1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 6373 OF 1999 Rama Narayan Mali ...Petitioner Vs. Additional Collector, Thane & Ors. ...Respondents WITH CIVIL WRIT PETITION NO.4522 OF 1998 M/s. Mahalaxmi Stone Crushing & Metal Suppliers ...Petitioner Vs. The Tahasildar, Dahanu & Ors. ...Respondents Mr.G.S.Godbole for Petitioner Mrs. P.S. Cardozo, A.G.P for Respondents 1,2 & 4 CORAM: SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Reserved for Judgment Date: 30 th November, 2007 Pronouncement of Judgment Date: 16 th January, 2008 JUDGMENT (Per Smt. Roshan Dalvi, J.) 1. These Petitions are filed by a partner of the Firm and the Firm itself. The issues involved in these Writ Petitions are the same and hence they are dealt together. 2. The Petitioners in both the Petitions have challenged the judgment 2 of the Additional Commissioner, Konkan Division, Mumbai dated 27 th August, 1998, which is an order on a Review Application under Section 258 of the Maharashtra Land Revenue Code, 1966 (MLRC) marked Exhibit- U to the Petition. 3. The Petitioner in Writ Petition No.6373 of 1999 is an adivasi and owns the immovable property under Gat No.150 admeasuring over 4 hectors out of which 2040 sq. meters of land (.20 gunthas) was brought into the partnership firm of the Petitioners in Writ Petition No.4522 of 1998 on 10 th October, 1989 for establishing a Stone Crusher thereon. Both these parties shall be referred to as “Petitioner” . The facts and dates in Writ Petition No.6373 of 1999 need be first considered. 4. The Petitioner filed an application in the prescribed form before the Collector, Thane on 20 th September, 1989 Exhibit- A to the Petition, for conversion of the disputed land from agricultural use to non- agricultural purpose. The Petitioner in Writ Petition No.6373 of 1999 filed the said application as the partner of the Petitioners in Writ Petition No.4522 of 1998. This application was made under Section 44 of the MLRC. It is dated 20 th September, 1989. The date of its submission in the Collector's Office is not shown. 5. The Collector acknowledged receipt of the said application by his letter dated 29 th September, 1989, Exhibit- B to the Petition. In the 3 said letter the Collector mentioned that, comments would be called for from the Tahasildar. The letter also stated that action must be taken upon the application made by the Petitioner which was under consideration and the Petitioner was directed to quote the number of that letter in future correspondence and contact the Assistant Director, Town Planning, Dahanu. The Collector acknowledged the application under Section 44(2)(a). Consequently enquiry contemplated under Section 44 of MLRC began. 6. On 10 th October, 1989 the Petitioner entered into a Partnership Agreement constituting the firm of the partners in Writ Petition No.4522 of 1998. The Partnership is not registered. The Partnership Deed states that the business came into existence on 17 th May, 1989, which fact is not otherwise shown. Under the said Partnership Deed the Petitioner brought in .20 gunthas of Pot- kharaba land in Gat No.105 Mauje Charoti as his capital. The land was to be used for agricultural purpose. The Petitioner would have 10% share in the partnership. He was to be a nominal partner. The permissions, if any, required for the said business were to be obtained by the other partners and the Petitioner was to give his signature for the same It can be seen that under a Partnership Deed the Petitioner in Writ Petition No.6373 of 1999 would not be entitled independently to keep and enforce his right, title and interest in the land brought into the partnership and which was to be used for NA purpose, for 4 which the application was made and these Petitions are filed. He was also not to share in the profits equally. He was not even to apply for any permission. The spirit of the Partnership was to hand over the land and all benefits that arise therefrom by the Petitioner, who was an adivasi and tribal to the other partners who are non- adivasies and non-tribals. 7. On 1 st November, 1989. Tahasildar Dahanu granted permission for utilising the disputed property for non- agricultural purpose by way of a temporary permission for non- agricultural use, popularly called NA permission (NAP), part of Exhibit- P colly. 