Case Analysis: Ganesh ginning & pressing Co. Ltd. V. State of Maharashtra 2005 (4) Mh.L.J. 263 AIR 2005 Bombay 324.

17th April, 2023 - 12:11 pm Categories: Legal Issues 0 Comments

Introduction and Facts of the case

The petitioner in this case was a company engaged in the business of Ginning and Pressing since 1938. The company owned a land in its name bearing Survey No. 225, situated at Jalna. The portion of land was in industrial zone earlier however, the Municipal Council at Jalna subsequently passed a resolution vide dated 13-07-2001 for converting the use of land from industrial to residential purpose. Later on, a proposal was sent to the Government on 5-12-2002.

The petitioner in this case had already obtained N.A. permission for using the land for industrial purposes however, as the Municipal Council changed the use of land from industrial to residential purpose, the petitioner submitted an application dated 8-5-2003 seeking permission to convert use of land to residential purpose as per the requirement mentioned in Section 44 of the Maharashtra Land Revenue Code (hereinafter as “Code”). A “no objection” letter was sent to 12 authorities by the State Government, a few of the authorities never responded even to the repeated reminders. The Respondent intimidated the petitioner about the absence of responses by required authorities over “no objection” letter dated 20-5-2004 however, the communication never reached the Petitioner, but came to know only while inspecting the files.

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The Petitioner claimed that the Respondent No. 2 was obliged to decide the application within a period of Ninety days from the date of receipt of the application as pre-requirement under Section 44 (3) of the code. In furtherance to that, the petitioner claims that in the absence of the same, the permission is deemed to have been granted in view of the said provision. The petitioner has filed the present petition for quashing and setting aside said communication dated 20-5-2004 and declaring permission for conversion of use is deemed to have been granted by virtue of section 44(3) of the code. Petitioner claims for quashing and setting aside communication dated 20-5-2004. The petitioner also claims to declare permission for conversion of use of land as deemed to have been granted by virtue of section 44 (3) of code. Further during the pendency of the petition Respondent No. 3 filed an application for intervention hence was joined as party respondent. The objection was regarding ownership title of some portion of the said land since he was a tenant of land in question. He had settled the matter out of court and had withdrawn his objections later on.

Contention of the Parties

The learned counsel for the Petitioner contested that the scope of section 44 (3) is limited which only deals with permission for conversion of use of land hence, only the issues pertaining to grant or refusal of such permission can be considered and obligation to decide on the application by the Collector within 90 days cannot be by-passed. In support of this they have taken reliance from Vinaykumar Kachrulal Abad v. Hon’ble Minister, Revenue and forest Department, Mantralaya, Mumbai and Ors.^[i] which has discussed the scope of inquiry under section 44 of the code. The judgement stated that the grant of permission has necessarily to be in relation to the validity, legality and propriety of the order relating and limiting to conversion of land. The counsel for petitioner has also relied on the matter of Smt. Surajbai Kachrulal Abad and Anr. v. The State of Maharashtra and ors.^[ii] where Justice Rebello observed that the objections regarding ownership are not germane to the inquiry and the aggrieved can seek for remedy independently.

The counsel for Respondents claimed that since some of the authorities did not submit “no objections” without which the government cannot grant permission for N.A. use. Moreover, the objections raised by Respondent no. 3 will have to be decided first as per the provisions under section 44(3) of the code stating in case of objections sub-section (3) will not be attracted till that objection is decided. The A.G.P contends that section 44(3) of the code cannot be invoked without completing the procedure. Respondents claim that due to absence of requirements fulfilled by the application, it cannot be treated as a valid application under the aegis of section 44 of the code and sub-section 3 cannot be applied to the present case.

Issues

1. Whether the permission for conversion of use of land for N.A. purpose shall be deemed to have been granted by virtue of section 44(3) of the code by lapse of time.
2. Whether interpretation and the scope of section 44 is limited with respect to other objections raised.

Rules

1. Section 44(1) of the Maharashtra Land Revenue Code 1966: deals with the subject matter of granting permission for conversion of use of land. This particular section allows the occupant of un-alienated land or a superior holder of alienated land or tenant, for the agricultural and non-agricultural purpose, who wishes to use it for another purpose. The occupant or the applicant need to file an application for the same to grant permission of converting the use of land to another to the Collector according to the form prescribed.
2. Section 44(2) of the Maharashtra Land Revenue Code 1966: deals with the acknowledgement of the application by the Collector filed by the applicant. It states that on receipt of an application, the Collector shall acknowledge within 7 days of receiving the receipt of such application. The Collector may return the application if the application is not made by the occupant or if consent of the tenant has not been taken or if the application is not in accordance with the form prescribed.

The Collector may also after due inquiry, refuse to grant the permission subject to rules specified by the State Government or if such use is contrary to the public health, safety and convenience or if such use is contrary to any scheme for the development of a village, town or city or if such land is suitable for the occupiers in the locality, all of which the reasons have to be stated by the Collector.

