Suvede Foundation Thr. Its ... vs The State Of Maharashtra Thr. Its ...
2016 Latest Caselaw 253 Bom

                                                                          w.p.no.375.15
                                          1

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR 




                                                                           
                          BENCH NAGPUR.




                                                   
                    WRIT    PETITION     NO.    375    OF     2015


    SUVEDE Foundation, the public




                                                  
    trust, bearing Registration No. E-
    245/Akola, through its President
    Anantrao Vithalrao Deshmukh, 
    aged 62 yrs. R/o Risod, Tah.




                                        
    Risod, District Washim.                                     PETITIONER.
                              ig      VERSUS
                            
    1] State of Maharashtra,
    through Secretary Revenue
    & Forest Department, 
    Mantralaya, Mumbai-32. 
      
   



    2] The Divisional Commissioner,
    Amravati Division Amravati. 

    3] The Collector, Washim. 





    4] The Sub Divisional Officer,
    Washim, District Washim.

    5] The Tahsildar, Washim,
    District Washim.                                            RESPONDENTS.

Shri V. P. Panpaliya, Counsel for the petitioner. Ms. T. Khan, Assistant Government Pleader for respondents.

CORAM: SMT.VASANTI A. NAIK AND A. S. CHANDURKAR JJ.

                               Dated    :   MARCH  02, 2016.




                                                                                      w.p.no.375.15





                                                                                      
    ORAL JUDGMENT: (Per Smt. Vasanti A. Naik J.) 

     




                                                              

Rule. Rule made returnable forthwith. The petition is heard

finally at the stage of admission with the consent of the learned counsel

for the parties.

By this petition the petitioner challenges the order of the

respondent no.3-Collector Washim, dated 30.06.2014 as also the

communication issued in consequence thereof by the Tahsildar, as

being bad in law.

Few facts giving rise to the petition are stated thus:

The petitioner is a trust registered under the provisions of the

Bombay Public Trust Act. The petitioner had made an application to

the State Government for grant of E Class land from Gat No. 190

admeasuring 2 hectres from mouza Surkundi Tahsil and District

Washim for starting a Dental College. After making the necessary

enquiry, by an order dated 18.03.2004, the Collector, Washim allotted

the land to the petitioner Trust for starting the Dental College on

certain terms and conditions. It is the case of the petitioner that in

terms of the said grant the petitioner was required to pay sum of Rs.

55,000/- to the State Government towards the possessory rights and an

amount of Rs. 23,650/- per annum for the user of the land. The

w.p.no.375.15

petitioner could not get the permission from the State Government to

start Dental College and hence the petitioner was not able to utilise the

land for that purpose. The petitioner therefore applied to the State

Government for permission to use the land for establishment of

Agricultural and Technical Center. The said permission was granted to

the petitioner by an order dated 31.07.2013. According to the

petitioner, the petitioner was required to pay only a sum of Rs.

55,000/- towards possessory right and an amount of Rs. 23,650/- P. A.

towards user of the land but illegally, by the impugned communication

dated 02.09.2014, the Tahsildar, Washim directed the petitioner to pay

a sum of Rs. 2,21,65,000/- towards the user of the land for the year

2013. The petitioner has challenged the said communication in the

instant petition along with the order of the Collector-Washim, dated

30.06.2014.

Shri V. P. Panpaliya, the learned counsel for the petitioner

submitted that the impugned orders are illegal and are liable to be

quashed and set aside. It is stated that the petitioner was granted the

lease hold rights in the land in the year 2004 and he is required to pay

a sum of Rs. 55,000/- towards possessory rights and Rs. 23,650/- P. A.

for the user of the land. It is stated that since the petitioner was not

able to establish a Dental College on the said land the petitioner

applied to the State Government for permission to change the user of

w.p.no.375.15

the land. It is stated that the Government permitted the petitioner to

change the user of the land, by the order dated 31.07.2013. It is stated

that in the circumstances of the case the action on the part of the

respondents in fixing the rate for the user of the land in the year 2013

at Rs. 2,21,55,000/- is illegal. It is stated that by the order, dated

18.03.2004 by which the petitioner was permitted to change the user of

the land, the petitioner was required to pay sum of Rs. 23,650/- per

annum and the petitioner should not have been asked to pay a sum of

more than rupees 2 crores towards the user of the land in the year

2013.

Ms. Tajwar Khan, the learned Assistant Government

Pleader appearing for the respondents submitted that the petitioner

was initially granted permission to use the land only for the Dental

College and as per the terms and conditions of the order of grant dated

18.03.2004, the land was liable to be reverted to the State Government

and the petitioner was required to give an undertaking to that effect. It

is stated that the petitioner was permitted to use the land for

agricultural and technical center by the order dated 31.07.2013 and the

said order clearly shows that a fresh permission is granted to the

petitioner for user of the land for the aforesaid purpose only on the

condition that the petitioner would pay the occupancy price as per the

current rates, in the ready reckoner. It was noticed that the petitioner

w.p.no.375.15

was paying a meager amount of Rs. 23,650/- for the land. It is stated

that as per the audit objection the petitioner is liable to pay sum of Rs.

