The Division Bench of the Bombay High Court consisting of Justices J.Kathawalla and Milind N. Jadhav opined that no NOC of the Collector is required as a pre-condition for the City Survey Officer (CSO) to effect a mutation in the revenue records.
Facts
A grant of the subject property was made by the Mamlatadar to one Basantrai Motiram, under Rule 43 of the then prevailing Bombay Land Revenue Rules, 1921 by a form HH on 27th August 1946. The original owner,i.e. Basantrai Motiram, constructed seventeen flats and two garages on the subject property. The Petitioner is a society of flat purchasers of the above flats. The legal heirs of the original owner conveyed the subject property to the Petitioner vide a Deed of Conveyance, duly registered. The members of the Petitioner were desirous of redeveloping the existing building. During the steps taken to achieve it, the Petitioner realised that its name was not reflected / mutated in the revenue records in respect of the subject property and therefore the Petitioner filed an Application to the CSO for mutating its name in the revenue records of the subject property. By the impugned letter/communication, it was informed to the Petitioner that its application could not be proceeded with further, without the NOC of the Collector. It is this letter/communication which is the subject matter of challenge in the present Petition.
Contentions Made
Appellant: The grant being under Form HH, and there being no restriction on transferability of the subject property, there was no question of any permission / NOC of the Collector being required. The reliance placed on Section 37A of the Maharashtra Land Revenue Code, 1966, was erroneous, as the same did not apply to the facts of the present case as the proviso to Section 37A(2) clearly provides that the terms of the grant would prevail in the event of any inconsistency; there is no fetter in the Form HH, which required any such NOC, and therefore the provisions of Section 37A were inconsistent with the terms of the Form HH, and the latter would prevail.
Respondent: There exists an alternate remedy u/s 247 of the Maharashtra Land Revenue Code, 1966, which the Petitioner ought to avail of. The Petitioner, in the garb of the present Petition is indirectly seeking permission for redevelopment of the property. Under a Government Resolution, there are certain guidelines in respect of the subject property which are needed to be complied with. There are certain terms of the Form HH which govern the way the subject property can be used, and there is a penal provision in the Form HH which applies in the event of contravention of those terms. These terms must be complied with, and the application should accordingly have been made in accordance with the Government Resolution. Reliance was placed on Ghanshyamdas Agarwal &Anr. v. State of Maharashtra and Venkatesh Sadan Co-operative Housing Society Limited & Ors. v. State of Maharashtra & Ors.
Observations of the Court
Relying on Sudhir Vasu Shetty v. CSO, Chembur & Anr. and the connected Charisma Builders Limited v. CSO, Chembur & Anr, the Bench observed that:
“As evident from the above judgment, the position in law is no longer res integra having been repeatedly decided. Even in the present case, the impugned letter/communication proceeds on an incorrect basis that the NOC of the Collector is required prior to effecting a mutation. This is clearly contrary to the body of law laid down by this Court as referred to in the above judgment passed by this Court. It is once again reiterated that no such NOC of the Collector is required as a pre-condition for the CSO to effect a mutation in the revenue records, and on this ground alone the impugned letter/communication must be quashed and set aside.”
“As regards the submission on behalf of the CSO that there is an alternate remedy, it is first and foremost eminently arguable that the impugned letter / communication is not in fact an order or decision as contemplated under Section 247. It is clear that the Government Resolution will have no application in the present case, wherein the issue is limited to merely effecting a mutation in the revenue records. Section 37A can have no application to a property transferred prior to 3rd March 2015. As regards the twin contentions that the Petitioner is seeking, through this application for mutation, to effectively obtain permission for development, and that the terms of the Form HH are required to be complied with, we fail to see how any of this arises in the present case.
Judgment
The Bench passed the following orders:
- The impugned letter/communication was quashed and set aside.
- The application filed by the Petitioners shall forthwith be processed by the City Survey Officer without insisting on the NOC or permission of the Collector.
Case Name: Basant Vihar Co-Operative Housing Society Ltd. vs State of Maharashtra (Revenue Dpt.) & Ors.
Citation: WRIT PETITION (L) NO. 7537 OF 2021
Bench: Justice S.J.Kathawalla, Justice Milind N. Jadhav
Decided on: 14th February 2022
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