Bombay High Court
Bses Ltd & Anr vs State Of Maharashtra & Ors on 15 January, 2018
Bench: S.C. Dharmadhikari
suresh 12-WPOJ-1694.2003.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1694 OF 2003
1. BSES Limited, a Company
registered under the Companies
Act, 1913, having its Registered
Office at BSES House, Santacruz
(East), Mumbai-400 055.
2. Pankaj S. Pandya of Mumbai,
Indian Inhabitant, residing at
Receiving Station, Bandra (W),
Mumbai-400 050. .... Petitioners
- Versus -
1. State of Maharashtra
2. The Collector of Mumbai,
having his office at Old Customs
House, Shahid Bhagat Singh
Road, Mumbai-400 001.
3. The Registrar of Assurances,
having his office at Old Customs
House, Shahid Bhagat Singh
Road, Mumbai-400 001.
4. The Sub-Registrar of Assurances,
having his office at Old Customs
House, Shahid Bhagat Singh
Road, Mumbai-400 001.
5. The Tahsildar (Land Revenue
Recovery), having his office at
C/o Office of the Collector,
Page 1 of 5
::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 01:51:53 :::
suresh 12-WPOJ-1694.2003.doc
Old Custom House,
Mumbai-400 023.
6. Madhukar Laherchand Parikh,
Administrator, residing at
5th Floor, Nagin Mahal,
82 Veer Nariman Road,
Mumbai-400 020.
7. Nitin Nathalal Parikh,
Administrator and Trustee,
residing at 10th Floor,
Varsha 19, 69-B, Napeansea
Road, Mumbai-400 006. .... Respondents
Mr. D.J. Kakalia with Mr. Paresh Patkar i/by Mulla &
Mulla & Cragie Blunt & Caroe for the Petitioners.
Ms Devyani Wanjara i/by B.R. Oza & Co. for Respondent
Nos.6 & 7.
CORAM: S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
DATE : JANUARY 15, 2018
ORAL JUDGMENT ( Per Shri
S.C. DHARMADHIKARI, J. ):
1. This petition under Article 226 of the Constitution of
India challenges Notices of Demand issued under Section 267 of
the Maharashtra Land Revenue Code, 1966, copies of which are
at Exhibits "F" and "I", and Letters of Demand dated 25-4-2003
suresh 12-WPOJ-1694.2003.doc
and 10-6-2002, copies of which are at Exhibits "E" and "D" to
this petition. The petitioner No.1 before us at the relevant time
carried on business inter alia of generating and distribution of
electric energy and was distributing such energy to its
consumers in the Mumbai Suburban District.
2. The respondents to this petition are the State of
Maharashtra and functionaries under the Maharashtra Land
Revenue Code, 1966, the Maharashtra Stamp Act, 1958 and the
Registration Act, 1908.
3. The petitioners challenge the demand by way of
transfer charges and threatened action of attachment of their
properties. The scheme or policy of transfer charges is
enunciated in Government Resolution dated 23-11-2001 which
the petitioners claim to be inapplicable to them. They also
challenge the legality and validity of this Government
Resolution and pray that it be declared ultra vires the parent Act
as also Articles 14 and 21 of the Constitution of India.
suresh 12-WPOJ-1694.2003.doc
4. A writ petition involving identical challenge filed in
this Court being Original Side Writ Petition No.713 of 2001 {Mr.
Aspi Chinoy & Another vs. The State of Maharashtra &
Others} was heard by a Division Bench of this Court and on
29-9-2009 it allowed it. The Division Bench declared that the
State Government does not have a right to ask petitioner No.1
therein to seek its previous approval before entering into any
transaction transferring immovable property. It further declared
that the State has no power to demand any premium before
transferring the Flat. The writ petition was allowed in these
terms.
5. It is conceded by the State of Maharashtra that the
controversy may be identical to this petition and others
involving similar challenge and disposed of by following the
above Judgment but the State of Maharashtra has challenged it
in the Hon'ble Supreme Court and that challenge is pending.
6. On the earlier occasion and even today we
repeatedly questioned the State's Advocate whether the
suresh 12-WPOJ-1694.2003.doc
Judgment and Order of the Division Bench has been stayed by
the Hon'ble Supreme Court and the reply was in negative. On
the specious plea that the challenge is pending in the Hon'ble
Supreme Court, we cannot ignore and brush aside a binding
Judgment of this Court as that would be judicial indiscipline,
particularly when the issues are concluded by the Division
Bench Judgment.
7. In view thereof, following the above Division Bench
Judgment we allow this petition with similar order and
directions. Rule is made absolute accordingly. There would be
no order as to costs.
(SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.)
