Viraj Profiles Ltd. v. The State of Maharashtra

2. Ankush Laxman Mor, Sutar Pada ) Mor Pada Maan, Boisar Chilhar Road Palghar, Mumbai 401 501 )

3. Yashwant Lakhma Dhapshi, Boisar ) Chilhar Highway, Dhapashi Road ) Warangade, Palghar, Mumbai )

4. Manik Kondhya Dodhade, 142 ) Boisar Chilhar Highway, ) Bharman Pada, Maan, Palghar ) Mumbai 401 501 )

5. Sandeep Prakash Mor, Sutar ) Pada, Mor Pada Maan, Boisar ) Chilhar Road, Palghar, Mumbai )

6. Vilas Antu Shinwar, Pankare ) Padam Gundale, Palgharm, ) Mumbai – 401501 )

7. Santosh Dhattarya Shelka, ) Sutar Pada, Mor Pada Maan, ) Boisar Chilhar Road, Palghar, ) Mumbai 401 501 )

8. Mr. Vishwanath Madhav Rinjad ) Baripada, Gundalem Mahagaon ) Palghar, Mumbai 401 501 )

9. Mr. Ajay Suresh Shinwar, ) Boisar, Chilhar Highway, ) Dhapashi Road, Warangade, ) Palghar, Mumbai 401501 ) … Petitioners Vs.

1. The State of Maharashtra ) through Revenue & Forest ) Department, Mantralaya, Mumbai )

2. The Principal Secretary, ) Revenue & Forest Department )

3. The Revenue Commissioner, ) Konkan Bhawan, Navi Mumbai )

4. The Collector, Palghar )

5. The Additional Collector, Palghar ) at Jawhar )

6. The Tahsildar, District Palghar )

7. Viraj Profiles Ltd. ) a Company, registered under the ) provisions of the Companies Act ) through its authorized signatory ) Ms. Anjali Sawla, having its office ) at MIDC, Boisar, Taluka, ) District Palghar ) … Respondents *** Mr Mukesh Vashi, Sr. Counsel i/b Vikas Shukla, for the Petitioner in WPST 97336/2020 & for Respondent Nos. 7 to 15 in WPST 96235/2020. Mr. Milind Sathe, Sr. Counsel, Prakash Shinde i/b MDP Partners, for Respondent Nos. 7 to 15, and for the Petitioner in WPST 96235/2020 and for Respondent No. 7 WPST. 97336/2020. Ms. S. D. Vyas, 'B' Panel Counsel for the Respondent Sate in WP. 97336/2020. Ms. Rupali Shinde, AGP for the Respondent in WPST. 96235/2020. Mr. Ajit Deshmukh, Dy. Secretary, Revenue & Forest Dept. - Present. Mr. Shrikrishna Pawar, Under Secretary, Revenue & Forest Dept. present. Mr. Surendra Navale, Dy. Collector, Palghar – Present. *** CORAM: S. J. KATHAWALLA & VINAY JOSHI, JJ.

RESERVE FOR JUDGMENT ON: JANUARY 27, 2021 JUDGMENT PRONOUNCED ON: MARCH 5th JUDGMENT [PER: VINAY JOSHI, J.]

1. Rule. Rule made returnable forthwith. Learned counsel appearing for the respective respondents in both petitions waive notice. Heard finally by consent of the parties.

2. A common question regarding legality and correctness of the order dated 7th October, 2020 passed by the Collector, Palghar is under consideration in both petitions. For the sake of convenience, they are taken together for disposal in accordance with law. The parties are referred to as per their status in Writ Petition (St.) No. 96235 of

2020.

3. The facts leading to both petitions can be stated in a narrow compass as below:. The Petitioner – Viraj Profiles Ltd. (for short “Viraj”), a limited company, was intending to purchase a piece of land owned by Respondent Nos. 7 to 15, belonging to the Scheduled Tribe (for short “ST”). The price was negotiated between the parties, and the Petitioner Company made part-payment to the said tribal land owners. Respondent Nos. 7 to 15 (tribal land owners) had applied to the Collector seeking permission to transfer their land to non-Tribals in terms of Section 36A of the Maharashtra Land Revenue Code, 1966 (for short “MLR Code”). In turn the Respondent No. 4 Collector, Palghar made necessary enquiry and submitted his report to the Government for prior approval as required under Clause (b) of Section 36A of the MLR Code. Accordingly, the State Government vide its order dated 11th August, 2011 accorded prior approval for the transfer of land belonging to a Tribal to non-Tribal persons. However, no further steps were taken by the Collector in compliance with the prior approval dated 11th August, 2011.

