Ganesh Ginning And Pressing Co. ... vs State Of Maharashtra And Ors.
2005 Latest Caselaw 829 Bom

JUDGMENT

S.P. Kukday, J.

1. Rule. Rule made returnable forthwith with consent of the parties. Heard both the sides. Perused the records.

2. Briefly stated the facts of the case are that the petitioner company is engaged in the business of Ginning and Pressing since the year 1938. Shri Pannalal Shivratan Bagdia is the Managing Director of said company. The company owns land bearing Survey No. 225, admeasuring 5 hectares and 24 Ares (CTS No. 350), situated at Jalna, Previously, this portion of land was in an industrial zone. However, subsequently, Municipal Council, Jalna, vide its Resolution dated 13-7-2001, submitted a proposal to the Government on 5-12-2002 for converting use of said land from industrial to residential purpose. This proposal was approved by the Government. Accordingly, use of land was changed. The petitioner had earlier obtained N.A. permission for using the land for industrial purpose, however, as the use of land changed from industrial to residential purpose, petitioner submitted an application dated 8-5-2003 along with necessary documents for seeking permission to convert use of land from industrial to residential purpose, as required by Section 44 of the Maharashtra Land Revenue Code (hereinafter to be referred to as the Code). In response to the application, respondent No. 2 sought no objection from as many as 12 authorities. Some of the authorities responded by giving no objections, however, some of the authorities did not give any reply in spite of repeated reminders. In these circumstances, respondent No. 2 sent letter dated 20-5-2004, intimating the petitioner that as No Objections are not received from the concerned authorities, his application is filed for the time being. The petitioner, did not receive this communication dated 20-5-2004, but got knowledge about this communication during the course of inspection of the files. According to petitioner, respondent No. 2 is obliged to decide the application within a period of ninety days from the date of receipt of the application as required by sub-section (3) of Section 44 of the Code. As this is not done, the permission can be deemed to have been granted in view of the said Sub-section (3) of Section 44 of the Code. Once the prescribed period of ninety days is over, it was not open to respondent No. 2 to file the application. Being aggrieved by this conduct of respondent No. 2, the petitioner has filed the present petition for quashing and setting aside said communication dated 20-5-2004 and for declaration that permission for conversion of user is deemed to have been granted by virtue of Section 44(3) of the Code.

3. During pendency of the petition, respondent No. 3 filed an application for intervention. Hence respondent No. 3 is joined as party respondent. Respondent Nos. 2 and 3 have filed their affidavits in reply. According to respondent No. 2, efforts were made to dispose of the application at the earliest, however, as some of the authorities did not submit no objections, the application of petitioner could not be disposed of. Hence, disciplinary action is recommended against these authorities. However, it would not be in the interest of the Government to grant permission for N. A. use without securing 'No Objection' from concerned authorities and deciding objections raised by respondent No. 3, by having claimed to be a tenant of the portion of land in question, but has settled the matter out of the Court and has withdrawn his objections.

4. The only point which arises for our determination is whether the permission for conversion of use of land for N. A. purpose shall be deemed to have been granted by virtue of Section 44(3) of the Code by efflux of time. According to the learned Advocate for the petitioner Section 44(3) is unambiguous. Once an application filed by the petitioner is received by respondent No. 2, he is under an obligation to decide the same within prescribed period of 90 days. If he fails to do so, permission in question has to be deemed to have been granted and the said permission cannot be withdrawn by subsequent communication. On the other hand, learned A.G.P. contends that it is not in the interest of proper administration to invoke Section 44(3) of the Code without completing the procedure.

5. Section 44 of the Code, which deals with the subject of granting permission for conversion of use is included in the group of Sections 41 to 54-A, which deal with the use of land. Section 41 refers to natural use for the purpose of agriculture. Section 42 makes it obligatory for a person to seek permission from the Collector for converting use of land to any non-agricultural purpose. Procedure to be followed for seeking such a permission is prescribed under this section. An application is required to be submitted in the prescribed format, along with all necessary documents and giving necessary information. Collector has to consider this application and can grant or refuse the permission on the ground of public health, safety, convenience etc. Permission can also be refused if use of land is contrary to any Scheme for planned development of the village, town or the city. Section 44, sub-section (1) of the Code lays down that an application has to be made by an occupant of unalienated land or a superior holder of alienated land or a tenant of such land. Permission is required not only for non-agricultural purpose, but is also required for conversion of use from one non-agricultural purpose to other non-agricultural purpose. Sub-section (2) of this section makes it obligatory for the Collector to acknowledge the application within seven days. The Collector can return the application, if it is not made by the occupant or the superior holder or if it does not comply with all the requirements prescribed in this behalf. If the requirements are complied with, the Collector has to conduct an inquiry and either grant or refuse permission. The bone of contention is regarding interpretation of Sub-section (3) of Section 44 of the Code. It would therefore be pertinent to reproduce this subsection. Sub-section (3) of Section 44 reads as under :

"44(3) If the Collector fails to inform the applicant of his decision within ninety days from the date of acknowledgment of the application, or from the date of receipt of the application if the application is not acknowledged, or within fifteen days from the date of receipt of application for a temporary change of user or where an application has been duly returned for the purpose mentioned in Clause (b) of Sub-section (2), then within ninety days or as the case may be, within fifteen days from the date on which it is again presented duly complied with, the permission applied for shall be deemed to have been granted, but subject to any conditions prescribed in the rules made by the State Government in respect of such user."

