1 4186 Ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO.4186 OF 2011 M/s Annapurna Land Developers .. Petitioner. A partnershipfirm dulyhregistered under the p;rovisions of Indian Partnership “Act, 1948 consisting of partners as: 1. Shri Gopalji K.Dwivedi(HUF) 2. Shri Yash G.Dwivedi 3. Shri Inderjeetsingh A.Chadha 4. Shri PrableenkaurJ.Bhasin 5. Shri Hasatmukh R.Patil 6. Shri JogendraR.Patil 7. Shri Rajesh P.Patel Through one of its partner Shri Inderjeetsingh A.Chadha having its office at Gopal Darshan Indralok Phase-II, Bhayandar (E) Dist.Thane-401 101 .. Petitioners vs 1. The State of Maharashtra . 2. The Collector, Thane 3. The Estate Investment Co.Pvt.Ltd A company incorporated under the provisions of Indian Companies Act having its registered office at 137, Seksaria Chambers, Nagindas Master Road, (Old Medows Street) Mumbai-400 001 .. Respondents Mr. Sandesh D. Patil and Mr. Harish P Jain, advocates for petitioners. 2 4186 Mr. S.N.Patil, AGP for respondent Nos. 1 and 2. Ms. Sheetal Shah i/b. Mehta & Giridharlal, advocates for respondent No.3. CORAM: MOHIT S. SHAH, C. J. AND GIRISH GODBOLE, J RESERVED ON : 29th June, 2011. PRONOUNCED ON : 8th July, 2011. JUDGMENT (Per Girish Godbole,J) Rule. By consent rule made returnable forthwith and the petition is taken up on board for hearing. The respective counsels for respondents waive service of Rule. 2. By the present Writ Petition filed under Article 226 of the Constitution of India, the petitioner is seeking the following substantive relief in terms of prayer clause (a) in paragraph-18: “a. By an appropriate writ/order/direction of this Hon’ble court the Respondent No.2 be directed to consider the application dated 15/4/2011 (for N.A.permission) filed by the Petitioner in respect of suit properties by following the procedure as laid down under the provisions of Maharashtra Land Revenue Code, 1966.” 3 4186 3. The case of the petitioner can be summarized as follows: A) The Petitioner is owner/developer of various lands situated at village Navghar, Bhayandar (East), Taluka and District Thane within the limits of Mira Bhayander Municipal Corporation. Respondent No. 3 company was claiming to be a superior holder in respect of lands in revenue village Bhayandar, Mire and Ghodbunder and the said claim is made on the basis of a Deed of Indenture dated 7/11/1870 executed in favour of the predecessor in title of the respondent No. 3 by the then Secretary of the State for Indian Council, followed by the deeds of assignment dated 15/2/1943 and 22/3/1945 executed in favour of the respondent No. 3. In a dispute arising out of the mutation entries, the name of the respondent No. 3 was removed from the occupant column of record of rights and was entered in other rights columns. Subsequently in proceeding under the Salesette Estate (Land Revenue Exemptions and Abolition) Act 1951, an order dated 28/1/1989 was passed by the Resident Deputy Collector, Thane and subsequently the Revenue Minister of Government of Maharashtra, passed an order dated 28/4/2008 directing that an enquiry under section 3 of the aforesaid Act should be completed. Pursuant to this order, on 4 4186 5/9/2008 the District Collector, Thane passed an order in favour of the respondent No. 3 company and the name of the respondent No. 3 company was directed to be entered in the column of occupant in the 7/12 extract which is the revenue record. B) The aforesaid order of the District Collector, Thane passed on 5/9/2008 was challenged by filing writ petitions in this Court being Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008 wherein learned Single Judge of this Court passed order dated 14/10/2008 directing the respondent Nos. 1 and 2 therein (State of Maharashtra and Mira Bhayander Municipal Corporation) not to effect any changes in the record of rights by changing the mutations nor effect any changes in the 7/12 extracts and by an order dated 21/10/2008, it was directed that all the parties concerned shall maintain status quo in respect of the revenue records of the entire property. Subsequently, the aforesaid 3 writ petitions and several other writ petitions, which were heard together, were admitted by the learned Single Judge by order dated 24/4/2009 and by an interim order, earlier orders dated 14/10/2008 and 21/10/2008 were directed to be continued. In paragraph-9 of the petition, it is stated thus : “It is not disputed that the orders passed by this Hon’ble Court are applicable to all lands covered 5 4186 under order dated 05/09/2008. Needless to say the said orders governs the land in present writ petition also.” C. The petitioner therefore decided to approach the respondent No. 3 to amicably settle the matter and accordingly the respondent No. 3 and the petitioner entered into an agreement wherein the respondent No. 3 executed 5 documents titled as “Deed of Release” on 25/2/2011 in favour of the petitioner and released the rights of respondent No. 3 for consideration of Rs. 