Shaikh Kalim Shaikh Mohammad And ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 7520 Bom

     (Judgment)                  (1)             W.P. No. 10895 of 2017




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
            AURANGABAD BENCH, AT AURANGABAD.       

                     Writ Petition No. 10895 of 2017     

                                           District : Jalgaon


1. Shaikh Kalim Shaikh Mohammad,
   Age : 50 years,
   Occupation : Agriculture.

2. Sayanoorbee w/o. Shaikh Mohammad,
   Age : 70 years,
   Occupation : Agriculture.

  Both R/o. Jamner Pura, Jamner,
  Taluka Jamner, Dist. Jalgaon.              .. Petitioners. 

          versus

1. The State of Maharashtra,
   Through its Secretary,
   Industries Department,
   Mantralaya, Mumbai - 32.

2. The Maharashtra Industrial 
   Development Corporation, 
   Mumbai,
   Through its Chief Executive
   Officer,
   'Udyog Sarathi',
   Mahakali Caves Road,
   Andheri (E),
   Mumbai 400 093.

3. General Manager (Land),
   The Maharashtra Industrial
   Development Corporation,
   'Udyog Sarathi', Mahakali
   Caves Road, Andheri (E),
   Mumbai 400 093.

4. Regional Officer,
   The Maharashtra Industrial 
   Development Corporation,
   Dhule & Jalgaon 425 001.




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       (Judgment)                    (2)               W.P. No. 10895 of 2017


5. The District Collector,
   Jalgaon, District Jalgaon.

6. The Sub-Divisional Officer /
   Land Acquisition Officer /
   Assistant District Collector,
   Jalgaon Division, Jalgaon.

7. The Tahsildar,
   Jamner, Dist. Jalgaon. 

8. The Sub-Registrar,
   Jamner at Jamner.

9. The Talathi,
   Jamner, at Jamner,
   District Jalgaon.                              .. Respondents.

                                 ...........

      Mr. Umesh A. Bhadgaonkar, Advocate, for petitioners.

      Mr. S.G. Karlekar, Asst. Government Pleader, for
      respondents no.01, 05 to 09.

      Mr. S.S. Dande, Advocate, for respondents
      no.02, 03, and 04.

                                 ...........

                    CORAM : R.M. BORDE &
                            SMT. VIBHA KANKANWADI, JJ.
                                
                    DATE  : 25TH SEPTEMBER 2017


JUDGMENT (Per Smt. Vibha Kankanwadi, J.):

01. The petitioners have invoked the writ

jurisdiction of this court in order to seek issuance

of writ in the form of direction to quash the letter

01.07.2017 issued by respondent no.05 as well as to

direct respondent no.08 to register sale deed of the

(Judgment) (3) W.P. No. 10895 of 2017

land in view of the application dated 12.07.2017 made

by them.

02. The factual matrix leading to the petition

are as under :-

(a) The petitioners are the agriculturists. They are

the owners of land bearing Gut No.80/1 admeasuring 1

Hectare 38 Are plus 0.24 barren (Pot Kharab) situated

at village Holhaveli, Taluka Jamner, District Jalgaon.

The petitioners had decided to sell their land and,

therefore, entered into an agreement of sale with one

Shri Jayprakash Jadhav. They had also issued public

notice in the newspaper dated 29.06.2017. The

petitioners and the purchaser approached the office of

respondent no.08 - Sub-Registrar, Jamner, for

execution of the sale deed. However, the authority

refused to execute the same stating that there are

restrictions on the sale and purchase transaction in

the said area. The petitioners, therefore, made

enquiry and came to know that respondent no.02 has

issued notice in exercise of powers conferred to it by

Clause 9 of Section 2 of the Maharashtra Industrial

(Judgment) (4) W.P. No. 10895 of 2017

Development Act, 1961 [For short, "MID Act"].

Respondent no.02 has declared village Kasbe Jamner to

be an industrial area.