4. Meanwhile, on 8th August, 2012 one Mr. Naik objected to the transaction of sale between the Petitioner and tribal owners by pointing out certain illegalities. The complaint of Mr. Naik was inquired into and a report was submitted on completing the inquiry. On 11th September, 2013 the State directed the Respondent No.4 Collector, Palghar to remove the wire fencing erected by the Petitioner and restore possession of the land to Respondent Nos. 7 to 15 i.e. the original tribal owners. However, as there was no progress regarding grant of sanction by the Respondent No. 4 Collector, all tribal owners (Respondent Nos. 7 to 15) moved to this Court seeking relief of grant of sanction in terms of S. 36-A of the MLR Code. In those Writ Petitions (Writ Petition No. 7654 of 2014, and, Writ Petition No. 7659 of 2014), this Court vide its common Order dated 9th December, 2014 and 21st October, 2016 directed the Collector, Palghar to decide the Application of Respondent Nos. 7 to 15 under S. 36-A of the MLR Code, in accordance with the prior approval dated 11th August, 2011 granted by the State Government.

5. The Petitioner preferred an Appeal before the Revenue Minister of the State, inter alia praying for revocation of Order dated 11th September, 2013 regarding removal of fencing, and for granting permission for sale of tribal land in pursuance of prior approval dated 11th August, 2011 under S. 36-A of the MLR Code. It is the Petitioner’s grievance that in the meantime, vide Order/ letter dated 10th December, 2013 the State has revoked prior approval dated 11th August,

2011. However, the Order/ letter of revocation was neither served on him nor right of hearing was given. Ultimately, the said Order/ letter of revocation dated 10th December, 2013 was communicated to him (Petitioner) on 12th November, 2018.

6. The Petitioner has contended that his Appeal was allowed vide Order dated 4th July, 2019 by which directions were issued to the Collector, Palghar to take further steps regarding the sale of land in terms of S. 36-A of the MLR Code. By a later Order dated 21st October, 2019 the State has modified its earlier Order dated 4th July, 2019 to a certain extent. However, maintaining the Petitioner’s request for granting permission under S. 36-A of the MLR Code, the State had directed the Collector to complete the process of granting permission within two months.

7. In accordance with the said Order dated 4th July, 2019, modified on 21st October, 2019, the Respondent No. 4 Collector, Palghar took further steps. The Petitioner was directed to deposit money (sale price) in separate bank accounts of the tribals, which he did. In other words, the parties have acted upon the Order passed in Appeal dated 4th July, 2019 and modified on 21st October, 2019. However, vide impugned Order dated 7th October, 2020 the Collector Palghar has rejected the sanction under S. 36-A of the MLR Code, which is impugned herein.

8. We have heard all the parties extensively as well as perused the written submissions filed by the parties and the compilation of documents submitted by the learned Additional Government Pleader. The submissions of both Petitioners are on the same lines. By and large, they have reiterated chronological events, which we have already set out above. The Petitioners stated that since the transaction period was exceeding five years, the Collector is the competent authority to accord sanction with the previous approval of the State.

9. According to the Petitioner, the State Government vide its Order dated 11th August 2011 has granted prior approval on certain terms and conditions. The Petitioner submitted that in the wake of such approval, it is for the Collector to only implement the Order of the State Government. However, the Collector did not take requisite further steps in compliance with the prior approval dated 11th August,

2011. According to the Petitioner, instead of granting final sanction, the State has revoked the prior approval vide its Order dated 10th December, 2013. It is vehemently argued that neither the right to hearing was given to the Petitioner, nor the Order of Revocation was communicated. The Petitioner has contended that the complaint filed by one Mr. Naik does not relate to the revocation of sanction, but the same pertains to taking possession of the land prior to the final approval and certain other illegalities. The Petitioner contended that on the basis of a one man inquiry initiated at the instance of the complaint of Mr. Naik, a report was submitted. On that basis, the State vide its letter dated 11th September, 2013 has merely informed the Collector to remove the fencing and restore possession to the tribal owners. The said Order has been challenged by the Petitioners in Appeal, which came to be allowed vide its Order dated 4th July, 2019 and was modified on 21st October, 2019 by the State through Principal Secretary, Revenue & Forest Department.

