1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.2225 OF 2010 1. Narendrakumar s/o Kachrulalji Abad, Age : 55 years, Occ. Business and Agriculture, 2. Ashokkumar s/o Kachrulalji Abad, Age : 50 years, Occ. Business and Agriculture, 3. Anilkumar s/o Kachrulalji Abad, Age : 49 years, Occ. Business and Agriculture, Through GPA 4. Abhaykumar s/o Kachrulalji Abad, Age : 45 years, Occ. Business and Agriculture, For himself and petitioner Nos.1 to 3 Through GPA All resident of Nalgalli, Kadrabad, Tq. & Dist. Jalna ..PETITIONERS VERSUS 1. The State of Maharashtra, Through its Secretary, Revenue and Forest Department, Mantralaya, Mumbai 2. The Collector, Jalna 3. The Sub-Divisional Officer, Jalna, District Jalna ..RESPONDENTS Mr A.B. Kale, Advocate for the petitioners; Mrs A.V. Gondhalekar, A.G.P. for respondents. 2 CORAM : P.V. HARDAS AND N.D. DESHPANDE, JJ DATE : 11th August, 2010 ORAL JUDGMENT [ PER P.V. HARDAS , J ] At the outset, learned Counsel for the petitioners seeks leave to amend the petition by incorporating a prayer for quashing and setting aside the impugned order passed by the Collector, dated 8.3.2010. Leave granted. Amendment to be carried out forthwith. 2. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 3. By this petition under Article 226 of the Constitution of India the petitioners have prayed for quashing and setting aside the order of the Collector, dated 8.3.2010 rejecting the application of the petitioners for conversion of the land from agriculture to non-agriculture use and for directing the respondents to issue the necessary sanad on the petitioners depositing the necessary charges in this behalf. 3 4. According to the petitioners, the petitioners are owners of land situated in Jalna at survey no.549, to the extent of 14 Hectares and 30 Rs. The petitioners in order to develop the land submitted an application on 10.11.2009 to the respondent no.2 along with the requisite documents seeking permission to convert the user of the land. The application of the petitioners was duly received by the office of the Collector, Jalna, but no steps had been taken by the respondent - Collector for a period of 90 days. The petitioners thereafter applied for issuance of the necessary challan by depositing the requisite amount. Thereafter on 15.2.2010 another request was made but no challan came to be issued to the petitioners. It appears that thereafter the Collector passed an order on 10.3.2010 rejecting the application of the petitioners. The necessary amendment to the prayer clause has been effected by the petitioners to challenge the aforesaid order. It is undisputed fact before us that no order rejecting the application of the petitioners came to be passed within a period of 90 days from the date of receipt of the application by the petitioners. The period of 90 days expired on 10.2.2010. Sub- section (3) of section 44 of the Land Revenue Code mandates that the said application has to be decided within a period of 90 days, failing which permission would be deemed to have been granted subject to such conditions as are prescribed in the Rules made by the State Government in respect of such user. 4 5. Mr A.B. Kale, learned Counsel for the petitioners has invited our attention to the Division Bench judgment of this Court in Writ Petition No.2164/2003 (Surjabai Kachrulal Abad Vs. State of Maharashtra), dated 17.12.2003. The Division Bench, while referring to Section 44 (3), held that, since the application of the petitioner therein was in proper form, they are deemed to have been granted permission under Section 44 (3) of the Code. In respect of the land being under acquisition, the Division Bench held that, "it was open for the respondents to refuse the permission. Even if the land is changed from one purpose to another that shall not stop acquisition of the land for public purpose if in law such steps are taken." The Division Bench further expressed that the second contention which was advanced on behalf of the respondents was also devoid of merits. 6. The aforesaid judgment, adverted to above, fell for consideration before another Division Bench of this Court in Ganesh Ginning and Pressing Co. Ltd., Jalna vs. State of Maharashtra and others (AIR 2005 BOMBAY 324). The Division Bench quoted with approval the observations made by the Division bench of this Court in Surjabai Kachrulal Abad vs. State of Maharashtra (supra). The Division Bench concluded at paragraph 6 by holding that even if the land is to be acquired, 5 proposal can be submitted for acquisition. However, these factors would not affect the applicability of Sub-section 3 of Section 44 of the Code. The Division Bench thereafter at paragraph 7 has further held as follows :- "The position which emerges is that once the application is submitted for conversion of use, on failure of Collector to grant or refuse permission within prescribed period of 90 days, sub-section (3) would come into operation and permission will be deemed to have been granted for conversion of use subject to conditions in that behalf. Once the time expires, Collector ceased to have jurisdiction. Therefore, subsequent refusal of permission will not affect applicability of sub-section (3) of Section 44 of the Code." 7. In the light of the aforesaid finding recorded by the Division Bench that the Collector would cease to have jurisdiction and after the expiry of period of 90 days, the impugned order which is passed and which is produced before us on behalf of the respondents, dated 8.3.2010 would be an order, which would be without jurisdiction. The order, therefore, dated 8.3.2010 refusing or rejecting the application of the petitioners for change 6 of user is an order without jurisdiction and, therefore, is liable to be quashed and set aside. 8. In the result, therefore, we allow this petition and direct the respondent Collector to forthwith issue the necessary Sanad to the petitioners and allow this petition in terms of amended prayer clause and quash and set aside the impugned order dated 8.3.2010. 9. Rule is made absolute on the above terms with no order as to costs. 10. Copy of this judgment, duly authenticated by the Sheristedar, be provided to learned Counsel for the petitioners. //Authentic copy// (A. M. Joshi), P.S. to Honourable Judge