Bombay High Court
Rama Narayan Mali vs Additional Collector And Ors. on 16 January, 2008
Equivalent citations: 2008(2)BOMCR598, AIR 2008 (NOC) 1354 (BOM.), 2008 (2) AIR BOM R 331
Author: Roshan Dalvi
Bench: Ranjana Desai, Roshan Dalvi
JUDGMENT Roshan Dalvi, J.
1. These Petitions are filed by a partner of the Firm and the Firm itself. The issues involved in these Writ Petitions are the same and hence they are dealt together.
2. The Petitioners in both the Petitions have challenged the judgment of the Additional Commissioner, Konkan Division, Mumbai dated 27 th August, 1998, which is an order on a Review Application under Section 258 of the Maharashtra Land Revenue Code, 1966 (MLRC) marked Exhibit-U to the Petition.
3. The Petitioner in Writ Petition No. 6373 of 1999 is an adivasi and owns the immovable property under Gat No. 150 admeasuring over 4 hectors out of which 2040 sq. meters of land (.20 gunthas) was brought into the partnership firm of the Petitioners in Writ Petition No. 4522 of 1998 on 10th October, 1989 for establishing a Stone Crusher thereon. Both these parties shall be referred to as Petitioner. The facts and dates in Writ Petition No. 6373 of 1999 need be first considered.
4. The Petitioner filed an application in the prescribed form before the Collector, Thane on 20 th September, 1989 Exhibit-A to the Petition, for conversion of the disputed land from agricultural use to non-agricultural purpose. The Petitioner in Writ Petition No. 6373 of 1999 filed the said application as the partner of the Petitioners in Writ Petition No. 4522 of 1998. This application was made under Section 44 of the MLRC. It is dated 20 th September, 1989. The date of its submission in the Collector's Office is not shown.
5. The Collector acknowledged receipt of the said application by his letter dated 29 th September, 1989, Exhibit-B to the Petition. In the said letter the Collector mentioned that, comments would be called for from the Tahasildar. The letter also stated that action must be taken upon the application made by the Petitioner which was under consideration and the Petitioner was directed to quote the number of that letter in future correspondence and contact the Assistant Director, Town Planning, Dahanu.
The Collector acknowledged the application under Section 44(2)(a). Consequently enquiry contemplated under Section 44 of MLRC began.
6. On 10 th October, 1989 the Petitioner entered into a Partnership Agreement constituting the firm of the partners in Writ Petition No. 4522 of 1998. The Partnership is not registered. The Partnership Deed states that the business came into existence on 17 th May, 1989, which fact is not otherwise shown. Under the said Partnership Deed the Petitioner brought in 20 gunthas of Potkharaba land in Gat No. 105 Mauje Charoti as his capital. The land was to be used for agricultural purpose. The Petitioner would have 10% share in the partnership. He was to be a nominal partner. The permissions, if any, required for the said business were to be obtained by the other partners and the Petitioner was to give his signature for the same It can be seen that under a Partnership Deed the Petitioner in Writ Petition No. 6373 of 1999 would not be entitled independently to keep and enforce his right, title and interest in the land brought into the partnership and which was to be used for NA purpose, for which the application was made and these Petitions are filed. He was also not to share in the profits equally. He was not even to apply for any permission. The spirit of the Partnership was to hand over the land and all benefits that arise therefrom by the Petitioner, who was an adivasi and tribal to the other partners who are nonadivasies and non-tribals.
7. On 1st November, 1989. Tahasildar Dahanu granted permission for utilising the disputed property for non-agricultural purpose by way of a temporary permission for non-agricultural use, popularly called NA permission (NAP), part of Exhibit-P colly.
8. The Petitioner sent a letter to the Collector on 15th February, 1990, Exhibit-C to the Petition, stating that as no NAP was granted within 90 days of the receipt of the application he is starting construction work.
This letter was sent under Section 44(3) of the MLRC under which if the Collector fails to inform the Applicant of his decision within 90 days from the date of the acknowledgment of the application or from its receipt, the permission applied for would be deemed to be granted subject to the conditions prescribed in the MLRC in respect of such NA user. It is the Petitioner's contention that the Collector's office failed to process his application and to inform him the decision and hence, he is deemed to have been granted the NAP.
The Petitioner has relied upon the Division Bench judgment of this Court in the case of Ganesh Ginning & Pressing Co. Ltd. v. State of Maharashtra and Ors. , which shall be considered presently.
It is the contention on behalf of the State that the Collector's office had not only acknowledged the Petitioner's application, but had also intimated him about the commencement of the Inquiry and the reference made to the Tahasildar and who granted the Temporary NAP to the Petitioner, pending inquiry. Hence the provision relating to deemed permission cannot be invoked in this case. It is contended that the deeming provision would apply only if there is no action at all by the Collector's office after receipt/acknowledgment simpliciter by it and in any case the provision of deemed permission would apply only to temporary NAP and never to permanent NAP, which necessitates an in depth inquiry before its grant. It is argued that the deeming provision is made only for the convenience of the applicant to start user of the land as applied for and not for obtaining an unfair advantage over the land or using it for any illegal purpose based on default of the State.
