Bombay High Court
Dnyanesh Kamalakar Samant vs The State Of Maharashtra And Ors on 30 July, 2021
Author: R.I. Chagla
Bench: K.K. Tated, R.I. Chagla
5-WP-2414-21.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2414 OF 2021
Dnyanesh Kamalakar Samant ...Petitioner
Versus
The State of Maharashtra & Ors. ...Respondents
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None for the Petitioner.
Mr. Rajan Pawar, AGP for the Respondent No. 1-State.
Mr. Anil P. Bhagwe for Respondent No. 4.
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CORAM : K.K. TATED &
R.I. CHAGLA, JJ.
DATE : 30 July 2021
ORDER :
1. Today the matter is shown on board for Speaking to the Minutes of Order dated 3rd July 2021.
2. On page 8 in paragraph 10(iv) reproduction of prayer clause (c) is not correct. Correct prayer clause (c) as per the Writ Petition is reproduced as under:-
"(c) That pending the hearing and fnal disposal of this 1/9 ::: Uploaded on - 02/08/2021 ::: Downloaded on - 24/09/2021 02:21:59 ::: 5-WP-2414-21.doc Petition, the Respondent No. 3 be prohibited from proceeding and/or acting pursuant to the impugned communication/show cause notice at Ex. "H" hereto in case no. TAH/BOR/TEN-3/TNC/70(B) &32(g)/SR/ 2021."
3. Corrected order dated 3rd July 2021 will be read thus:-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2414 OF 2021 Dnyanesh Kamalakar Samant ... Petitioner Versus The State of Maharashtra & Ors. ... Respondents .........
Mr. Atul Tungare a/w A.A. Tambe for the Petitioner. Mr. Rajan Pawar, A.G.P. for the State. Mr. Anil P. Bagwe for Respondent No.4.
.........
CORAM : K.K. TATED & R.I. CHAGLA, JJ.
DATE : 3rd JULY, 2021.
(V.C.)
P.C. :-
1 Heard learned Counsel for the parties.
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2 By this Petition under Article 226 of the Constitution of
India the Petitioner is challenging the decision taken by Respondent No.3-Tahsildar to entertain Respondent No.4's application under Sections 70B and 32G of the Maharashtra Tenancy and Agricultural Lands Act, 1948 (hereinafter referred as "said Act").
3 The Learned Counsel for the Petitioner submits that Respondent No.4 in his application dated 17.12.2020 to the Collector under Sections 70B and 32G of the said Act claimed 15 acres of land from Survey No.221 of Village Eksar, Taluka Borivli. He submits that in unnumbered para 2, Respondent No.4 specifically stated that Respondent No.4's predecessor Shri Naran Walji Gada was owner of the said property and same was in his possession. The learned Counsel for the Petitioner submits that if Respondent No.4 claims the ownership of the said property, there is no question of entertaining the application filed under Sections 70B and 32G of the said Act.
Inspite of that Respondent No.3 registered the case No.TAH/BOR/ TEN-3/TNC/70 (b) & 32 (g)/SR/2021. He submits that apart from that, there is a Government Gazette dated 29.03.1957 issued by the Revenue Department stating that the lands from the said Village i.e. Eksar are reserved for non-agricultural and industrial development. The said notification reads thus :
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5-WP-2414-21.doc "REVENUE DEPARTMENT Sachivalaya, Bombay, 29th March 1957. BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948.
No. TNC. 5157/31190-M. - In exercise of the powers conferred by clause (b) of section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. LXVII of 1948), the Government of Bombay is pleased to specify the areas mentioned in the schedule appended hereto; as being reserved for non-agricultural and industrial development.
Schedule.
