15.wp.257gr 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION [1] WRIT PETITON NO.257 OF 2010 Vodafone Essar Cellular Ltd., ..Petitioner. Versus State of Maharashtra and others. ..Respondents. ... Mr.Girish Godbole, Advocate i/b. Mr.Punit B. Anand, Advocate for the Petitioner. Mr.S.N. Patil, AGP, for the Respondents - State. ... ... WITH [2] WRIT PETITON NO.255 OF 2010 21st Century Infra Tele Limited and another. ..Petitioners. Versus The Collector, Dist. Thane and others. ..Respondents. ... Dr.V.V. Tulzapurkar, Sr. Advocate a/w. Mr.Rahman, Advocate i/b. M/s.D.H. Law Associates, for the Petitioners. Mr.S.N. Patil, AGP, for the Respondents - State. ... 15.wp.257gr 2 ... WITH [3] WRIT PETITON NO.699 OF 2010 21st Century Infra Tele Limited and another. ..Petitioners. Versus The Collector, Dist. Thane and others. ..Respondents. ... Dr.V.V. Tulzapurkar, Sr. Advocate a/w. Mr.Rahman, Advocate i/b. M/s.D.H. Law Associates, for the Petitioners. Mr.S.N. Patil, AGP, for the Respondents - State. ... ... WITH [4] WRIT PETITON NO.2074 OF 2008 Vodafone Essar Ltd., ..Petitioners. Versus State of Maharashtra and another. ..Respondents. ... Mr.Girish Godbole, Advocate i/b. Mr.Punit B. Anand, Advocate for the Petitioner. Mr.S.N. Patil, AGP, for the Respondents - State. ... ... WITH [5] WRIT PETITON NO.2089 OF 2008 Bharti Airtel Ltd., and Others. ..Petitioners. 15.wp.257gr 3 Versus Tehsildar, Thane and others. ..Respondents. ... Dr.V.V. Tulzapurkar, Sr. Advocate a/w. Mr.Rahman, Advocate i/b. M/s.D.H. Law Associates, for the Petitioners. Mr.S.N. Patil, AGP, for the Respondents - State. ... CORAM : D.K. DESHMUKH & A.R. JOSHI, JJ. DATED : FEBRUARY 25, 2010. P.C. 1. The Petitions are not on board for final hearing. However, by consent of the parties it is taken up for final hearing. 2. We have heard the learned Counsel for both sides. 3. By these Petitions, filed by the telecom companies, the show cause notices issued by the Tahsildar asking them to show causes why non-agricultural assessment should not be recovered from them because they have erected their cellular towers on the building. These show cause notices have been issued under the Maharashtra Land Revenue Code for recovery of non-agricultural assessment. It is an admitted position that the petitioners have put up their cellular based stations on the 15.wp.257gr 4 building owned by the Co-operative societies as well as the buildings owned by others including the Government. The submission on behalf of the petitioners is that they cannot be held liable for payment of any non-agricultural assessment because they are neither holders nor owners of the land. 4. We have heard the learned AGP appearing for the respondent and the learned Counsel appearing for the petitioners. Section 44 of the Maharashtra Land Revenue Code, 1966 deals with the procedure for conversion of use of land from one purpose to another. Perusal of the provisions of Section 44 shows that if an occupant of unalienated land or a superior holder of alienated land or a tenant of such land which is assessed or held for the purpose of agriculture, wishes to use it for a non- agricultural purpose, or if land is assessed or held for a particular non-agricultural purpose, wishes to use it for another non-agricultural purpose, then he has to move an application to the Collector and seek permission for such change of user. On such permission being granted, the non- agricultural assessment depending on the user permitted can be recovered from the applicant. Thus, it is clear from the 15.wp.257gr 5 provisions of Section 44 that the liability to pay the non- agricultural assessment can be on the person who has made the application for change of the user. Perusal of Section 44 shows that an application for change of user can be made by an occupant of unalienated land or a superior holder of alienated land or a tenant of such land. It is clear that so far as the present case is concerned, the petitioners telecom companies cannot be said either to be the occupants of the unalienated land or superior holders of alienated land or a tenant of such land. What has happened is that the petitioners have been permitted by the owners of the building to use the terrace for setting up cellular towers. And, therefore, even if for such a change of user non-agricultural assessment is liable to be recovered, it will have to be recovered from the owners of the building or the occupier or tenant or the superior holders of the land. 5. In this view of the matter, therefore, in our opinion, we find that the Tahsildar was not justified in issuing show cause notices to the petitioners for recovery of non-agricultural assessment from the petitioner for erecting towers on the 15.wp.257gr 6 building. In our opinion, therefore, the Petitions will have to be allowed. It is accordingly allowed. The show cause notices impugned in the Petitions are set aside. However, it is clarified that this order will not come in the way of the respondent - Tahsildar and other competent authorities under the Land Revenue Code to take appropriate steps if according to them non-agricultural assessment is recoverable because of erection of the towers on the terrace of the buildings. 6. Rule made absolute accordingly. No order as to costs. Petitions are disposed of accordingly. (D.K. DESHMUKH,J.) (A.R. JOSHI, J.)