9. On 15 th April, 1990 the Petitioner again wrote another letter to the Collector's Office, Exhibit-D to the Petition, informing the Collector that the Petitioner had deemed permission.
It is argued by the learned AGP Ms. Cardozo on behalf of the State that this letter is not in consonance with Section 44(4) of MLRC under which the Petitioner is enjoined to inform the Tahasildar in writing through the Village Officers, the precise date on which the change of user of land commenced and such letter has to be sent within 30 days of such commencement of change of user. The date of commencement of the use is not shown.
10. On 3rd May, 1990 the Collector's office refused NAP to the Petitioner. The refusal letter is marked Exhibit-E to the Petition. This refusal of NAP was on the ground that the user of the land for non-agricultural purpose was barred by the Government in Dahanu Taluka.
This is the first refusal by the Collector.
11. On 11 th October, 1990 Tahasildar, Dahanu granted a further temporary NAP to the Petitioner, part of Exhibit-P colly.
12. The Petitioner wrote a letter dated 24th December, 1990 to the Collector, Exhibit-F to the Petition, not accepting the refusal of the NAP and stating that he had started construction work based upon the deemed permission which was granted under Section 44(3) of the MLRC.
13. The Ministry of Environment and Forest Department issued a notification dated 20 th June, 1991 declaring Dahanu Taluka, District Thane, Maharashtra as an Ecologically Fragile Area and imposed restriction on setting up of industries which would have detrimental effect on its environment.
The object of the notification was to ensure that the development activities are consistent with the principles of environmental protection and conservation in such ecologically fragile areas. The annexure to the notification sets out the guidelines for permitting/restricting industries and industrial units in Dahanu Taluka. Industries were classified in three categories, green, orange and red.
14. The Tahasildar, Dahanu granted a further temporary NAP on 10th September, 1991, part of Exhibit-P colly to the Petition.
15. The Petitioner requested consideration of his application for permanent permission on 6th January, 1992 Exhibit-G to the Petition, on the ground that he had produced the additional information required by the Collector's office.
This was his second application or an application in continuation of his first application. To this application he annexed the letter of the Environment Department of the State of Maharashtra dated 3rd January, 1992 (part of Exhibit-G) as a fresh piece of evidence to strengthen his case for grant of NAP on the environment issue which was being considered by the Collector's office.
16. The Additional Collector, Thane by his letter dated 15th January, 1992, Exhibit-H to the Petition, considered the Petitioner's two applications dated 20 th September, 1989 and 6th January, 1992 and called upon the Petitioner to furnish information with regard to the four queries mentioned therein.
The Petitioner's application was to install a stone crusher at the disputed site. The Petitioner's letter showed that he had started construction work (Baandh kaam). The inquiries made were, from where the Petitioner would get the stones for being used in his crusher. It also stated that the Petitioner had not submitted the plan showing the construction work (Baand Kaam Naksha). The Petitioner was called upon to produce the permission from the Gram Panchayat and the Petitioner was told that the land was in benefit zone of Rehabilitation Department for sewer project for which he had to obtain the permission from the Authority.
17. The Petitioner replied to the queries by his letter dated 20th January, 1992, Exhibit-I to the Petition. He stated that he would use the stones from village Ghol for crushing. The construction plan was submitted. He submitted the Dakhla of the Gram Panchayat. He submitted the Dakhala of Surya Nagar Project. He, accordingly, requested the grant of permanent NAP.
The Petitioner has relied upon the fact that all the queries of the Government were answered and hence he became entitled to be granted permanent NAP.
It is argued by the learned AGP that the Petitioner answered the first two queries, but not the last two queries of the Additional Collector's letter dated 15 th January, 1992. The Petitioner did not bring the permission from the Gram Panchayat or the permission from the Rehabilitation Department for benefit zone.
18. The Petitioner submitted the letter of the Special Land Acquisition Officer under the Land Acquisition Act dated 29th June, 1991 showing that out of 4 hectors of Petitioner's land 1.5 hectors were under irrigation and 2.9 acres were acquired for Surya Prakalpa Project so that the permission, if any, can be granted subject to the said acquisition.
19. The Petitioner also produced letter dated 30th April, 1991 (part of Exhibit-J) of the Irrigation Department sent to the SLAO that the Department would not require 1.5 hectors land for irrigation out of the Petitioner's land.
