Dnyanesh Kamalakar Samant vs The State Of Maharashtra And Ors
2021 Latest Caselaw 10002 Bom

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Sharayu Khot.
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                           WRIT PETITION NO. 2414 OF 2021


     Dnyanesh Kamalakar Samant                              ...Petitioner

             Versus

     The State of Maharashtra & Ors.                        ...Respondents
                                   ----------
     None for the Petitioner.
     Mr. Rajan Pawar, AGP for the Respondent No. 1-State.
     Mr. Anil P. Bhagwe for Respondent No. 4.
                                       ----------

                                       CORAM :           K.K. TATED &
                                                         R.I. CHAGLA, JJ.

                                      DATE          :    30 July 2021

     ORDER :

1. Today the matter is shown on board for Speaking to

the Minutes of Order dated 3rd July 2021.

2. On page 8 in paragraph 10(iv) reproduction of

prayer clause (c) is not correct. Correct prayer clause (c) as

per the Writ Petition is reproduced as under:-

"(c) That pending the hearing and fnal disposal of this

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Petition, the Respondent No. 3 be prohibited from

proceeding and/or acting pursuant to the impugned

communication/show cause notice at Ex. "H" hereto in

case no. TAH/BOR/TEN-3/TNC/70(B) &32(g)/SR/

2021."

3. Corrected order dated 3rd July 2021 will be read

thus:-

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 2414 OF 2021

Dnyanesh Kamalakar Samant ... Petitioner Versus The State of Maharashtra & Ors. ... Respondents .........

Mr. Atul Tungare a/w A.A. Tambe for the Petitioner. Mr. Rajan Pawar, A.G.P. for the State.

Mr. Anil P. Bagwe for Respondent No.4.

.........

CORAM : K.K. TATED & R.I. CHAGLA, JJ.

                                            DATE    : 3rd JULY, 2021.
                                                      (V.C.)
P.C. :-

1            Heard learned Counsel for the parties.







                                                         5-WP-2414-21.doc

 2            By this Petition under Article 226 of the Constitution of

India the Petitioner is challenging the decision taken by Respondent

No.3-Tahsildar to entertain Respondent No.4's application under

Sections 70B and 32G of the Maharashtra Tenancy and Agricultural

Lands Act, 1948 (hereinafter referred as "said Act").

3 The Learned Counsel for the Petitioner submits that

Respondent No.4 in his application dated 17.12.2020 to the Collector

under Sections 70B and 32G of the said Act claimed 15 acres of land

from Survey No.221 of Village Eksar, Taluka Borivli. He submits that

in unnumbered para 2, Respondent No.4 specifically stated that

Respondent No.4's predecessor Shri Naran Walji Gada was owner of

the said property and same was in his possession. The learned

Counsel for the Petitioner submits that if Respondent No.4 claims the

ownership of the said property, there is no question of entertaining

the application filed under Sections 70B and 32G of the said Act.

Inspite of that Respondent No.3 registered the case No.TAH/BOR/

TEN-3/TNC/70 (b) & 32 (g)/SR/2021. He submits that apart from

that, there is a Government Gazette dated 29.03.1957 issued by the

Revenue Department stating that the lands from the said Village i.e.

Eksar are reserved for non-agricultural and industrial development.

The said notification reads thus :

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"REVENUE DEPARTMENT Sachivalaya, Bombay, 29th March 1957. BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948.

No. TNC. 5157/31190-M. - In exercise of the powers conferred by clause (b) of section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bom. LXVII of 1948), the Government of Bombay is pleased to specify the areas mentioned in the schedule appended hereto; as being reserved for non-agricultural and industrial development.

Schedule.

District Bombay Suburban, taluka Borivli, Villages Villages

1. Borivli 11. Valnai

2. Kaneri 12. Kurar

3. Magathane 13. Chinchavli

4. Shimpoli 14. Pahadi

5. Eksar 15. Mulund

6. Poisar 16. Goregaon

7. Kandivli 17. Nahur

8. Akurli 18. Aarey

9. Wadhawan 19. Dindoshi

10. Malad 20. Mandapeshwar

By order and in the name of the Governor of Bombay.

V. SHANKAR, Secretary to Government."

4 The learned Counsel for the Petitioner also relied on the

judgment of this Court in the matter of Ramrao Parashuram Ghogle

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and another vs. Mukund Govind Kini and others 1 and judgment in the

matter of Nilesh Construction Company and another vs. Gangubai

wd/o Bablya Bendu Chaudhary and another2. He submits that in

both these cases, the Court held that in view of the Government

Gazette dated 29.03.1957, Revenue Authority have no right to take

action as per the said Act land situated in those villages. He relies on

para 13 of the judgment in the matter of Nilesh Construction

Company and another (supra) which reads thus :

"13. Now we have already referred to the Notification which was issued by the State Government under Section 88 (1)(b) on 29th March, 1957 under which 20 villages were reserved for non- agricultural and industrial development and Kurar was one of the twenty villages so notified. Kurar is the village in which the land in dispute is situated. The effect of this Notification of 29th March, 1957 issued under Section 88(1)(b) of the Tenancy Act is that the lands in village Kurar including the lands in question have been totally excluded from the operation of the provisions of the Tenancy Act, because the imperative words of Section 88 are.

