Shankar Madhavrao Shirsagar And ... vs The State Of Maharashtra Thr. ...
2021 Latest Caselaw 6030 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION
                             WRIT PETITION NO. 841 OF 2021
Shankar Madhavrao Shirsagar and others                       ...         Petitioners
Versus
The State of Maharashtra through Secretary,
Revenue and Forest Department and others                     ...         Respondents


Mr. N.V. Walawalkar, Senior Advocate alongwith Mr. Suresh Sabrad and Mr. Amey
Sawant and Ms. Neha Parte for the Petitioners.
Mr. A.I. Patel, Addl.GP for the State.

                                       CORAM :         S.J. KATHAWALLA AND
                                                       SURENDRA P. TAVADE, JJ.

DATED : APRIL 5, 2021.

ORAL ORDER (PER S.J.KATHAWALLA, J.)

1. By the above Writ Petition, the Petitioners inter-alia seek the following

reliefs :

"(a) rule be issued, records and proceedings be called for. (bb) by an appropriate writ, order and direction, this Hon'ble Court be pleased to quash and set aside the letter dated 30.12.2006 issued by Respondent No.3 as well as the order dated 16.10.2008 passed by the Respondent No.4 in R.T.S. Appeal No.42 of 2007 and confrred by Respondent No.1 vide its judgrent and order dated 30.3.2021 in Appeal No.3019/10645/File No. 263/J-6 and further be pleased to direct the Respondent No.3 to forthwith corrunicate the arount of nazrana on the valuation of the said property on the date of application i.e. 24.3.1995 as expeditiously as possible and within a period of four weeks."

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2. The facts and circumstances giving rise to the present Petition are briefy

set out hereunder :

2.1 The Petitioners were allotted land under Occupancy Class 6A, being Gat

No.580, admeasuring 0.72 Ares, situated at Mauje Nashik, Taluka Zilla Nashik, (the

'said Land'). Thereafter, the Petitioners wanted to use the said Land for non-

agricultural purpose. However, as per the provisions of The Maharashtra Land

Revenue Code, prior permission was required to be obtained from the Collector -

Nashik (Respondent No. 2) by the Petitioners, for the purpose of changing the user of

the said Land by making 50% payment of the value of the said Land i.e. nazrana.

2.2 On 24th March, 1995, the Petitioners made an Application to the

Respondent No.2 - Collector - Nashik seeking permission to convert user of the said

Land from agricultural land to non-agricultural land. Since the said Land is

Occupancy Class 6A land, the Petitioners requested Respondent No.3 to calculate the

amount of nazrana in respect of the said Land. The Petitioners showed their readiness

and willingness to deposit the amount of nazrana for conversion of the said Land.

2.3 Respondent No.2 - Collector, forwarded the said Application dated 24 th

March, 1995 received from the Petitioners to the Respondent No.3 - Tahsildar, Tal-

Nashik, District-Nashik, for making enquiry and taking decision on the same.

2.4 Respondent No.3 - Tahsildar in turn forwarded the Petitioners'

Application dated 24th March, 1995 to the Circle Ofcer for conducting ofcial enquiry

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and forwarding his report. The Circle Ofcer, Nashik conducted an enquiry and after

recording the statement of the Petitioners forwarded his Report to the Respondent

No.2 - Tahsildar, on 30th June, 1995.

2.5 According to the Petitioners, they thereafter time and again visited the

Ofce of Respondent No.3 with a request to communicate the amount of nazrana

which they were required to deposit. However, the Application of the Petitioners

dated 24th March, 1995 was kept pending and no decision on the same was taken for

years together.

2.6 On 6th December, 2006, the Petitioners sent a reminder to Respondent

No.3 - Tahsildar recording therein that the Application made by the Petitioners dated

24th March, 1995 for conversion of land to non-agricultural purpose was pending and

that the Petitioners had already shown their readiness and willingness to deposit the

amount of nazrana. Respondent No.3 accepted the said reminder and informed the

Petitioners that the Petitioners would be communicated the amount that would be

required to be paid towards nazrana.

2.7 On 30th December, 2006, Respondent No.3 - Tahsildar issued a letter to

the Petitioners informing them that the amount payable towards nazrana on the basis

of the reminder dated 6th December, 2006, was Rs.1,53,60,000/- i.e. 50% of the market

value of the said Land as on 6th December, 2006.