It is argued that the Petitioner has co-operated and submitted all the documents required and yet he has not been issued the permanent NAP. We are not called upon, as in appeal, to consider whether, based upon the Petitioner's documents, NAP is rightly or wrongly rejected. All that has to be seen is whether the review under Section 358 of the MLRC was maintainable and whether the review order passed thereupon was in order.
20. Temporary NAPs, as aforesaid, were granted to the Petitioner from time to time during this period until 9th June, 1992. It is contended on behalf of the Petitioner that such permissions were granted to other persons also in Dahanu Taluka.
21. The Additional Collector, Thane District by his letter dated 9th June, 1992, Exhibit-K to the Petition, refused the applications of the Petitioner dated 20 th September, 1989 (Exhibit-A), 6th January, 1992 (Exhibit-G) and further letter dated 20th January, 1992 (Exhibit-I).
This is the second refusal of the Petitioner's applications/continuation of the first application. The main reason for refusal of the NAP is the change of user under the Bombay Tenancy and Agricultural Lands Act, 1948 (BTALA).
The Petitioner as a tribal admittedly fell under Section 32 of BTALA. There was a restriction on transfer of the land by the Petitioner under Section 43 of the said Act.
It is shown on behalf of the State that the Petitioner's case falls under Section 36(A) of the MLRC and the Petitioner being a tribal is prohibited from transferring his occupancy by way of sale, gift, exchange, mortgage, lease or otherwise without the sanction of the Collector/State Government. It is contended on behalf of the State that the Petitioner, on executing the partnership with non-tribals brought in the land by way of capital and sought to put up construction on the land and thus transferred his land for nonagricultural purpose to the partnership and accordingly contravened Section 36(A)(1) of the MLRC.
It is the Petitioner's contention that the prohibition under this Act does not apply to him. The Petitioner in Writ Petition No. 6373 of 1999 was a partner in the Firm of the Petitioner in Writ Petition No. 4522 of 1998 under Partnership Deed dated 10 th October, 1989, a copy of which, though not annexed to the plaint, is produced before the Court. After the NAP was refused on 9th June, 1992, the Partnership Firm is stated to have been dissolved (cancelled) on 10.10.92. The Petitioner in Writ Petition No. 6373 of 1999 has thereafter undertaken the exercise of asking for the NAP in his individual capacity and not as the partner of the Firm.
It is pertinent to note that though it is contended on behalf of the Petitioner that his occupancy is not transferred by way of the Partnership Deed, the Petitioner dissolved the partnership after permission was refused under the letter dated 9th June, 1992 by the Additional Collector. It is argued on behalf of the Petitioner that, that was done by way of abundant caution.
22. The Petitioner obtained permission under this BTALA on 12th August, 1992 Exhibit-L to the Petition, and sent the same to the Additional Collector, Thane under his letter dated 14th August, 1992 (Part of Exhibit-L to the Petition). The Petitioner stated in the said letter that he had dis-associated himself from the partnership and that he was applying in his own name. The Petitioner then again requested for grant of permanent NAP to him.
It is argued on behalf of the State that this was the Petitioner's third application/continuation of the first application. In either case it showed the acceptance of the Petitioner that the NAP was not given to him until then. It also showed the acceptance of the Petitioner that the restrictions under BTALA applied to him necessitating him to comply with the statutory conditions.
23. The Petitioner made an affidavit on a stamp paper on 21st October, 1992 and sent the same under his letter dated 21st October, 1992, Exhibit-M colly to the Petition, to the Additional Collector, Thane District showing that he had dissolved the partnership entered into by him under the partnership deed dated 10th October, 1989. He referred to his initial application dated 20th September, 1989 and requested grant of permanent NAP on 21st October, 1992.
This is stated to be his fourth application/continuation of the first application.
24. The Petitioner entered into a tenancy agreement on 22nd October, 1992 Exhibit-N to the Petition. The agreement shows the lease of the land for stone crushing machine given on rent by the Petitioner to one of the partners of the Petitioner Firm in Writ Petition No. 4522 of 1998.
The tenancy agreement as well as the affidavit were executed by the Petitioner on the same day. The tenancy agreement is executed in favour of the partner of the same firm from which the Petitioner claimed to have dis-associated himself, though a deed of dissolution of partnership is not produced.
25. The Collector, Thane District refused NAP to the Partner by his letter dated 4th December, 1992 Exhibit-O to the Petition. The said letter referred inter alia to the Petitioner's initial application dated 20 th September, 1989 (Exhibit-A). It further refers to the partnership deed entered into by the Petitioner and considers the restrictions under Section 36(A) of the MLRC. It also mentions about the land being in benefit zone for which the relevant permission was not obtained by the Petitioner.
This is the final refusal of the Petitioner's last application dated 21 st October,1992 / continuation of his initial application dated 20th September, 1989.