(b) Further in view of the publication of the

notification about the declaration, respondent no.05

has issued directions to the Tahsildar and the Sub-

Registrar, Jamner, on 01.07.2017 notifying the

restrictions of transactions of sale and purchase in

the said area in view of preliminary notification

under Section 32(2) of the MID Act. Thereafter

petitioners made an application to respondent no.08 -

Sub-Registrar on 12.07.2017 stating that the

petitioners have entered into an agreement to sell

their agricultural land and they have received the

consideration from the purchaser. They also contended

that it is necessary to register a sale deed in

pursuance to the agreement to sell and it was also

pointed out that in view of various court orders, till

the stage of Section 32(1) of the MID Act, the

transaction of registration cannot be restricted. In

that application, the petitioners had prayed for

registration of the sale deed. Inspite of specific

(Judgment) (5) W.P. No. 10895 of 2017

application to respondent no.08 - Sub-Registrar, no

cognizance was taken and, therefore, application was

made on 19.07.2017 to the respondent no.05 - District

Collector and also respondent no.06 - Land Acquisition

Officer. According to the petitioners, there is no

bar on the registration of document till the date of

issuance of notification under Section 32(1) of the

MID Act. Hence, the petitioners have filed the

present writ petition for issuance of necessary writ.

03. Heard Mr. U.A. Bhadgaonkar, learned Counsel

appearing for petitioners; Mr. S.G. Karlekar, learned

Asst. Government Pleader appearing for respondents

no.01, 05 to 09 and Mr. S.S. Dande, learned Counsel

appearing for respondents no.02, 03 and 04. Perused

the documents with the help of learned Counsel

appearing for parties.

04. It has been vehemently argued on behalf of

the petitioners, that though the notification under

Section 32(2) of the MID Act has been issued, it does

not prohibit the transactions and till further step is

taken under Section 32(1) of the Act, there is no bar

(Judgment) (6) W.P. No. 10895 of 2017

for recording registration of the sale transactions.

He relied on decision in Writ Petition No. 3800 of

2008 of this Court, dated 11.07.2008, wherein it has

been held that when the notification as required under

Section 32(1) of the Act has not yet been published;

there is no bar on the registration of the document.

Similar view was also taken in Writ Petition No. 5992

of 2008 and Writ Petition No. 6300 of 2008 on

21.10.2008.

05. Per contra, it has been argued on behalf of

respondent no.04, that the notification under Section

32(2) of the MID Act came to be issued on 11.03.2016.

Various lands from village Holhaveli were included in

the said notification. Subsequent notifications have

also been issued on 04.11.2016 and 03.07.2017. He

further submitted that the Division Bench of this

Court in Avadhut Rokdoba Shinde & others Vs. The State of

Maharashtra & others [2014(2) Bom.C.R.830] has held that the

notification under Section 1(3) read with Section 30

of the MID Act is in the nature of notification under

Section 4 of the Land Acquisition Act and further

taking note of various judgments, namely (Gurmukh Singh

(Judgment) (7) W.P. No. 10895 of 2017

Vs. State of Haryana), reported in J.T. (1995)8 S.C. 208, (Yadu

Nandan Garg Vs. State of Rajasthan) , reported in 1996(1)

S.C.C.334, (Sneh Prabha Vs. State of U.P.), reported in 1996(7)

S.C.C. 426, (U.P. Jal Nigam Vs. Kalra Properties (P) Ltd.) ,

reported in (1996)3 S.C.C. 124 and (Mohmadbhai s/o. Miyabhai

& others Vs. State of Maharashtra & others) , reported in 2000(1)

Bom.C.R. 841 (A.B.) : 2000(1) Mh.L.J. 729 , it was held that

the petitioners therein do not have any legal

entitlement to challenge the acquisiton proceedings

since petitioners are purchasers of small pieces of

plots out of notified area after the date of issuance

of notification under Section 1(3) read with Section

31 of the MID Act.

