. As it transpires from the Affidavit filed by Respondent No. 1, the objection appears to be that permission of the Collector would have to be taken as a pre-condition to effecting the mutation and the category of the land would need to be changed from 'B1' category to 'C' category.
4. In Charisma's Petition, the original title documents are under Form PA-Nitin Jagtap 4 / 10 WPL-7184-2020.doc 'HH' and the same do not contain any fetter or restraint against transferability. By diverse documents of transfer, the subject property eventually came to vest in Charisma under a registered Deed of Conveyance dated 8th September 2008. On 23rd September 2019, Charisma made an application to the City Survey Officer, to enter its name in the Record of Rights in respect of the said property. By the Impugned Order dated 9th October 2019, the City Survey Officer, while rejecting the application relied upon a Government of Maharashtra Resolution dated 3 rd August 2019, issued by the Revenue and Forest Department, stating that prior to the mutation, the approval of the Collector would be required, as the land was in 'B1' category.
5. From a conspectus of the above facts, it is clear that the limited issue is whether for the purpose of carrying out a mutation in the Record of Rights, the prior permission of the Collector is required, given that the lands are 'B1' Category lands.
6. We have heard Mr. Cama for the Petitioner in Shetty's Petition and Mr. Deshmukh for the Petitioner in Charisma's Petition. We have also heard Mr. Dighe for Respondent No.1 who has addressed us compositely in both Petitions.
7. It is the stand of the Petitioners as urged by Mr. Cama and Mr. Deshmukh that:
a. That this Court has repeatedly held that for carrying out a mutation in the Record of Rights, no prior permission of the Collector is required. b. That while the Collector may be entitled under certain provisions of the Maharashtra Land Revenue Code, 1966 ('the Code'), to collect unearned income at PA-Nitin Jagtap 5 / 10 WPL-7184-2020.doc the time of conversion of land from 'B1' to 'C' category (without the Petitioners accepting that any such levy ought to be made on their lands), at this stage no such question arose and the City Survey Officer erred in rejecting the applications on this score.
c. That the reliance placed by Respondent No. 1 on Section 37A of the Code, was erroneous, as Section 37A did not apply to lands purchased prior to its introduction with effect from 3 rd March 2015. In any event, under Section 37A, the first proviso contemplates that the terms of the grant would prevail over the terms of Section 37A in the event of any inconsistency. In the present case, the terms of the sanad in Shetty's case clearly contemplated that the subject land was transferable, and in Charisma's case the Form 'HH' contained no restraint against the sale, and therefore Section 37A would not apply.
d. That the Government Resolution dated 3 rd August 2019 did not pertain to mutation entries and only applied in the event a person applied to convert their land from 'B1' category to 'C' category.
e. That specifically in Shetty's case, the question of title sought to be raised was beyond the scope of enquiry permissible by the City Survey Officer, and the City Survey Officer could never have raised such an objection on title.
8. The stand of the City Survey Officer as pleaded in Affidavits and as urged by Mr. Dighe as follows :
a. That the permission of the Collector was required as a pre-condition for PA-Nitin Jagtap 6 / 10 WPL-7184-2020.doc transfer of the land from 'B1' category to 'C' category. b. That Section 37A ought to be held to operate retrospectively. In paragraph 10 of the Affidavit in Reply, the City Survey Officer admits that this Court by its judgment in Hindustan Unilever Limited v. State of Maharashtra & Ors. 1, has inter alia held that Section 37A will not apply retrospectively to transfers done prior to its introduction on 3rd March 2015, but nonetheless states that this issue is pending before the Hon'ble Supreme Court. Admittedly, there is no stay of the above judgment.
c. That the Government Resolution of 3rd August 2019 does not permit a change in the name in the Record of Rights until the land is changed from 'B1' to 'C' category, for which an amount of unearned income must be paid to the Collector.
9. We have considered the competing cases, and for the reasons set out below, we are inclined to allow the Petitions and quash and set aside the orders of the City Survey Officer.
10. The learned Counsel for the Petitioners have placed reliance on the following judgments of this Court, which have categorically and completely decided the issue as to whether permission of the Collector is required, as a pre-condition for the City Survey Officer making necessary mutation entries in the Record of Rights :
i. M/s. Mangla Hospitality Limited v. State of Maharashtra & Anr.2 ii. Sanskruti Co-operative Housing Society Limited v. State of Maharashtra 1 Order of Division Bench of this Court dated 3rd May, 2018 in Writ Petition (L) No. 122 of 2018 2 Order of the Division Bench of this Court dated 16th April, 2016 in Writ Petition No. 1059 of 2013 PA-Nitin Jagtap 7 / 10 WPL-7184-2020.doc & Ors.3 iii. Point Developers Private Limited v. State of Maharashtra & Ors.4 iv. Geecy Developers & Anr. v. State of Maharashtra & Ors.5
11. By the above judgments three learned Division Benches and a learned Single Judge of this Court have categorically held in cases where the original Agreement is either in Form 'HH' (as in Charisma's case) or by way of a sanad in the form contained in Schedule H, no permission or NOC of the Collector is required as a pre-condition for the City Survey Officer carrying out mutation entries in the Record of Rights.
