Bombay High Court
Shital Prabhakar Chandane vs The State Of Maharashtra (Through The ... on 3 February, 2025
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
2025:BHC-AS:5593-DB
40-WP-4523-2022 C.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4523 OF 2022
Shital Prabhakar Chandane
Age: 43 years, Occ: Business
Residing at 101/202, Kumar Parisar, D.P. Road,
Near Gandhi Bhawan, Kothrud,
Pune 411038 ...Petitioner
Versus
The State of Maharashtra
(through the Secretary, Revenue Department,
Mantralaya, Mumbai
SNEHA
NITIN
CHAVAN 2. The Collector, Sangli
Digitally signed
by SNEHA
having office at Sangli,
NITIN CHAVAN
Date:
2025.02.05
18:23:56 +0530
3. The Deputy Collector, (Rehabilitation)
Having office at Sangli,
4. Sub Divisional Officer, Vita Division, Vita
District Sangli
5. The Superintending Engineer,
Sangli Irrigarion, Sangli having office at
Warnali Vasahat, Vishram Bag, Sangli ...Respondents
***
Mr. Laxman Deshmukh with Mr. Ranjeet Patil Advocates for the
Petitioner.
Mr. N.C. Walimbe, Addl. G.P. with Mr. N.K. Rajpurohit , Assistant
Government Pleader for the Respondent Nos. 1 to 4/State.
Mr. Tapan Thatte Advocate for Respondent No.5.
***
CORAM : A.S.CHANDURKAR AND
M.M. SATHAYE, JJ.
DATE : 3rd FEBRUARY 2025
Sneha Chavan page 1/6
::: Uploaded on - 05/02/2025 ::: Downloaded on - 05/02/2025 21:31:16 :::
40-WP-4523-2022 C.doc
JUDGMENT (Per M.M.SATHAYE, J.)
1. Rule. Rule made returnable forthwith. Heard finally by consent
of learned Counsel for the parties.
2. The Petitioner is challenging the communications dated
09.11.2021 and 15.11.2021 issued by Respondent Nos. 3 and 4 and for
direction to the said Authorities to issue permission for conversion of
subject land bearing Gat No. 2700 admeasuring 8 H 84 R situated at
Atpadi, Tal. Atpadi, District Sangli into Non Agricultural ('NA for short)'
industrial use without insisting for payment of 'irrigation restoration
charges'
3. Few facts necessary for disposal of the petition are as under. The
Petitioner claims to be the owner of the subject matter land. As the
Petitioner desired to change the use of the subject land and convert it to
NA (industrial) use for construction of cold storage and agricultural
related business, he applied on 04.02.2021 to Respondent No.4 under
Section 44 of the Maharashtra Land Revenue Code, 1966 ('MLRC' for
short) and submitted necessary documents. Respondent No.5 vide its
letter dated 04.06.2021 directed the Petitioner to submit further
documents and pursuant thereto, the Petitioner applied for Non
Objection Certificates ('NOC' for short) of various departments. One of
the NOC required was of Respondent No.5. According to the Petitioner,
the Water Resources Department has laid down certain procedure under
Government Resolution (GR) dated 06.03.2009 for issuance of NOC for
which, charge per hectare is levied towards expenses of irrigation
restoration. Vide Circular dated 03.06.2021, Respondent No.1 reviewed
40-WP-4523-2022 C.doc
this policy and it was decided 'not to charge and recover' the same for
issuance of NOC. Under the earlier policy, a charge of Rs.1 lakh per
hectare was levied. The Petitioner applied for NOC on 22.06.2021 of
Respondent No.5, who vide its letter dated 02.07.2021 issued NOC,
without charging for the 'irrigation restoration'. NOC from Respondent
No.3 was not issued within reasonable period. In the meantime, vide
Circular dated 11.08.2021, the policy was again revised and earlier
policy was restored, thereby again deciding to impose 'irrigation
restoration charges' in terms of earlier Circular dated 06.03.2009.
