Mahadev Gangadhar Kamle vs The State Of Mah. Thru. Addl. ...
2016 Latest Caselaw 2460 Bom

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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

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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

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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

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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

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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