10. It is the Petitioner’s stand that since the State by the Order dated 4th July, 2019, has directed the Collector to complete the process of granting permission for sale within two months, the earlier Order/ letter of revocation dated 10th December, 2013 does not survive. Further, according to the Petitioner, while allowing the Appeal, the State was well aware about the so-called Revocation Order/ letter dated 10th December, 2013. Despite that, an Appeal was allowed and directions were issued to take steps towards the completion of the process. In the circumstances, the earlier Order/ letter of revocation dated 10th December, 2013 would not come in their way at all.

11. It is the Petitioner’s submission that the Collector instead of acting upon the Order passed in Appeal, sought clarification vide its letter dated 11th August, 2020. Though the clarification was received, he had not proceeded to accord the final sanction. The Petitioner lastly puts the grievance that while passing the impugned Order dated 7th October, 2020 they were not heard, which violates the principles of natural justice. In short, it is Petitioner’s submission that the tribal land owners (Petitioners of Writ Petition (St.) No. 97336 of 2020) were willing to sell the subject land for a price determined, and the Petitioner M/s. Viraj Profiles Ltd. was ready to purchase the property. The Respondents’ Order/Letter of Revocation dated 10th December, 2013 was not only passed without giving a hearing to the Petitioner, but there was also a non-disclosure of the Order for a considerable period; which in turn vitiates the said action. Moreover, the Order of the State passed in Appeal dated 4th July, 2019 would prevail over the earlier revocation December, and therefore, the impugned Order dated 7th October, 2020 is illegal.

12. In response to the submission made on the basis of an Order passed in Appeal dated 4th October, 2019, it has been stated by the learned AGP that the Petitioner has not brought to the notice of the authority that the State has already revoked the prior approval by its Order/ letter dated 10th December,

2013. Moreover, it is tried to canvass that the Order passed in Appeal dated 4th July, 2019 by the Principal Secretary and the Officer on Special Duty (Appeal and Revision) is a quasi-judicial Order and, therefore, it cannot be construed as fresh Order or prior approval under

13. In order to understand the controversy, it would be apposite to extract a relevant portion of S. 36-A of the MLR Code, which reads as below: “36A. Restrictions on transfers of occupancies by Tribals. - “(1) Notwithstanding anything contained in sub-section (1) of Section 36, no occupancy of a tribal shall, after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974 MAH.XXXV of 1974), be transferred in favour of any non-tribal by way of sale (including sales in execution of a decree of a Civil Court or an award of order of any Tribunal or Authority), gift, exchange, mortgage, lease or otherwise, except on the application of such non-tribal and except with the previous sanction - (a) in the case of a lease, or mortgage for a period not exceeding 5 years, of the Collector; and (b) in all other cases, of the Collector with the previous approval of the State Government: Provided that,… (2) … (3) … (4) … (5) … (6) …

14. Indisputably, the Petitioner Viraj has agreed to purchase the land owned by the tribal owners, and as the period of transfer exceeds five years, it requires prior sanction of the Collector along with the prior approval of the State Government. There was no dispute that on 24th July, 2009 permission was sought from the Collector under S. 36-A of the MLR Code for sale of a tribal’s land to a non-Tribal person. Moreover, indisputably the State Government through its Secretary, Revenue & Forest Department, vide its Order dated 11th August, 2011, has granted prior approval for sale on certain terms and conditions. The entire controversy hinges around the Revocation Order/ letter December, 2013 and the subsequent Order passed in Appeal by the Principal Secretary dated 4th October, 2019.

15. Coming to the Revocation Order/ letter dated 10th December, 2013, the Petitioners categorically contend that neither they were heard before revoking the prior approval nor the said order was served on them at any point of time. We have put a specific query to the learned AGP to satisfy this bench on the point of service of the said order. However, nothing was shown to that effect.