2.8 Being aggrieved by the said communication, the Petitioners preferred R.

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T. S. Appeal No. 42 of 2007 under Section 247 of the Maharashtra Land Revenue

Code, 1966 before Respondent No.4 - Sub-Divisional Ofcer, Nashik Division,

Nashik. In the said Appeal the Petitioners specifcally contended that the Original

Application was fled in the year 1995. However, by an Order dated 16 th October, 2008,

the Respondent No. 4 rejected the Appeal, on the ground that the evaluation /

calculation of the nazrana is rightly done, taking into consideration that the reminder

was fled on 6th December, 2006.

2.9. Again, being aggrieved by the Order dated 16 th December, 2008 passed

by the Respondent No. 4, the Petitioners on 17 th November, 2008 preferred a

representation in the form of an Appeal before the Respondent No. 1 - State. However,

the same was kept pending and no decision was taken despite repeated follow up by

the Petitioners.

2.10. In the year 2013 when the Petitioners once again inquired as to when

their representation in the form of Appeal will be considered, the Petitioners were

informed that the fles have been misplaced / destroyed in the fre that broke out in the

Mantralaya building in the year 2012.

2.11. In the year 2015 the Petitioners were asked to fle a fresh representation

in the form of an Appeal, which the Petitioners did, but again the same was not

considered for more than 5 years.

2.12. The Petitioners were therefore constrained to fle the above Writ

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Petition before this Court seeking reliefs in terms of prayer clause (a) and the original

prayer clause (b).

3. During the course of hearing of the above Writ Petition, the Learned

Additional GP appearing for the Respondents pointed out that the Appeal fled by the

Petitioners is pending and the same would be heard by the Revenue Minister.

Accordingly, on 16th March, 2021, this Court passed an Order directing the Revenue

Minister of the State - Respondent No. 1, to hear the Appeal being No.

3091/10646/File No. 263/J-6 on 23rd March, 2021, and pass his speaking Order not

later than 30th March, 2021.

4. On 23rd March, 2021, the Petitioners through their Advocate appeared

before the Revenue Minister for hearing of the Appeal fled by the Petitioners.

According to the Petitioners, they had fled written submissions before the Revenue

Minister, inter alia pointing out that the Petitioners had made an Application on 24 th

March, 1995 for change of user of the said Land and that the Order dated 30 th

December, 2006 of the Learned Tahsildar, Nashik and the Order of the Respondent

No. 3 - Sub - Divisional Ofcer, Nashik impugned before the Revenue Minister

directing the Petitioners to make payment of the amount of unearned income

(nazrana) on the basis of the market value of the said Land prevalent on the date of the

Reminder Letter dated 6th December, 2006 / Order dated 30th December, 2006,

instead of the market value of the said Land prevalent on the date of the Application

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dated 24th March, 1995, was totally incorrect, in view of the law laid down by this

Court, as well as the Supreme Court in its various Judgments.

5. The Revenue Minister vide his Order dated 30 th March, 2021 dismissed

the Appeal / representation fled by the Petitioners and confrmed the Order passed by

the Sub - Divisional Ofcer, Nashik.

6. The Advocate for the Petitioners therefore sought leave to amend the

Petition including seeking relief in terms of prayer clause (bb), which was granted and

accordingly amendments were carried out.

7. The Learned Senior Advocate appearing for the Petitioners has

submitted that it is not the case of the Respondents that the Petitioners have not

complied with any of the requirements of law, or are in any way responsible for the

delay in hearing / deciding any of the Applications / Appeals / representations, fled

by the Petitioners, and it is infact the Respondents who are to be solely blamed for the

delay on their part, since the Original Application of the Petitioners is dated 24 th

March, 1995. It is further submitted on behalf of the Petitioners that the Respondent

No.1 in the impugned Order has not taken into consideration the law laid down by this

Court, as well as the Supreme Court, that for the purpose of calculating the amount of

nazrana, the date of the application is to be considered and not the date of the Order.

It is also submitted that in the impugned Order while recording the submissions made

on behalf of the Petitioners, though there is reference made regarding the Judgments

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of this Court, the Respondent No.1 did not deal with the same, which clearly shows

that there is no application of mind. He further submitted that the only ground on

which the representation is dismissed is that the Petitioners have surrendered 1800 Sq.

