1 wp-2390-09 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2390 OF 2009 WITH CIVIL APAPLICATION NO. 1929 OF 2010 Madhavrao K. Mahangare and ors. .. Petitioners Vs. M/s. Precision Automation and Robotics India Ltd. and ors. .. Respondents Mr. P. K. Dhakephalkar, Sr. Advocate i/by Mr. Sathyam Acharya for petitioners. Mr. G.S. Godbole a/w Mr. G.H. Keluskar and Mr. Adwait Londhe for respondent no.1. Mr. Amol Deshpande for respondent nos.2, 3 and 6. Mr. Samir Patil, AGP for respondent nos.7 to 9, 14 to 16. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. DECEMBER 06, 2010. P.C. 1. We have heard Mr. Dhakephalkar, the learned Senior Counsel with Mr. Acharya for the petitioners and Mr. Godbole with Mr. Keluskar 2 wp-2390-09 the learned counsel for respondent no.1. Mr. Amol Deshpande appears for respondent nos.2, 3 and 6. Mr. Patil, the learned AGP appears for the respondent nos.7 to 9 - State. 2. In this petition filed under Article 226 of the Constitution, the petitioners pray for the following reliefs :- (a) To quash and set aside the order dated 26/3/2007 passed by respondent no.14. (b) To quash and set aside the order dated 29/3/2007 passed by the respondent no.12 thereby effecting Mutation Entry Nos. 948, 950, 951, 952, 954, 957, 958 and 3418 (effected by respondent no.13). (c) For directions to respondent nos.9 and 10 to forthwith take steps as required under Section 63-1A and 84(a) of the Bombay Tenancy & Agricultural Lands Act, 1948 (the Tenancy Act for short) for summary eviction of respondent no.1. 3 wp-2390-09 (d) To permit the petitioners to repurchase the land admeasuring 7 H. 72 R. from Gat No. 463B from respondent nos.2 to 4 under Section 63-1A of the Tenancy Act and other lands purchased by respondent no.1. (e) To direct respondent no.7 or respondent no.8 to take action against respondent nos.10 to 13 for the alleged illegal acts in the subject matter of purchase of the petitioners’ land and subsequent failure to put to non agricultural use within the specified period under the Tenancy Act. 2. The petitioner nos.1 to 3 are the real brothers and the petitioners from time to time sold the following lands to respondent nos.2 to 6 between September 2000 to January, 2001 from Gat No. 463B (part) and totally admeasuring 12 H. and 85 R : (a) Respondent No.2-Nichrome Holdings - 3 H. 3 R. (b) Respondent No.3-Nichrome Equipments - 3 H. 3 R. (c) Respondent No.4-V.V. Architects Pvt.Ltd.- 1 H. 65 R. 4 wp-2390-09 (d) Respondent No.5-Srinivas Joshi - 2 H. 10 R (e) Respondent No.6-Prabhas B. Paranjape - 3 H. 3 R Copies of the conveyance have been placed on record so as to point out that the land was purchased by the respective respondents for industrial use. 3. Subsequently, respondent no.1 purchased the following lands from respondent nos.2 to 6 and some of the petitioners: Date Gat No. Area (a) 12/01/2007 463B 12 H. 85 R (sold by respondent nos.2 to 6 to respondent no.1) (b) 31/01/2007 464(Part) 9 H. 52 R. (sold by petitioners to respondent no.1.) (c) 05/02/2007 463A 7 H. 7 R. There is also no dispute that the respondent no.1 sought permission from respondent no.14 on or about 23/2/2007 and such a 5 wp-2390-09 permission was granted on 26/3/2007 and this order is under challenge in the instant petition. Pursuant to the order passed on 26/3/2007, respondent no.1 applied to respondent no.11 so as to direct respondent no.12 to carry out the necessary mutation entries on 28/3/2007 and this order also is under challenge. However, the mutation entries have been effected by respondent no.12. There is also no dispute that on the complaint made by the petitioners, respondent no.7 by communication dated 22/10/2008 directed respondent no.9 to take action against respondent no.1 for violation of Section 63-1A of the Tenancy Act and it is the contention of the petitioners that despite this order, no steps were taken and in any case they are entitled to repurchase the land from Gat No.463B on account of the failure of the purchaser i.e. respondent nos.2 to 6 at the first instance and respondent no. 1 subsequently to put to the said land for industrial use within the period of five years. 4. This petition is mainly based on the scheme of Section 63-1A of the Tenancy Act and it would be, therefore, appropriate to reproduce the said section: “63-1A Transfer to non-agriculturist for bona fide 6 wp-2390-09 industrial use: (1) Notwithstanding anything contained in section 63, it shall be lawful for a person to sell land, without permission of the Collector, to any person who is or is not an agriculturist and who intends to convert the same to a or for special township project, as the case may be, where such land is located within, - (i) the industrial zone of a draft or final regional plan or draft interim or final development plan or draft or final town planning scheme, as the case may be, prepared under the Maharashtra Regional and Town Planning Act, 1966 or any other law for the time being in force, or the agricultural zone of any of such plans or schemes and the development control regulations or rules framed under such Act or any of such laws permit industrial use of land; or (ii) the area where no such plan or scheme as aforesaid exists or (iii) the area taken over by a private developer for development of a special township project; Provided that, where the total extent of such land proposed to be