Shirish Govind Gangakhedkar vs Maruit Narayan Gaiwad, Vishnu ...
2003 Latest Caselaw 66 Bom

JUDGMENT

1. This writ, petition takes exception to the judgment and order passed by theMaharashtra Revenue Tribunal, Pune, dated October 18, 1999, in Revision No. MTR-P-I-14/98 (B-20/94) Pune.

2. Briefly stated, the Respondents 1 to 3 were the original owners of two lands admeasuring 3-H 59-R out of Survey No. 42 and 0-H 99-R out of Survey No. 40/2, situate at village Wadavali, Taluka: Mavalk, Dist: Pune. Respondents 1 to 3 became owners of the said lands after having purchased the same under the provisions of Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter for the sake of brevity, in short referred to as "the Act",). In other words, the said Respondents 1 to 3 were tenants in the said lands and became deemed purchasers by operation of law. Some time on 18th January 1992, the said Respondents 1 to 3 made application Under Section 43 of the Act to permit them to transfer the said two lands to the Petitioner herein. That application was decided by the S.D.O. on January 24, 1992, granting permission to the said Respondents 1 to 3, as prayed for on certain conditions. One of the condition relevant for deciding the present case is tht the said trasnaction between the said Respondents 1 to 3 and Peitioner was to be completed within three months from the date of granting permission and upon payment of Najrana amount to the Government, failing which the permission would stand cancelled and action for resumption of land under Secton 84C of the Act was to be taken. There are other condition in the said order, however, it is not necessary to advert to those conditions herein. As per the said order teh Petitioner as well as Respondents 1 to 3 were under obligation to conclude the said transaction within three months from the date of order, i.e. on or before 24th April 1992. However, admittedly, that transaction was not concluded between them. Whereas, some time on March 1, 1992 Respondents 1 to 3 made application to the S.D.O. that they have no objection for granting extension of time for payment and for exectuion of the sale deed as they intend to dispose of the property to the Petitioner herein. Soon thereafter on March 5, 1992, the Respondents 1 to 3 made another application to the S.D.O. for permission under Section 43 of the Act to transfer the land bearing Survey No. 42 only admeasuing 3-H 59-R in favour of the Respondents 4 & 5 herein. Undoubtedly, this application was filed while the application for extension of tiem was pending with the S.D.O.-filed on March 1, 1992; coupled with the fact that the time provided for in the order dated January 24, 1992 was still subsisting till April 24, 1992. Be that as it may, the fact remains that the said transaction in respect the aforestated two lands was not completed between Respondents 1 to 3 and Petitioner herein, before April 24, 1992. The order passed by the S.D.O. dated January 24, 1992 makes it very clear that on non compliance of any of the conditions, which includes non completion of the said transaction result into cancellation of the said order. The other relevant dates that need to be taken note of is that the Second application preferred by Respondents 1 to 3 dated March 5, 1992, purported to be under Section 43 of the Act, seeking permission to transfer the land bearing Survey No. 42 only in favour of the Respondents 4 & 5, came to be allowed by the S.D.O. on April 30, 1992 on similar conditions which are noted in the earlier order dated 24th January 1992. Pursuant to this order, Respondents 4 & 5 paid the Najrana amount to the State Exchequer and on May 13, 1992 executed sale-deed with Respondents 1 to 3 in respect of land bearing Survey No. 42, admeasuring 3-H 59-R and also obtained possession of the said land with effect from the said date. The sale deed between the Respondents inter-se came to be registered at Registration No. 3029 with the Sub-Registrar of Assurances, Haveli, Pune. However, much thereafter on July 8, 1992 Respondents 1 to 3 are stated to have executed another sale deed in favour of the Petitioner herein in respect of the same land bearing Survey No. 42. This transaction was effected inspite of the Registered sale-deed already executed in favour of Respondents 4 & 5 on 13th May 1992; besides, there was no subsisting permission in favour of Respondents 1 to 3 to transfer the said land in favour of the Petitioner herein. In as much as, the permission which was granted on January 24, 1992 had already lapsed on completion of three months therefrom. In one sense, the Sale-deed executed between Respondents 1 to 3 and Petitioner is not in confirmity with the requirements of Section 43 of the Act. It is relevant to note that an enquiry was held in which statements of owners

