Texport Garments Ltd.& Anr vs Naib Tahsildar & Ors
2018 Latest Caselaw 688 Bom

 suresh                                       902-WPOJ-255.1999.doc

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              ORDINARY ORIGINAL CIVIL JURISDICTION
                       WRIT PETITION NO.255 OF 1999


 1. Texport Industries Ltd.,
     a Company duly incorporated under
     the provisions of the Companies 
     Act, 1956, having its office at 
     Laxmi Woolen Mills Compound, 
     Dr. E. Moses Road, Mahalaxmi,
     Mumbai - 400 093.

 2. P. Muktheshwar
     of Mumbai, Indian Inhabitant,
     the Administrative Manager of
     the 1st Petitioner abovenamed,
     residing at B/2, 2nd Floor,
     Manav Kalyan Society,
     Bangur Nagar, Goregaon,
     Mumbai - 400 093.                               ....  Petitioners

          - Versus -

 1. Naib Tahsildar, Andheri,
     an Officer appointed under the
     provisions of the Maharashtra Land
     Revenue Code and discharging his
     functions under the said Act and
     having his office at Dadabhai
     Navroji Road, Andheri (West),
     Mumbai.

 2. Gujarat Industrial Development
     Corporation, a statutory Corporation
     and an Undertaking of the State of
     Gujarat having its office at
     Plot No.C-5/101, 1st Floor,

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  suresh                                              902-WPOJ-255.1999.doc

     Char Rasta, G.I.D.C. Vapi,
     District Valsad, Gujarat.

 3. The State of Maharashtra
      through the Collector, Mumbai
      Suburban District.                                    ....  Respondents


 Mr. Chetan Kapadia with Mr. Rahul Sarda & Ms Anisha
 Nair i/by India Law for the Petitioners.
 Mr. A.L. Patki, Addl. Government Pleader, for Respondent
 Nos.1 & 3.


                                  CORAM: S.C. DHARMADHIKARI &
                                                 SMT. BHARATI H. DANGRE, JJ.

DATE : JANUARY 19, 2018

ORAL JUDGMENT ( Per Shri S.C. DHARMADHIKARI, J.):

1. The petition challenges the measures initiated by the

State of Maharashtra, namely, the proceedings for recovery and

the orders at Annexures "G", "H" & "I" to the petition. The

petitioners seeking to quash and set aside the same also pray for

issuance of writ of mandamus directing the respondents,

particularly the officials of the Government of Maharashtra not

to act in furtherance of these orders.

suresh 902-WPOJ-255.1999.doc

2. The second respondent to this petition is the Gujarat

Industrial Development Corporation (GIDC). It is a statutory

Corporation and an Undertaking of the State of Gujarat. The

petitioners state that the second respondent allotted a plot of

land in District Valsad, Gujarat, to the petitioners under an

Agreement for allotment. After inviting the attention of the

Court to the terms and conditions of this Agreement, it is stated

that a sum of Rs.78,336/- was paid on execution of this

Agreement and the balance amount was paid in accordance with

the said Agreement.

3. Then, relying on some of the clauses of this

Agreement, it is claimed by the petitioners that the Agreement

obliges them to commence and carry out a construction activity.

That is to be carried out within a time schedule. However, there

is a discretion to extend the time and that is how the dispute

started between the parties. Firstly, the petitioners addressed a

communication requesting extension of time. Thereafter, the

complaint is that, the second respondent as a precondition for

considering this application sought to recover a sum of

suresh 902-WPOJ-255.1999.doc

Rs.9,64,500/-. That the petitioners understood as a penalty.

Therefore, correspondence commenced on the point of not

charging any such penalty and in the huge sum of Rs.9,64,500/-.

Disagreeing with the petitioners, the second respondent relied

on its power of resumption of the land and addressed a Notice to

take possession. The second respondent exercised the right of

resumption of possession and termination of the Agreement but

yet persisted with its demand of Rs.9,71,429/- (penalty for

non-utilisation of the land). It is this demand which the second

respondent was seeking to enforce and this sum was to be

recovered, according to the second respondent, as arrears of

land revenue. As the petitioners are based in Maharashtra, the

authorities under the Maharashtra Land Revenue Code, 1966,

namely, the State of Maharashtra through the Collector, Mumbai

Suburban District and the first respondent-Tahsildar were

requested to recover this amount and make it over to the second

respondent-GIDC.

4. That led to the institution of this petition and it is

common ground that the petition was moved for urgent reliefs

suresh 902-WPOJ-255.1999.doc

by the petitioners before a Division Bench of this Court on

24-3-1999. On that day, the second respondent sought time but

prior thereto there was an ad-interim order restraining the

respondents from recovering the amount by coercive means. In

other words, from acting in furtherance of these Notices of

demand.