3. Section 44(3) of the Maharashtra Land Revenue Code 1966: deals with the failure to informing the applicant of the decision by the Collector. It states that the Collector needs to inform the applicant of his decision within 90 days from the date of acknowledgement of the application, or from the date of the receipt of such application, and the other conditions mentioned therein, the permission for such application shall be deemed to have been granted, subject to the rules and conditions prescribed by the State Government for such occupant.
4. Section 95(4) of Karnataka Land Revenue Act, 1964: derives the time bound disposal of the application. It states that no examination of application will be done or rejection on any ground, if once the period elapsed. The section applies the time barred principle, deemed permission accrues automatically and the matter cannot be reopened thereafter.

Judgement

Held:

The court held that since the petitioner had already sought fresh permission again for conversion of use of land from industrial purpose to residential purpose while filing the application on 8-05-2003 the state had the duty to decide on the matter on or before 7-08-2003.

Under section 44(3) of the code, the provision seeks to contemplate the duty of the collector to inform the applicant of his decision within 90 days from the date of acknowledgement of the application failing which if there is no response from the collector, the permission would be deemed to have been granted subject to any conditions prescribed in the rules made by the State Government with respect to such user.

Therefore, the deemed permission accrues to take effect automatically for conversion of use of land hence, the impugned communication dated 20-05-2004 regarding filing of application shall not be taken into effect and will have to be quashed and set aside since it was beyond the prescribed duration of 90 days according to the provision in the code. Court held that the permission for conversion of use of land will be deemed to have been granted due to lapse of time at the hand of the collector, the same shall be subjected to conditions as required under the provision u/s 44 of the code.

Conclusion

The point of contention occurs when the Collector fails to perform his duty within the given time frame. Since Section 44 only talks about the performance of both: the applicant and the State Government, for the purposes of conversion of use of land, the section has to be interpreted and understood with the object attached to it which sets the scope of the section limited to the object. Words are used to be in general sense and in true context with its subject, jurisprudentially if the language of the statute is plain, simple and unambiguous, it is not advisable to interpret in different meanings. Every provision will be effectively enacted if it is interpreted by giving effect to the purpose it is attached to.

The scope of Section 44 is limited to its purpose and is not concerned with other objections which are not germane to the subject matter. Similar provisions^[iii] have been taken into consideration in line with section 44 of the code.^[iv] The legislative intent of the provision is clear in its interpretation and provides for time bound disposal of application for conversion. There has to be a presupposition attached with it in light of this mandate, that the required authorities will without any delay examine the application and pass the orders. If at the stage of such examination, any of the irregularities are indicated by the authorities the same is liable to get rejected, but if no such examination is conducted then one has to proceed with the presumption that the application is valid and that it has been duly submitted to the designated authority who has retained the file.

The learned counsel for Respondents took the defence in relation to the failure of the authorities to raise objections and absence of making a decision will not render the application to not be permitted according to the Hon’ble Court. The authorities of the State Government were required to take action within the stipulated time, it is inclusive of all the actions taken by the concerned authorities, since the applicant is in no obligation to look into the matters of the internal affairs of the State Government with respect to the granting of necessary permissions. The applicant is only concerned with the required permissions, the authority is obliged to decide the application within that time period.^[v]

The state has a duty to take action after due inquiry is implicit since there is no time limit laid down for conducting the “due inquiry”. The period of 90 days cannot be construed to be the statutorily fixed period of time but contemplated only in the case of an application made by an applicant which is totally ignored by the state. The application of the section is limited to the ignorance of the due process to be performed by the State. First grant of permission temporary NAP in this case brings out of the purview of section 44(3) of the code.  The attention has to be given to the fact that u/s 44 (3) of the code comes into effect by efflux of time and that the Collector to “decide” the application and not only “respond” to it within 90 days.

Both the Sections 44 (3) and 44 (2) (c) of the code have to be read as a whole. It starts with filing of the application and ends with grant or refusal of permission. The entire process requires receipt of application, acknowledgement, return if any, of such application, enquiry for the grant and rejection. The deeming provision is brought into the statute to create a legal fiction, the time limit has been provided under the provision so that no permissions/sanctions/consents get withheld unreasonably, they have to be considered within a reasonable time.

The deeming provision under section 20(2) of the Gujarat Town Planning and Urban Development Act, 1979 which has taken the exception into consideration when a land is not acquired under Land Acquisition Act, the acquisition would be deemed to have lapsed.^[vi] Such deeming provisions effectuate a legal fiction, a premise that when nothing is done which was required to be done within the time frame, it is taken that the thing which is to be done was done.

Author: Apoorva Sharma, A Student at Narsee Monjee Institute of Management Studies (NMIMS) School of Law Navi Mumbai, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

REFRENCES

1. Ganesh ginning & pressing Co. Ltd. V. State of Maharashtra 2005 (4) Mh.L.J. 263 AIR 2005 Bombay 324
2. Maharashtra Land Revenue Code, 1966.
3. Karnataka Land Revenue Act, 1964.

[i] 2002 (1) Mah LJ 854.

[ii] WP No. 2164/2003.

[iii] Karnataka Land Revenue Act, 1964.

[iv] Maharashtra Land Revenue Code, 1966.

[v] Robert D’ Silva v Dy. Commissioner, Madikeri and Ors. 1995 AIHC 5742.

[vi] Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. 2003 2 SCC 111.