-Respondents 1 to 3 came to be recorded wherein it is stated that they have no objection for granting extension of time to complete the transaction with the Petitioner only in respect of land Survey No. 40/2 admeasuring Q-H 99-R but pressed that permission under section 43 of the Act be granted to transfer the land bearing Survey No. 42, admeasuring 3-H 59-R in favour of Respondents 4 &

5. It is not necessary to burden this judgment with all other events and various proceedings between the parties before different forums, which details are set out in extenso in the Reply-affidavit filed by Respondents 4 & 5 before this court. Suffice it to mention that the Petitioner after execution of the sale-deed on July 8, 1992 kept on making application to S.D.O. for extension of time. Besides, pursuant tot he grievance made by the Petitioner by written application to the S.D.O., the S.D.O. passed order on August 11, 1993 recallihng the permission granted in respect of the transaction to be completed between Respondents 1 to 3 and Respondents 4 & 5 inter-se in terms of order dated April 30, 1992. This decision of the S.D.O. records that second permission application was erroneously entertained by his office. Against the said decision, Respondents 4 & 5 filed above numbered Revision before the M.R.T. Pune. The Tribunal, on the other hand, was pleased to set aside the order passed by the S.D.O. dated August 11, 1993. Though varios contentiosn have been considered by, the Tribunal, in substance, the Tribunal has held that the second application filed by the owners for permission Under Section 43 to transfer the land bearing Survey No. 42 only admeasuring 3-H 59-R in favour Respondents 4 & 5 was properly filed. The Tribunal further held that when the permission was granted on that application on April 30, 1992 at that point of time there was no valid subsisting permissio in respect of the said land in favour of any other person. The Tribunal has further held that there is no provision in the Act or the Rules which would authorise the S.D.O. to set aside or cancel the permission once granted. It is in this backdrop, the Tribunal was pleased to set aside the order passed by the S.D.O. dated 11th August, 1993. It is this decision which is challenged by way of this Writ Petition.

3. In all four contentions have been raised by way of this Writ Petition and which have been canvassed across the bar at the time of hearing. I shall make reference to those contentions a little later. It is relevant to note that this Writ Petition was admitted by this Court on September 13, 2000 and this court granted order of status-quo to continue till the disposal of the petition. It appears that the Respondents 4 &5 who were affected by the order of status quo moved an application before this court for vacating that order and alternatively for early hearing of the writ petition. However, that Civil Application bearing No. 8087/2000 came to be rejected on November 22, 2000, essentially on the ground that there was no changed circumstances after the writ petition was admitted. It appears that thereafter Respondnts 4 & 5 to apply for early hearing of the petition on expiry of one year. Pursuant to that liberty, fresh application has been filed before this court, being Civil Application No. 2120 of 2002, poninting out that several incorrect and misleading statements have been made in the Writ Petition; that relevant materials have been deliberately suppressed; and that it is on that basis the Writ Petition filed by the petitioner came to be entertained. Accordingly, Respondents 4 & 5 have prayed by way of this application to dismiss the Writ Petition with compensatory costs. It is further prayed that the hearing of the Writ Petiton be expedited and that the order of status quo granted earlier be vacated. This application was circulated on October 14, 2002 for order. On considering the oral arguments advanced on that day, I indicated to the Counsel appearing for the parties that the appropriate course will be to hear the application along with the Writ Petition finally. Counsel appearing for both the parties agreed to argue the Writ Petition for final hearing on the next date of hearing. Accordingly, arguments in this Writ Petition were heard finally on October 16, 2002 and judgment was reserved. The parties were given liberty to file written sumissions. Pursuant to that liberty, written submissions have been filed which are already taken on record.