purchased by a person exceeds ten hectares, he shall obtain prior permission of the Development Commissioner (Industries) or any other officer authorised by the State Government in this behalf, who, while granting such permission shall consider the justification or reasonableness of the requirement of the land proposed to be purchased with reference to the nature of the proposed bona fide industrial use of such land; Provided further that, such purchase of land shall be subject to the condition that it shall be put to industrial use within the specified total period of fifteen years from the date of purchase, failing which the person from whom the land was purchased shall have the right to repurchase such land at the price for which it was originally sold by him; Provided also that, the purchaser who fails to put the land to bona-fide industrial use within five years from the date of the 7 wp-2390-09 purchase, and is on the date of coming into force of the Maharashtra Tenancy and Agricultural Lands Laws (Amendment) Act, 2004, (Mah.XXV of 2005) holding such land without having been put to the bona-fide industrial use, shall be permitted to put such land to the bona-fide industrial use within the remaining period from the total period of fifteen years, subject to the condition that,- (a) In the land purchased under sub-section (1) was held by the seller as the Occupant Class-II, such purchaser land holder shall pay an additional amount equal to 48 per cent. of the price for which it was originally purchased and three times of an annual assessment of non-agricultural tax payable under the Maharashtra Land Revenue Code, 1966 (Mah.XLI of 1966) as a non-utilisation tax per year; (b) If the land purchased under sub-section (1) was held by the seller as the Occupant Class-I, such purchaser land holder shall pay an amount equal to three times of an annual assessment of the non-agricultural tax payable under the Maharashtra Land Revenue Code, 1966 (Mah.XLI of 1966) as a non-utilisation tax per year: Provided also that, the provisions of this sub-section shall not apply to the areas notified as the Eco-sensitive Zone by the Government of India; Provided also that, where the land being sold is owned by a person belonging to the Scheduled Tribe, such sale of land shall be subject to the provisions of sections 36 and 36A of the Maharashtra Land Revenue Code, 1966 and of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. (2) If the land being purchased under sub-section (1) is held by Occupant-Class II, the purchaser shall pay to the Collector, an amount equal to [two per cent, of the purchase price, in case the purchase of land is for bona-fide industrial use and fifty per cent, of the purchase price. If the purchased of land is for special township project] within one month of the execution of the sale deed irrespective of the tenure of such land, this payment shall be in lieu of any nazarana or such other charges which may otherwise be payable by such Occupant-Class II by or under the 8 wp-2390-09 provisions of the Maharashtra Land Revenue Code, 1966. In addition, the purchaser of such land shall pay the non-agricultural assessment as may be levied by the Collector under sections 67 and 115 of the Maharashtra Land Revenue Code, 1966. (3) The person purchasing the land under sub-section (1) for conversion thereof for a bona fide industrial use [or for special township project, as the case may be,] give intimation of the date, on which the change of user of the land commenced, within thirty days from such date, to the Collector. (4) If the person fails to inform the Collector within the period specified in sub-section (3), he shall be liable to pay in addition to the non-agricultural assessment which may be leviable by or under the provisions of the Maharashtra Land Revenue Code, 1966 such penalty or exceeding twenty times the amount of non-agricultural assessment as the Collector may, subject to the rules, if any, made by the State Government in this behalf, direct. Explanation.-For the purposes of this section,- (a) the expression “bona fide industrial use” means the activity of manufacture, preservation of processing of goods, or any handicraft, or industrial business or enterprise, [or the activity of tourism within the areas notified by the State Government as the tourist place or hill areas station], and shall include construction of industrial buildings used for the manufacturing process or purpose, or power projects and ancillary industrial usage like research and development, godown, canteen office building of the industry concerned, or providing housing accommodation to the workers of the industry concerned, or establishment of an industrial estate including a co-operative industrial estate, service industry, cottage industry gramodyog units or gramodyog vasahats. [(aa) “special township project” means the special township project or projects under the Regulations framed for Development of Special Township by the Government under the provisions of the Maharashtra Regional and Town Planning Act, 1966.] 