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Vishwabharti Co-operative Housing Society Ltd. Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 116 of 1973
Judge
Reported inAIR1974Bom80; ILR1974Bom556; 1973MhLJ848
ActsBombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Sections 89
AppellantVishwabharti Co-operative Housing Society Ltd.
RespondentState of Maharashtra
Appellant AdvocateH.S. Ghar, Adv.
Respondent AdvocateM.M. Qazi, Addl. Govt. Pleader
Excerpt:
it was held that, the proviso to section 89 of the bombay tenancy and agricultural lands (vidarbha region) act, 1958, does not bar an intending purchaser from making an application for the permission for the sale of land to the non-agriculturist - also, the proviso does not suggest that, such an application should be made only by the intending seller or that it should be made jointly by the intending seller and the purchaser - - 9. accordingly, i set aside the orders of the sub-divisional officer as well as the maharashtra revenue tribunal and send the case back to the sub-divisional officer to decide the matters afresh in accordance with law......as may be prescribed. it would thus be seen that he bar under sub-section (1) of section 89 for sale of a land to a non-agriculturist is not an absolute bar, and that bar can be lifted by the collector or an authorized officer granting permission for such transfer. it is because of this that the petitioner made an application to the collector for granting permission for the intended sale in its favour. there is nothing in the proviso to section 89 to suggest that the intending purchaser cannot make an application for permission. it also does not suggest that only the intending seller can, make an application for such permission to the collector nor does it say that a joint application must be made by the intending seller and the intending purchaser. the permission which is required to.....
Judgment:
ORDER

1. This petition challenges the order of the Maharashtra Revenue Tribunal holding that an application under Section 89 of the Bombay Tenancy and Agricultural Lands Act. 1958 (hereinafter referred to as the Tenancy Act), by the petitioner, intending purchaser, is not maintainable.

2. The petitioner is a Co-operation Housing, Society and intends to purchase khasra Nos. 45/3 and 45/4 from Gulabrao Mahadeo Thote. The land is an agricultural and the petitioner being a non-agriculturist, sought permission of the Collector under the proviso to Section 89 of the Tenancy Act for the sale between it and the seller Gulabran. The petitioner while making the application under Section 89 proviso read with Rule 45 under the Tenancy Act alleged that the petitioner Society had entered into an agreement for the purchase of the land measuring 7 acres out of the aforesaid Khasra Nos. and that the petitioner was prepared to file an affidavit of the seller Gulabrao regarding his consent for the sale of the said land and the sellers were prepared to present themselves before the collector as and themselves before the Collector as and when required. It was further alleged that the petitioner Society wanted to purchase that land for the purposes of preparing that land for the purposes of preparing a layout and allotting the plots to its members for construction of residential houses. The application came before the Sub-Divisional Officer, Nagpur. It appears that report of the Nagpur Improvement Trust as the field in question are in the green-belt as per the interim development plan. The Nagpur Improvement Trust as the field in question are in the green-belt as per the interim development plan. The Nagpur Improvement Trust reported that these fields fell in the green-belt as per the interim development plan. On receiving this report and without hearing the petitioner, the Sub-Divisional Officer rejected the application on the ground that the green-belt area does not allow any development and as such permission under Section 88 read with Rule 45 could be granted.

3. This order was challenged by the petitioner before the Maharashtra Revenue Tribunal by a revision application. The learned member of the Revenue Tribunal found that on receipt of the said application from the petitioner a proclamation was duly made. He also found that the trial Court sent a copy of the application to the Nagpur Improvement Trust for its opinion and further found that on receipt of the opinion of the said Nagpur Improvement Trust, the Sub-Divisional Officer rejected the application of the Society.

4. The learned Member then observed that the trial Court had based its finding on the report of the Nagpur Improvement Trust without applying its own judicial mind and without acting independently as it was excepted to do. The learned Member recorded his disapproval to the manner in which the Sub-Divisional Officer proceeded to decide the application only on the report or advice tendered by the Improvement Trust. The learned Member further held the view that on this ground the finding of the trial Court could not be maintained. He however took the view that his ultimate decision of rejecting the application was legally justified. The reason for taking this view is apparent from the next paragraph of his order in which the learned Member seems to take the view that the application of the petitioner. Act, It is on this ground alone that the application has been rejected.