26. The Petitioner challenged the said order before the Additional Commissioner, Konkan Division, Mumbai in Appeal under Section 247 of the MLRA. The Additional Commissioner set aside the order of the Collector, Thane dated 4th December, 1992 by his order dated 16 th February, 1996 and directed grant of NAP in the individual name of the Petitioner in Writ Petition No. 6373 of 1999 for industrial purpose and subject to the usual terms and conditions. The said order is marked Exhibit-T to the Petition.
The order Exhibit-T has considered the applications of the Petitioner made from time to time, the temporary NA permissions granted by the Tahasildar to the Petitioner made from time to time up to 9 th June, 1992, the refusal of the authorities contained in the aforesaid correspondence/orders. The order also considered the provisions of Section 43 of BTALA, the question of benefit zone for Surya Project, the dis-association of the Petitioner from the partnership firm, the restrictions under Section 36 of the Code upon the Petitioners, as well as the deemed permission under Section 44(3) of the MLRC.
The order does not consider the notification issued by the Maharashtra Environment Department dated 20th June, 1991. That notification has not been relied upon or referred to by the Petitioner in the Petition. It is not annexed to the Petition also.
27. The State of Maharashtra applied for a review of the said order under Section 258 of the MLRC. The Additional Commissioner Konkan Division, Mumbai reviewed his order Exhibit-T by a judgment dated 27 th August, 1998 Exhibit-U to the Petition.
Review was allowed essentially on the ground that the notification of the Ministry of Environment and Forest dated 20th June, 1991 was not shown by the parties and considered by him in the order dated 16 th February, 1996, Exhibit-T to the Petition.
28. The order dated 27 th August, 1998 is impugned. The Review is allowed specifically because the State as the applicant in the Review Petition was aggrieved by the discovery of the fact that the very Notification under which the Petitioners industry was entirely prohibited was not brought to the knowledge of the Additional Commissioner when he passed the order EXHIBIT-T to the Petition. It must therefore, be seen whether the review could be maintainable on that ground as a fact or matter constituting a sufficient reason to review the decision to grant the Petitioner permanent NAP by which he would be permanently able to carry out and continue the construction activity as stated by himself and to use the stone crusher on his site to crush the stones.
29. The aforesaid correspondence shows that the letter of the Collectors office dated 3rd May, 1990 initially refused the NAP on the ground that user of the land for non-agricultural purpose was barred by the Government in Dahanu Taluka. That itself show that in the entire Taluka industrial or non-agricultural use was not permitted. The Notification of the Ministry of Enforcement and Forest Department dated 20 th June, 1991 specifically recited that Dahanu Taluka was an ecologically fragile area and the Notification was issued to prevent the detrimental effect of setting up industry on its environment under Section 3 of the Environment (Protection) Act, 1986 (EPA).
30. The entire controversy between the parties, therefore, centers around this Notification. We are surprised that though the Review Petition was considered and allowed, based upon this Notification, the Notification has not been referred to by the Petitioner.
31. Ms. Cardozo has drawn our attention to the very fundamentals laid under the Constitution for the enactment of the EPA and the issuance of the Notification under EPA for protection of the environment envisaged by the Act. The entire exercise commenced under the Forty-second Amendment to the Constitution of India. Under Section 10 of the Constitution (Forty-second amendment) Act, 1976 Article 48(A) has been inserted in the Constitution. It runs thus:
48A. Protection and improvement of environment and safeguarding of forests and wild life The State shall Endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.
32. Under the said mandate contained in the Constitution itself the EPA came to be enacted in 1986. The Notifications issued from time to time under the said Legislation are required to be given effect to by the Courts, as much as the State itself. Protection of the environment in Dahanu Taluka, District: Thane, which is shown to be an ecologically fragile area, and which aspect is not disputed, would require strict compliance of the provisions of inter alia the MLRC and the Rules framed thereunder to be allowed strictly in accordance with those Notifications.
33. In this case in such an area the Petitioner, though a tribal, and a direct beneficiary of the aforesaid Notification as well as the EPA himself sought permission contrary to and in derogation with the spirit, purpose and effect of the Notification. We are told that crushing stones with a stone crusher directly haampers the environment and has the detrimental effect there upon by the clouds of dust when it causes. Environmental protection of Dahanu Taluka requires restrictions to be imposed upon setting up of industries which have detrimental effect of environment. The Notification has set out and demarcated three distinct zones: red, orange and green. Under the Notification though manufacture of structural stone goods, stone dressing and stone polishing is permitted as falling in the green category, stone crushing and stone quarrying is specifically stated not be permitted. It shows that emissions are caused by such an industry.
34. We do not think the application made by the Petitioner for carrying on a business/industry of crushing stones with a crusher, whether it be local stone from his own property or stone brought from some other village to be crushed can be permitted. Permitting that would be contrary to the constitutional mandate of protecting the environment.
35. It would further go contrary to the Petitioners own duty to protect the natural environment under Article 51(A)(g) of the Constitution also inserted by way of the Forty-second amendment.