Accordingly, by impugned communication dated 09.11.2021, NOC was
issued subject to condition of payment of irrigation restoration charges
in terms of Circular dated 11.08.2021. Similarly, by impugned
communication dated 15.11.2021, Respondent No.4 directed the
Petitioner to pay the said charges, recording that only after such
deposit, further action for grant of permission will be taken. In these
circumstances, the Petitioner has approached this Court.
4. Learned Counsel for the Petitioner submitted that many
agriculturists in the State of Maharashtra have taken benefit of Circular
dated 03.06.2021 under which NOC was granted without recovering
irrigation restoration charges. It is submitted that NOC was issued vide
letter dated 02.07.2021 / 05.07.2021 when the policy was revised and
charges were not payable.
5. Learned Additional Government Pleader by referring to
Affidavits-in-Reply dated 27.07.2022, 30.08.2022, submitted that when
the Petitioner had applied on 23.06.2020 for permission to use the
subject matter land for NA purpose, the GR dated 06.03.2009 was in
operation, which was canceled on 03.06.2021, but it was subsequently
40-WP-4523-2022 C.doc
restored by Circular dated 11.08.2021. It is submitted that since on the
date of application, the GR dated 06.03.2009 was in operation, the
impugned communications are legal and valid. It is submitted that
though a decision was taken for waiving of irrigation restoration
charges for some time, it was reconsidered and as a policy decision, it
was reintroduced for the purpose of recovery of expenditure incurred
for developing command area on land acquisition, rehabilitation,
construction etc. from beneficiaries of NA orders.
6. Learned counsel for the Respondent No. 5, by referring to
Affidavit-in-Reply dated 06.09.2023, opposed the petition. The said
Affidavit-in-Reply indicates that the information asked by this Court
under order dated 17.08.2023 about number of applications for
conversion to NA land between 03.06.2021 to 11.08.2021 and number
of owners benefited from the withdrawal of said charges in the
interregnum along with names of beneficiaries, is not available with
Respondent No.5 and therefore, was not furnished. Be that as it may.
7. We have heard considered rival submissions and perused the
record. Legal question is whether the policy existing on the date of
application would apply or policy existing on the date of decision would
apply. Admittedly, the decision was taken on 02.07.2021 or 05.07.2021
not to recover the irrigation restoration charges as per Circular dated
03.06.2021. Admittedly, thereafter the policy has been re-visited on
11.08.2021. In State of Kerala and Anr. v/s. B. Six Holidays Resorts Pvt.
Ltd. And Ors. - (2010) 5 SCC 186, relied upon by the Petitioner, the
Hon'ble Supreme Court was considering similar issue about relevant
date for application of Rules. Para 16(i) of the said Judgment reads
thus:
40-WP-4523-2022 C.doc
"16. (i) Whether an application for grant of FL-3 licence
should be considered with reference to the Rules as they
existed when the application was made or in accordance
with the Rules in force on the date of consideration?"
The Hon'ble Supreme Court has held that this question is directly
covered by the decision of the Supreme Court in Kuldeep Singh v/s Govt
of NCT of Delhi - (2006) 5 SCC 702 , that the policy that would be
applicable will be the one which is prevalent on the date of decision and
not the one prevalent on the date of application.
8. The facts of the present case are similar in nature and therefore,
in our view, the date on which the decision was taken to issue NOC to
the Petitioner would be relevant and policy as it existed on that date
will be applicable. Since, on 02.07.2021 or 05.07.2021, the Circular
dated 03.06.2021 was in operation which waived the concerned
charges, the same will apply. Therefore the petition succeeds to that
extent.
9. Hence, we pass the following order :
(i) The impugned communications dated 09.11.2021
and 15.11.2021 issued by Respondent Nos. 3 & 4 are quashed
and set aside.
(ii) The Petitioner would be liable to pay requisite
charges in accordance with the policy that was prevailing on
02.07.2021, when Respondent No.5 made the necessary
recommendation in favour of the Petitioner and as on
05.07.2021 when the Executive Engineer issued No Objection
Certificate.
40-WP-4523-2022 C.doc
(iii) Rule is made absolute in the aforesaid terms. No
order as to costs.
(iv) All concerned to act on duly authenticated or
digitally signed copy of this order.
(M.M. SATHAYE, J.) (A.S.CHANDURKAR, J.)