06. Further reliance has been placed by the

learned Counsel for respondent no.04, on the decision

in Meera Sahni Vs. Lieutenant Governor of Delhi & others [(2008) 9

SCC 177] wherein the notifications under Land

Acquisition Act were involved. It was held that with

issuance of notification under Section 4 of the Land

Acquisition Act, any encumbrance created by the owner

or any transfer made after issuance of such

notification would be deemed to be void and would not

(Judgment) (8) W.P. No. 10895 of 2017

be binding on the government. Similar ratio has been

laid down in V. Chandrasekaran & another Vs. Administrative

Officer & others [(2012) 12 SCC 133] . Further, in a recent

pronouncement, the Apex Court in Government (NCT of Delhi)

Vs. Manav Dharam Trust & another ((2017)6 SCC 751] , similar

view has been reiterated. He, therefore, submitted

that taking into consideration the ratio in catena of

judgments would show that there was a restriction on

sale and purchase transaction in the area where the

agricultural land belonging to the petitioners is

situated and, therefore, the respondents are justified

in rejecting the request of the petitioners to

register the transaction.

07. The facts of the case reveal that the

petitioners, who are owners of the agricultural land,

are not disputing the fact that the notice under

Section 32(1) of the MID Act was issued on 11.03.2016.

It was specifically thereafter promulgated that there

shall not be transactions in respect of the lands

which have been notified. The purpose for the said

notice was obvious and after the said notification was

issued, the petitioners have entered into an agreement

(Judgment) (9) W.P. No. 10895 of 2017

of sale. Under such circumstance, when the facts are

so crystal clear, the point involved in the petition

is whether any right is created in favour of either

the purchaser or even the seller i.e. petitioners.

08. Similar facts were before this Court in

Avadhut Rokdoba Shinde & others (supra). Taking into

consideration the earlier decisions of the Hon'ble

Apex Court, the Division Bench of this Court has come

to the conclusion that the petitioners therein, who

were the buyers, do not have legal entitlement to

challenge the acquisition proceedings since the

petitioners are purchasers of small pieces of plots.

It was held that the notification under Section 1(3)

read with Section 30 of the MID Act, which is

comparable with notification under Section 4 of the

Land Acquisition Act, 1894, does not confer any such

right. Though, in this case, the distinguishing

factor is that the petitioners, who are the sellers,

are not challenging the acquisition, but they want the

agreement to sell to be executed definitely with an

intention to create a right in favour of the

prospective purchaser.

(Judgment) (10) W.P. No. 10895 of 2017

09. Once the notification issued under Section

1(3) read with Section 31 of the MID Act is equivalent

to Section 4 of the Land Acquisition Act, further

steps those are taken under Section 32 of the MID Act

will not create any kind of right in favour of either

the purchaser or the buyer. Therefore, the decision

in V. Chandrasekaran's case (supra) would be applicable

here.

10. Further, the observations in Manav Dharam

Trust's case (supra), wherein after taking note of the

decision in Rajasthan State Industrial Development and

Investment Corporation Vs. Subhash Sindhi Co-op. Housing Society

[(2013) 5 SCC 427], it has been reiterated that such

transactions after initiation of acquisition

proceedings would be void and would not be binding on

the Government. Therefore, when the transaction

itself is void, then the Government authorities are

justified in rejecting the prayer of the petitioners

to register the document.

11. The petitioners have relied on the decisions

(Judgment) (11) W.P. No. 10895 of 2017

in Writ Petition No. 3800 of 2008, Writ Petition No.

5992 of 2008 and Writ Petition No. 6300 of 2008 of

this Court. However, taking into consideration the

legal position clarified by the Hon'ble Apex Court in

V. Chandrasekaran's case (supra) and Manav Dharam Trust's

case (supra), said reliance by the petitioners on the

above said decisions of this Court is devoid of merit.

We, therefore, proceed to pass the following order :-

Order

The Writ Petition is hereby rejected.

     ( Smt. Vibha Kankanwadi )         ( R.M. Borde )
                  JUDGE                        JUDGE

                                  ...........

puranik / WP10895.17