Bombay High Court
Aziz S/O Hasambhai Barde vs State Of Mah., Through The ... on 25 October, 2016
Bench: A.S. Chandurkar
owp.502.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR
...
WRIT PETITION NO. 502/2015
Aziz s/o Hasambhai Barde
Aged about 59 years, occu:
Agriculturist/Business
R/o Garden society, Wanjari Fail
Yavatmal, Tah. & Dist. Yavatmal. ...PETITIONER
v e r s u s
1) The State of maharashatra
Through the Secretary
Revenue and Forest Department
Mantralaya, Mumbai-32.
2) The Divisional Commissioner
Amravati Division, Amravati.
3) The Collector, Yavatmal
Dist. Yavatmal
4) The Sub-divisional Officer,
Yavatmal. ..RESPONDENTS
...........................................................................................................................
Mr. M.G. Bhangde, Sr.counsel with Shri S.N.Tapadia,
Advocate for petitioner
Mr. N.B. Jawade, A.G.P. for respondent nos. 1 to 4
............................................................................................................................
CORAM: A.S.CHANDURKAR, J.
DATED : 25th October, 2016.
ORAL JUDGMENT :
1. In view of notice for final disposal issued earlier, the learned
counsel for the parties have been heard at length by issuing Rule and making
the same returnable forthwith.
owp.502.15
2. Challenge in the present Writ Petition is to the orders dated
18.6.2008 passed by the Commissioner, Amravati Division, Amravati, thereby
revoking an earlier order dated 21.5.2007 by which the petitioner was
directed to pay an unearned income on the transaction of sale as per the
Government Resolution dated 29.5.2006. The subsequent order dated
21.08.2014 passed by the State Government in exercise of its revisional
powers rejecting the Revision Application, is also under challenge.
3.
Land bearing Survey No. 50/2 situated at Wadgaon, Tahsil &
District Yavatmal, admeasuring about 4H 5R was owned by one Kisan
Ambadare and after his death by his widow Smt. Palabai. On 22.11.1993
said Smt.Palabai, had applied to the Sub-Divisional Officer for grant of
permission to sell the aforesaid land. Before such permission could be
granted, said Smt. Palabai executed a sale-deed of the aforesaid land in
favour of the petitioner on 2.11.1999. The petitioner, thereafter, persuaded
the matter in regard to grant of appropriate permission. It is the case of the
petitioner that on 21.5.2007, the Divisional Commissioner had regularised the
sale-deed executed in favour of the petitioner subject to certain conditions,
but the same were not communicated to the petitioner. Ultimately on
5.5.2008, the Divisional Commissioner informed the Lok Ayukta that the
petitioner was not ready to pay unearned income, in terms of order dated
21.5.2007. Pursuant thereto, on 18.6.2008, the Divisional Commissioner
owp.502.15
revoked the earlier order dated 21.5.2007. This order was challenged by the
petitioner by preferring Revision Application and the same was dismissed on
21.08.2014. Being aggrieved, these orders are under challenge.
4. Shri M.G. Bhangde, the learned senior counsel for the petitioner
submitted that the order dated 21.5.2007 imposing certain conditions in the
matter of regualrisation of the sale-deed was never communicated to the
petitioner and hence there was no opportunity for the petitioner to comply
with conditions stated therein. He submitted that the necessary permission for
effecting the sale had been moved on 22.11.1993 and after a considerable
delay such permission was granted but the conditions imposed were never
communicated. It was urged that the order dated 18.6.2008 revoking the
aforesaid permission on account of non-compliance of said conditions was
passed without grant of any opportunity of hearing to the petitioner. This
aspect was sought to be highlighted in the further proceedings before the
State Government, but said aspect of the matter was not taken into
consideration. He submitted that the petitioner was always willing to comply
with the conditions imposed in the order dated 21.05.2007, but for its non-
intimation, the same could not be done. He referred to the averments made
in paragraph 21 and 24 of the Writ Petition, to urge that the order dated
18.6.2008 had been passed without grant of opportunity. It was therefore
submitted that both the orders were therefore liable to be set aside.
owp.502.15
5. Mr.N.B. Jawade, learned Assistant Government Pleader for the
respondents supported the impugned orders by relying upon the affidavit-in-
reply. He submitted that the petitioner having failed to comply with the
conditions as imposed by the order dated 21.5.2007, the Commissioner was
justified in revoking the said permission. He submitted that the State
Government after taking into consideration the aforesaid aspect of the matter,
rightly rejected the Revision Application.
6.
In reply, it was submitted on behalf of the learned senior counsel
that insofar as the adjoining plot No.50/1 is concerned, similar permission
had been granted in the year 1997 and hence, on the same basis, the
petitioner was also entitled for grant of necessary permission.
7. I have heard the respective counsel for the parties at length and
have also perused the documents filed on record. It is not in dispute that on
22.11.1993 an application had been made by the petitioner's vendor for grant
of necessary permission to effect the sale-deed. After a considerable period,
the Commissioner, on 21.5.2007 regualrised the transaction of sale subject to
certain conditions. The record indicates that this order was not communicated
to the petitioner due to which the conditions stated therein could not be
complied with. On 18.6.2008, the permission granted on 21.5.2007 came to
be revoked on the ground that said conditions were not complied with. It is
owp.502.15
the specific assertion made on behalf of the petitioner in the proceedings filed
before the State Government as well as in the Writ Petition that the order
dated 18.6.2008 was passed without hearing the petitioner. The same has not
been controverted. It is therefore clear from the record that the Commissioner
on 18.6.2008 revoked the permission without grant of opportunity of hearing
to the petitioner. On that ground, the said order is liable to be set aside.
8.
Before the State Government, this very ground was reiterated in
the memorandum of Appeal as well as in the written notes dated 5.12.2013.
The impugned order dated 21.8.2014 also does not take into consideration
the said aspect of the matter. It is, therefore, clear that the order dated
18.6.2008 being found unsustainable as it was passed without hearing the
petitioner, the subsequent order dated 21.8.2014 also cannot be sustained.
Hence both the impugned orders are liable to be set aside.
9. In view of the aforesaid discussion, the following order is
passed:-
ORDER
(i) The order dated 18.6.2008 passed by the respondent no.2 and the
subsequent order dated 21.8.2014 passed by the respondent no.1 are
quashed and set aside. It is held that the case of the petitioner would be
governed by the order dated 21.5.2007, by which the transaction of sale has
owp.502.15
been regularised subject to certain conditions. The petitioner would be liable
to pay unearned income as per the ready reckoner at the rates prevalent on
21.5.2007.
(ii) As per the interim order dated 28.4.2015 the petitioner has deposited
the amount of unearned income from 22.11.1993. The amount of unearned
income that the petitioner is liable to pay in terms of order dated 21.5.2007,
shall be determined within a period of eight weeks from today. The balance
amount, if any, payable by the petitioner over and above the amount so
deposited, shall be paid by the petitioner within a period of four weeks
thereafter. In case the petitioner is entitled for any refund, said amount shall
be refunded within a period of four weeks, as above.
Rule is made absolute in the aforesaid terms, with no order as
to costs.
JUDGE
sahare