8. The Petitioner sent a letter to the Collector on 15 th February, 1990, Exhibit- C to the Petition, stating that as no NAP was granted within 90 days of the receipt of the application he is starting construction work . This letter was sent under Section 44(3) of the MLRC under which if the Collector fails to inform the Applicant of his decision within 90 days from the date of the acknowledgment of the application or from its receipt, the permission applied for would be deemed to be granted subject to the conditions prescribed in the MLRC in respect of such NA user. It is the Petitioner's contention that the Collector's office failed to process his application and to inform him the decision and hence, he is deemed to have been granted the NAP. The Petitioner has relied upon the Division Bench judgment of this Court in the case of Ganesh Ginning & Pressing Co. Ltd., Vs. State of 5 Maharashtra & Ors., AIR 2005 Bombay 324, which shall be considered presently. It is the contention on behalf of the State that the Collector's office had not only acknowledged the Petitioner's application, but had also intimated him about the commencement of the Inquiry and the reference made to the Tahasildar and who granted the Temporary NAP to the Petitioner, pending inquiry. Hence the provision relating to deemed permission cannot be invoked in this case. It is contended that the deeming provision would apply only if there is no action at all by the Collector's office after receipt/acknowledgment simpliciter by it and in any case the provision of deemed permission would apply only to temporary NAP and never to permanent NAP, which necessitates an in depth inquiry before its grant. It is argued that the deeming provision is made only for the convenience of the applicant to start user of the land as applied for and not for obtaining an unfair advantage over the land or using it for any illegal purpose based on default of the State. 9. On 15 th April, 1990 the Petitioner again wrote another letter to the Collector's Office, Exhibit- D to the Petition, informing the Collector that the Petitioner had deemed permission. It is argued by the learned AGP Ms. Cardozo on behalf of the State that this letter is not in consonance with Section 44(4) of MLRC under which the Petitioner is enjoined to inform the Tahasildar in writing through the Village Officers, the precise date on which the change of user of land commenced and such letter has to be sent within 30 days of such commencement of change of user. The date of commencement 6 of the use is not shown. 10. On 3 rd May, 1990 the Collector's office refused NAP to the Petitioner. The refusal letter is marked Exhibit- E to the Petition. This refusal of NAP was on the ground that the user of the land for non- agricultural purpose was barred by the Government in Dahanu Taluka. This is the first refusal by the Collector. 11. On 11 th October, 1990 Tahasildar, Dahanu granted a further temporary NAP to the Petitioner, part of Exhibit- P colly. 12. The Petitioner wrote a letter dated 24 th December, 1990 to the Collector, Exhibit- F to the Petition, not accepting the refusal of the NAP and stating that he had started construction work based upon the deemed permission which was granted under Section 44(3) of the MLRC. 13. The Ministry of Environment and Forest Department issued a notification dated 20 th June, 1991 declaring Dahanu Taluka, District Thane, Maharashtra as an Ecologically Fragile Area and imposed restriction on setting up of industries which would have detrimental effect on its environment. The object of the notification was to ensure that the development activities are consistent with the principles of environmental protection and conservation in such ecologically fragile areas. The annexure to 7 the notification sets out the guidelines for permitting/restricting industries and industrial units in Dahanu Taluka. Industries were classified in three categories, green, orange and red. 14. The Tahasildar, Dahanu granted a further temporary NAP on 10 th September, 1991, part of Exhibit- P colly to the Petition. 15. The Petitioner requested consideration of his application for permanent permission on 6th January, 1992 Exhibit- G to the Petition, on the ground that he had produced the additional information required by the Collector's office. This was his second application or an application in continuation of his first application. To this application he annexed the letter of the Environment Department of the State of Maharashtra dated 3rd January, 1992 (part of Exhibit-G) as a fresh piece of evidence to strengthen his case for grant of NAP on the environment issue which was being considered by the Collector's office. 16. The Additional Collector, Thane by his letter dated 15 th January, 1992, Exhibit- H to the Petition, considered the Petitioner's two applications dated 20 th September, 1989 and 6th January, 1992 and called upon the Petitioner to furnish information with regard to the four queries mentioned therein. The Petitioner's application was to install a stone crusher at the disputed site. The Petitioner's letter showed that he had started construction work (Baandh kaam). The inquiries made were, from 8 where the Petitioner would get the stones for being used in his crusher. It also stated that the Petitioner had not submitted the plan showing the construction work (Baand Kaam Naksha). The Petitioner was called upon to produce the permission from the Gram Panchayat and the Petitioner was told that the land was in benefit zone of Rehabilitation Department for sewer project for which he had to obtain the permission from the Authority. 