36. We may mention that the right to environmental protection has been made a part of the right to life itself under Article 21 of the Constitution and is required to be read alongside that right in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu it has been held That on the basis of precautionary principle, the burden of proof in environmental matters rests on the developer/industrialist to show that his action is environmentally benign.
37. We may state that Mr. Godbole on behalf of the Petitioner has fairly not raised dispute about the Petitioner's fundamental duty under Article 51(A)(g) or the State's duty and power to protect the environment under Article 48A.
38. The only contention of the Petitioner upon the Notification and the States action in not allowing the permanent NAP to the Petitioner is that the Petitioners stone crusher was already in existence on the date of the Notification and that under the Notification itself all industrial products already approved or in existence in Dahanu Taluka before the date of the Notification were not effected by Notification. Those industries would nonetheless have to confirm to statutory standards. We are not called upon to determine whether the Petitioners industry is environmentally benign or whether it would conform to the statutory standards given the stone dust it would emit. We are only called upon to determine whether the Notification would at all be applicable to the Petitioners case.
39. On the one hand it would indeed not have retrospective effect. On the other it will have to confirm to statutory standards if it is allowed to prevail. It will have to be determined whether the Petitioners industry was in existence with valid permissions/licenses of the Government prior to 20th June, 1991.
40. The Petitioner would start NA use of the land only if he obtains a NAP. That NAP would enure for his benefit in perpetuity unless it is issued for a particular period of time. The Petitioner applied for a permanent NAP. His application EXHIBIT-A in the prescribed form does not show any limits as to time upon the issue of the permission. This application was made under Section 44 of the MLRC. Section 44 itself contemplates a permanent NAP. The application is to be made under Section 44(1). The Collector has to acknowledge its receipt under Section 44(2)(a). Sections 44(1) & 44(2) run thus:
44(1) If an occup an t of un-aliena te d land or a superior holder of aliena te d land or a tenan t of such land -
(a) which is asses s e d or held for the purpose of agriculture, wishes to use it for a non-agricul tur a l purpose, or
(b) if land is asses s e d or held for a particul ar nonagricultur a l purpose, wishes to use it for another nonagricultur a l purpose, or
(c) desires to use it for the same non-agricultural purpose for which it is assessed but in relaxation of any of the conditions imposed at the time of grant of land or permission for such non-agricultural purpose, Such occupant or superior holder or tenant shall, with the consent of the tenant, or as the case may be, of the occupant or superior holder, apply to the Collector for permission in accordance with the form prescribed. (2) The Collector on receipt of an application (a) shall acknowledge the application within seven days. (c) may, after due enquiry, either grant the permission on such terms and conditions as he may specify subject to any rules made in this behalf by the State Government; or refuse the permission applied for, if it is necessary so to do to secure the public health, safety and convenience or if such use is contrary to any scheme for the planned development of village, town or city in force under any law for the time being in force and in the case of land which is to be used as building sites in order to secure in addition that the dimensions, arrangement and accessibility of the sites are adequate for the health and convenience of the occupiers or are suitable to the locality; where an application is rejected, the Collector shall state the reasons in writing of such rejection.
(b) may, unless the Collector directs otherwise, return the application if it is not made by the occupant or superior holder or as the case may be, the tenant or if the consent of the tenant, or as the case may be, of occupant or superior holder has not been obtained, or if it is not in accordance with the form prescribed;
41. The Collector may either grant the permission of such terms and conditions as he specifies subject to any rules made in this behalf by the State Government or refuse the permission altogether under Section 44(c) of the MLRC. The refusal would only be to secure public health, safety, convenience or if it is contrary to a scheme of planned development, under the aforesaid sub-section. That sub-section of the MLRC is enacted in 1966 at which time neither was the Constitution Forty-second amendment Act enacted, nor was the EPA enacted. The matter of public health, safety and convenience would take within its sway inter alia the EPA enacted under the specific constitutional mandate. The rejection by the Collector could, therefore, be not under the laws as from time to time would govern non-agricultural use, the EPA being an illustration. Consequently when an application is made the Collector has to decide upon these parameters under various laws and statutes governing NA use at the time of the application and grant or reject the permission. He is enjoined to grant the permission after due inquiry under the Sub Section. He may grant it on such terms and conditions as he may specify. He may also reject it on the aforesaid grounds.
