Bombay High Court
M/S. Viraj Profiles Ltd. A Company vs The State Of Maharashtra Through ... on 5 March, 2021
Bench: S.J. Kathawalla, V. G. Joshi
WP (St.) 96235 and 97336 of 2020.odt
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (St.) No. 96235 of 2020
Viraj Profiles Ltd. )
a Company, registered under the )
provisions of the Companies Act )
through its authorized signatory )
Ms. Anjali Sawla, having its office )
at MIDC, Boisar, Taluka, )
District Palghar ... Petitioner
Vs.
1. The State of Maharashtra )
through Revenue & Forest Department
Mantralaya, Mumbai )
2. The Principal Secretary, )
Revenue & Forest Department )
Mantralaya, Mumbai )
3. The Revenue Commissioner, )
Konkan Bhawan, Navi Mumbai )
4. The Collector, Palghar )
5. The Additional Collector, Palghar )
at Jawhar )
6. The Tahsildar, District Palghar )
7. Ramesh Sukrya Sutar, R/o. Mahagaon )
village, Tal. Dist. Palghar )
8. Ankush Laxman Mor, R/o. Mahagaon)
village, Tal. Dist. Palghar )
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9. Yashwant Lakhma Dhapshi, )
R/o. Mahagaon village, )
Tal. Dist. Palghar )
10. Manik Kondhya Dodhade, )
R/o. Maan village, Tal. Dist. Palghar)
11 Sandeep Prakash Mor, )
R/o. Maan, Tal. And Dist. Palghar )
12. Vilas Antu Shinwar, )
Warangade village, Tal. Dist. Palghar )
13. Santosh Dhattarya Shelka, )
Warangade village, Tal. Dist. Palghar )
14. Vishwanath Madhav Rinjad, )
Village-Mahagaon, Tal. Dist. Palghar )
S/G. No. 114/2E )
15. Ajay Suresh Shinwar, )
Village Warangade, Tal. Dist. Palghar )
S/G. No. -50 ... Respondents
AND
WRIT PETITION (St.) No. 97336 of 2020
1. Ramesh Sukrya Sutar, 336 Sutar Pada )
Maan, Boisar, Palghar, Mumbai 401501
2. Ankush Laxman Mor, Sutar Pada )
Mor Pada Maan, Boisar Chilhar Road
Palghar, Mumbai 401 501 )
3. Yashwant Lakhma Dhapshi, Boisar )
Chilhar Highway, Dhapashi Road )
Warangade, Palghar, Mumbai )
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4. Manik Kondhya Dodhade, 142 )
Boisar Chilhar Highway, )
Bharman Pada, Maan, Palghar )
Mumbai 401 501 )
5. Sandeep Prakash Mor, Sutar )
Pada, Mor Pada Maan, Boisar )
Chilhar Road, Palghar, Mumbai )
6. Vilas Antu Shinwar, Pankare )
Padam Gundale, Palgharm, )
Mumbai - 401501 )
7. Santosh Dhattarya Shelka, )
Sutar Pada, Mor Pada Maan, )
Boisar Chilhar Road, Palghar, )
Mumbai 401 501 )
8. Mr. Vishwanath Madhav Rinjad )
Baripada, Gundalem Mahagaon )
Palghar, Mumbai 401 501 )
9. Mr. Ajay Suresh Shinwar, )
Boisar, Chilhar Highway, )
Dhapashi Road, Warangade, )
Palghar, Mumbai 401501 ) ... Petitioners
Vs.
1. The State of Maharashtra )
through Revenue & Forest )
Department, Mantralaya, Mumbai )
2. The Principal Secretary, )
Revenue & Forest Department )
Mantralaya, Mumbai )
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3. The Revenue Commissioner, )
Konkan Bhawan, Navi Mumbai )
4. The Collector, Palghar )
5. The Additional Collector, Palghar )
at Jawhar )
6. The Tahsildar, District Palghar )
7. Viraj Profiles Ltd. )
a Company, registered under the )
provisions of the Companies Act )
through its authorized signatory )
Ms. Anjali Sawla, having its office )
at MIDC, Boisar, Taluka, )
District Palghar ) ... Respondents
***
Mr Mukesh Vashi, Sr. Counsel i/b Vikas Shukla, for the Petitioner in
WPST 97336/2020 & for Respondent Nos. 7 to 15 in WPST
96235/2020.
