:1: :1: :1: srp. HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 706 OF 2009. WRIT PETITION NO. 706 OF 2009. WRIT PETITION NO. 706 OF 2009. WITH WRIT PETITION NO. 712 OF 2009. 21st Century Infra Tele Limited & Another. ..Petitioners. Versus. The Collector, Dist: Raigad and Anr. ..Respondents. --- Mr. Aspi Chinoy, Senior Advocate with Mr. Saresh Bharucha and Umgang Jaju i/b M/s. D. H. Law Associates for the petitioner. Mr. V. S. Gokhale A.G.P. for the State. CORAM: S. B. MHASE & CORAM: S. B. MHASE & CORAM: S. B. MHASE & D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. DATE: January 14, 2009. DATE: January 14, 2009. DATE: January 14, 2009. P.C. P.C. P.C. 1. By these petitions the order passed by the Tahsildar, Mangaon on 4th December 2008 invoking the powers under section 44A of the Maharashtra Land Revenue Code, 1966 (for short, "the MLRC") are challenged. The petitioner is a Telecom Company. It has erected the tower in Gat No./Sruvey No./Hissa No.13/5 of village Pahel taluka Mangaon. 2. Under section 44-A of the MLRC, no :2: :2: :2: permission is required for bonafide use of the land if the use of the land is as provided in sub-section (1) of section 44 of the MLRC. However, sub-section (2) of Section 44 of the MLRC states that the person so using the land for a bonafide industrial use or special township project, as the case may be, shall give intimation of the date on which the change of user of land has commenced and furnish other information, in the prescribed form, within thirty days from such date, to the Tahsildar through the villager officers, and shall also endorse a copy thereof to the Collector. Proviso is not relevant for our purpose. 3. Sub-section (3) of Section 44-A lays down that (a) if the person fails to inform the Tahsildar and the Collector, as aforesaid, within the period specified in sub-section (2) or on verification it is found from the information given by him in the prescribed form that, the use of land is in contravention of any of the conditions specified n sub-section (1) he shall be liable to either of, or to both, the following penalties, namely:- (i) to pay in addition to the non-agricultural assessment which may be leviable by or under the provisions of this Code, such penalty not exceeding rupees ten thousand; as the Collector may, subject to :3: :3: :3: the rules, if any, made by the State Government in this behalf, direct: Provided that, the penalty so levied shall not be less than twenty times the non-agricultural assessment of such land irrespective whether it does nor does not exceed rupees ten thousand; (ii) to restore the land to its original use. . (b) Where there has been a cultivation of any of the conditions specified in sub-section (1) such person, shall on being called upon by the Collector, by notice in writing, be required to do anything to stop such contravention as directed by such notice and within such period as specified in such notice; and such notice may also require such person to remove any structure, to fill up any excavation or to take such other steps as may be required in order that the land may be used for its original purpose or that the conditions may be satisfied within the period specified in the notice. 4. These power have been delegated to the Tahsildar and therefore the Tahsildar has issued the impugned notice under section sub-section (3)(a) of :4: :4: :4: section 44-A of the MLRC and has thereby directed the petitioner to deposit an amount of Rs. 51,590 and cess of Rs.90/-. It is further directed that if there is a failure to deposit the said amount the action under section 174 of the MLRC will be taken. 5. Learned counsel for the petitioner submitted that the order is without jurisdiction and power. It is submitted by him that if the intimation as contemplated under sub-section (2) of section 44-A of the MLRC is given to the Revenue Officers, then the Revenue Officers have no power to proceed under sub-section (3) of section 44-A of the MLRC, and it is submitted that in the present case, the intimation has been given by the petitioner and therefore the notice issued by the Tahsildar is not sustainable in law. 6. What we find is that though the Tahsildar has issued the notice under section 44A(3) on 4/12/2008, it was actually served upon the petitioner on 6/1/2009, which is clear from the acknowledgment signed/given by the officers of the Petitioner. We, at this stage, clarify that erroneously the date put up by the officers of the petitioners is 6/1/2008. However, since the notice has been prepared in December 2008, it cannot be received by the officers of the petitioners on 6/1/2008. Therefore the correct date will be 6/1/2008. Such accidental and slippery mistakes are :5: :5: :5: committed when the new year commences. However, the fact remains that on 6/1/2009 the notice was served upon the officers of the petitioner and on this aspect there is no dispute raised by the petitioner also. 7. Now, we have to find out whether prior to 4/12/2008 and/or prior to 6/1/2009, i.e., the date when actually the notice was served upon the petitioner, whether the intimation as contemplated under sub-section (2) of section 44-A of the MLRC was issued and served by the petitioner on the Office of the Tahsildar. In this respect the petitioner has relied upon the said intimation which is annexed to the