9 wp-2390-09 (b) “Scheduled Tribes” means such tribes or tribal communities or parts of, or groups within, such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Maharashtra under Article 342 of the Constitution of India and persons, who belong to the tribes or tribal communities, or parts of, or groups within, tribes or tribal communities specified in Part IX of the Schedule to the Order made under the said Article 342, but who are not resident in the localities specified in that order who nevertheless need the protection of this section (and it is hereby declared that they do need such protection) shall, for the purposes of this section be treated in the same manner as members of the Scheduled Tribes.” 5. The second proviso in Section 63-1A came to be amended with effect from 17/5/2004 by Amendment of Maharashtra XXV of 2005 and the period of five years has been substituted by the period of fifteen years. As per the first proviso below Section 63-1A, where the total extent of the land proposed to be purchased by a person exceeds 10 H., he shall obtain prior permission of the Development Commissioner (Industries) or any other officer authorized by the State Government in that behalf. In the instant case, when the petitioners sold the land from Gat No. 463B to respondent nos.2 to 6 between September 2000 to January 2001, none of the respondents had purchased the land in excess of 10 H. and, therefore, none of them were required to approach the Development Commissioner (Industries) seeking permission under the first proviso to Section 63-1A of the Tenancy Act. So far as the respondent no.1 is concerned, it has 10 wp-2390-09 purchased the land from respondent nos.2 to 6 and some of the petitioners in January, 2007 and it applied to the Development Commissioner (Industries) allegedly belatedly, but the fact remains that on 26/3/2007 the permission as contemplated under the first proviso to Section 63-1A of the Tenancy Act came to be granted. 6. The petitioners main emphasis is on the communication dated 22/10/2008 issued by the Section Officer in Mantralaya and they also admit that the said communication came to be withdrawn on 6/12/2008. However, they alleged that by the subsequent communication dated 17/12/2008, the Collector was called upon to act upon the earlier communication dated 22/10/2008. We will deal with the same a little later. 7. So far as the petitioners’ right to repurchase the land from Gat No. 463B is concerned, they rely upon the second proviso below Section 63-1A of the Tenancy Act on the ground that the land was not put to industrial use within the period of five years from the date of purchase and, therefore, they have the right to repurchase the land from the possession of respondent no.1. These submissions are frivolous and imaginary. The first group of transactions was between September, 2000 to January, 2001 and 11 wp-2390-09 initially the period set out in the second proviso below Section 63-1A of the Tenancy Act was five years. However, on 17/5/2004 i.e. before the period of five years could expire, the State Government amended the second proviso and extended the period to fifteen years. The respondent no.1 has filed affidavit-in-reply and has pointed out that the land has been used for putting up the factory sheds and the factory operations have started in August, 2008. Hence, in these circumstances, the petitioners’ reliance on the second proviso to Section 63-1A to repurchase the land from Gat No. 463B has to be rejected summarily. 8. There are other connected facts which are also relevant for our considerations. The letter dated 6/12/2000, issued from Mantralaya, while clarifying that the earlier order dated 22/10/2008 has been cancelled, called upon the Collector to initiate appropriate legal action if there was any failure on the part of the land purchaser i.e. respondent no.1 and consequently, proceedings under Section 84-C of the Tenancy Act have been initiated by the respondent no.11. RTS /Appeal/ 25 to 28 of 2008 [renumbered as RTS/Appeal/84 to 87 of 2009] have been filed challenging the M.E. Nos.954, 957, 958 and 3418 before the Sub Divisional Officer, Phaltan and same were decided on 18/2/2010. At the same time, similar 12 wp-2390-09 proceedings were initiated by the petitioners challenging the M.E. Nos.948, 950, 951 and 952 and they were decided in May, 2008. RTS Appeals bearing Nos. 53 to 56 of 2008 against the said orders have been filed before the Additional Collector. In addition, RTS/Second Appeal No.28 of 2008 has been filed against the order dated 29/3/2007 passed by the respondent no.12 and pending before the Additional Collector. All these proceedings have been initiated by the petitioners through their power of attorney holder Shri Krishna Shete. 9. The respondent no.1 alleges that the petitioners and their hirelings have created atmosphere of terror around the factory premises and, therefore, it had no choice but to approach the civil court by filing RCS No.163 of 2008 on 31/12/2008 and on 4/1/2009 the application for temporary injunction has been allowed. 10. Thus, viewed in any way, there is no case made out by the petitioners either to invoke the first or second proviso below Section 63-1A of the Tenancy Act and the proceedings pending before the authorities below, including the suit filed by the respondent no.1 will have to be decided on their own merits. No case has been made out to entertain this 13 wp-2390-09 petition and, therefore, it must fail at the threshold. 12. Hence, the petition is rejected. 13. Civil Application No. 1929 of 2010 does not survive and stands disposed as such. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)