6,67,240/-, Rs.3,51,750/-, Rs.3,82,740/-, Rs.6,93,100/- and Rs.1,55,170/-. The said Deeds of Release are produced at Exh. J to N (pages 157 to 206 of the petition). Perusal of the said Deeds of Release however shows that the same are neither registered and a stamp duty of Rs. 300/- is affixed to each of the said instruments. D) The respondent No. 3 Estate Investments Company Pvt. Ltd. also issued letter dated 19/5/2010 (Exh. O to the petition) indicating its no objection for granting permission for conversion of the lands indicated in the said no objection letter from agricultural user to non-agricultural user. Supported with such no objection letter, the petitioner submitted application under section 44 of the Maharashtra Land Revenue Code, 1966 to the Collector, Thane on 6 4186 13.4.2011. By the impugned communication dated 15/4/2011 (Exh Q) the Collector, Thane has declined to consider the said application of the petitioner on the ground that in Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008, the Hon'ble High Court has passed an order directing that status quo shall be maintained in respect of the revenue records of the entire property. 4. Mr. Sandesh Patil, learned advocate for the petitioner contends that since the respondent No. 3 in whose favour the order dated 5/9/2008 passed by the Collector, Thane, which was the subject matter of the challenge in the aforesaid 3 Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008, had subsequently given its no objection for conversion of the lands of the petitioner from agricultural user to non-agricultural user and since the respondent No. 3 had also executed the aforesaid 5 Deeds of Release, the Collector was not justified in rejecting the application solely on the ground that the order of the High Court has directed maintaining status quo in respect of the entire property. In support of the said submission, Mr. Sandesh Patil, learned advocate for petitioner has placed strong reliance on the judgment of the Division Bench of this Court in Writ Petition No. 9055 of 2010 delivered on 22nd 7 4186 December, 2010 and it is submitted that similar directions should be issued. 5. On behalf of the respondent No. 3 Estate Investment Company Pvt. Ltd. an affidavit in reply dated 20th June, 2011 sworn by Director of respondent No. 3 has been filed and the execution of the 5 Deeds of Release dated 25.2.2011 has been admitted. In paragraph-8 of the said affidavit, it is stated that by executing the said Release Deeds, the respondent No.3 had conveyed the right, title and interest which the respondent No.3 had to the said property. Similarly issuance of no objection letter by the respondent No. 3 to the Collector, Thane for conversion of lands in question from agricultural user to non-agricultural user is also admitted. 6. Shri S. N. Patil, learned Assistant Government Pleader appearing for respondent Nos. 1 and 2 has submitted that in view of the specific order of the learned Single Judge of this Court to maintain status quo in respect of entire property, the Collector was justified in refusing to entertain the application of the petitioner. 8 4186 7. Though the petitioner has an alternate remedy of filing an appeal under section 247 of the Maharashtra Land Revenue Code, 1966 before the Divisional Commissioner of the concerned Revenue Division, since the application filed by the petitioner has been rejected by the Collector, Thane only on the ground of pendency of aforesaid 3 petitions in this court and the interim orders passed therein and since the question involved is in respect of the interpretation of the said interim orders, we have thought it fit not to relegate the petitioner to avail of such an alternate remedy and have therefore, decided the writ petition on merits. 8. By various averments in the memo of writ petition, the petitioner is relying upon the aforesaid 5 Deeds of Release dated 25/2/2011 to contend that the rights of the respondent No. 3 as a superior holder stand released in favour of the petitioner. The petitioner is also relying upon the no objection letter dated 19/5/2010 issued by the respondent No. 3 for conversion of the lands for non agricultural user. The five Deeds of Release purported to release the rights in respect of the immovable property worth more than Rs. 100/- in each case and even the consideration indicated therein is substantially more than Rs. 100/-. It is sought to 9 4186 be contended by Mr. Sandesh Patil, advocate for the petitioner that it is not claiming title through the Deeds of Release and was independently claiming consideration of its application on the basis of No Objection letter issued by respondent No. 3. However, in the face of averments in paragraphs- 10, 11 and 14 of the petition, as also in ground (b) of the petition, it is not possible to accept the aforesaid submission. 