2008 Supreme(Bom) 49

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ.
Rama Narayan Mali - Petitioner
vs.
Additional Collector, Thane & Ors.- Respondents
CIVIL WRIT PETITION NO. 6373 OF 1999
Decided on: 16th January, 2008

Headnote:Maharashtra Land Revenue Code, 1966 - Section 44(2)(c)-Change of user of land-Permission for-Application for grant of-Rejected by Collector-Refusal to grant permission would only be to secure public health, safety and convenience-Rejection by Collector, if contrary to a scheme of planned development under Section 44(c) of Act cannot be under laws-Order passed without due enquiry liable to be vitiated.-The Collector may either grant the permission on such terms and conditions as he specifies subject to any rules made in this behalf by the State Government or refuse the permission altogether under Section 44(c) of the MLRC. The refusal would only be to secure public health safety convenience or if it is contrary to a scheme of planned development under the aforesaid sub-section. That sub-section of the MLRC is enacted in 1966 at which time neither was the Constitution Forty second amendment Act enacted nor was the EPA enacted. The matter of public health safety and convenience would take within its sway inter alia the EPA enacted under the specific constitutional mandate. The rejection by the Collector could therefore be not under the laws as from time to time would govern non agricultural use the EPA being an illustration. Consequently when an application is made the Collector has to decide upon these parameters under various laws and statutes governing Nause at the time of the application and grant or reject the permission. He is enjoined to grant the permission after due inquiry under the sub-section. He may grant it on such terms and conditions as he may specify. He may also reject it on the aforesaid grounds.

       Section 44(2)(c) therefore contemplates that the Collector may call upon the applicant to submit various permissions NOCs, documents affidavits or otherwise so as to enable him to grant the permission subject to those conditions. The due enquiry contemplated under the sub-section may, therefore encompass a protracted correspondence. If that is not so done, the application of his mind would be challenged. The order passed without such due enquiry may be liable to be vitiated. Keeping the requirement of such enquiry in mind the next portion of Section 44 more specially Section 44(3) is to be appreciated.

       Maharashtra Land Revenue Code, 1966 - Sections 44(2)(c) and 44(3)-Change of user of land-Section 44(3) to be read with Section 44(2)(c) as a whole-As they contemplate procedure for change of user of land-Permission cannot be granted by Collector without due enquiry-No fetters can be put by Legislature upon enquiry by setting out a time-frame for it-No time limit-Specified under Section 44(2)(c) requiring due enquiry-Time limit specified in Section 44(3) which contemplates non-action on part of State.-Section 44(3) cannot be read de hors Section 44(2)(c) they have to be read as a whole. They contemplate procedure for change of user of land. That starts with the application and ends with the grant or refusal of permission. The entire exercise requires receipts of the application acknowledgment of the application return, if any of the application enquiry for the grant and the grant or rejection itself. If the application is left at that, without any response to the applicant after its receipt or acknowledgment and without any enquiry the deeming provision must apply. It must be appreciated that the deeming provision is brought into the statute book so as to create a legal fiction. It would show a thing as having been effectuated though it is not effectuated. The legislation, therefore gives a prescribed time limit. All permissions/sanctions/consents cannot be unreasonably withheld. They have to be considered within a reasonable time. The legislation has deemed it fit that when an application is received or acknowledged for change of user of land it must be acted upon within a reasonable time which is ninety days. If it is not acted upon the deeming provision comes into effect. If it is acted upon, it would constitute an enquiry made. The Collector cannot grant permission without due enquiry and the legislature cannot put fetters upon the enquiry by setting out a timeframe for it. In fact it has not. That is reflected by the fact that there is no time limit specified under Section 44(2)(c) which requires due enquiry. The time limit is specified only in Section 44(3) which contemplates non-action on the part of the State.

       Maharashtra Land Revenue Code, 1966 - Sections 257 and 258-Review-Against order passed by Collector ignoring applicable notification-Review against such an order held maintainable.-The contention on behalf of the Petitioner simpliciter that the grant or the refusal of the permission must be within the statutory ninety days period failing which it would be deemed to be granted must be rejected. The reliance upon the judgment in the case of Ganesh Ginning and Pressing Company is misplaced as the facts are completely distinguishable. The notification ousts the claim of the petitioner completely. The non-reliance upon the notification is also seen to facts bona fides. The reliance upon the notification is sufficient ground for review of the order of the Collector Exhibit-T passed under Section 257 of the MLRC. The order of review Exhibit-U passed under Section 258 of the MLRC therefore has to be sustained. The challenge to it must fail.