1998 Supreme(Bom) 222

IN THE HIGH COURT OF BOMBAY
Ashok A. Desai P.S. Patankar, JJ.
Bombay Environmental Action Group another ..... Petitioners.
Versus
State of Maharashtra others..... Respondents.
Writ Petition Nos. 2773, 2247 3041 of 1997, decided on 4-12-1998.
Advocates appeared :
I.M. Chagla with J.D. Dwarkadas, D.J. Khambata, G.S. Patel, M.S. Doctor, Ms. Renu Parekh i/b. Hariani Co., for petitioners in Writ Petition No. 2773 of 1997 W.P. No. 3041 of 1997.
Smt. Kiran Bagalia with Mrs. Lalita Panchakshri, for petitioners in Writ Petition No. 2247 of 1997.
K.S. Cooper with Shiraz Rustamjee . Ms. Vidya Udas, for interveners.
K.K. Singhvi with D.R. Zaiwala, Navnit Shah, R. Dharmadhikari Markand C. Gandhi i/b. Markand Gandhi Co., for respondents - Sahara India Ltd. (in all three Writ Petitions).
C.J. Sawant, A.G. with Shekhar Naphade, S.C. with U.G. Kerkar, A.G.P., for respondents Nos. 1 2 (in all three Writ Petitions).
Vijay A. Thorat with Vineet B. Naik, for interveners with respondent Sahara India Ltd. Grampanchayat.

Headnote:Sections 43 and 88-B, and Special Development Control (Hill Station) Regulations, dated 26.11.1996, Regulation 18-Where tenancy land was transferred in contravention of Section 43 action under Section 88(1)(b) warranted-Regulation 18 applicable only to such lands which are not purchased under the Bombay Tenancy Act.

       Section 63-1A-Transfer of land for bona fide industrial use-Permission of Collector not necessary. Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, says no sale of land, etc. shall be valid in favour of a person, who is not an agriculturist, etc. and the proviso thereof permits the Collector or any officer authorised0 by the State Government to grant permission for such sale, etc. However, Section 63-1A permits transfer to a non-agriculturist agricultural land for bona fide industrial use. Therefore, notwithstanding anything contained in Section 63, without permission of the Collector, land can be transferred to a non- agriculturist for any bona fide industrial use. Since, tourism is recognised and declared as industry, the lands purchased for that purpose squarely falls within the expression "bona fide industrial use" under the said provision.

       Article 226 and Public Interest Litigation-For the purpose of locus standi to file the petition as public interest litigation what is really relevant is the substance of the breaches of law or constitution complained of and not antecedents or the status of the person who conveys the information to the Court. AIR 1988 AP 144 (FB)-Ref.

       Maharashtra Regional and Town Planning Act, 1966

       Government dated 26.11.1996 and Notification. 25.11.1997- Locus standi -Public interest litigation-There must be some breaches of law or constitution complained of and not status of person initiating such litigation- There being breaches petitioners have locus standi to file such petition.

       Government Notification dated 26.11.1996 and 25.11.1997 - Regulations-Controlling development in planned way by any party-There can be no abdication of powers by State Government-Regulations valid.

       Government Notification dated 26.11.1996 and 25.11.1997 - Regulations 20 and 2S--Bombay Tenancy and Agricultural Lands Act, 1948 (as amended in 1994) Section 63lA-Development of Tourism - Transfer of agricultural land to non-agriculturist-Tourism being recognised as industry-For such bona fide industrial use agricultural land can be transferred to nonagricultural in view of Section 63-1A of Act 1948 (as amended).-No doubt, Section 63 says no sale of land, etc. shall be valid in favour of a person who is not an agriculturist etc. and the proviso thereof permits the Collector or any officer authorised by the State Government to grant permission for such sale etc. However, Section 63-1A permits transfer to a non-agriculturist agricultural land for bona fide industrial use. Therefore, notwithstanding anything contained in Section 63, without permission of the Collector, land can be transferred to a non-agriculturist for any bona fide industrial use. Since tourism is recognised and declared as industry the lands purchased for that purpose squarely fall within the expression "bona fide industrial use" under the said proviso.

       Government Notification dated 26.11.1996 and 25.11.1997 - Maharashtra Agricultural Lands (Ceiling on Holding) Act, 1961, Sections 47 and 47(2)(c)-Regulation 19Exemption of lands from provisions of Ceiling Act-Regulation 19 lifts ceiling limit in case of land purchased by any owner/developer-In present case Sahara not purchased lands but holds only power of Attorney on behalf of all purchasers- Therefore, provisions of Section 47(2)(c) of Ceiling Act which exempts lands acquired for industrial purpose, are not applicable-Held, thus Regulation 19 not valid in law.-Section 47 deals with the exemption of lands from provisions of the Ceiling Act. It is clear that the State Government is having the power to exempt lands from the provisions of the Act. However, under Section 47(2)(c) land which is held or acquired by an industrial undertaking for industrial or non-agricultural use can be exempted. Section 2(14) defines "to hold land" as under :-

       "2(14) "to hold land" with its grammatical variations and cognate expressions, means to be lawfully in actual possession of land as owner or as tenant; and "holding" shall be construed accordingly.

       In the present case, admittedly, Sahara has not purchased the lands. There are 69 different persons who have purchased lands. It Cannot be said that Sahara holds those lands. It cannot also be said that it has acquired the lands as those 69 persons have admittedly only executed general power of attorney in favour of Sahara for development of lands. Therefore, the provisions of Section 47(2)(c) are not attracted in this case. The Regulation No. 19 lifts the ceiling limit in the case of land purchased by any owner/developer. Thus, the said Regulation adds one more exemption. This cannot be legally done. The petitioners has invited attention to Senior Supdt. of Post Office v. Izhar Hussan, AIR 1989 SC 2262 : (1989) 4 SCC 318 : 1989 SCC (L&S) 648: (1989) 4 SCR 229: (1989) 2 CCN 730 : (1989) 2 CLR 498. The question involved was whether Liberalised Pension Rules, 1950 can be amended by executive instructions. It was held that a statutory rule cannot be modified or amended by executive instructions. The executive instructions can only supplement and not supplant the rule.

       In view of Section 47(2)(c) such regulations can only operate in the case of owner/tenant which is an industrial undertaking. If it is held to apply to any owner / developer, then it would create two classes of persons, one which can purchase beyond ceiling limit and one which cannot, though both the clauses are similarly situated. This would be discriminatory and violative of Article 14 of the Constitution. This condition is, therefore, not valid in law. But this can be separated from the rest of the notification. In view of this, it is necessary to hold inquiry under the provisions of Ceiling Act in respect of the persons who has purchased these lands and particularly those who are referred in the Rangnathan Committee Report. In Courts opinion, Sahara cannot carryon development until the decision in that respect is given by the Competent Authority.

       It is also clear from the declaration that the Ceiling Act is introduced for giving effect to the policy of the State towards securing principles specified in clauses (b) and (c) of Article 39 of the Constitution of India and they are for providing the ownership and control of the resources of the community so distributed as best to subserve the common good, and also that the operation of the agricultural economic system does not result in the concentration of wealth and n1eans of agricultural production to the conm10n detriment. Considering this declaration and the object of the enactment. It is necessary to see that the exemptions which are contemplated by Section 47 of the said Act are strictly confined only to those cases.