Mr. Milind Sathe, Sr. Counsel, Prakash Shinde i/b MDP Partners, for
Respondent Nos. 7 to 15, and for the Petitioner in WPST 96235/2020
and for Respondent No. 7 WPST. 97336/2020.
Ms. S. D. Vyas, 'B' Panel Counsel for the Respondent Sate in WP.
97336/2020.
Ms. Rupali Shinde, AGP for the Respondent in WPST. 96235/2020.
Mr. Ajit Deshmukh, Dy. Secretary, Revenue & Forest Dept. - Present.
Mr. Shrikrishna Pawar, Under Secretary, Revenue & Forest Dept. -
present.
Mr. Surendra Navale, Dy. Collector, Palghar - Present.
***
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CORAM : S. J. KATHAWALLA &
VINAY JOSHI, JJ.
RESERVE FOR JUDGMENT ON : JANUARY 27, 2021
JUDGMENT PRONOUNCED ON: MARCH 5th 2021
JUDGMENT [PER : VINAY JOSHI, J.]
1. Rule. Rule made returnable forthwith. Learned counsel
appearing for the respective respondents in both petitions waive notice.
Heard finally by consent of the parties.
2. A common question regarding legality and correctness of
the order dated 7th October, 2020 passed by the Collector, Palghar is
under consideration in both petitions. For the sake of convenience,
they are taken together for disposal in accordance with law. The parties
are referred to as per their status in Writ Petition (St.) No. 96235 of
2020.
3. The facts leading to both petitions can be stated in a
narrow compass as below:
. The Petitioner - Viraj Profiles Ltd. (for short "Viraj"), a
limited company, was intending to purchase a piece of land owned by
Respondent Nos. 7 to 15, belonging to the Scheduled Tribe (for short
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"ST"). The price was negotiated between the parties, and the
Petitioner Company made part-payment to the said tribal land owners.
Respondent Nos. 7 to 15 (tribal land owners) had applied to the
Collector seeking permission to transfer their land to non-Tribals in
terms of Section 36A of the Maharashtra Land Revenue Code, 1966
(for short "MLR Code"). In turn the Respondent No. 4 Collector,
Palghar made necessary enquiry and submitted his report to the
Government for prior approval as required under Clause (b) of Section
36A of the MLR Code. Accordingly, the State Government vide its
order dated 11th August, 2011 accorded prior approval for the transfer
of land belonging to a Tribal to non-Tribal persons. However, no
further steps were taken by the Collector in compliance with the prior
approval dated 11th August, 2011.
4. Meanwhile, on 8th August, 2012 one Mr. Naik objected to
the transaction of sale between the Petitioner and tribal owners by
pointing out certain illegalities. The complaint of Mr. Naik was
inquired into and a report was submitted on completing the inquiry. On
11th September, 2013 the State directed the Respondent No.4 Collector,
Palghar to remove the wire fencing erected by the Petitioner and
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restore possession of the land to Respondent Nos. 7 to 15 i.e. the
original tribal owners. However, as there was no progress regarding
grant of sanction by the Respondent No. 4 Collector, all tribal owners
(Respondent Nos. 7 to 15) moved to this Court seeking relief of grant
of sanction in terms of S. 36-A of the MLR Code. In those Writ
Petitions (Writ Petition No. 7654 of 2014, and, Writ Petition No. 7659
of 2014), this Court vide its common Order dated 9 th December, 2014
and 21st October, 2016 directed the Collector, Palghar to decide the
Application of Respondent Nos. 7 to 15 under S. 36-A of the MLR
Code, in accordance with the prior approval dated 11 th August, 2011
granted by the State Government.