4. The first point raised on behalf of the petitioner is that the sale-deed executed between Respondents 4 & 5 and the onwers Respondents 1 to 3 on March 13, 1992, was much before the S.D.O. had accorded permission in thier favour vide order dated April 30, 1992. The Writ Petition proceedsw on the premise that, therefore, the saled-deed executed in favour of Respondents 4 & 5 is invalid. However, this contention has been countered by the Respondents 4 & 5 by filing affidavit and also placing on record all the relevant documents. The affidavit and the documents filed by Respondents 4 & 5 would clearly reveal that the registre sale-deed was executed between Respondents 1 to 3 and Respondents 4 & 5 in respect of the land bearing Survey No.42 on May 13, 1992, only after the S.D.O. had accorded permission in that behalf. It is stated that Petitioner has taken undue advantage of one typographical error appearing in the impugned order. For, at one place in the said order it is mentioend that the said sale-deed was executed on 13.3.1992, instead of 13.5.1992, which is the correct date. There is substance in this objection in as much as in the earlier part of the same judgment, before the reasons while adverting to the relevant facts, the Tribunal has noted the correct date of the executon of the sale deed as 13.5.1992. In the light of this position, which has now come on record by way of affidavit, Mr. Anturkar counsel for the Petitioner fairly concedes that the said argument will not be available to Petitioner. He however, orally submits that the Petitoner committed genuine mistake in taking that ground. It is relevant to note that the Petitioner has not filed any affidavit controverting the reply affidavit filed by the Respondents 4 & 5 opposing the Writ Petition and specifically making this grievance. However, it is only during the oral argumetns Mr. Anturkar for the Petitoner has attempted to offer justification as a genuine mistake on the part of the Petitioner, which explanation does not impress me at all. As is seen that the Petitioner has filed affidavit-in-support of the Writ Petition clearly stating that the contents of the Writ Petitions are true to the best of his personal knowledge and he has carefully gone through the memo of the Writ Petition.

5. Be that as it may, I shall now advert to the second contention raised on behalf of the Petitoner. It is argued that the order passed by the S.D.O. dated April 30, 1992 according permission to transfer the land bearing Survey No. 42 in favour of Respondents 4 & 5 was based on the application preferred by Respondents 1 to 3 on 5.3.1992. It is submitted that the scheme of Section 43 of the Act does not permit fiing of two applications for the same relief in succession. It is further contended that in any case while the permission granted on the first application was already operating, the second application as presented was not maintainable in law. In support of this submission reliance has been placed on the decision of the Gujarat High Court reported in 1994(1) GCD 26 (Guj) Harjivndas Anandji Kapadia & Ors. v. Apar Private Limited and Ors., which decision deals with similar provisions applicable to the State of Gujarat. It is next contended that in the fact situation of the present case the S.D.O was obliged to extend the time for execution of the sale-deed and for completion of the transaction to be entered on the basis of the order passed on Janauary 24, 1992. It is contended that the authorities below have committed palpable mistake in not extending the time in favour of th e Petitioner. It is next contended that the Revisional Court has completely exceeded its authority in going into the correctness of the order dated January 24, 1992 which was not even the subject matter of the challenge before it.

6. The above contentions raised on behalf of the Petitioner are countered by the counsel for Respondents 4 & 5. He submits that there is no substance in any of the arguments and that Section 43 of the Act would not permit such an approach, as has been suggested by the Petitioner.

7. Having considered the rival submissions and after having gone through the entire reocrd, including the reply affidavit and the accompanying documents as well as the accompanying Civil Applications, I have no hesitation in taking the view that this Writ Petition is devoid of merits and in fact deserves to be dismissed on account of the conduct of the Petitoner, which would be elaborated a little later. Reverting to the contention regarding the scheme of Section 43 of the Act that it does not permit institution of second application or successive applications for permission to transfer the same land to some other person; to consider this submission, I think it apposite to reproduce Section 43 of the Act as applicable to the State of Maharashtra, which reads thus:

"Section 43(1) No land purchased by a tenant under Section 32, 32F or sold to any person under Section 32P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignement without the previous sanction of the Collector, such sanction shall be given by the Collector in such circumstances, and subject to such conditions, as may be prescribed by the State Government: Provided that, no such sanction shall be necessary whre the land is to be mortgaged in favour of Government or a society registered or deemed to be registered under the Bombay Co-operative Societies Act, 1925, for raising a loan for effecting any improvement of such land.

(2) Any transfer of land in contravention of Sub-section (1) shall be invalid."

8. On the plain language of this provision, the argument advandced before this court on behalf of the Petitoner deserves to be rejected. The provision, per se, does not create any bar for filing successive applications for permission to transfer the land. On the other hand, it is only a provision for placing restriction on transfer of land purchased or sold under the Act. Even if this court was to give a restricted meaning to this provision, it would only be that in a given case if a valid Sanction Order is in operation, then, ordinarily, the Collector would not grant another permission in respect of the same land. In the enquiry for examining the second request made by the land owner, the Collector, would obviously consider as to what are the impelling circumstances requiring the land ower to contract with some other person in respect of the same land in place of the earlier purchaser. It is also possible to take a view that the Collector may refuse to grant or entertain the second application for permission in respect of the same land while the earlier permission was already subsisting or in operation. However, the order of refusal should record the reasos therefor. The abovesaid requirement would be one of prudence and not the rule. There is nothign in this provision to hold that even when the earlier permission has lapsed or stood automatically cancelled due to non compliance of certain condition, the Collector is incompetent to grant fresh permission in respect of the same land.