5. The petition is thus pending. While it is true that the

first and the third respondents have filed their affidavits-in-reply

to this petition, what we have also before us is an affidavit

which is filed by the second respondent. The second respondent

does not dispute that the possession is resumed and the

petitioners are no longer in possession of the property. However,

the second respondent justifies the recovery measures and its

request to the State of Maharashtra and the Collector, Mumbai

Suburban District to enforce the demand.

6. The petitioners have filed a rejoinder affidavit. Thus,

a writ petition filed in the year 1998/1999 after its admission

reached hearing and final disposal.

suresh 902-WPOJ-255.1999.doc

7. On prior two occasions we find that the second

respondent and its Advocate were absent. The petitioners filed

an additional affidavit in this Court and in which the petitioners

state as under:-

"4. I say that pending the above petition, the Respondent No.2 realised their error in raising the demand of Rs.9,71,429/-. The Respondent No.2, vide a letter dated 14th March, 2000, have addressed a pre- audited Recovery order claiming a revised sum or Rs.1,52,106/- from the Petitioner by referring to a circular bearing No. O&M/CIR/VASU/JAMIN/ MAHESU/35/99 dated 28th June, 1999. Thus, the Respondent No.2 admits that its earlier demand by letter dated 14th September 1998 for an amount of Rs.9,71,429/- and orders based thereon i.e. the impugned orders dated 13th November, 1998 and 24th November, 1998 which are impugned herein are unlawful, illegal and given a go-by by the Respondent No.2 itself by substituting the earlier demand of Rs.9,71,429/- for a demand of Rs.1,52,106/-. A copy of the said letter dated 14th March, 2000 issued by the Respondent No.2 is herewith annexed and marked as Exhibit-A.

5. I say that since the present petition was pending, the Petitioner responded to the said letter to the respondent No.2 through their Advocates' letter dated 23 rd March, 2000, giving reference to the present pending petition and the orders passed therein and denying their liability under the alleged demand. I submit that for the reasons set out extensively in the Writ Petition, the substituted demand of Rs.1,52,106/- raised by letter dated 14th March 2000 is illegal and unlawful and the Petitioner challenges the same and submits that the letter dated 14th March 2000 determining the sum of

suresh 902-WPOJ-255.1999.doc

Rs.1,51,106/- annexed as Exhibit A hereto be quashed and set aside."

8. On such a petition, on the earlier occasion, we heard

Mr. Kapadia, learned Advocate appearing for the petitioners at

some length and Mr. Patki, learned Addl. Government Pleader,

appearing for respondent Nos.1 and 3. With their assistance, we

perused the petition and this additional affidavit so also the

prior affidavits placed on record. We called upon Mr. Kapadia to

produce proof of remittance of this amount and which is termed

as a revised demand. Mr. Kapadia made a statement that in the

event that amount is not paid, it will be duly paid and proof of

such payment will be produced.

9. Today, Mr. Kapadia tenders a compilation of

documents which is taken on record and marked "X" for

identification. That shows compliance with the statements which

we have reproduced above.

10. As we have held and observed above, the second

respondent has not responded to any of these statements nor are

they present in Court. All that they are requesting the

suresh 902-WPOJ-255.1999.doc

petitioners' Advocate or the petitioners themselves is to

accommodate them. They say that their records are fairly old

and now after two decades they are unable to trace them out.

They are also not aware of the fact that they have reduced or

revised the figure which they are seeking in terms of the demand

Notices. We do not think that we should keep this petition

pending merely because the second respondent, a statutory

Corporation, has its own practical difficulties or is unable to

trace the record. It should have at least remained present before

the Court or instructed its Advocate to do so as they were made

aware that the petition is pending for hearing and final disposal

and listed today. If they can correspond with the petitioners, we

see no reason why their representative cannot attend the Court

if at all they were interested in seeking to recover something

more than the revised demand or interest or any penalty from

the petitioners. They have not remained present. We accept the

stand of the petitioners as reflected from the additional affidavit

and the compilation of documents. Since the second respondent

is the only contesting respondent and its conduct being as noted

suresh 902-WPOJ-255.1999.doc

above, we quash the demand Notices in the original sum and

hold that the demand Notices stand satisfied after the revision

effected by the second respondent and its acceptance of the

Demand Draft forwarded by the petitioners in the revised sum.

Rule is made absolutely accordingly. There will be no order as to

costs.

(SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.)