petition as Exhibit-"C" to Writ Petition NO. 712 of 2009 and as Exhibit-"B" to Writ Petition NO. 706 of 2009. This letter/intimation bear the date at the top 18th November 2008. However, it bears an endorsement of the Clerk from the office of the Tahsildar who received it and the clerk has signed it and put up the date as 9/1/2009 evening at 4.30. It is equally interesting to note that there are two endorsements on the said letter / acknowledgement, one is by the Clerk in the Tahsildar’s Office at Mangaon and another by the clerk from the Collectorate of Raigad. While putting up the date below the acknowledgement, one clerks has put up the date as 9/1/2009 and another one has put up it as 9/1/2008. However, the fact remains that the said letter reveals that the said letter along with the :6: :6: :6: prescribed format intimation has been tendered by the petitioner in the office of the Tahsildar on 9/1/2009. 8. Thus, on going through this material on record we find that after the Tahsildar had issued the notice and served the same on the petitioner, the so called intimation which is required to be given under sub-section (2) of Section 44-A of the MLRC, has been given by the petitioner to the Tahsildar’s office. We are rather surprised to note that if the intimation was prepared on November 18, 2008 why the said intimation was not submitted to the Office of the Tahsildar till 9/1/2009. We also take cognizance of one more factor that learned counsel for the petitioner during the course of his arguments made a reference to the leave and licence agreement in respect of the land in question was executed on 12/12/2008 and therefore the intimation as contemplated under the law is to be given within a period of one month from the date of commencement of the non agricultural use of the land. We, therefore asked for the copy of the said agreement from the learned counsel for the petitioner, and the same was tendered across the bar. We are surprised to see the said document also. It is important to note clause (2) of the said agreement, which reads as under: "2. On the terms and subject to the conditions of this Agreement, LICENSOR :7: :7: :7: hereby grants a licence (hereinafter referred to as the Licence) to the LICENSEE for the purpose of use and occupation (including inter alia the right to install, keep installed, run and maintain the Equipment as well the right of unrestricted access into, through and from the LICENSED PREMISES) of the LICENSED PREMISES (hereinafter referred to as the ‘said purpose’) for a term (referred to herein as the ‘Term’) of (10) Ten years, notwithstanding the date of execution of this Agreement, commencing retrospectively with effect from 1st October 2008 and ending on 30th September 2018 both days inclusive." . On going through this clause we find that notwithstanding the date of execution of the agreement, the term of the agreement commences with retrospective effect from 1st October 2008. Thus, we find that since the retrospective effect has been given to the agreement, the actual non agricultural use of the land has commenced in October 2008. . Therefore the so called letter of intimation appears to have been prepared on 18th November 2008 and the same is tendered in the office of the Tahsildar on 9/1/2009. All these dates and documents are self-explanatory in respect of the commencement of the non agricultural use of the land, and thereby the notice issued by the Tahsildar on 4/12/2008 is proper and justified. The said action has been taken by the Tahsildar after the lapse of period of 30 days from the date of commencement of the non agricultural use of the land. Admittedly, the intimation is given on 9/1/2009, which is subsequent to the date of the issuance of the :8: :8: :8: said notice. Therefore the requirements for the exercise of the powers by the Tahsildar under section 44-A(3) of the MLRC are satisfied and the grievance and submission of the learned counsel for the petitioner that on the date when the notice was issued by the Tahsildar, the Tahsildar had no power and jurisdiction in view of the compliance of the requirements of section 44-A(2) of the MLRC by the petitioner is without any merit. 9. Learned counsel for the petitioner tried to submit before this Court that this case is covered by the judgment reported in Bombay Law Reporter, 1921 Vol. XXIV (in the matter of Nathuram Hiraram Thakor v/s. The Secretary of State for India.) With due respect to the learned counsel, the facts of the said case are very much different from the facts of the present case. The land in question which is involved in the said reported judgment was the land held free of rent and therefore unless and untill the rent is fixed by the Collector, further proceedings was not possible. However the land which is involved in the present matter is not a rent free or assessment free land, it is already assessed to the land revenue and it has been put to use for non agricultural purpose taking benefit of provision of section 44-A(1) of the MLRC. 10. In the result we find that the so called :9: :9: :9: intimation of the petitioner is an attempt to shirk the legal responsibility and liability to pay the tax. There is no merit in the petitions. Both the petitions are rejected. (D.B.BHOSALE, J.) (S.B.MHASE, J.) (D.B.BHOSALE, J.) (S.B.MHASE, J.) (D.B.BHOSALE, J.) (S.B.MHASE, J.)