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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1739 of 2008.
Mahadev Gangadhar Kamle,
aged about 50 years, Occ.-Cultivator,
R/o.-Tilak Ward Ramtek, near new Bus Stand,
Tah. Ramtek, District Nagpur. .... Petitioner.
Versus
1] The State of Maharashtra,
through Additional Collector,
Civil Lines, Nagpur.
2] The Sub Divisional Officer, Ramtek.
3] The Tahsildar Ramtek, Tahasil Office,
Ramtek. .... Respondents.
Shri S.D. Khati, Adv for petitioner.
Shri M.M. Ekre, AGP for respondents.
Coram : S.B. Shukre, J.
th Dated : 11 May, 2016.
ORAL JUDGMENT
1] Heard.
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2] By this Writ Petition, the order of Tahsildar refusing
permission for conversion of user of land of the petitioner bearing Survey No.37, P.H.No.38 at mouza Parsoda as well as the order of the Sub-Divisional Officer confirming the rejection of the permission has been challenged.
3] Under Section 44(3) of the Maharashtra Land Revenue Code, 1966 [for short, 'the MLR Code'], if the permission for conversion of user of land is not granted within 90 days from the date of receipt of the application, the permission is deemed to have been granted, but subject to any conditions prescribed in the rules made by the State Government in respect of such user.
4] In the instant case, the application seeking permission to convert his land into non agricultural use was made by the petitioner on 16-08-2004. Therefore, as per the provisions of Section 44(3) of the MLR Code, the refusal of permission ought to have been communicated to the petitioner on or before 15-11-2004, the date on which the prescribed period of 90 days expired. In the instant case, it is the contention of respondent no.3 that the permission was refused on 30-10-2004, whereas, it is the submission of the learned ::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 01:42:21 ::: 3 judg wp 1739.08.odt Counsel for the petitioner that the communication regarding the rejection of the application dated 16-08-2004 was received by the petitioner on 18-11-2004 i.e. after the lapse of three days after the expiry of prescribed period of 90 days.
5] From the affidavit dated 05-08-2008, sworn in by the Tahsildar, Ramtek, it is clearly seen that the respondents have admitted the fact there is no documentary proof to support their claim that there was communication of refusal of the permission to the petitioner on 30-10-2004. The Tahsildar, Ramtek, has admitted in this affidavit that on his taking the inspection of the relevant record of his office, he did not find any evidence regarding the dispatch of the letter dated 30-10-2004. It is clear that the contention of the respondents regarding communication of refusal of the permission by the office of the Tahsildar on 30-10-2004 is incorrect. Therefore, I find, in the facts and circumstances of the case, that the refusal of permission was communicated to the petitioner on 18-11-2004. In fact, there is a letter dated 18-11-2004 (Annexure-IV) at page no. 17 of the petition acknowledged by the petitioner clearly showing that it was only on this date that the decision to refuse the permission for conversion of user of the land was taken. It is obvious that the refusal of ::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 01:42:21 ::: 4 judg wp 1739.08.odt permission had come after the expiry of prescribed period of 90 days. Therefore, Section 44(3) of the MLR Code, will have its application and the permission applied for shall be deemed to have been granted under the provisions of law, but subject to rules made by the State Government in that behalf.
6] Even in the case of Ganesh Ginning and Pressing Company Ltd., Jalna vrs State of Maharashtra and others, reported in 2005(4) Mh.L.J. 263, relied upon by the learned Counsel for the petitioner, it has been clearly held that when the Collector fails to grant or refuse permission within prescribed period of 90 days Sub-Section (3) of Section 44 comes into operation and the permission is deemed to be granted for conversion of the user of land subject to the conditions as mentioned in the provisions of law.
7] In the case of State of Maharashtra and others vrs Shri Narayan Agro Udyog Pvt. Ltd. and others, reported in 1996(2) Mh.L.J. 731, the Division Bench of this Court held that the provision of Rule 4(c) of the Maharashtra Land Revenue (Conversion of Use of Land and Non-agricultural Assessment) Rules, 1969 is applicable only in respect of the ::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 01:42:21 ::: 5 judg wp 1739.08.odt permission for non-agricultural use granted by the order made by the Collector and it has no applicability to cases coming within the purview deeming provision under Section 44(3) of the MLR Code. The Division Bench has expressed an opinion that the provision of Rule 4(c) of the Maharashtra Land Revenue (Conversion of Use of Land and Non-
agricultural Assessment) Rules, would have its application only to the cases where there is an order of the Collector granting permission and not to those cases where the permission is deemed to be granted under Section 44(3) of the MLR Code.
8] In view of above, I am of the opinion, that the impugned orders dated 18-11-2004 passed by the Tahsildar, Ramtek as well as the order dated 04-08-2006 passed by the Sub-Divisional Officer, Ramtek, rejecting the appeal of the petitioner being Revenue Appeal No.31/NAP-34/04-05 of mouza Parsoda, Tahsil Ramtek, cannot be sustained in the scrutiny of law and it must go.
9] In the result, the Writ Petition is allowed. The impugned orders dated 18-11-2004 passed by the Tahsildar, Ramtek as well as the order dated 04-08-2006 passed by the ::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 01:42:21 ::: 6 judg wp 1739.08.odt Sub-Divisional Officer, Ramtek, are hereby quashed and set aside. It is declared that the permission for conversion of land of the petitioner bearing Survey No.37, P.H. No.38 of mouza Parsoda admeasuring 0.96 Hectare for non-agricultural use is deemed to be granted in terms of Section 44(3) of the MLR Code, subject to conditions prescribed in the rules made by the State Government in that behalf, if any, and also subject to payment of the necessary charges. If necessary, Tahsildar, Ramtek shall issue the formal grant of permission in above terms.
10] Rule is made absolute in above terms. No order as to costs.
JUDGE Deshmukh ::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 01:42:21 :::