"nothing in the foregoing provisions of the Act shall apply" to the area reserved for non-agricultural or

1 1986 (1) Bom.C.R. page 361 2 1982 (1) Bombay Case Report page 577.

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industrial development. The "foregoing provisions" are Sections 1 to 87-A and, therefore, the moment a Notification is issued under Section 88(1)(b), none of the provisions of Tenancy Act will apply in the case of an area which has been specified as being reserved for non-Agricultural or industrial development. That the effect of a Notification under section 88(1)(b) is to exempt lands from the operation of the provisions of the Tenancy Act retrospectively is now settled by the decision of the Supreme Court in (S.N. Kamble v. The Sholapur Borough Municipality and another) 3.A.I.R. 1966 S.C. 538."

5 The learned Counsel for the Petitioner also relies on the

order of the Tahsildar dated 10.10.2013 in the matter, where it is

specifically stated that if the land is from Village Eksar, then the said

Act is not applicable (Exh.E page 50). He submits that inspite of all

these facts, Respondent No.3 proceeded with the application filed by

Respondent No.4. Hence, he preferred the present Writ Petition.

6 The learned Counsel for the Petitioner submits that in view

of the Government Gazette dated 29.03.1957 and the authorities of

this Court in both the matters as stated in above, this Hon'ble Court

be pleased to stay the further proceedings before the concerned

Tahsildar in respect of the suit property i.e. land admeasuring 15

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acres from Survey No.221 of Village Eksar, Taluka Borivli, till the

hearing and final decision of the present Writ Petition. He submits

that if stay is not granted, irreparable loss cause to the Petitioner.

7 On the other hand, the learned Counsel Mr. Anil P. Bagwe

appearing on behalf of Respondent No.4 submits that he requires

some time to file his reply. He further opposed for granting any

ad-interim or interim relief. He submits that the Petitioner appeared

before the concerned Tahsildar and now the hearing is completed and

the matter is kept for orders. Therefore, there is no question of

granting any interim relief at this stage.

8 The learned A.G.P. Mr. Rajan Pawar, appearing on behalf of

the Respondent-State also vehemently opposed the present Writ

Petition. He placed on record the compilation of documents

containing pages 1 to 27. Same is taken on record and mark 'X' for

identification. He submits that in view of the subsequent

development, the objection raised by the Petitioner on the basis of

Government Gazette dated 29.03.1957, is not maintainable. He

submits that considering the Government Gazette dated 29.03.1957

and subsequent orders, the Tahsildar has entertained the matters in

respect of the land from Village Eksar. He submits that to place all

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these facts on record, he requires some time. He further submits that

during the pendency of the present Writ Petition before this Court,

the Tahsildar passed the order recorded in Roznama dated

29.06.2021 stating that till further orders from the High Court, he

will not take any steps in the present matter. The learned A.G.P.

submits that in view of these facts, some time may be granted to

them to file affidavit-in-reply.

9 We heard both the parties in length. It is to be noted that

admittedly in the present proceeding Respondent No.4 in his

application under Sections 70B and 32G of the said Act dated

17.12.2020 specifically stated that his grandfather was the owner of

the said property. Once the ownership is claimed, whether the said

application is maintainable or not, is required to be decided after

hearing both the sides. Not only that the land involved in the present

matter is situated in Village Eksar, Taluka Borivli. Government

Gazette dated 29.03.1957 clearly states that lands from Village Eksar,

Taluka Borivli, District Bombay are reserved for non-agricultural and

industrial development.

10 In view of these facts and the Roznama dated 29.06.2021

passed by the concerned Tahsildar, the following order is passed :

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i) Admit.

ii) The Respondents to file their reply on or before

31.07.2021 with copy to other side.

iii) Rejoinder if any, to be filed on or before

13.08.2021 with copy to other side.

iv) Till further order ad-interim relief granted in terms

of prayer clause (c) which reads thus :

(c) That pending the hearing and fnal disposal of this Petition, the Respondent No. 3 be prohibited from proceeding and/or acting pursuant to the impugned communication/show cause notice at Ex.

                           "H"        hereto       in         case            no.
                           TAH/BOR/TEN-3/TNC/70(B)              &32(g)/SR/
                           2021.

                  v)           Matter to appear on board for hearing on

                  31.08.2021.

                  vi)      The learned A.G.P. and the learned Advocate Mr.

Anil P. Bagwe for Respondent No.4, waives service.

 [R.I. CHAGLA J.]                                           [K.K. TATED, J.]