9. On the other hand, reliance is placed by the Counsel for the Petitioner on the decision of the Gujarat High Court in the case of Harjivandas (supra). The observations in this case are in the context of the fact situation of that case. In that case, the Collector granted permission under Section 43 of the Act, however, the owner ofthe land bieng dissatisfied with the condition of requiring him to deposit Rs. 17,600/- in the State Exchequer filed revision application before the Tribunal. In other words, the order of permission was not challenged as such, but what was challenged was only one of the conditon in the order that too at the instance of the land owner. Besides, the said order was subsisting when the second permission was granted in respect of the same land at the instance of the land owner. In that context the Gujarat High Court was called upon to consider as to whether the second permission was appropriate and the Gujarat High Court has held that such an application could not have been entertained. In other words, in that case the second permission was granted during the period when the earlier permission was already subsisting. However, in the present case, the fact situation is different. No doubt, the land ownes filed second application on March 5, 1992 when the permission given in respect of the same land was already to operate till April 24, 1992; but, as is seen, the permission was actually granted by the S.D.O. only on April 30, 1992 after the first permission had already lapsed and stood cancelled on account of the non-compliance of the condition postulated in the order dated January 24, 1992. In that sense, there was no subsisting permission in respect of the same land when the order dated April 30, 1992 came to be passed by the S.D.O.. Understood thus, the order passed by the S.D.O. on April 30, 1992 cannot be faulted or can be said to be inherently without jurisdiction. If that is so, then the fact that the land owerns had filed secodn application while the first permission was already in operation would be of no consequence.

10. That takes me to the next contention that the competent authority ought to have granted extension of time in favour of the Petitioner. There is no substance even in this grievance. It is seen that the permission which was granted in favour of the Petitioner was to expire on April 24, 1992 but before that date the Petitioner did not complete the transaction which he was expected to do by virtue of the order dated January 24, 2002. Moroever, Petitioner made application for extension of time much after the expiry of that period on July 24, 1992, that too when the land bearing Survey No. 42 already stood validly transferred in favour of the Respondents 4 & 5 by virtue of registered sale deed dated May 13, 1992. Accordingly, the application preferred by the Petitioner for extension of time will have no bearing on the present case. In any case, as observed earlier, the application for extension of tiem was filed by the Petitioner only after the right, title and interest in respectof the land bearing Survey No. 42 already stood vested in Respondetns 4 & 5 by virtue of the registered sale-deed dated May 13, 1992. In this view of the matter, there is no substance in the grievance made by the petitioner that the authorities have misdirected themselves in not granting extension of time to the Petitioner. The question of extension of time would arise only if the land bearing Survery No.42 was still available for transfer in the hands of the original owner-Respondents 1 to 3. Assuming that the Petitioner would have contended taht before expiry of the period provided in the order dated January 24, 1992 the Respondents 1 to 3 had made application for extension of time and when that application was pending the Authority could not have entertained another application for permission in favvour of some other person such as the Respondents 4 & 5 herein. However, even this grievance is devoid of merits. In the first place, the Respondent 1 to 3, the land owenrs have not supported the case for extension of time in respect of land bearing Survey No. 42 and instead urged that they may be allowed to transfer the said land in favour of the Respondents 4 & 5. Besdies, the day on which the Authority granted permission to transer land bearing Survey No. 42 in favour of Respondent 4 & 5, on that day there was no subsisting permission in favour of any other person with regard to that land and the land owners (Respondents 1 and 3) during the enquiry have not supported the cause of the Petitioner. Moreover, the Tribunal has rightly held that having regard to the legislative scheme the S.D.O. had no power to set aside his own order. For this singular reason the Tribunal was justified in setting aside the order of the S.D.O. dated August 11, 1993-recalling his earlier order dated April 30, 1992 which enured in favour of Respondents 4 & 5 and, in fact, was already acted upon-coupled with the fact that it is allowed to attain finality.