6. It is now well settled that the provisions are required to be understood and interpreted with an object oriented approach and not in a narrow and pedantic sense. The words used may be general in terms, but their full import and true meaning has to be appreciated considering the true context in which they are used and the purpose which they seek to achieve. If the language of the statutory provision is plain and unambiguous, it cannot be interpreted in a different manner. The provision has always to be interpreted by giving effect to the purpose for which it is enacted. Sub-section (3) of Section 44 of the Code postulates presentation of an application for conversion of use and the Collector has to decide the application within prescribed period of 90 days. If he fails to do so, the deeming clause comes into operation whereby permission sought for is deemed to have been granted. Therefore, contention of learned AGP that if the application does not fulfill all the requirements, it cannot be treated to be an application under this section and sub-section (3) will not come into operation, cannot be sustained. If the requirements are not complied with, Sub-section (3) of Section 44 itself provides for return of the application and comes into play the moment application is re-submitted after due compliance. Even otherwise, the application can be rejected on the ground of non-compliance or on any other ground eferred to earlier by the Collector within the prescribed period. Similarly the contention that in csse of an objection by a third person regarding title, application of Sub-section (3) would be deferred till that objection is decided, cannot be sustained for a simple reason that the scope of sub-section (3) of Section 44 is limited. It deals, with permission for conversion of use. Therefore, only the factors concerning grant or refusal of such permission can be considered. Other objections which are not germane to the enquiry cannot be taken into consideration and though such objections are raised, obligation to decide the application within 90 days cannot be by-passed. In support of this contention learned Counsel for the petitioner has rightly placed reliance on the ruling of this Court, reported in 2002 (1) Mah LJ 854 in the matter of Vinaykumar Kachrulal Abad v. Hon'ble Minister, Revenue and Forest Department, Mantralaya, Mumbai. While deciding the controversy in respect of a revision filed under Section 257 of the Code, one of us (R. M. S. Khande-parkar, J.) has discussed the scope of Section 44 of the Code. Referring to the scope of enquiry, under this section it is observed in para 14 of the Judgment that : "There is no dispute that the matter before the Appellate Authority arises from the order of grant of permission of conversion of land for non agriculture purposes to the petitioner. The scope of the inquiry in the appeal before the Appellate Authority in relation to such grant of permission has necessarily to be in relation to the validity, legality and propriety of the order relating to conversion of the land. While conducting such inquiry, undoubtedly, the authority has to get itself satisfied about the fact of the ownership of the land of the applicant. However, that will not entitle such authority to decide the issue of title or dispute regarding title to the property between the parties. Obviously, such an issue will have to be decided by taking recourse to a normal remedy in accordance with the provisions of law applicable in a given case." Similar view is taken by another Division Bench of this Court in the matter of Smt. Surajbai Kachrulal Abad v. State of Maharashtra, in Writ Petition No. 2164/ 2003. Speaking for the Bench, Rebello, J. observed that the objections regarding ownership etc. are not germane to the inquiiy. The aggrieved person can pursue their remedy independently. Even if the land is to be acquired, proposal can be submitted for acquisition. However, these factors would not affect applicability of Sub-section (3) of Section 44 of the Code. Therefore, the contention that in case of an objection, sub-section (3) will not be attracted till that objection is decided, cannot be sustained.

7. The position which emerges is that once the application is submitted lor conversion of use, on failure of Collector to grant or refuse permission within prescribed period of 90 days, Sub-section (3) would come into operation and permission will be deemed to have been granted for conversion of use subject to conditions in that behalf. Once the time expires, Collector ceases to have jurisdiction. Therefore, subsequent refusal of permission will not affect applicability of Sub-section (3) of Section 44 of the Code. Similar view is taken by Karnataka High Court in the matter of Robert D'Silva v. Dy. Commissioner, Madtkert reported in 1995 AlHC 5742. Considering the submissions on behalf of the Government, learned Judge has observed in para No. 9 of the re port that :"...the authority is obliged to decide the application within that period and once the period has elapsed, deemed permission accrues automatically and it is impermissible thereafter to reopen the matte-' and seek to find fault either with the application, proceedings or anything for that matter. In fact, a Court would be precluded from going through any of these questions." Therefore, the contention of learned Advocate for the petitioner that if the Collector fails to decide the application within specified period, deeming provision takes effect and cannot be annulled by any subsequent act, will have to be sustained.

8. In the present case, earlier, petitioner had already secured N. A. permission for industrial use, however, as the land was converted for residential use by Municipal Council, the petitioner sought fresh permission for conversion of use of land from industrial purpose to residential purpose. Undisputedly. the application for conversion of use of land was filed on 8-5-2003, therefore, it should, have been decided by the Collector on or before 7-8-2003. As this was not done, deeming provision takes effect and the permission is deemed to have been, granted for conversion of use and consequently, subsequent, impugned communication dated 20-5-2004 regarding filing of the application will not affect the deemed permission as it is well beyond the prescribed period of 90 days. Therefore, the said communication will have to be quashed and set aside. The permission for conversion of use of land will be deemed to have been granted subject to conditions proscribed by the Rules in respect of such user. Needless to say that the petitioner will have to pay necessary conversion charges. This be done within eight weeks from the date of the order. In this view of the matter, the petition deserves to be allowed. In the light of this the Rule is made absolute in terms of prayer Clause (c). However, in the circumstances of the case, there shall be no order as to costs.