42. Section 44(2)(c) therefore, contemplates that the Collector may call upon the applicant to submit various permissions, NOCs, documents, affidavits or otherwise so as to enable him to grant the permission subject to those conditions. The due enquiry contemplated under the sub section may, therefore, encompass a protracted correspondence. If that is not so done, the application of his mind, would be challenged. The order passed without such due enquiry may be liable to be vitiated. Keeping the requirement of such enquiry in mind the next portion of Section 44 more specially Section 44(3) is to be appreciated. Section 44(3) runs thus : 44(3) If the Collector fails to inform the applic a n t of his decision within ninety days from the date of ackno wle d g m e n t of the applica ti on, or from the date of receipt of the application if the application is not acknowledged, or within fifteen days from the date of receipt of application for a temporary change of user or where an application has been duly returned for the purposes mentioned in Clause (b) of Sub-section (2), then within ninety days [or as the case may be, within fifteen days from the date on which it is again presented duly complied with, the permission applied for shall be deemed to have been granted, but subject to any conditions prescribed in the rules made by the State Government in respect of such user.
43. The period of ninety days given to the Collector is therefore to inform the applicant of his decision. What is meant by the term decision is to be considered. It is argued by Mr. Godbole on behalf of the Petitioner that it tentamounts to a decision taken by the Collector ultimately to grant or refuse permission. It is contended by Ms. Cardozo on behalf of the State that the term decision does not imply the permission itself since the Section does not specify that if permission is not granted within ninety days it would be deemed to be granted. What the Section contemplates is the failure to inform the applicant of the decision within a stipulated period that causes the permission to be deemed to have been granted. It would, therefore, have to be seen whether the Collector's office informed the applicant of its decision or whether the Collector's office did not inform the Petitioner as the applicant anything for a period of ninety days from the date of the application.
44. The aforesaid chronology shows that the application was made on 20 th September, 1989 (Exhibit-A). It was acknowledged on 29th September, 1989 (Exhibit-B). The first temporary NAP was granted to the applicant on 1st November, 1989 (Exhibit-P colly). That was within ninety days of the application. The Collector therefore, informed the Petitioner/applicant of his decision to grant only a temporary NAP within a period of ninety days pending the statutory enquiry that he was enjoined to make under Section 44(2)(c) of MLRC. Once that is done, the matter falls out side the purview of the deeming provision under Section 44(3). That is because Section 44(3) contemplates the decision and not the permission itself. The decision may take any form. It may show that only subject to specific compliance, or payment of any fee etc., or obtaining permission/license/NOC from other relevant authorities, the permission would be granted. That would be in the nature of correspondence simpliciter. That would not bring within the purview of the action, the ultimate permission itself. Hence, under Section 44(c) if the Collector does nothing and ignores the application, then alone would the deeming provision come into effect. Whilst the Collector acts upon the application, in whichever mode, and grants the temporary permission, he is not enjoined to complete his enquiry and action within ninety days.
45. The Petitioner accepted the temporary NAP granted by the Tahasildar, Dahanu Taluka. The Petitioner was allowed to act upon it. The Petitioner's application has not been ignored. The Petitioner is given an opportunity to comply with the terms and conditions for the grant of the ultimate permanent NAP. The temporary NAP is granted within the statutory period under Section 44(3) of MLRC. The citizen's right to obtain a decision from the State is, therefore, granted. The citizen's duty to conform to the requirements has therefore, commenced. The State's duty to take action after due enquiry is, therefore, implicit. There is no time limit statutorily laid down for conducting the due enquiry. The period of ninety days therefore, cannot be construed to be the statutorily fixed period of time for the enquiry contemplated under Section 44(2)(c). It is, therefore, to be computed only in case of an application made by a citizen which is totally ignored by the State. The very first grant of temporary NAP in this case brings the case out of the purview of Section 44(3). It keeps the case only within the confines of the due enquiry contemplated under Section 44(2)(c). That enquiry would take as long as the compliances required are satisfied by the Petitioner. It therefore, cannot have a pre-laid down period.
46. Under such ambit the judgment of the Division Bench of this Court in the case of Ganesh Ginning & Pressing Co. Ltd. (Supra) has to be considered. In that case the applicant desired the change of his land from industrial purpose to residential purpose. An application to that effect was submitted under Section 44(1)(a) of MLRC on 8th May, 2003 along with necessary documents. The State sought no objection from as many as twelve authorities. The judgment does not show when the State sought these no objections. Some authorities granted the NOCs and some authorities did not. On 20 th May, 2004 the State informed the applicant that his application was filed for the time being. It was contended that after more than ninety days the State cannot simpliciter file the application. The State was obliged to decide the application within a period of ninety days from its receipt, failing which the permission is deemed to be granted. Because it was filed and because the State did not enter upon due enquiry contemplated under Section 44(2)(c) of MLRC, that decision was challenged. In this case the State did not file the application at any point of time. The applicant continued the process of complying with the terms and conditions laid down by the State, upon a compliance of which alone the NAP could have been granted. The enquiry, therefore, was in progress, through the years and until the final rejection on 4th December, 1992.
47. Our attention is drawn specifically to para 4 of the judgment by Mr. Godbole to contend that what has been held in that judgment is that the deeming provision under Section 44(3) of the MLRC comes into effect by afflux of time and that it is for the Collector to decide the application and not only respond to it within ninety days.