12. The Courts have categorically held, while inter alia, also dealing with Section 37A, that no such NOC or permission of the Collector would be required and accordingly the City Survey Officer in those cases has been directed to decide the application for mutation, without insisting on the NOC of the Collector. In this light of the matter, the issue is no longer res integra, and on this ground alone the Petitions must be allowed.
13. As regards the contention based on Section 37A, admittedly in the present cases the Deeds of Conveyance in favour of Shetty and Charisma were dated 28th December 2001 and 8 th September 2008 respectively. As referred to above, this 3 Order of the Division Bench of this Court dated 23rd January, 2019 in Writ Petition (L) No. 165 of 2019 4 Order of the Division Bench of this Court dated 31st July, 2019 in Writ Petition (L) No. 1962 of 2019 5 Order of the Division Bench of this Court dated 15th April, 2019 in Writ Petition No. 2378 of 2018 PA-Nitin Jagtap 8 / 10 WPL-7184-2020.doc Court in Hindustan Unilever (supra) has already held that Section 37A, which was introduced with effect from 3 rd March 2015, will not operate retrospectively and therefore will not apply to documents of title preceding that date. Thus, ex facie and as admitted by the City Survey Officer in his Affidavits, Section 37A cannot apply to the transactions in question, and there is accordingly no requirement for permission of the Collector as contemplated therein.
14. Even otherwise, as held in the above judgments, if the sanad provides for transferability (as in Shetty's case) or if the Form 'HH' contains no fetter to transferability (as in Charisma's case), then as per the first proviso to Section 37A, the said lands could be transferred without requiring any prior permission of the Collector under Section 37A.
15. The reliance placed on the Government Resolution dated 3 rd August 2019, is entirely inapposite. This Government Resolution, a translation of which was placed on record by Mr. Dighe, does not relate to making of mutation entries and merely provides for recovery of unearned income in the event that 'B1' category lands are being converted to 'C' category. As held by this Court in the above judgments, the making of a mutation entry has nothing to do with the collection of unearned income, which the Collector may otherwise be entitled to in law. At this stage, there is no transfer being sought to be done from 'B1' category to 'C' category, and the Government Resolution thus has no application to the present case.
16. We make it clear that this Court is not opining on whether the Collector PA-Nitin Jagtap 9 / 10 WPL-7184-2020.doc is entitled to levy any sum towards unearned income in the event an application is made for transfer of the lands from 'B1' category to 'C' category. If any such claim is made, the same may be proceeded with and/or opposed on its own merits, and all rights and contentions of the parties in this regard are kept open.
17. As regards the objection raised in Shetty's matter on the PR Card bearing Kamalbai's name while Shetty's vendor is Arun Pathak, Mr. Cama placed reliance on the judgment of this Court in Shrikant Sankanwar & Ors. v. Krishna Balu Naukudkar6. This judgment categorically holds that the revenue authorities while acting under Sections 149 and 150 are not empowered to go into questions of title but are simply required to determine whether the documents produced before the authority reveals an acquisition of rights in respect of the subject land. It is not for the City Survey Officer to go into questions of title and/or adjudicate the title and rights of the parties.
18. According to us Mr. Cama is correct in his formulation that the City Survey Officer was required to only peruse the Conveyance Deed and ascertain whether Shetty had duly acquired rights to the subject property. It is not for the City Survey Officer to question the documents executed or raise any issue of title. As clarified in M/s. Mangla Hospitality Limited (supra) if any party raises an issue of title, that can always be agitated before the appropriate forum irrespective of any entries in the Record of Rights and mutation of Shetty's name therein. The entries in 6 2003 (2) Mh.L.J. 276 (paragraphs 9 to 15) PA-Nitin Jagtap 10 / 10 WPL-7184-2020.doc the Record of Rights do not determine title. We make it clear that we have not adjudicated on Shetty's title and if any such dispute is raised by any party in future, the same will be decided on its own merits. However, no such title issue shall be raised by the City Survey Officer while determining the application for mutation filed by Shetty.
19. In the aforesaid circumstances, we pass the following order:
i. The Impugned Order dated 24th April 2019 in Writ Petition (L) No. 7184 of 2020 and the Impugned Order dated 9th October 2019 in Writ Petition (L) No. 7193 of 2020 are quashed and set aside. Rule is made absolute in the above terms. ii. The applications filed by the Petitioners shall forthwith be processed by the City Survey Officer without insisting on the NOC or permission of the Collector and without raising any questions of title or objection on the names appearing in the PR Card being different from the name of the vendor in the Deed of Conveyance in favour of Shetty.
iii. The above applications shall be processed, and necessary steps shall be taken within four weeks from uploading of this order.
iv. The Petitions are disposed of, with no order as to costs.
(MILIND N. JADHAV, J. ) ( S.J. KATHAWALLA, J. )