District Bombay Suburban, taluka Borivli, Villages Villages
1. Borivli 11. Valnai
2. Kaneri 12. Kurar
3. Magathane 13. Chinchavli
4. Shimpoli 14. Pahadi
5. Eksar 15. Mulund
6. Poisar 16. Goregaon
7. Kandivli 17. Nahur
8. Akurli 18. Aarey
9. Wadhawan 19. Dindoshi
10. Malad 20. Mandapeshwar By order and in the name of the Governor of Bombay.
V. SHANKAR, Secretary to Government."
4 The learned Counsel for the Petitioner also relied on the judgment of this Court in the matter of Ramrao Parashuram Ghogle 4/9 ::: Uploaded on - 02/08/2021 ::: Downloaded on - 24/09/2021 02:21:59 ::: 5-WP-2414-21.doc and another vs. Mukund Govind Kini and others 1 and judgment in the matter of Nilesh Construction Company and another vs. Gangubai wd/o Bablya Bendu Chaudhary and another2. He submits that in both these cases, the Court held that in view of the Government Gazette dated 29.03.1957, Revenue Authority have no right to take action as per the said Act land situated in those villages. He relies on para 13 of the judgment in the matter of Nilesh Construction Company and another (supra) which reads thus :
"13. Now we have already referred to the Notification which was issued by the State Government under Section 88 (1)(b) on 29th March, 1957 under which 20 villages were reserved for non- agricultural and industrial development and Kurar was one of the twenty villages so notified. Kurar is the village in which the land in dispute is situated. The effect of this Notification of 29th March, 1957 issued under Section 88(1)(b) of the Tenancy Act is that the lands in village Kurar including the lands in question have been totally excluded from the operation of the provisions of the Tenancy Act, because the imperative words of Section 88 are. "nothing in the foregoing provisions of the Act shall apply" to the area reserved for non-agricultural or 1 1986 (1) Bom.C.R. page 361 2 1982 (1) Bombay Case Report page 577.5/9 ::: Uploaded on - 02/08/2021 ::: Downloaded on - 24/09/2021 02:21:59 :::
5-WP-2414-21.doc industrial development. The "foregoing provisions"
are Sections 1 to 87-A and, therefore, the moment a Notification is issued under Section 88(1)(b), none of the provisions of Tenancy Act will apply in the case of an area which has been specified as being reserved for non-Agricultural or industrial development. That the effect of a Notification under section 88(1)(b) is to exempt lands from the operation of the provisions of the Tenancy Act retrospectively is now settled by the decision of the Supreme Court in (S.N. Kamble v. The Sholapur Borough Municipality and another) 3.A.I.R. 1966 S.C. 538."
5 The learned Counsel for the Petitioner also relies on the order of the Tahsildar dated 10.10.2013 in the matter, where it is specifically stated that if the land is from Village Eksar, then the said Act is not applicable (Exh.E page 50). He submits that inspite of all these facts, Respondent No.3 proceeded with the application filed by Respondent No.4. Hence, he preferred the present Writ Petition. 6 The learned Counsel for the Petitioner submits that in view of the Government Gazette dated 29.03.1957 and the authorities of this Court in both the matters as stated in above, this Hon'ble Court be pleased to stay the further proceedings before the concerned Tahsildar in respect of the suit property i.e. land admeasuring 15 6/9 ::: Uploaded on - 02/08/2021 ::: Downloaded on - 24/09/2021 02:21:59 ::: 5-WP-2414-21.doc acres from Survey No.221 of Village Eksar, Taluka Borivli, till the hearing and final decision of the present Writ Petition. He submits that if stay is not granted, irreparable loss cause to the Petitioner. 7 On the other hand, the learned Counsel Mr. Anil P. Bagwe appearing on behalf of Respondent No.4 submits that he requires some time to file his reply. He further opposed for granting any ad-interim or interim relief. He submits that the Petitioner appeared before the concerned Tahsildar and now the hearing is completed and the matter is kept for orders. Therefore, there is no question of granting any interim relief at this stage.
8 The learned A.G.P. Mr. Rajan Pawar, appearing on behalf of the Respondent-State also vehemently opposed the present Writ Petition. He placed on record the compilation of documents containing pages 1 to 27. Same is taken on record and mark 'X' for identification. He submits that in view of the subsequent development, the objection raised by the Petitioner on the basis of Government Gazette dated 29.03.1957, is not maintainable. He submits that considering the Government Gazette dated 29.03.1957 and subsequent orders, the Tahsildar has entertained the matters in respect of the land from Village Eksar. He submits that to place all 7/9 ::: Uploaded on - 02/08/2021 ::: Downloaded on - 24/09/2021 02:21:59 ::: 5-WP-2414-21.doc these facts on record, he requires some time. He further submits that during the pendency of the present Writ Petition before this Court, the Tahsildar passed the order recorded in Roznama dated 29.06.2021 stating that till further orders from the High Court, he will not take any steps in the present matter. The learned A.G.P. submits that in view of these facts, some time may be granted to them to file affidavit-in-reply.
9 We heard both the parties in length. It is to be noted that admittedly in the present proceeding Respondent No.4 in his application under Sections 70B and 32G of the said Act dated 17.12.2020 specifically stated that his grandfather was the owner of the said property. Once the ownership is claimed, whether the said application is maintainable or not, is required to be decided after hearing both the sides. Not only that the land involved in the present matter is situated in Village Eksar, Taluka Borivli. Government Gazette dated 29.03.1957 clearly states that lands from Village Eksar, Taluka Borivli, District Bombay are reserved for non-agricultural and industrial development.
10 In view of these facts and the Roznama dated 29.06.2021 passed by the concerned Tahsildar, the following order is passed : 8/9 ::: Uploaded on - 02/08/2021 ::: Downloaded on - 24/09/2021 02:21:59 :::
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i) Admit.
ii) The Respondents to file their reply on or before 31.07.2021 with copy to other side.
iii) Rejoinder if any, to be filed on or before 13.08.2021 with copy to other side.
iv) Till further order ad-interim relief granted in terms of prayer clause (c) which reads thus :
(c) That pending the hearing and fnal disposal of this Petition, the Respondent No. 3 be prohibited from proceeding and/or acting pursuant to the impugned communication/show cause notice at Ex.
"H" hereto in case no.
TAH/BOR/TEN-3/TNC/70(B) &32(g)/SR/
2021.
v) Matter to appear on board for hearing on
31.08.2021.
vi) The learned A.G.P. and the learned Advocate Mr.
Anil P. Bagwe for Respondent No.4, waives service.
[R.I. CHAGLA J.] [K.K. TATED, J.] 9/9 ::: Uploaded on - 02/08/2021 ::: Downloaded on - 24/09/2021 02:21:59 :::