1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.217/2009 ---------------------------------------------------------- Shri Saibaba Vishwa Dharmalaya Trust Shirdi, through its Manager Subhash Haribhau Sapkal, Aged 51 years, Occ-service, R/o Shirdi, Tq.Rahata, Dist.Ahmednagar. .. APPELLANT VERSUS 1] The State of Maharashtra Through the Secretary, tothbe Government of Maharashtra Revenue Department, Mantralaya, Fort, Mumbai-32. 2] The Additional Commissioner Nasik Division, Nasik 3] The Collector, Ahmednagar. 4] The Sub Divisional Officer, Shrirampur Division, Shrirampur. 2 5] The Tahsildar, Rahata. .... Shri Y.S.Choudhari,Adv.for appellant Shri S.V.Kurundkar, AGP for respondents-State. ... CORAM : A.P.DESHPANDE N.D.DESHPANDE,JJ. DATE : 15/02/2010 ORAL JUDGMENT [PER A.P.DESHPANDE,J.] : 1] Leave to substitute Synopsis granted. Amendment be carried out forthwith. 2] Rule. Rule made returnable forthwith. With consent of parties, petition is heard finally. 3] The appellant is a public trust by name Shri Saibaba Vishwa Dharmalaya Trust, Shirdi. According to the petitioner, the trust activities are aimed at extending residential facilities to the devotees visiting Sai Temple of Shirdi irrespective of race, religion, caste place 3 on birth or either any of them. It is also pleaded that with a view to cater the needs of Sai devotees, who come to Shirdi from distant places from all over India, free residential accomodation is provided to the devotees without charging anything from them. 4] The appellant is in possession of N.A. permission for residential purpose obtained under Section 44(1) (a) of the Maharashtra Land Revenue Code. The Tahsildar issued a notice treating the user as for lodging and hotel and in reply to the same, present appellant did point out that it is a public trust set up for charitable purpose and thus is not liable to be assessed for non-agricultural purpose as charitable trust have been exempted from N.A. assessment under Section 117 of Land Revenue Code . In the reply, it is categorically stated that only devotees are accommodated for residential purpose in the Ashram and the same cannot be equated with a commercial activity of lodging, as is understood in common parlance. The said plea was raised also in appeal objecting to the impugned order passed by Sub Divisional Officer, which imposed penalty and has assessed the property for non agricultural purpose. It is undisputed that the appellant purchased the property which was already converted from agriculture user to residential user. However, the objection on behalf of the respondents is 4 that no permission under Section 44(1)(b) has been obtained. We have perused the order passed by authorities. None of the orders considered the plea raised by the appellant that it is exempted from non-agriculture assessment under Section 117 of the M.L.R.Code, the activity being charitable. The very purpose of granting permission under Section 44(1)(b) is to charge non-agriculture assessment when there is change of user from one non-agriculture purpose to another non-agriculture purpose. If the land of the appellant is really exempted from payment of non-agriculture assessment by virtue of Section 117, then breach would be only a technical one inasmuch as there cannot be imposition of non-agriculture assessment in regard to the lands covered by Section 117. As none of the authorities below have examined the claim of the appellant that they are providing residential accommodation to the devotees who visit the Sai temple at Shirdi and are not carrying on any commercial or business activity. We propose to remand the matter back to the authority concerned. The learned AGP submits that after the remand, the authority concerned would afford opportunity of hearing to the appellant and would take a fresh decision in regard to imposition of non-agriculture assessment on the appellant’s land, so also would take fresh decision in regard to imposition of penalty. In that view of the matter, we quash and set 5 aside the impugned orders and remand the matter back to the Tahsildar, Rahata for fresh decision to be rendered after holding a Denovo enquiry by affording opportunity of hearing to the present appellant. The impugned orders are quashed and set aside. Rule made absolute in above terms. 4] In view of disposal of Letters Patent Appeal, Civil Application No. 9336/2009 does not survive and the same is disposed of accordingly. [N.D.DESHPANDE] [A.P.DESHPANDE] JUDGE JUDGE umg/lpa217-09