5. The Petitioner preferred an Appeal before the Revenue
Minister of the State, inter alia praying for revocation of Order dated
11th September, 2013 regarding removal of fencing, and for granting
permission for sale of tribal land in pursuance of prior approval dated
11th August, 2011 under S. 36-A of the MLR Code. It is the Petitioner's
grievance that in the meantime, vide Order/ letter dated 10 th
December, 2013 the State has revoked prior approval dated 11 th August,
2011. However, the Order/ letter of revocation was neither served on
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him nor right of hearing was given. Ultimately, the said Order/ letter
of revocation dated 10th December, 2013 was communicated to him
(Petitioner) on 12th November, 2018.
6. The Petitioner has contended that his Appeal was allowed
vide Order dated 4th July, 2019 by which directions were issued to the
Collector, Palghar to take further steps regarding the sale of land in
terms of S. 36-A of the MLR Code. By a later Order dated 21 st October,
2019 the State has modified its earlier Order dated 4 th July, 2019 to a
certain extent. However, maintaining the Petitioner's request for
granting permission under S. 36-A of the MLR Code, the State had
directed the Collector to complete the process of granting permission
within two months.
7. In accordance with the said Order dated 4 th July, 2019,
modified on 21st October, 2019, the Respondent No. 4 Collector,
Palghar took further steps. The Petitioner was directed to deposit
money (sale price) in separate bank accounts of the tribals, which he
did. In other words, the parties have acted upon the Order passed in
Appeal dated 4th July, 2019 and modified on 21st October, 2019.
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However, vide impugned Order dated 7 th October, 2020 the Collector
Palghar has rejected the sanction under S. 36-A of the MLR Code,
which is impugned herein.
8. We have heard all the parties extensively as well as
perused the written submissions filed by the parties and the
compilation of documents submitted by the learned Additional
Government Pleader. The submissions of both Petitioners are on the
same lines. By and large, they have reiterated chronological events,
which we have already set out above. The Petitioners stated that since
the transaction period was exceeding five years, the Collector is the
competent authority to accord sanction with the previous approval of
the State.
9. According to the Petitioner, the State Government vide its
Order dated 11th August 2011 has granted prior approval on certain
terms and conditions. The Petitioner submitted that in the wake of
such approval, it is for the Collector to only implement the Order of the
State Government. However, the Collector did not take requisite
further steps in compliance with the prior approval dated 11 th August,
2011. According to the Petitioner, instead of granting final sanction,
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the State has revoked the prior approval vide its Order dated 10 th
December, 2013. It is vehemently argued that neither the right to
hearing was given to the Petitioner, nor the Order of Revocation was
communicated. The Petitioner has contended that the complaint filed
by one Mr. Naik does not relate to the revocation of sanction, but the
same pertains to taking possession of the land prior to the final approval
and certain other illegalities. The Petitioner contended that on the basis
of a one man inquiry initiated at the instance of the complaint of Mr.
Naik, a report was submitted. On that basis, the State vide its letter
dated 11th September, 2013 has merely informed the Collector to
remove the fencing and restore possession to the tribal owners. The
said Order has been challenged by the Petitioners in Appeal, which
came to be allowed vide its Order dated 4 th July, 2019 and was modified
on 21st October, 2019 by the State through Principal Secretary, Revenue
& Forest Department.
10. It is the Petitioner's stand that since the State by the Order
dated 4th July, 2019, has directed the Collector to complete the process
of granting permission for sale within two months, the earlier Order/
letter of revocation dated 10th December, 2013 does not survive.
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Further, according to the Petitioner, while allowing the Appeal, the
State was well aware about the so-called Revocation Order/ letter dated
10th December, 2013. Despite that, an Appeal was allowed and
directions were issued to take steps towards the completion of the
process. In the circumstances, the earlier Order/ letter of revocation
dated 10th December, 2013 would not come in their way at all.