17. The Petitioner replied to the queries by his letter dated 20th January, 1992, Exhibit- I to the Petition. He stated that he would use the stones from village Ghol for crushing. The construction plan was submitted. He submitted the Dakhla of the Gram Panchayat. He submitted the Dakhala of Surya Nagar Project. He, accordingly, requested the grant of permanent NAP. The Petitioner has relied upon the fact that all the queries of the Government were answered and hence he became entitled to be granted permanent NAP. It is argued by the learned AGP that the Petitioner answered the first two queries, but not the last two queries of the Additional Collector's letter dated 15 th January, 1992. The Petitioner did not bring the permission from the Gram Panchayat or the permission from the Rehabilitation Department for benefit zone. 18. The Petitioner submitted the letter of the Special Land Acquisition Officer under the Land Acquisition Act dated 29th June, 1991 showing that out of 4 hectors of Petitioner's land 1.5 hectors 9 were under irrigation and 2.9 acres were acquired for Surya Prakalpa Project so that the permission, if any, can be granted subject to the said acquisition. 19. The Petitioner also produced letter dated 30th April, 1991 (part of Exhibit- J) of the Irrigation Department sent to the SLAO that the Department would not require 1.5 hectors land for irrigation out of the Petitioner's land. It is argued that the Petitioner has co-operated and submitted all the documents required and yet he has not been issued the permanent NAP. We are not called upon, as in appeal, to consider whether, based upon the Petitioner's documents, NAP is rightly or wrongly rejected. All that has to be seen is whether the review under Section 358 of the MLRC was maintainable and whether the review order passed thereupon was in order. 20. Temporary NAPs, as aforesaid, were granted to the Petitioner from time to time during this period until 9th June, 1992. It is contended on behalf of the Petitioner that such permissions were granted to other persons also in Dahanu Taluka. 21. The Additional Collector, Thane District by his letter dated 9th June, 1992, Exhibit- K to the Petition, refused the applications of the Petitioner dated 20 th September, 1989 (Exhibit- A), 6th January, 1992 (Exhibit- G) and further letter dated 20 th January, 1992 (Exhibit- I). 10 This is the second refusal of the Petitioner's applications/continuation of the first application. The main reason for refusal of the NAP is the change of user under the Bombay Tenancy and Agricultural Lands Act, 1948 (BTALA). The Petitioner as a tribal admittedly fell under Section 32 of BTALA. There was a restriction on transfer of the land by the Petitioner under Section 43 of the said Act. It is shown on behalf of the State that the Petitioner's case falls under Section 36(A) of the MLRC and the Petitioner being a tribal is prohibited from transferring his occupancy by way of sale, gift, exchange, mortgage, lease or otherwise without the sanction of the Collector/State Government. It is contended on behalf of the State that the Petitioner, on executing the partnership with non-tribals brought in the land by way of capital and sought to put up construction on the land and thus transferred his land for non- agricultural purpose to the partnership and accordingly contravened Section 36(A)(1) of the MLRC. It is the Petitioner's contention that the prohibition under this Act does not apply to him. The Petitioner in Writ Petition No.6373 of 1999 was a partner in the Firm of the Petitioner in Writ Petition No.4522 of 1998 under Partnership Deed dated 10 th October, 1989, a copy of which, though not annexed to the plaint, is produced before the Court. After the NAP was refused on 9th June, 1992, the Partnership Firm is stated to have been dissolved (cancelled) on 10.10.92 . The Petitioner in Writ Petition No.6373 of 1999 has thereafter undertaken the exercise of asking for the NAP in his individual capacity and not as the partner of the Firm. 11 It is pertinent to note that though it is contended on behalf of the Petitioner that his occupancy is not transferred by way of the Partnership Deed, the Petitioner dissolved the partnership after permission was refused under the letter dated 9th June, 1992 by the Additional Collector. It is argued on behalf of the Petitioner that, that was done by way of abundant caution. 