Bombay High Court
Mahadeo Ramchandra Deshpande And Ors vs State Of Maharashtra And Ors on 13 June, 2017
Author: A.S.Oka
Bench: A.S.Oka, Anuja Prabhudessai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6459 OF 2006
Mahadeo Ramchandra Deshpande
and others ...Petitioners
vs.
1 The State of Maharashtra
2 Sub Divisional Officer,
Karad Sub-Division, Karad,
Satara and others ...Respondents
Mr.Pradeep J. Thorat for the Petitioners
Mr.Manish Pabale, AGP for the respondent Nos.1 to 3.
CORAM : A.S.OKA, & SMT.ANUJA PRABHUDESSAI, JJ.
DATE ON WHICH JUDGMENT IS RESERVED: MARCH 10, 2017
DATE ON WHICH JUDGMENT IS PRONOUNCED:JUNE 13, 2017
JUDGMENT:(PER A.S.OKA,J.) 1 By this petition under Article 226 of the Constitution of India, the first challenge is to the order dated 19th December 2005 passed by the first respondent. The said order is in respect of final plot No.414 (for short "said plot") admeasuring 2926 sq meters at Karad, Taluka Karad, District Satara. The petitioners who are claiming to be the owners of the said plot made an application for grant of permission to use the said plot for residential purposes. In paragraph Nos.2 and 3 of the additional affidavit filed by the petitioner No.1B, he has stated thus:
"2 I say that the land bearing Survey No.383/5k + 9b admeasuring 0H 77R, Survey No.383/4 admeasuring 0H 61R and Survey ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 ::: 2 wp6459 No.383/1 admeasuring 0H 43R situate at Karad were re-granted to Late Shri Laxman Mahadev Deshpande & Others by the order dated 13 th December 1955 under Section 4 of the Bombay Pargana and Kulkarni Watans (Abolition) Act,1950. I say that thereafter by Order dated 5th July 1988 the Sub Divisional Officer, Satara Division was pleased to grant permission under Section 4(2) of the Bombay Pargana and Kulkarni Watans (Abolition) Act,1950 permitting transfer of the said property on payment of the Nazarana amount. The said Order contemplated that in the event the use of the land is changed to a purpose other than the agricultural the holder shall be liable to pay under Section 45 of the Maharashtra Land Revenue Code,1966 for fine equivalent to the difference between 50% of the market value of the land and 20 times the assessment.
3 I say that after obtaining the said permission under Section 4(2) of the Bombay Pargana and Kulkarni Watans (Abolition) Act,1950 the Petitioners filed an Application before the Sub-Divisional Officer, Karad Sub Division, Karad for change of use of the said land admeasuring 2926 sq mtrs which was given Final Plot No.414 admeasuring 2926 sq mtrs from agricultural to non agricultural purpose. I say that in pursuance to the Application filed by the petitioners the Sub-
::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 :::3 wp6459 Divisional Officer, Karad Sub-Division, Karad by an order dated 5th July 2005 granted permission under section 44 of the Maharashtra Land Revenue Code to use the said Final Plot No.414 admeasuring 2926 sq mtrs for residential purpose on payment of Nazarana amount of Rs.19,05,750/-."
2 In paragraph 5 of the additional affidavit, the petitioners have referred the first impugned order dated 19th December 2005. By the said order, as a condition for non agricultural use of the said plot, the petitioners were directed to pay a sum of Rs.19,05,750/- by way of unearned income which is equivalent to 50% of the market value of the said plot. According to the case of the petitioners, they paid the said amount under protest.
3 In paragraph No.8 of the aforesaid additional affidavit, the petitioner No.1B has stated thus:
"8 I say that as the petitioners had already obtained the permission dated 5th July 1988 for making the said land transferable under Section 4(2) of the Bombay Pargana and Kulkarni Watans (Abolition) Act,1950 the Petitioners have neither applied nor wish to apply for change of tenure of the said property Final Plot No.414 situate at Karad under Section 29 of the Maharashtra Land Revenue Code 1966 from Occupant-Class II to Occupant-Class I. I say that the order dated ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 :::
4 wp6459 19th December 2005 passed by the Sub- Divisional Officer, Karad Sub-Division, Karad is passed on the basis of the Circular dated 9th July 2002 which is clearly not applicable in the present case."
4 The second challenge in the petition is to the Government Resolution (for short "GR") dated 9th July 2012. The said GR deals with the conversion of lands regranted under the Bombay Pargana and Kulkarni Vatan Abolition Act,1950. The said GR provides for conversion of occupancy of such regranted lands from Class-II to Class-I subject to payment of unearned income as specified in the said GR. The third challenge is to the circular issued by the Collector of Satara on 19 th August 2002. The said circular refers to the impugned GR dated 9 th July 2002.
