1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 3891/2011 1. Arunkumar Rameshchandra Bagadiya PETITIONER ...VERSUS... 1. Poonamchand Hukumchand Agrawal 2. Mohanchand Hukumchand Agrawal 3. Sureshchand Hukumchand Agrawal 4. Prakashchandra Hukumchand Agrawal 5. Mangalchand Hukumchand Agrawal 6. Puranchand Hukumchand Agrawal 7. The Additional Collector, Washim, 8. The Additional Commissioner, Amravati Division, Amravati. 9. The Minister for Revenue Government of Maharashtra, Revenue and Forest Department, Manatralaya, Mumbai. RESPONDENTS -------------------------------------------------------------------------------------------------- Shri R.L.Khapre, Advocate, for the Petitioner. Shri M.G.Bhandge, Senior Advocate, assisted by Shri R.M.Bhangde, Advocate for Respondent Nos. 1 to 6. Smt. K.R.Deshpande, AGP for Respondent Nos. 7, 8 & 9 -------------------------------------------------------------------------------------------------- 2 CORAM: R. K. DESHPANDE, J. Date of Closing for Order : 13.12.2011 Date of Pronouncing the Order : 19.12.2011 O R D E R 1] The challenge in this petition is to the order passed under Section 44 of the Maharashtra Land Revenue Code granting permission to convert land use for non- agricultural purpose, which has been maintained in appeal and revision. 2] The facts are as under; The dispute in this petition relates to the land Surevey No. 208 of Risod, Distt. Washim, admeasuring 8H and 20R (hereinafter referred to as “property in question”). The petitioner claims to be the legal heir of the original land owner Smt. Rukhminidevi Champalal Bagadiya, who died on 01.12.1994, whereas the respondent nos. 1 to 6 claim to be the legal heirs of one Hukmichand Chunnilal Agrawal, the tenant in respect of property in question. In Revenue Case No. 1/59(13)/70-71, a sale certificate was 3 granted in respect of the land in question in favour of Hukmichand Chunnilal Agrawal on 11.02.1972 under Section 43(8) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as “the BTAL Act). Accordingly, a sale deed was executed on 12.04.1972 in favour of Hukmichand Chunnilal Agrawal and thus, he became the owner of the property in question. 3] The respondent nos. 1 to 6 filed an application for permission to sell the land in question admeasuring 8H and 20R, under Section 57 of the BTAL Act before the Collector on 12.02.2008, which was registered as Application No. TNC-57/Risod/6/2007-08. On 27.05.2008, the permission was granted to sell the land to the extent of 5H and 20R. Thereafter, on 06.09.2008 again permission was sought under Section 57 for sale of remaining 3H of land by the respondent nos. 1 to 6, which was granted. 4] Thereafter, on 15.03.2009, the respondent nos. 4 1 to 6 filed an application for grant of permission under Section 44 of the Maharashtra Land Revenue Code (hereafter referred to as MLR Code) for conversion of land in question for non agricultural purpose. It was registered as Application No. NAP 34-Risod/5/08-09. This was objected by the petitioner on 09.11.2009. The Collector granted permission under Section 44 of the MLR Code, by his order dated 06.01.2010. During the pendency of the proceedings under Section 44 of the MLR Code, registered sale deed was executed by respondent nos. 1 to 6 in favour of third party on 14.07.2009 in respect of 2H and 02 R of land in question. After the permission was granted on 06.01.2010, another registered sale deed was executed in respect of 6H and 18R of land on 16.01.2010 in favour of third party. 5] The petitioner being aggrieved by the permission granted by the Collector, in favour of the respondents, preferred in Appeal No. 7/NAP-34/Risod/2009-10, before the Divisional Commissioner, Amravati Division, Amravati, under 5 Section 247 of MLR Code. Reply was filed by respondent nos. 1 to 6, opposing the said appeal on 21.04.2010. The matter was thereafter fixed for hearing on 06.05.2010, 17.05.2010 and 25.05.2010, on which dates the petitioner was present through his counsel. On 03.06.2010, when the matter was fixed, the counsel for the petitioner was not present. According to the petitioner, the matter was thereafter fixed on 25.06.2010, however, the respondents were heard on 03.06.2010 and ultimately the order was passed on 05.06.2010, dismissing the said appeal. 6] The petitioner preferred revision application No. NAP-45/A-10/743 PK-XI/L-5, under Section 257 of the MLR Code before the State Government. The said revision was dismissed by an order dated 18.01.2011, confirming the order passed by the Commissioner, Amravati Division, Amravati, on 05.06.2010. Hence, this petition is preferred under Articles 226 and 227 of the Constitution of India. 6 7] The main ground of challenge to the orders impugned in this petition is that, the sale certificate dated 11.02.1972 issued under Section 43(8) of the BTAL Act is required to be quashed and set aside and for this purpose, the petitioner has filed separate proceedings. It is the contention raised that if the said sale certificate is set aside, then the petitioner shall be entitled to restoration of the land and the respondents cannot, therefore, be permitted to alter the nature of the land or to deal with it in any manner. It is also the submission that the permissions under section 57 of the BTAL Act have been obtained on 27.05.2008 and 06.09.2008 by the respondents from the competent Authorities, by practicing fraud and misrepresentation. It is urged by the petitioner that these permissions are also the subject matter of separate proceedings instituted by the petitioner and if ultimately the permissions are set aside then the sale deeds executed on 14.07.2009 and 16.01.2010 are also liable to be declared as void and the respondents would not be entitled to alter the nature of land or to deal with it in 7 any manner. 8] It is not known as to what proceedings are instituted to challenge the sale certificate and the permission. Be that as it may, the sale certificate issued under Section 43(8) of the BTAL Act can be challenged by filing an appeal under Section 107 or may be by preferring revision under Section 110 of the BTAL Act. Similarly, the order passed under Section 57 of the BTAL Act can also be challenged under Section 111 of the said Act by filing revision. This is apparent from the decision of this Court reported in 1996 (1) Mh.L.J. 717 [Shankar Namdeo Kharat vrs. Namdeo Ashru Kharat and another]. The purchasers under the sale deeds dated 14.07.2009 and 16.01.2010 are not the parties to these proceedings. What would be the ultimate effect if the sale certificates under Section 43(8) and the permissions under Section 57 are set aside, cannot be decided at this stage, that too in the proceedings under Section 44 of the MLR Code. In view of the fact that the petitioner has already 8 availed of the remedies available to challenge the sale certificates and the permissions granted under the BTAL Act, no interference is called for in the orders impugned in this petition. It is open for the petitioner to obtain appropriate orders in the substantive proceedings which have already been instituted. 9] In view of above, no interference is called for in the orders impugned in the present petition. The petition is dismissed. It is clarified that neither the findings recorded in the orders impugned in this petition, nor any findings recorded in this order shall come in the way of the petitioner to prosecute his remedies challenging the orders under Section 43(8) and Section 57 of the BTAL Act. No orders as to costs. JUDGE Rvjalit