48. Section 44(3) cannot be read de-hors Section 44(2)(c). They have to be read as a whole. They contemplate procedure for change of user of land. That starts with the application and ends with the grant or refusal of permission. The entire exercise requires receipt of the application, acknowledgment of the application, return, if any of the application, enquiry for the grant and the grant or rejection itself. If the application is left at that, without any response to the applicant, after its receipt or acknowledgment and without any enquiry, the deeming provision must apply. It must be appreciated that the deeming provision is brought into the statute book so as to create a legal fiction. It would show a thing as having been effectuated though it is not effectuated. The legislation, therefore, gives a prescribed time limit. All permissions/sanctions/consents cannot be unreasonably withheld. They have to be considered within a reasonable time. The legislation has deemed it fit that when an application is received or acknowledged for change of user of land, it must be acted upon within a reasonable time which is ninety days. If it is not acted upon, the deeming provision comes into effect. If it is acted upon, it would constitute an enquiry made. The Collector cannot grant permission without due enquiry and the legislature cannot put fetters upon the enquiry by setting out a time- frame for it. In fact it has not. That is reflected by the fact that there is no time limit specified under Section 44(2)(c) which requires due enquiry. The time limit is specified only in Section 44(3) which contemplates non-action on the part of the State.
49. The aforesaid judgment refers to the enquiry to be conducted in paragraph 5. The judgment further considers how the provisions of law are required to be understood and interpreted in paragraph 6. It lays down that the understanding and interpretation is to be with an object-oriented approach and not in a narrow and pedantic sense. The full import and meaning of the words has to be appreciated considering the context in which they are used and the purpose which they achieve. In that case the objection of a third person regarding the title of the applicant was to be considered. It was held that such an objection was not germane to the enquiry contemplated for grant or refusal. An earlier judgment also by this Court in Writ Petition No. 2164 of 2003 was considered. In that case the objection relating to the acquisition of the land was to be considered which caused the grant or refusal to be delayed beyond ninety days period. In those cases the deeming provision has been applied.
50. It must be remembered that in the aforesaid judgment in the case of Ganesh Ginning & Pressing Company (Supra) no temporary permission was granted to the applicant. The application was merely filed. The applicant was not informed. The applicant came to learn about it only upon inspection of the files of the State. The applicant was completely ignored. That is not the case with the Petitioner herein.
51. In this case no irregularities have been relied upon. The Collector's office has from time to time considered only the legality of the application for change of user under various legislations to cite that non-agricultural purpose was barred in Dahanu Taluka, that there was illegal change of user under the BTALA, that there was consequent contravention of Section 36(A)(1) of MLRC and that the land being in benefit zone the relevant NOC was not obtained by the Petitioner. The crux of the dispute is that the Petitioner's contemplated industry upon change of user is prohibited under the Notification dated 20 th June, 1991.
52. We fail to appreciate how the deeming provision can come into effect even after the applicant has accepted temporary NAPs from time to time until 9th June, 1992, when the applicant has been issued the first temporary NAP within ninety days period, when due enquiry contemplated under the provisions of law was initiated, when the applicant was amenable to such enquiry and from time to time had produced various permissions/NOCs sought and even made a pretense of not falling within the mischief of Section 36(A)(1) of MLRC or Section 43 of BTALA and from time to time and in as many as 4 letters applied to the State for granting the NAP.
53. We agree with the contention of Ms. Cardozo that any which way the Court may look upon the entire exercise, this case cannot bring into effect the deeming provision. If the first application alone is to be considered, the decision of the Collector's office was informed to the Petitioner by the first temporary NAP granted by the Tahasildar pending the enquiry on 1st November, 1989, within 1 months or 40 days from the application itself. Due enquiry ensued. That was completed by rejection of the application on 4th December, 1992. The period that transpired was dependent upon the act of the Petitioner himself.
54. If all of the Petitioner's letters are to be considered as separate applications, the second application was made on 6th January, 1992 (Exhibit-G), the third application was made on 12th August, 1992 (Exhibit-L) and the fourth application was made on 21st October, 1992 (Exhibit-M). We may mention that the last of such applications has been made by the applicant on 21st October, 1992 and the last rejection has been on 4th December, 1992 within 90 days. However, it would be narrow and pedantic to arithmetically calculate the days between such applications and their refusal, since there was a continuous enquiry as reflected in the aforesaid correspondence undertaken by the Collector and accepted by the Petitioner.
55. Mr. Godbole relied upon a number of judgments to show the concept of the deeming provisions in various statutes. In the case of Sudha Rani Garg v. Jagdish Kumar relied upon by Mr. Godbole, the deeming provision is explained thus:
The word deem is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehen s ive descrip tion that includes what is obvious, what is uncert a in and what is, in the ordinar y sense, impossible.