16. It appears that the controversy arose due to the complaint dated 8th August, 2012 filed by one Mr. Naik to the Revenue Minister objecting to the transaction of sale. The State Government has appointed a One Man Committee of Mr. I. M. More, Joint Secretary, Revenue & Forest Department, who inquired into the matter and submitted his report. The said inquiry report does not specify any particular conclusion, however, it appears to have been considered by the State. Undeniably, the Deputy Secretary vide his Order dated 11th September, 2013, has directed the Collector to remove the fencing erected by the Petitioner Viraj, and restore the possession to the tribals. The said Order was challenged by the Petitioner in Appeal before the Revenue Minister.

17. The learned AGP has strenuously argued that the subject matter of Appeal was not about revocation of prior approval dated 10th December, 2013 but it was concerning an Order dated 11th September, 2013 by which an action was initiated for the removal of the compound wall and restoration of possession. Therefore, according to the learned AGP, the then authority has not considered the matter from the perspective of deciding the validity of the revocation of prior approval of the State vide its Order dated 10th December, 2013. More so, it is argued that the Petitioner had suppressed the fact that prior approval was already revoked on 10th December, 2013, therefore, the said Order passed in Appeal dated 4th July, 2019 would be of no assistance to the Petitioner.

18. We have gone through the Memo of Appeal, and particularly paras 7, 8 and 9 thereof, are in the form of prayers made therein. The said portion has been reproduced herein below for ready reference, which reads as under: “7. In the circumstances, applicant humbly prays that order dated 11/9/2013, revoking of in principle sanction dated 11/8/2011, be recalled and Collector, Palghar be directed to grant permission under Section 36A in furtherance of Government order dated 11/8/2011. The Hon’ble High Court has also directed the Collector, Palghar to decide the application as per Government order dated 11/8/2011 within 12 weeks from 21/11/2016.

8. Applicant submits that applicant is willing to abide by all such further conditions as may be prescribed by Collector, Palghar for purchase of said land from tribal occupants. The Applicant submits that if order dated 11/8/2011 is not made effective by recalling revocation order dated dated 11/9/2013, both, applicant – company as well as the tribal occupants are likely to suffer serious prejudice. The applicant-company has already made certain cheque payments to each and every tribal occupant which is acknowledged and accepted by said tribal occupants even in writ petitions which were filed by them.

9. In the circumstances, it is humbly prayed that order dated 11/9/2013 passed by the State Government (revoking the Government order dated 11/8/2011) be recalled and by restoring order dated 11/8/2011, Collector, Palghar be directed to grant permission under Section 36A for purchasing the lands in question in accordance with law.”

19. True, there is a reference to the letter dated 11th September, 2013 (about the removal of fencing), however, the entire tenor is about the withdrawal of the preliminary sanction vide Order/ letter dated 10th December, 2013. More particularly, the Petitioner prayed to recall the Revocation Order/ letter and restore the earlier Order dated 11th August, 2011 for grant of preliminary sanction. Moreover, in no uncertain terms, it has been stated that the Collector, Palghar be directed to grant permission under S. 36A of the MLR Code for the purchase of land in question. Therefore, to our mind, there can be no confusion simply on the basis of the wrong mentioning of the date of the Order as 11th September, 2013 instead of 10th December,

2013. We have gone through the Order passed by the Principal Secretary, Revenue & Forest Department in the Appeal dated 4th July,

2019. The said Order bears a reference regarding permission sought by the Petitioner for sale in terms of S. 36A of the MLR Code. The authority has referred to the prior approval accorded by the State vide its Order dated 11th August, 2011. After considering the matter, the authority has allowed the Appeal, and initially passed the Order by referring to the prior approval dated 11th August, 2011. For reasons best known to the Principal Secretary, later on from the final Order, the reference of prior approval dated 11th August, 2011 came to be deleted. In turn, the Order passed in Appeal speaks about allowing the Appeal with directions to the Collector, Palghar to complete the process of grant of permission within two months, in terms of Section 36A of the MLR Code. Though the adjudication was restricted to the action of the State vide its letter dated 11th September, 2013 for the removal of construction of compound wall, but the authority has considered the Petitioner’s entitlement for the grant of permission to sale in terms of S.36A of the MLR Code.

