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J.V.Salunke,PA Judgment.WPL.122.2018+.doc "37A. (1) Every sale, transfer, redevelopment, use of additional Floor Space Index (FSI), transfer of transferable Development Rights (TDR) or change of use of any Government land in Amravati and Nagpur Revenue Divisions including the Mumbai City and Revenue Divisions in the State, which is granted for various purposes under the provisions of this Code or rules made thereunder or any law relating to land revenue, before the commencement of this Code, including the nazul lands in Amravati and Nagpur Revenue Divisions shall be subject to taking the prior permission of the State Government.

46. A bare perusal of the same would indicate that every sale, transfer, redevelopment, use of additional Floor Space Index (FSI), transfer of Transferable Development Rights (TDR) or change of use of any Government land in Amravati and Nagpur Revenue Division, and including Mumbai City and the Revenue Divisions in the State and which land is granted for various purposes under the provisions of MLRC or rules made thereunder or any law relating to land revenue, before the commencement of this Code, including the nazul lands in Amravati and Nagpur Revenue Division shall be subject to taking the prior permission of the State Government. Thus, every sale, transfer etc is subject to taking the prior permission of the State Government. However, the State Government shall, while granting such permission as required under sub-section (1), recover such premium or charge and share of unearned income subject to such terms and conditions as may be specified, by general or special order, issued by the Government, from time to time and the proviso clarifies that if the provisions of this section or of any such orders issued thereunder are inconsistent with the terms and conditions of the order of land grant or the lease deed executed prior to the commencement of the Maharashtra Land Revenue Code (Second Amendment) Act, 2012, the terms and conditions of such order of land grant or lease deed shall prevail J.V.Salunke,PA Judgment.WPL.122.2018+.doc and the second proviso clarifies that in case of the nazul lands in Amravati and Nagpur Revenue Divisions, the provisions of sub- section (1) of section 37A shall not be applicable with retrospective effect. Thus, this provision places restriction on sale, transfer etc. in relation to Government land and nazul land. Once it expressly refers to the Mumbai City and revenue divisions in the State and includes any Government land therein, then, we would have to read sub-section (2) of section 1 of the MLRC accordingly. Though rest of the provisions in Chapter III, save and except those expressly made applicable by sub-section (2) of section 1 are inapplicable, we would not be able to hold that section 37A is inapplicable to the instant transactions or the property covered by the instant lease deed. In fact, to be fair, that is not the argument either.

2 The Hon'ble High Court, Nagpur Bench, vide its common judgment in various petitions, dated 30th September, 2008, has observed that the existing provisions of law regarding grant or lease of nazul lands or Government lands in Amravati and Nagpur land Revenue divisions, do not authorizes the Revenue Authority to impose any new conditions or modify any conditions during subsistence of lease period or for that matter at the time of renewal of the lease, such as putting restrictions on the right to alienate the nazul land or Government land, making liable for taking prior approval of the competent authority and paying the unearned income for recognizing or approving the transfer of such land, in the Amravati Nagpur Revenue Divisions. It is also J.V.Salunke,PA Judgment.WPL.122.2018+.doc observed that, though the renewal of the lease necessarily should be, on same terms and conditions as in the earlier lease except the change or revision in respect of annual lease rent, the State Legislature has authority to enact law authorizing the State Government to claim unearned income from the grantee or lessee for recognizing or approving the transfer of land granted for purposes other than industrial and commercial purposes in question. The Government, therefore, considers it expedient to amend the Maharashtra Land Revenue Code, 1966 (Mah. XLI of 1966), for authorizing the State Government to claim unearned income from the grantee or lessee for recognizing or approving the transfer of land in question and also to incorporate the provisions regarding redevelopment, use of additional floor space index, transfer of transferable development rights in respect of such land.

60. We have reproduced section 37A and section 295 of the MLRC only to bring home the point that section 37A places restrictions on sale, transfer, redevelopment, change of use etc. in relation to an Government land in Amravati and Nagpur Divisions, including the Mumbai City and Revenue Divisions in the State, which is granted for various purposes under the provisions of this Code or rules made thereunder or any law relating to land revenue, before the commencement of this Code, including the nazul lands in Amravati and Nagpur Revenue Divisions, shall be subject to taking the prior permission of the State Government, still, on the own showing of the parties, this provision was brought into effect on 3rd March, 2015. It is this provision, by sub-section (2), which enables the Government while granting such permission, as is required under sub-section (1), to recover such premium or charge and share of unearned income subject to such terms and conditions, as may be specified by general or special order issued by the Government from time J.V.Salunke,PA Judgment.WPL.122.2018+.doc to time. However, the first proviso to sub-section (2) itself clarifies that if there is an inconsistency in the provisions of section 37A or of any such orders issued thereunder with the terms and conditions of the order of land grant or the lease deed executed prior to the commencement of the Maharashtra Land Revenue Code (Second Amendment) Act, 2012, the terms and conditions of such grant or lease deed shall prevail. The Maharashtra Land Revenue Code (Second Amendment) Act, 2012 was brought into effect on 3 rd March, 2015. This is a lease deed admittedly executed prior to the commencement of the Maharashtra Land Revenue (Second Amendment) Act, 2012. Secondly, there is a clear inconsistency in the lease deed and the provisions of section 37A of the MLRC. Therefore, we do not see how respondent nos. 1 and 2 can justify the demand on the petitioners. In the teeth of the clear language of this provision, we do not see that the demand is legally tenable. It cannot be maintained on the touchstone of introduction of the proviso in section 295 for that was brought into effect on 22nd August, 2016 admittedly. That proviso says that all leases granted by the State Government or the Collector of the land or foreshore vested in the Government for whatever term, which were in existence on or before the date of commencement of this Code or were granted thereafter shall, notwithstanding the conditions stipulated in J.V.Salunke,PA Judgment.WPL.122.2018+.doc such lease deeds executed by the Collector, be also subject to the conditions referable to clause (i) of the proviso.