Mtrs. of land to the Nashik Municipal Corporation for the purpose of D.P. Road,

without permission of the competent authority and have thereby not complied with

the G. R. dated 11th January, 2017. It is submitted that the only issue before the

Revenue Minister was to decide which date is to be considered for the payment of

unearned income (nazrana), i.e. the date of the application, or the date of the order. He

submitted that the Government Resolution dated 11 th January, 2017 is issued by the

Revenue Department which is pursuant to the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and is

not applicable to the present case. However, without deciding the above issue, the

representation is dismissed on a totally unrelated ground. In view thereof, the

communication / Orders dated 30th December, 2006, 16th October, 2008 & 30th

March, 2021, be quashed and set aside and the Respondents be directed to calculate

and accept the nazrana amount on the basis of the market value prevalent on the date

of the Original Application i.e. 24th March, 1995.

8. The Learned Additional GP submitted that it cannot be disputed that

there are decisions of this Court as well as the Supreme Court wherein it is held that

the Nazrana amount is payable from the date of the application and not from the date

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of the Order. However, he states that the Petitioners should agree to pay the amount

required to be paid by them towards compensation of the acquired land as per the

Government Resolution dated 11th January, 2017.

9. The Learned Senior Advocate appearing for the Petitioners, submits that

though the Petitioners are not required to make any payment in compliance with the

GR dated 11th January, 2017, his Clients have instructed him to state that in order to

avoid any controversy, they will pay the amount, which according to the Respondent

No. 1, they are liable to pay towards the compensation of the acquired land as per the

Government Resolution dated 11th January, 2017.

10. We have gone through the contents of the Writ Petition alongwith the

annexures thereto including the impugned communication dated 30 th December, 2006

and the Orders dated 16th October, 2008 and 30th March, 2021. We have also

considered the submissions advanced by the Learned Advocates for the Parties.

Admittedly, Respondent No. 2 - Collector received an Application dated 24 th March,

1995 from the Petitioners seeking permission to convert user of the said Land from

agricultural land to non- agricultural land. By the said Application the Petitioners

requested that the nazrana in respect of the said Land be calculated and also conveyed

their readiness and willingness to deposit the amount of nazrana for conversion of the

said Land. Respondent No. 2 - Collector forwarded the said Application to

Respondent No. 3 - Tahsildar for making enquiry and taking decision on the same.

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Respondent No. 3 - Tahsildar in-turn forwarded the Petitioners Application dated 24 th

March, 1995 to the Circle Ofcer for conducting ofcial enquiry and forwarding his

report. The Circle Ofcer, Nashik conducted an enquiry and after recording the

statement of the Petitioners forwarded his Report to Respondent No. 3 - Tahsildar, on

30th June, 1995. The Respondents thereafter slept over the Application dated 24 th

March, 1995 and despite repeated requests from the Petitioners did not respond to the

same for over a decade.

11. It is only after the Petitioners sent a reminder letter dated 6 th December,

2006 to the Respondent No. 3 - Tahsildar, recording therein that the Application

dated 24th March, 1995 for the conversion of the said Land to non- agricultural

purpose was pending, that the Respondent No. 3 informed the Petitioners, that the

Petitioners would be communicated the amount that they would be required to pay

towards nazrana. On 30th December, 2006 Respondent No. 3 - Tahsildar issued a

letter to the Petitioners informing them that the amount payable towards nazrana on

the basis of the reminder letter dated 6th December, 2006, was Rs. 1,53,60,000/- i.e. 50

% of the market value of the said Land, as on 6th December, 2006.

12. Since the Original Application was fled in the year 1995 and the law laid

down by the Apex Court, followed by this Court in several of its decisions, requires

that the amount payable towards the nazrana should be calculated on the basis of the

market value of the land on the date of the fling of the application, and not on the

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basis of the market value prevalent on the date of the order, the Petitioners preferred

an appeal before the Respondent No. 4 - Sub - Divisional Ofcer (SDO), Nashik

Division, impugning the communication dated 30th December, 2006. However, by an

Order dated 16th October, 2008, the said Appeal was rejected by the Respondent No. 4

on the ground that the calculation of the nazrana is rightly done taking into

consideration that the application was fled on 6th December, 2006.

13. The Petitioners therefore on 17th November, 2008 preferred a representation

in the form of appeal before the Respondent No. 1 - State impugning the Order passed

by the SDO dated 16th October, 2008. Despite repeated follow up by the Petitioners,

the Respondent No. 1 - State, failed to decide the representation fled by the

Petitioners in the form of appeal and informed the Petitioners only in the year 2013

that the papers have been misplaced / destroyed in the fre that broke out in the

Mantralaya building in the year 2012, and in the year 2015 asked the Petitioners to fle

a fresh appeal.