20. The submission of the learned AGP that the Petitioner has suppressed the revocation of approval dated 10th December, 2013, has to be rejected outright. Firstly, there is no material to suggest that hearing was given to the Petitioner or the Order of Revocation was served on him. Secondly, it was a letter issued by the State for revocation of the permission, therefore there is no question of suppressing the letter by the appellant, since it was the record of the State itself. Therefore, the question of suppression does not arise at all. It is pertinent to note that bunch of Writ Petitions filed by tribals were decided on 9th December, 2014 and 21st October, 2016. This Court directed Collector, Palghar to decide the issue of sanction for sale as per Government Order dated 11th August, 2011. Had it been the fact that prior approval was already revoked on 10th December, 2013, then it would have been pointed out to the court. Therefore, the question about the credibility of Revocation Order/ letter dated 10th December, 2013 remains vital.

21. In the above scenario, the matter proceeded further. In pursuance of the Order passed in Appeal dated 4th July, 2019 the Collector took further steps. On the basis of said Order passed in Appeal, the Collector vide his letter dated 8th January, 2020 to the Tahsildar, directed to open a joint bank account in a Nationalised bank in the name of the tribals. In pursuance thereof, the Tahsildar vide its letter dated 20th February, 2020 informed the tribal land owners to visit their office for producing details of their bank accounts. The Petitioner has produced correspondence letters to show that the Respondent NO. 6 Tahsildar has recorded statement of the tribals to verify their assent. Not only did the Petitioner Viraj deposit the amount in a Nationalised bank, but the Tahsildar Palghar, vide its communication dated 3rd March, 2020 has confirmed the payment relating to the transaction to the Collector. The entire chain of events discloses that after the decision of Appeal dated 4th July 2019, the Collector as well as the Tahsildar have taken further steps to comply with the Order within the stipulated period. The necessary requirement of recording statement of the tribals and depositing the amount in the accounts of the tribals was complied with. Therefore, there is no substance in saying that the State Government was not aware of the earlier Revocation Order/ letter dated 10th December, 2013. Since alleged revocation of prior approval was by the State, it cannot be said that they were unaware. Moreover, by virtue of the subsequent Order of the State through the Principal Secretary dated 4th July, 2019, a letter of revocation dated 10th December, 2013 would not survive at all. As pointed above, after decision in Appeal, the Collector and Tahsildar acted on the same and made certain compliances to complete the transaction.

22. It is pertinent to note that on 11th August, 2020 the Collector, Palghar wrote a letter to the Additional Chief Secretary, seeking clarification regarding the Order passed in Appeal dated 4th October, 2019. The clarification was only to the extent that whether the Order was passed by the Principal Secretary and the Officer on Special Duty on behalf of Revenue Minister. The said query was satisfied by the letter dated 28th August, 2020 by the Additional Secretary. In the wake of such a position, the impugned Order dated 7th October, 2020 came to be passed by the Collector stating that it is not appropriate on his part to grant sanction. While rejecting the sanction, Collector has relied on the Revocation Order/ letter dated 10th December, 2013. We have already dealt extensively with the fact that the revocation letter itself was tainted and would not survive due to decision rendered in Appeal.

23. We do not find any valid and sustainable reason for revocation of sanction in the face of earlier proceedings. Already, while deciding Appeal, the State in no uncertain terms has directed to the Collector to complete the process of grant of permission in terms of Section 36A of the MLR Code within two months. In view of that, the Collector was supposed to process and take further steps, which he did to some extent, but for untenable reasons rejected the permission. Therefore, the impugned Order dated 7th October, 2020 would not sustain in the eyes of law. In view of above, we by allowing both Writ Petitions, quash and set aside the impugned Order dated 7th October, 2020 passed by the Collector and direct him to take appropriate decision in accordance with law within eight weeks from the date of communication of this Order. Rule is made absolute in the aforesaid terms in both the petitions. [VINAY JOSHI, J.] [S. J. KATHAWALLA, J.] Vinayak