11. That takes me to the next contention aruged on behalf of the Petitioner that the Tribunal could not have gone into the validity of the order passed in favour of the Petitioner dated January 24, 1992. There is no substance even in this grievance. No doubt, the tribunal has gone into the correctness of the decision of the S.D.O., however, to my mind, that is not the sole basis on which the Tribunal has passed the impugned order. In other words, the Tribunal has considered that aspect only incidentially and is not the basis for allowing the revision preferred by Respondents 4 & 5. On the other hand, the Tribunal in the operative order has only set aside the order passed by the S.D.O. dated August 11, 1993 and restored the order dated April 30, 1992. Moreover, the question of setting aside the order dated January 24, 1992 does not arise because it was a self-operative order. For, the same was to last initially only for a period of three months and would have continued thereafter only if the Petitioner and Respondents 1 to 3 were to complete the sale transactions in respect of the subject land within the prescribed time. However, since that did not happen the said order automatically lapsed and stood cancelled. In this view of the matter, there is no substance in the grievance made by the Petitioner that the Tribunal has exceeded its jurisdiction in going into the question of validity of the order dated January 24, 1992.

12. Before I conclude, it will be necesssary to point out that, in fact, I would have though it appropriate to dismiss this writ petition on account of the conduct of the Petitioner. Because the Petitioner has not approached this court with clean hands. He has taken false pleas and persuaded this court to admit the petition on that premise. Counsel for the Petitioner has already conceded before this court that the first plea, which was the principal plea in the Writ Petition was not available and could not have been taken by the Petitioner. Besides, it is seen that hte writ petitioner was filed-only accompanied by the order passed by the S.D.O. dated April 30, 1992 and of the Tribunal dated October 8, 1999 which is impugned in this Writ Petition. Obviously, the court was pursuaded to examine the matter only on the basis of those two orders, for the purpose of admission. No other document was placed before the court. On the other hand, most of the relevant matters were obviously delibeately suppressed from this court. In as much as, documents which have now come on record by way of affidavit after the Writ Petition came to be admitted, clearly reveal that the Petitioner is persecuting the Respondents 4 & 5. As a matter of fact, the documents appended to the reply affidavit and the events stated therein would clearly reveal that several other disputes and claims are pending between the parties inter-se and, so far the Petitioner has not succeeded in getting any relief either from the civil court or from any other court of competent jurisdiction. Moreover, the Petitoner did not disclose the crucial fact that the Petitioner has already executed sale-deed in respect of the subject lands dated July 8, 1992 when there was no subsisting permission in his favour. The Petitoner has also filed a substantive suit against Respondents 4 & 5 for declaration that the sale-deed executed in their favour in respect of land bearing Survey No. 42 dated 13th May 1992 is invalid and not binding on him, which fact is not disclosed. All these matters were obvisouly suppressed from this court which have been unfolded only after a detailed reply came to be filed. Moreover, the Petitioner has not countered the allegations made in the reply affidavit filed on behalf of Respondents 4 & 5 as well as in the accompanying Civil Application.

13. For all these reasons, I have no hesitation in observing that the present writ petition is an abuse of process of the court and the Petitioner has succeeded in causing prejudice to Respondents 4 & 5 by persuading the court to pass an order of status-quo against them without disclosing the fact that the Petitioner was already suffering an order of injunction passed by the court of competent jurisdiction. As a matter of fact this would be a fit case to initiate proceedings against the Petitoner for filing false, incorrect and misleading affidavit to support the averments in the writ petition. However, taking overall view of the matter, I have no hesitation in directing the Petitioner to pay compensatory costs to Respondents 4 & 5, which is quantified as Rs. 10,000/-. It is made clear that the compensatory costs awarded in this order is without prejudice to the rights of Respondents 4 & 5 to pursue any other remedy against the Petitioner including for appropriate compensation in accordance with law.

14. Accordingly, this Writ Petition is dismissed with compensatory costs quantified at Rs. 10,000/-. The Petitioner shall directly pay the said amount of Rs. 10,000/- to Respondents 4 & 5 within four weeks from today. In view of this order, accompanying Civil Application No. 2120 of 2002 also stands disposed of.

All concerned to act on an ordinary copy of this order duly authenticated by the Shirastedar of this court.