11. It is the Petitioner's submission that the Collector instead
of acting upon the Order passed in Appeal, sought clarification vide its
letter dated 11th August, 2020. Though the clarification was received,
he had not proceeded to accord the final sanction. The Petitioner lastly
puts the grievance that while passing the impugned Order dated 7 th
October, 2020 they were not heard, which violates the principles of
natural justice. In short, it is Petitioner's submission that the tribal
land owners (Petitioners of Writ Petition (St.) No. 97336 of 2020) were
willing to sell the subject land for a price determined, and the Petitioner
M/s. Viraj Profiles Ltd. was ready to purchase the property. The
Respondents' Order/Letter of Revocation dated 10th December, 2013
was not only passed without giving a hearing to the Petitioner, but there
was also a non-disclosure of the Order for a considerable period; which
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in turn vitiates the said action. Moreover, the Order of the State passed
in Appeal dated 4th July, 2019 would prevail over the earlier revocation
dated 10th December, and therefore, the impugned Order dated 7 th
October, 2020 is illegal.
12. In response to the submission made on the basis of an
Order passed in Appeal dated 4th July, 2019 and modified on 21st
October, 2019, it has been stated by the learned AGP that the Petitioner
has not brought to the notice of the authority that the State has already
revoked the prior approval by its Order/ letter dated 10 th December,
2013. Moreover, it is tried to canvass that the Order passed in Appeal
dated 4th July, 2019 by the Principal Secretary and the Officer on
Special Duty (Appeal and Revision) is a quasi-judicial Order and,
therefore, it cannot be construed as fresh Order or prior approval under
S. 36-A of the MLR Code. The learned AGP has also submitted that
the Appeal arose out of a letter dated 11th September, 2013 issued by
the State requiring the removal of fencing and the restoration of
possession. Therefore, the scope of Appeal was restricted to the
challenge of said letter. Hence, any Orders passed in Appeal are
restricted to the then impugned action initiated vide letter dated 11 th
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September, 2013. Therefore, it cannot be construed as a grant of prior
approval by the State. Lastly, it is submitted that the complaint dated
30th December, 2019 was received by the State Government against the
Petitioner Viraj and therefore, the impugned Order of Rejection is well
justified.
13. In order to understand the controversy, it would be
apposite to extract a relevant portion of S. 36-A of the MLR Code,
which reads as below:
"36A. Restrictions on transfers of occupancies by
Tribals. -
"(1) Notwithstanding anything contained in sub-section (1) of
Section 36, no occupancy of a tribal shall, after the
commencement of the Maharashtra Land Revenue Code and
Tenancy Laws (Amendment) Act, 1974 MAH.XXXV of 1974), be
transferred in favour of any non-tribal by way of sale (including
sales in execution of a decree of a Civil Court or an award of order
of any Tribunal or Authority), gift, exchange, mortgage, lease or
otherwise, except on the application of such non-tribal and except
with the previous sanction -
(a) in the case of a lease, or mortgage for a period not exceeding 5
years, of the Collector; and
(b) in all other cases, of the Collector with the previous approval
of the State Government:
Provided that, ...
(2) ...
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(3) ...
(4) ...
(5) ...
(6) ...
14. Indisputably, the Petitioner Viraj has agreed to purchase
the land owned by the tribal owners, and as the period of transfer
exceeds five years, it requires prior sanction of the Collector along with
the prior approval of the State Government. There was no dispute that
on 24th July, 2009 permission was sought from the Collector under S.
36-A of the MLR Code for sale of a tribal's land to a non-Tribal person.
Moreover, indisputably the State Government through its Secretary,
Revenue & Forest Department, vide its Order dated 11 th August, 2011,
has granted prior approval for sale on certain terms and conditions.
The entire controversy hinges around the Revocation Order/ letter
dated 10th December, 2013 and the subsequent Order passed in Appeal
by the Principal Secretary dated 4th July, 2019 and modified on 21st
October, 2019.
15. Coming to the Revocation Order/ letter dated 10 th
December, 2013, the Petitioners categorically contend that neither they
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were heard before revoking the prior approval nor the said order was
served on them at any point of time. We have put a specific query to
the learned AGP to satisfy this bench on the point of service of the said
order. However, nothing was shown to that effect.
16. It appears that the controversy arose due to the complaint
dated 8th August, 2012 filed by one Mr. Naik to the Revenue Minister
objecting to the transaction of sale. The State Government has
appointed a One Man Committee of Mr. I. M. More, Joint Secretary,
Revenue & Forest Department, who inquired into the matter and
submitted his report. The said inquiry report does not specify any
particular conclusion, however, it appears to have been considered by
the State. Undeniably, the Deputy Secretary vide his Order dated 11 th
September, 2013, has directed the Collector to remove the fencing
erected by the Petitioner Viraj, and restore the possession to the tribals.