2,21,55,000/- towards the user of the land in the year 2013 in view of

the order dated 31.07.2013. It is stated that after considering the

Government Resolutions dated 29.05.2006, 29.04.2008 and the ready

reckoner the Government has rightly fixed the rate for the user of the

land in the year 2013 as Rs. 2,21,55,000/-. It is submitted that the

petitioner was granted permission to use the land for agricultural and

technical center on the terms and conditions mentioned in the order

dated 31.07.2013 and since as per the first condition, the petitioner

would be liable to pay the occupancy price as per the rates fixed in the

ready reckoner for the year 2013. It is submitted that the petitioner has

not challenged the order dated 31.07.2013 and it would be necessary

for the petitioner to comply with the condition in the said order. It is

stated that it is clear from the order dated 31.07.2013 and the two

Government Resolutions referred to herein above that a fresh

permission was granted to the petitioner to start the agricultural and

technical center on the land on the condition that the petitioner pays

the occupancy price of the land as per the market value. The learned

Assistant Government Pleader seeks for the dismissal of the petition.

On hearing the learned counsel for the parties and on a

perusal of the order dated 31.07.2013 as also the Government

w.p.no.375.15

Resolutions dated 29.05.2006 and 29.04.2008 and the affidavit in reply

filed on behalf of the respondent no.1 and respondent nos. 3 to 5 it

appears that the relief sought by the petitioner cannot be granted in the

circumstances of the case. We do not find that the action of the

respondents in directing the petitioner to pay a sum of Rs.

2,21,55,000/- towards the user of the land for the year 2013 is either

arbitrary or illegal. The petitioner was granted permission to use the

land only for the Dental College, by the order dated 18.03.2004. The

petitioner could not start the Dental College in the absence of

permission from the State Government. The petitioner then applied to

the State Government for permission to change the user of the land for

agricultural and technical center. It is necessary to note that in the

order dated 18.03.2004, that is the grant of initial permission, one of

the condition namely condition No. 5 provided that the petitioner

should return the land to the State Government if the petitioner is not

able to start the Dental College due to the rejection of its application for

permission to start the same. The petitioner was also required to

furnish an undertaking to the aforesaid effect. The document dated

18.03.2004 clearly shows that the land was liable to be returned to the

State Government in case of failure on the part of the petitioner to start

the Dental College on the said land. In the absence of permission to

start the Dental College the petitioner had applied for change of the

w.p.no.375.15

user of the land for agricultural and technical center. It is necessary to

refer to the order of permission, dated 31.07.2013 for user of the land

for agriculture and technical center. The said permission is granted to

the petitioner on certain terms and conditions mentioned in the order.

The first and foremost condition in the said order is that the petitioner

would be liable to pay the occupancy price of the land as per the ready

reckoner. Since the permission was granted on 31.07.2013 there was

an audit objection that the petitioner cannot be permitted to use the

land for the year 2013 unless the petitioner pays a sum of Rs.

2,21,55,000/- towards the user of the land in the year 2013. We find

on a reading of the first condition in the order dated 31.07.2013 and

the Government Resolution, dated 29.05.2006 that the Government

was entitled to fix the occupancy price for the user of the land as per

the ready reckoner. The case of the petitioner would fall in the class of

the cases mentioned in the Government Resolution dated 29.05.2006.

The Government Resolution, dated 29.04.2008 provides the manner in

which the occupancy price of the land could be computed. It is stated

on behalf of the respondent, as could be seen from the affidavit in reply

filed on behalf of the respondent nos. 3 to 5 that the occupancy price of

the land has been fixed in terms of the Government Resolution, dated

29.04.2008 and the occupancy price was fixed as per the ready

reckoner for the year 2013. On a combined reading of the order, dated

w.p.no.375.15

18.03.2004, the Government Resolutions dated 29.05.2006 and

29.04.2008 as also the affidavit in reply filed on behalf of the

respondent nos. 3 to 5 that the respondents had rightly directed the

petitioner to pay the occupancy price of the land at the market rate. In

the absence of any challenge to the order date 31.07.2013, the

petitioner cannot be permitted to challenge the impugned orders,

specially when the first condition in the order dated 31.07.2013

provides that the occupancy price would be fixed as per the market

rate.

In the circumstances of the case, we dismiss the writ

petition with no order as to costs.

                                      JUDGE                         JUDGE





    svk






                                                               w.p.no.375.15