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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.

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.

(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.

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.