22. The Petitioner obtained permission under this BTALA on 12th August, 1992 Exhibit- L to the Petition, and sent the same to the Additional Collector, Thane under his letter dated 14th August, 1992 (Part of Exhibit- L to the Petition). The Petitioner stated in the said letter that he had dis- associated himself from the partnership and that he was applying in his own name. The Petitioner then again requested for grant of permanent NAP to him. It is argued on behalf of the State that this was the Petitioner's third application/continuation of the first application. In either case it showed the acceptance of the Petitioner that the NAP was not given to him until then. It also showed the acceptance of the Petitioner that the restrictions under BTALA applied to him necessitating him to comply with the statutory conditions. 23. The Petitioner made an affidavit on a stamp paper on 21 st October, 1992 and sent the same under his letter dated 21st October, 1992, Exhibit- M colly to the Petition, to the Additional Collector, Thane District showing that he had dissolved the partnership entered into by him under the partnership deed dated 10th October, 12 1989. He referred to his initial application dated 20 th September, 1989 and requested grant of permanent NAP on 21 st October, 1992. This is stated to be his fourth application/continuation of the first application. 24. The Petitioner entered into a tenancy agreement on 22 nd October, 1992 Exhibit- N to the Petition. The agreement shows the lease of the land for stone crushing machine given on rent by the Petitioner to one of the partners of the Petitioner Firm in Writ Petition No.4522 of 1998. The tenancy agreement as well as the affidavit were executed by the Petitioner on the same day. The tenancy agreement is executed in favour of the partner of the same firm from which the Petitioner claimed to have dis-associated himself, though a deed of dissolution of partnership is not produced. 25. The Collector, Thane District refused NAP to the Partner by his letter dated 4th December, 1992 Exhibit- O to the Petition. The said letter referred inter alia to the Petitioner's initial application dated 20 th September, 1989 (Exhibit- A). It further refers to the partnership deed entered into by the Petitioner and considers the restrictions under Section 36(A) of the MLRC. It also mentions about the land being in benefit zone for which the relevant permission was not obtained by the Petitioner. This is the final refusal of the Petitioner's last application dated 21 stOctober,1992 / continuation of his initial application dated 20th 13 September, 1989. 26. The Petitioner challenged the said order before the Additional Commissioner, Konkan Division, Mumbai in Appeal under Section 247 of the MLRA. The Additional Commissioner set aside the order of the Collector, Thane dated 4th December, 1992 by his order dated 16 th February, 1996 and directed grant of NAP in the individual name of the Petitioner in Writ Petition No.6373 of 1999 for industrial purpose and subject to the usual terms and conditions. The said order is marked Exhibit- T to the Petition. The order Exhibit-T has considered the applications of the Petitioner made from time to time, the temporary NA permissions granted by the Tahasildar to the Petitioner made from time to time up to 9 th June, 1992, the refusal of the authorities contained in the aforesaid correspondence/orders. The order also considered the provisions of Section 43 of BTALA, the question of benefit zone for Surya Project, the dis-association of the Petitioner from the partnership firm, the restrictions under Section 36(A) of the Code upon the Petitioners, as well as the deemed permission under Section 44(3) of the MLRC. The order does not consider the notification issued by the Maharashtra Environment Department dated 20 th June, 1991. That notification has not been relied upon or referred to by the Petitioner in the Petition. It is not annexed to the Petition also. 27. The State of Maharashtra applied for a review of the said order 14 under Section 258 of the MLRC. The Additional Commissioner Konkan Division, Mumbai reviewed his order Exhibit- T by a judgment dated 27 th August, 1998 Exhibit- U to the Petition. Review was allowed essentially on the ground that the notification of the Ministry of Environment and Forest dated 20 th June, 1991 was not shown by the parties and considered by him in the order dated 16 th February, 1996, Exhibit-T to the Petition. 