5 We have already quoted paragraph 8 of the affidavit of Shri Chandrashekhar Mahadeo Deshpande, the Petitioner No.1B which is dated 8th March 2017. In the said affidavit, he has stated that the petitioners do not desire to convert the occupancy of the said plot from Class II to Class I. 6 The learned counsel for the petitioners relied upon information obtained under Right to Information Act,2005 in respect of the final Plot No.431/1. The information is in respect of the permission for non agricultural use of the said final plot No.431/1 granted by the Sub Divisional Officer on 16th July ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 ::: 5 wp6459 2003 against payment of Nazrana amount of Rs.1,16,850/-. The learned counsel pointed out that in the present case, on 5th July 2005, an order was passed by the Sub Divisional Officer, Karad granting permission to the petitioner under section 44 of the Maharashtra Land Revenue Code,1966 (for short "The said Code") to use the said plot for residential purposes. He pointed out that the impugned order relies upon the GR dated 9th July 2002 and proceeds to direct the petitioners to pay unearned income of Rs.19,05,750/-. He submitted that the said amount has been made payable for conversion of the said plot from occupancy Class-II into Occupancy Class- I. He submitted that as the petitioners never sought the said conversion, there was no occasion for passing the first impugned order. He submitted that the GR dated 9th July 2002 was not applicable at all and therefore, the impugned order dated 19th December 2005 is erroneous. The learned AGP supported the impugned GR and the impugned circular of the Collector.
7 We have given careful consideration to the submissions. A copy of the order of regrant in favour of the original petitioners is dated 5 th July 1988 which is annexed as Exhibit-A-13. The order of regrant was passed under sub-section 2 of section 4 of the said Act of 1950. The relevant part of the said order reads thus:
"Now therefore in exercise of the powers vested in him under Section 4(2) of the ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 ::: 6 wp6459 Bombay Paragana and Kulkarni Watan Abolition Act,1950 and Government of Maharashtra RFD"s Memo No.PKA 1055-87142-M spl.dt.12.11.55 the Sub Divisional Officer Satara Division Satara is hereby pleased to order that the occupancy of the land referred to above should be made transferable from the date of this order on the following conditions.
(1) The provisions contained in the B.T. & A.L. Act,1948 are applicable to the said land.
(2) The provisions of the Bombay prevention of fragmentation and Consolidation of the Holdings Act 1947 are applicable to this land.
(3) All laws inforce governing for agricultural lands.
(4) Provided that if the agricultural use of the land is subsequently changed to a purpose other than agricultural the holder shall be liable to pay under section 45 of the Maharashtra Land Revenue Code 1966 a fine equal to deference between 50% of the market value of the land and 20 times the assessment."
(underline supplied) 8 Thus, clause 4 of the said order provides that while effecting change of purpose of the said plot from agricultural to non-agricultural under section 45 of the said Code, a fine equal to difference between 50% of the market value and 20 times revenue ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 ::: 7 wp6459 assessment will be payable.
9 The impugned GR dated 9th July 2002 records the decision of the Government of permitting the conversion of the regranted Watan lands under five enactments set out in the said GR from occupancy Class-II to Occupancy Class-I. It provides that as a condition for grant of conversion from occupancy Class-II to Class-I, an amount equivalent to 50% of the ready recknor price of the land shall be payable. The impugned circular issued by the District Collector, Satara is on the basis of the GR dated 9th July 2002.
10 Now there is a categorical statement on oath made by the petitioner No.1B for himself and on behalf of the other petitioners that they are not interested in conversion of occupancy in respect of the said plot. In the light of the statement made on oath that we are examining the order dated 19 th December 2005 which is the first impugned order. Relevant part of the English translation of the said order reads thus:
"Therefore, after going through the documents and the say submitted by the applicant, it appears that, the valuation done by Jt.Dist. Registrar Class-I, (LS) and Stamp Collector, Satara is not acceptable to him. The applicant is insisting upon the stand to accept the valuation of Asst.Director Town Planning & Valuation, Satara. The applicant ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 ::: 8 wp6459 has mentioned that in the subject matter Asst. Director Town Planning & Valuation, Satara has done the valuation as Rs.450/- per sq ft. But, this valuation is of 23/9/2003. The recent valuation in this matter is sought from Asst.Director Town Planning, Satara, that is dt.8.12.2005 and is Rs.975/- per sq mt.