The said Order was challenged by the Petitioner in Appeal before the
Revenue Minister.
17. The learned AGP has strenuously argued that the subject
matter of Appeal was not about revocation of prior approval dated 10 th
December, 2013 but it was concerning an Order dated 11 th September,
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2013 by which an action was initiated for the removal of the compound
wall and restoration of possession. Therefore, according to the learned
AGP, the then authority has not considered the matter from the
perspective of deciding the validity of the revocation of prior approval
of the State vide its Order dated 10 th December, 2013. More so, it is
argued that the Petitioner had suppressed the fact that prior approval
was already revoked on 10th December, 2013, therefore, the said Order
passed in Appeal dated 4th July, 2019 would be of no assistance to the
Petitioner.
18. We have gone through the Memo of Appeal, and
particularly paras 7, 8 and 9 thereof, are in the form of prayers made
therein. The said portion has been reproduced herein below for ready
reference, which reads as under:
"7. In the circumstances, applicant humbly prays that
order dated 11/9/2013, revoking of in principle sanction
dated 11/8/2011, be recalled and Collector, Palghar be
directed to grant permission under Section 36A in
furtherance of Government order dated 11/8/2011. The
Hon'ble High Court has also directed the Collector, Palghar
to decide the application as per Government order dated
11/8/2011 within 12 weeks from 21/11/2016.
8. Applicant submits that applicant is willing to abide
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by all such further conditions as may be prescribed by
Collector, Palghar for purchase of said land from tribal
occupants. The Applicant submits that if order dated
11/8/2011 is not made effective by recalling revocation
order dated dated 11/9/2013, both, applicant - company as
well as the tribal occupants are likely to suffer serious
prejudice. The applicant-company has already made certain
cheque payments to each and every tribal occupant which is
acknowledged and accepted by said tribal occupants even in
writ petitions which were filed by them.
9. In the circumstances, it is humbly prayed that order
dated 11/9/2013 passed by the State Government (revoking
the Government order dated 11/8/2011) be recalled and by
restoring order dated 11/8/2011, Collector, Palghar be
directed to grant permission under Section 36A for
purchasing the lands in question in accordance with law."
19. True, there is a reference to the letter dated 11 th
September, 2013 (about the removal of fencing), however, the entire
tenor is about the withdrawal of the preliminary sanction vide Order/
letter dated 10th December, 2013. More particularly, the Petitioner
prayed to recall the Revocation Order/ letter and restore the earlier
Order dated 11th August, 2011 for grant of preliminary sanction.
Moreover, in no uncertain terms, it has been stated that the Collector,
Palghar be directed to grant permission under S. 36A of the MLR Code
for the purchase of land in question. Therefore, to our mind, there can
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be no confusion simply on the basis of the wrong mentioning of the
date of the Order as 11th September, 2013 instead of 10 th December,
2013. We have gone through the Order passed by the Principal
Secretary, Revenue & Forest Department in the Appeal dated 4 th July,
2019. The said Order bears a reference regarding permission sought by
the Petitioner for sale in terms of S. 36A of the MLR Code. The
authority has referred to the prior approval accorded by the State vide
its Order dated 11th August, 2011. After considering the matter, the
authority has allowed the Appeal, and initially passed the Order by
referring to the prior approval dated 11 th August, 2011. For reasons best
known to the Principal Secretary, later on from the final Order, the
reference of prior approval dated 11th August, 2011 came to be deleted.
In turn, the Order passed in Appeal speaks about allowing the Appeal
with directions to the Collector, Palghar to complete the process of
grant of permission within two months, in terms of Section 36A of the
MLR Code. Though the adjudication was restricted to the action of
the State vide its letter dated 11 th September, 2013 for the removal of
construction of compound wall, but the authority has considered the
Petitioner's entitlement for the grant of permission to sale in terms of
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S.36A of the MLR Code.
