Important Point--Unless one is found to be lawful owner or occupier of property, he can not apply for permission under Section 65 of Bombay Land Revenue Code.

Jayant Patel, J.

Admit. Mr. Rutul Desai, learned advocate for the respondents waives notice for admission.

2. With the consent of learned advocates appearing for both the sides, the appeal is finally heard.

3. The present appeal is directed against the order dated 19.08.2014 passed by the learned single Judge of this court in SCA No. 6126 of 2011, whereby the learned single Judge has for the reasons recorded in the order, allowed the petition in terms of para 21(A) and 21(AA) and has directed the authority to decide the application of the petitioners and to pass appropriate orders within a period of six months.

4. We have heard Mr. Rakesh Patel, learned AGP appearing for the appellants-State and Mr. Prashant Desai, learned Senior Counsel with Mr. Rutul Desai, learned advocate for the respondents-original petitioners.

5. The contention raised on behalf of the appellants was that as per Rule 25(C) of the Bombay Tenancy and Agricultural Lands Rules, 1956 (hereinafter referred to as the ‘Rules’), maximum power available to the Collector for extension is of two years and after expiry of the period of two years, the Collector would become functus officio and it will not be permissible for the Collector to extend the period. It was also submitted that once the period has expired, the consequence is provided in sub-Rule (3) of Rule 25(C) that the sanction granted under section 43(1) of Bombay Tenency & Agricultural Lands Act, 1948 (hereinafter referred to as the ‘Act’) shall be deemed to be treated as cancelled and the transfer also shall be deemed to have been made without previous sanction of the Collector, and the consequence would be that fresh permission under section 43(1) of the Act will be required to be obtained by the holder of the land. It was submitted that the learned single Judge has committed error in not considering the said aspect properly, hence this court may consider in the present appeal.

6. Whereas, Mr. Desai, learned Senior Counsel appearing for the respondents-original petitioners submitted that it is on account of the proceedings of the 84(C) of the Act, the petitioners could not apply for N.A. permission under sections 65 of the Bombay Land Revenue Code (hereinafter referred to as ‘the Code’). Such proceedings under 84(C) of the Act came to be concluded at the level of Mamlatdar on 26.5.2009 and before the Deputy Collector on 9.4.2010. After the order of the Mamlatdar, the original petitioners had applied for extension of time before the Collector for making application under section 65 of the Code on 6.12.2009, but the Collector without considering the aspects of the dispute on account of the proceedings under section 84(C) of the Act, rejected the application and therefore, it could not be said that there was default on the part of the original petitioners in making application for extension of time to make application under section 65 of the Code. He submitted that the learned single Judge rightly considered the said aspect and hence, this court may not interfere.

7. However, on the aspect of operative relief granted by the learned single Judge, Mr. Desai learned Senior Counsel for the original petitioners could not properly explain because the relief prayed in para 21(A) is for grant of permission under section 65 of the Code, which was not even the subject matter before the learned single Judge and the subject matter before the learned single Judge was only for extension of time to make application under section 65 of the Code. He lastly submitted that this court may modify the relief, if finds appropriate, in order to see that the original petitioners may be in a position to apply for permission under section 65 of the Code, if the time limit so extended by the Collector.

8. We may record that the following positions on facts are undisputed.

(i) The land was originally held by Bhagvanbhai Motibhai being the legal heir of original tenant-Motibhai Ranchodbhai, who was declared as tenant and who was grant