But in the Government Circular No.Watan/1099/Pra Kra/223/La-4 dated 9.7.2002 there are clear directions saying "if inam/watan lands are to be converted to Occupancy Class-I or if such lands are to be used for any purpose other than agriculture then unearned income equal to the 50% of the valuation as per the Government's ready recknoer is to be paid. It is required to abide by this Govt.Circular. Hence, the request of the applicant to accept the valuation of Asst.Director Town Planning & Valuation Dept.Satara cannot be accepted.
. Therefore, I Sub-Divisional Officer, Karad Sub-Division, Karad fix the valuation as Rs.38,11,500/- that is done by Jt.Dist.Registrar, Class-I (LS) & Stamp Collector, Satara and hereby order to remit 50% of this valuation that is Rs.19,05,750/-."
11 Thus, the impugned order dated 19th December ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 ::: 9 wp6459 2005 is based on the GR dated 9 th July 2002 which does not deal with the issue of the conversion of agricultural use to non agricultural use under the said Code. The said GR deals with conversion of occupancy from Class-II to Class-I. We may note here that the conversion of the said plot for non- agricultural use (residential use) was permitted under the order dated 5th July 2005. The order dated 5th July 2005 refers to the payment of Nazrana amount of Rs.19,05,750/-. On 20th April 2005, the Sub Divisional Officer had directed the petitioners to pay the said amount of Rs.19,05,750/- as per the GR dated 9th July 2002. The communication dated 20th April 2005 was challenged by the petitioners by filing a Writ Petition No.4955 of 2005. By order dated 28th September 2005 Division Bench directed the Sub Divisional Officer to give hearing to the petitioners before fixing the amount payable by the petitioners. Accordingly, after giving hearing, the impugned order dated 19th December 2005 has been passed.
12 From the order dated 20th April 2005 which was set aside by the Division Bench in Writ Petition No.4955 of 2005 and the impugned order dated 19 th December 2005, it appears that the amount of Rs.19,05,750/- has been determined on the basis of the GR dated 9th July 2005 which has nothing to do with the conversion of a land from agricultural to non agricultural use. It only deals with conversion of occupancy Class-II to Class-I. The petitioners want to continue as occupants of Class-II of the ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 ::: 10 wp6459 said plot which has been regranted to them.
13 However, for the change of user the petitioners are liable to pay amounts specified in clause 4 of the order dated 5th July 1988 which we have quoted above.
14 Therefore, it is not necessary to entertain the challenge to the GR dated 9 th July 2002 and the circular issued by the District Collector, Satara on 19th August 2002. However, the order dated 19 th December 2005 will have to be set aside. The letter dated 16th June 2005 addressed to the Sub Divisional Officer, Karad by the petitioners (Annexure A-4) and the Challan of the payment of such amount (Annexure A-3) show that the amount of Rs.19,05,250/- was deposited by them under protest. In view of the deposit of the amount under protest, the order dated 5th July 2005 was passed permitting the user of the land for residential use.
15 Hence, we pass the following order:
(I) Impugned order dated 19th December 2005 is hereby quashed and set aside;
(II) We direct the petitioners or their representative to appear before the Sub Divisional Officer, Karad on 30th June 2017 at 11.00 a.m;
(III) After hearing the petitioners, the Sub Divisional Officer shall fix the amount payable by the petitioners as on 5th July 2005 in terms ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 ::: 11 wp6459 of clause 4 of the order dated 5 th July 1988 (A-
13) which we have quoted in paragraph 6 above; (IV) The determination of the said amount shall be made within a period of three months from the date fixed for appearance of the petitioners. If the amount fixed is less than the amount of Rs.19,05,750/-, after adjusting the said amount, the balance amount shall be refunded to the petitioners. If the amount payable as per clause 4 of the order dated 5 th July 1988 is more than the amount of Rs.19,05,750/-, the Sub Divisional Officer shall grant a reasonable time to the petitioners to pay the said amount; (V) On failure of the petitioners to pay the balance amount, if any, within the time granted by the Sub Divisional Officer, it will be open for the Sub Divisional Officer to revoke the order dated 5th July 2005 (Annexure A-5); (VI) We clarify that the occupancy of the said plot shall continue to be that of Class-II and it is not converted into Class-I;
(VII) Rule is partly made absolute on above terms with no order as to costs;
(VIII) The Sub Divisional Officer shall act upon an authenticated copy of this Judgment and order.
(ANUJA PRABHUDESSAI,J.) (A.S.OKA,J.) ::: Uploaded on - 14/06/2017 ::: Downloaded on - 15/06/2017 01:11:56 :::