When a thing is to be deeme d something else, it is to be treated as that something else with the attendant consequences, but it is not that something else.
56. In the case of Union of India v. Rajiv Kumar , deemed suspension of employees is considered as a legal fiction when actually the order of suspension is not required to be passed but is deemed to have been passed.
57. In the case of Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. , the deeming provision under Section 20(2) of the Gujarat Town Planning and Urban Development Act, 1976 came up for consideration under which an exception was carved out when a land is not acquired under a Land Acquisition Act, the acquisition would be deemed to have lapsed.
58. Such deeming provisions are based upon the premise that when nothing is done which was otherwise required to be done, it is taken that the thing which is to be done was done to cite -that the suspension order which was otherwise to be passed, was passed.
59. A reading of the entire correspondence reveals that though the Petitioner from time to time applied for grant of the NAP, his initial application made in the prescribed form Exhibit-A was alone under consideration and enquiry until it was finally refused on 4th December, 1992. That enquiry was not to be fettered by a time limit. That enquiry is mandated to be wholesome and complete. The enquiry contemplates application of mind. It requires consideration of documents and material. It envisages the co-operation of the Petitioner. The refusal after due enquiry is dependent upon the compliance of the Petitioner and therefore, cannot be concluded or terminated within the statutory ninety-day period.
60. The Petitioner as an adivasi/tribal had acquired the land under Section 32 of BTALA. Consequently there is a restriction on transfer of his land under Section 43 of BTALA. The transfer contemplated under the Section is by way of sale, gift, exchange, mortgage, lease or assignment. He contends that he has not transferred his land in any of these modes to any other person. He admittedly entered into a partnership with outsiders who are nontribals and non-adivasis. He became a partner in the firm which is the Petitioner in Writ Petition No. 4522 of 1998 above. He brought in his land as the capital in the partnership. Under the Deed of Partnership dated 10 th October, 1989 he is to get only 10% profits from the business of the firm. The business involves industrial use by working a stone crusher. He applied as a partner of the firm for change of user (Exhibit-A).The partnership has since been dissolved. He claims to have applied in his individual capacity thereafter. After the dissolution of the firm he has entered into a tenancy agreement with the same person who was his partner. The benefits of his land would, therefore, accrue to that person who is a non-adivasi/nontribal either in his capacity as a partner or in his capacity as a tenant. The benefits of the land acquired by him under Section 32 would not accrue to the Petitioner in Petition No. 6373 of 1999 alone. Consequently the contention of Ms.Cardozo is that the Petitioner has breached Section 36(A) of MLRC is seen to be entirely correct. Section 36(A) puts a complete prohibition upon an occupancy of a tribal being transferred in favour of any non-tribal by way of sale, gift, exchange, mortgage, lease or otherwise. It may be seen that there are 5 modes of transfer contemplated under the Transfer of Property Act. Section 36(A) has specified all the five modes of transfer, and then contemplated further modes of transfer by addition of the words or otherwise. Entering into a partnership deed by bringing in the land as a capital or entering into a tenancy agreement with a non-tribal by virtue of which the occupancy and possession of the land would necessarily be transferred to the tenant constitutes breach of Section 36(A). It falls within the mischief of the term or otherwise as an additional mode of transfer.
61. The Petitioner seems to have accepted such legal position. Advisedly therefore, the Petitioner wrote to the Collector on 12th August, 1992 (Exhibit-L)that he had dis-associated himself from the partnership and that he was applying for NA use in his own name and requested for grant of permanent NAP to him. The Petitioner therefore, accepted the legal position constituting a complete bar upon him to transfer the property even by the way of a partnership deed. The partnership deed as well as the deed of dissolution are not referred to by the Petitioner or annexed to the Petition. The agreement of lease of land (Bhaade Karaar) dated 22nd October, 92 (Exhibit-N) itself constitutes the transfer by lease of the land of the Petitioner/tribal. The Petitioner cannot be permitted to use such land for NA purpose after such breach. The final refusal of the Collector, Thane District on 4th December, 1992 based upon the breach of Section 36(A) of the MLRC cannot be faulted.
62. The contention on behalf of the Petitioner simpliciter that the grant or the refusal of the permission must be within the statutory ninety-day period failing which it would be deemed to be granted must be rejected. The reliance upon the judgment in the case of Ganesh Ginning and Pressing Company is misplaced as the facts are completely distinguishable. The notification ousts the claim of the Petitioner completely. The non-reliance upon the notification is also seen to lack bonafides. The reliance upon the notification is sufficient ground for review of the order of the Collector Exhibit-T passed under Section 257 of the MLRC. The order of review Exhibit- U passed under Section 258 of the MLRC therefore, has to be sustained. The challenge to it must fail.
63. The Petitions are accordingly dismissed. Rule stands discharged.