9. The earlier group of writ petitions namely, Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008, which seek to challenge the order dated 5/9/2008 passed by the Collector, Thane are pending and the interim order passed therein is operating. In the present case, however, the petitioner has chosen to accept the superior title of respondent No. 3 herein, which is evident from the execution of the Deeds of Release and no objection letter issued by the respondent No. 3. It is thus clear that the dispute between the petitioner and the respondent No. 3 has been settled and in view of the aforesaid peculiar facts, we propose to direct the Collector, Thane to consider the application of the petitioner for conversion of the lands from agricultural user to non-agricultural user by clarifying that the orders of the learned Single Judge of this Court in 10 4186 the aforesaid writ petitions being W.P. Nos. 6986/2008, 6994/2008 and 7012/2008 dated 14/10/2008 and 21/10/2008 and the order dated 24/4/2009 of the learned Single Judge in the group of writ petitions including the aforesaid 3 petitions will not preclude the Collector from considering the application of the petitioner in view of the fact that the respondent No.3 has granted a specific no objection for such conversion and has also executed five Deeds of Release. It is however clarified that this should not be construed to be an order either accepting status of “superior” owner/holder claimed by the respondent No.3 or about the merits of the controversy involved in the group of writ petitions, which have been admitted by the learned Single Judge by order dated 24th April, 2009 and no equities of whatsoever kind shall be claimed by the respondent No.3 on the basis of or strength of this order. 10. While considering an application for conversion from agricultural user to N.A. user under section 44 made by an occupant who is not a superior holder, the consent of the superior holder is required to be obtained, which the respondent No. 3 has already given. However as stated above, the aforesaid five Deeds of Release dated 25/2/2011 do not appear to be registered under the 11 4186 Indian Registration Act, 1908 and apparently show that stamp duty of Rs. 300/- each has been affixed to the said Deeds which seek to extinguish the right of the respondent No.3 as a superior holder in favour of the petitioner. The Collector while considering an application for conversion of lands under section 44 of the Maharashtra Land Revenue Code, 1966 exercises powers as “a person in charge of public office ” and will also be required to exercise his jurisdiction as such “a person in charge of public office” under section 33 of the Bombay Stamp Act, 1958 and apply his mind to the provisions of the said Act. 11. We therefore dispose of the writ petition in terms of the following order: (a) The impugned letter/communication dated 15/4/2011 issued by the District Collector, Thane (Exh. Q) is quashed and set aside. The District Collector, Thane is directed to consider the application submitted by the petitioner on its own merits and strictly in accordance with the provisions of the Maharashtra Land Revenue Code, 1966 and Maharashtra Land Revenue (Conversion Of The Use Of Land and N.A. Assessment) Rules, 1969 and the provisions of other relevant 12 4186 statutes/rules. b) The District Collector, Thane is also directed to apply his mind and consider the provisions of section 33 of the Bombay Stamp Act, 1958 qua the aforesaid five Deeds of Release dated 25/2/2011 and take appropriate steps in accordance with law in that regard and submit a compliance report to the Divisional Commissioner and the State Government. (c) The application of the petitioner for conversion of the lands from agricultural user to non-agricultural user shall be considered expeditiously within a period of 3 months from the date of production of an authenticated copy of this order before the Collector. It is clarified that if there are any other defects/deficiencies in the application filed by the petitioner, the Collector shall be free to raise objections in that regard and only after the said objections are duly met and cleared, the application for grant of N.A. permission will be processed and considered on merits in accordance with law. It is also clarified that this order may not be construed 13 4186 as a direction to the Collector to grant permission sought by the petitioner and the Collector will be free to take an appropriate decision in accordance with law, but shall not decline to entertain and consider the application of the petitioner on account of pendency of the aforesaid writ petition Nos. 6986/2008, 6994/2008 and 7012/2008 and other connected petitions and the interim orders passed therein. It is also clarified that no equities shall be created in favour of the respondent No. 3 herein on account of this order in the pending writ petition Nos. 6986/2008, 6994/2008 and 7012/2008 and they shall be heard and decided on their own merits without being influenced by this order. (d) Rule made absolute in aforesaid terms with no order as to costs. CHIEF JUSTICE GIRISH GODBOLE, J 14 4186