20. The submission of the learned AGP that the Petitioner has
suppressed the revocation of approval dated 10 th December, 2013, has
to be rejected outright. Firstly, there is no material to suggest that
hearing was given to the Petitioner or the Order of Revocation was
served on him. Secondly, it was a letter issued by the State for
revocation of the permission, therefore there is no question of
suppressing the letter by the appellant, since it was the record of the
State itself. Therefore, the question of suppression does not arise at all.
It is pertinent to note that bunch of Writ Petitions filed by tribals were
decided on 9th December, 2014 and 21st October, 2016. This Court
directed Collector, Palghar to decide the issue of sanction for sale as
per Government Order dated 11th August, 2011. Had it been the fact
that prior approval was already revoked on 10 th December, 2013, then it
would have been pointed out to the court. Therefore, the question
about the credibility of Revocation Order/ letter dated 10 th December,
2013 remains vital.
21. In the above scenario, the matter proceeded further. In
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pursuance of the Order passed in Appeal dated 4 th July, 2019 the
Collector took further steps. On the basis of said Order passed in
Appeal, the Collector vide his letter dated 8 th January, 2020 to the
Tahsildar, directed to open a joint bank account in a Nationalised bank
in the name of the tribals. In pursuance thereof, the Tahsildar vide its
letter dated 20th February, 2020 informed the tribal land owners to visit
their office for producing details of their bank accounts. The Petitioner
has produced correspondence letters to show that the Respondent No.
6 Tahsildar has recorded statement of the tribals to verify their assent.
Not only did the Petitioner Viraj deposit the amount in a Nationalised
bank, but the Tahsildar Palghar, vide its communication dated 3 rd
March, 2020 has confirmed the payment relating to the transaction to
the Collector. The entire chain of events discloses that after the
decision of Appeal dated 4 th July 2019, the Collector as well as the
Tahsildar have taken further steps to comply with the Order within the
stipulated period. The necessary requirement of recording statement
of the tribals and depositing the amount in the accounts of the tribals
was complied with. Therefore, there is no substance in saying that the
State Government was not aware of the earlier Revocation Order/
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letter dated 10th December, 2013. Since alleged revocation of prior
approval was by the State, it cannot be said that they were unaware.
Moreover, by virtue of the subsequent Order of the State through the
Principal Secretary dated 4th July, 2019, a letter of revocation dated 10 th
December, 2013 would not survive at all. As pointed above, after
decision in Appeal, the Collector and Tahsildar acted on the same and
made certain compliances to complete the transaction.
22. It is pertinent to note that on 11 th August, 2020 the
Collector, Palghar wrote a letter to the Additional Chief Secretary,
seeking clarification regarding the Order passed in Appeal dated 4 th
July, 2019 and modified on 21st October, 2019. The clarification was
only to the extent that whether the Order was passed by the Principal
Secretary and the Officer on Special Duty on behalf of Revenue
Minister. The said query was satisfied by the letter dated 28 th August,
2020 by the Additional Secretary. In the wake of such a position, the
impugned Order dated 7th October, 2020 came to be passed by the
Collector stating that it is not appropriate on his part to grant sanction.
While rejecting the sanction, Collector has relied on the Revocation
Order/ letter dated 10th December, 2013. We have already dealt
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extensively with the fact that the revocation letter itself was tainted and
would not survive due to decision rendered in Appeal.
23. We do not find any valid and sustainable reason for
revocation of sanction in the face of earlier proceedings. Already, while
deciding Appeal, the State in no uncertain terms has directed to the
Collector to complete the process of grant of permission in terms of
Section 36A of the MLR Code within two months. In view of that, the
Collector was supposed to process and take further steps, which he did
to some extent, but for untenable reasons rejected the permission.
Therefore, the impugned Order dated 7 th October, 2020 would not
sustain in the eyes of law. In view of above, we by allowing both Writ
Petitions, quash and set aside the impugned Order dated 7 th October,
2020 passed by the Collector and direct him to take appropriate
decision in accordance with law within eight weeks from the date of
communication of this Order. Rule is made absolute in the aforesaid
terms in both the petitions.
[VINAY JOSHI, J.] [S. J. KATHAWALLA, J.]
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