14. The Appeal fled by the Petitioners in the year 2015 was again kept pending

by the Respondent No. 1-State, for a period of 5 years, compelling the Petitioners to

fle the present Writ Petition. During the course of hearing of the above Writ Petition

the Learned Additional GP submitted that the said Appeal pending before the

Revenue Minister will soon be disposed of. Accordingly, this Court by an Order dated

16th March, 2021 directed the Revenue Minister of the State - Respondent No. 1, to

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hear the appeal on 23rd March, 2021 and pass his speaking Order not later that 30 th

March, 2021.

15. By an Order dated 30th March, 2021 the Revenue Minister rejected the

representation in the form of an appeal which was fled by the Petitioners. The

Petitioners have therefore with the leave of this Court carried out amendments to the

above Writ Petition inter alia impugning the Order dated 30 th March, 2021 passed by

the Revenue Minister.

16. In view of the above, the Petitioners cannot be held responsible for the delay

caused by the Respondents in deciding the Application dated 24th March, 1995 and the

fault for the same, lies entirely at the doors of the Respondents. It is also not the case

of the Respondents that the Application fled by the Petitioners was not in conformity

with the prescribed requirements.

17. The Apex Court in the case of Union of India vs. Mahajan Industries (P)

Ltd1. confrmed the view taken by the Division Bench of the High Court of Delhi in

the case of Ansal & Saigal Properties (P) Ltd. vs. L.D.O. 2, wherein it was held that

the "crucial date" for calculating the conversion charges has to be the date of the

receipt of the application for conversion.

18. The Division Bench of this Court at Nagpur, has in the case of Trimbakrao

Mugutrao Deshmukh vs. State of Maharashtra & Ors. 3 held that since the application

1 (2005) 10 SCC 2 (1998) 74 DLT 152 3 (2009) (2) BOM. C.R. 467

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for sale of the land under the provisions of the Maharashtra Agricultural Land (Ceiling

on Holdings) Act, 1961 presented in the year 1994, was kept pending by the

Government for a considerable long time, the direction by the State Government to

the petitioner therein to pay 'nazrana' as per the Rules of 2001 is not proper and the

relevant date for computation of the amount of nazrana shall be the date of the

application.

19. The above views/fndings are reiterated in the (i) oral judgment of this Court

dated 4th February, 2019 in W.P. No. 7600 of 2017 in the case of Kumodini Govindji

Doshi & Anr vs. The State of Maharashtra, (ii) Order dated 28th September, 2017

passed by the Division Bench of this Court at Aurangabad in W. P. No. 3019 of 2016 in

the case of Yogesh Bhikha Choudhary vs. State of Maharashtra & Ors. and (iii) in the

Order dated 18th January, 2021 passed by the Division Bench of this Court in W. P. No.

9998 of 2018 in the case of Ganu Malya Bhurbuda & Anr. Vs. State of Maharashtra

& Ors.

20. Despite the law being clearly laid down by the Apex Court, and followed in

several decisions of this Court, Respondent No. 3 - Tahsildar in his communication

dated 30th December, 2006, Respondent No. 4 in his Order dated 16 th October, 2008

and the Revenue Minister of the State in his Order dated 30th March, 2021, failed to

appreciate the aforestated law laid down and instead of directing the Petitioners to pay

the nazrana on the basis of the market value prevalent on the date of the Original

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Application i.e. 24th March, 1995, ordered the Petitioners to pay nazrana on the basis

of the market value of the said Land as on 6 th December, 2006, i.e. the date of the

application which was in the nature of a reminder to the Respondent No. 3 - Tahsildar

to communicate the amount that the Petitioners were required to pay towards the

nazrana.

21. We are therefore convinced that the said communication and Orders dated

30th December, 2006, 16th October, 2008 and 30th March, 2021 are passed without

considering the law laid down in the aforestated decisions of the Apex Court and

followed by this Court in several of its decisions, and therefore lacks application of

mind. The same are therefore quashed and set aside.

22. The Respondent No. 3 - Tahsildar is directed to charge the unearned

income (nazrana) on the valuation of the said Land as on the date of the Original

Application i.e. 24th March, 1995.

23. The Petitioners statement that to avoid any controversy, they will pay the

amount, which according to the Respondent No. 1, they are liable to pay towards the

compensation of the acquired land as per the Government Resolution dated 11 th

January, 2017, is accepted.

24. The Writ Petition is accordingly disposed of.

( SURENDRA P. TAVADE, J. )                             ( S.J. KATHAWALLA, J. )



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