28. The order dated 27 th August, 1998 is impugned. The Review is allowed specifically because the State as the applicant in the Review Petition was aggrieved by the discovery of the fact that the very Notification under which the Petitioner’s industry was entirely prohibited was not brought to the knowledge of the Additional Commissioner when he passed the order EXHIBIT-T to the Petition. It must therefore, be seen whether the review could be maintainable on that ground as a fact or matter constituting a sufficient reason to review the decision to grant the Petitioner permanent NAP by which he would be permanently able to carry out and continue the construction activity as stated by himself and to use the stone crusher on his site to crush the stones. 29. The aforesaid correspondence shows that the letter of the Collector’s office dated 3rd May, 1990 initially refused the NAP on the ground that user of the land for non- agricultural purpose was barred by the Government in Dahanu Taluka. That itself show that in the entire Taluka industrial or non- agricultural use was not permitted. 15 The Notification of the Ministry of Enforcement and Forest Department dated 20 th June, 1991 specifically recited that Dahanu Taluka was an ecologically fragile area and the Notification was issued to prevent the detrimental effect of setting up industry on its environment under Section 3 of the Environment (Protection) Act, 1986 (EPA). 30. The entire controversy between the parties, therefore, centers around this Notification. We are surprised that though the Review Petition was considered and allowed, based upon this Notification, the Notification has not been referred to by the Petitioner. 31. Ms. Cardozo has drawn our attention to the very fundamentals laid under the Constitution for the enactment of the EPA and the issuance of the Notification under EPA for protection of the environment envisaged by the Act. The entire exercise commenced under the Forty- second Amendment to the Constitution of India. Under Section 10 of the Constitution (Forty- second amendment) Act, 1976 Article 48(A) has been inserted in the Constitution. It runs thus :- “48A. Protection and improvement of environment and safeguarding of forests and wild life –The State shall Endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.” 16 32. Under the said mandate contained in the Constitution itself the EPA came to be enacted in 1986. The Notifications issued from time to time under the said Legislation are required to be given effect to by the Courts, as much as the State itself. Protection of the environment in Dahanu Taluka, District: Thane, which is shown to be an ecologically fragile area, and which aspect is not disputed, would require strict compliance of the provisions of inter alia the MLRC and the Rules framed thereunder to be allowed strictly in accordance with those Notifications. 33. In this case in such an area the Petitioner, though a tribal, and a direct beneficiary of the aforesaid Notification as well as the EPA himself sought permission contrary to and in derogation with the spirit, purpose and effect of the Notification. We are told that crushing stones with a stone crusher directly haampers the environment and has the detrimental effect there upon by the clouds of dust when it causes. Environmental protection of Dahanu Taluka requires restrictions to be imposed upon setting up of industries which have detrimental effect of environment. The Notification has set out and demarcated three distinct zones: red, orange and green. Under the Notification though manufacture of structural stone goods, stone dressing and stone polishing is permitted as falling in the green category, stone crushing and stone quarrying is specifically stated not be permitted. It shows that emissions are caused by such an industry. 17 34. We do not think the application made by the Petitioner for carrying on a business /industry of crushing stones with a crusher, whether it be local stone from his own property or stone brought from some other village to be crushed can be permitted. Permitting that would be contrary to the constitutional mandate of protecting the environment. 35. It would further go contrary to the Petitioner’s own duty to protect the natural environment under Article 51(A)(g) of the Constitution also inserted by way of the Forty- second amendment. 36. We may mention that the right to environmental protection has been made a part of the right to life itself under Article 21 of the Constitution and is required to be read alongside that right in the case of A.P. Pollution Control Board Vs. Prof. M.V.Nayudu, AIR 1999 SC, 812 it has been held “That on the basis of ‘precautionary principle’, the burden of proof in environmental matters rests on the developer/industrialist to show that his action is environmentally benign”. 37. We may state that Mr. Godbole on behalf of the Petitioner has fairly not raised dispute about the Petitioner's fundamental duty under Article 51(A)(g) or