5. Section 89 of the Bombay Tenancy Act lays down that a sale shall not be valid in favour of a person who is not an agriculturist or who being an agriculturist will after such sale etc., hold land as tenure-holder or tenant or partly as tenure-holder and partly as tenant exceeding tow-thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 or who is not an agricultural labourer. There is a proviso to sub-section (1) of Section 89. The proviso provides that notwithstanding the bar under sub-section (1) of Section 89 of the Tenancy Act, the Collector or an officer authorized by the State Government may grant permission for such sale, gift, exchange, lease or mortgage in such circumstances and subject to such conditions as may be prescribed. It would thus be seen that he bar under sub-section (1) of Section 89 for sale of a land to a non-agriculturist is not an absolute bar, and that bar can be lifted by the Collector or an authorized officer granting permission for such transfer. It is because of this that the petitioner made an application to the Collector for granting permission for the intended sale in its favour. There is nothing in the proviso to Section 89 to suggest that the intending purchaser cannot make an application for permission. It also does not suggest that only the intending seller can, make an application for such permission to the Collector nor does it say that a joint application must be made by the intending seller and the intending purchaser. The permission which is required to be given by the Collector under the proviso is for a sale, i.e. for a transaction of sale and other kinds of transfers mentioned therein. A sale cannot take place without a seller and purchaser and in a transaction of sale both the seller and the purchaser are interested. The application, therefore, can be made by either of them or both of them together and it is for the Collector while granting permission to decide as to under what circumstances and subject to what conditions the permission could be granted for the transaction between the intending seller and the intending purchaser. It is immaterial whether the application is made for permission by one or the other. On an application being made by either of the two parties to the transaction it is always open to the Collector to call the other party and put questions to him in order to satisfy himself before granting the permission and for the purposes of laying down the conditions for the permission to transfer. The purchaser is in fact a person who is vitally interested in getting the permission. It is he who is to be ultimately the owner of the property and if he does not obtain the necessary permission under the proviso, then the sale in his favour will be an invalid sale. Therefore, he is the person most interested in making the application for such permission.

6. Rule 45 of the Rules framed under the Act lays down the circumstances in which permission for the transfer under Section 89 may be granted: the rule requires the Collector to satisfy himself on several matters which have been mentioned in Rule 45. One of them is that such a person bona fide requires the land for a non-agricultural purpose. Here such a person would necessarily mean a transferee as his bona fide requirement is to be considered. Similarly sub-rule (b) of Rule 45 would also refer to a purchaser, Rule 45 -A provides that such permission shall be subject to the conditions that the person in whose favour the sale, gift, exchange, lease or, as the case may be, mortgage of the land is made shall use the land for the purpose for which the permission has been granted within one year from the date on which he taken possession of the land in accordance with the provisions of the Act or within such further period not exceeding five years in the aggregate, as the Collector for reasons to be recorded in writing may from time to time fix. This condition evidently is to be put for the purchaser and if he fails to comply with this condition, then the land is liable to be forfeited. This would also show that it is the purchaser who has to come before the collector for asking permission which can be subjected to various conditions by the collector before the permission is granted. There is no doubt in my mind that the purchaser is a competent person to make an application under the proviso to Section 89 asking for permission to the sale in his favour. The learned Member of the Revenue Tribunal, therefore, was not right in holding that the application made by the petitioner for permission for the sale was not maintainable.

7. In this case, however, there is a further point which seems to have been ignored by the Revenue Tribunal. To the application which was made by the petitioner for permission the intending sellers were also made parties and in the application for permission itself the purchaser had stated that the sellers are prepared to file affidavits that they want to sell their land and that the petitioner was prepared to produce the sellers before the court. If there was any difficulty in the mind of the learned Member of the Revenue Tribunal that the application at the instance of the purchaser was not maintainable that difficulty could no longer be there when the intending sellers were also made parties to this application. The learned Member was, therefore, in error in rejecting the application as being not maintainable.

8. The learned Member himself has held that the order of the Sub-Divisional Officer was not a correct order but for the view taken by him. The petitioner has filed with this petition a letter dated 15th of February, 1972 from the Nagpur Improvement Trust to the Secretary of the petitioner society in which the society has been issued a no objection certificate for the purchase of the land in question for residential use subject to the terms and connotations mentioned therein. This ground has to be taken into consideration by the sub-divisional officer while considering the application for permission. This certificate, however, was to remain in force for a period of one year from the date of its issue i.e. till 15th of February, 1973. The petitioner can still move the Nagpur Improvement. Trust for extending the period of 'no objection certificate' or issue a fresh no objection certificate in respect of the proposed transaction. In any case, the sub-Divisional officer has to obtain the report of the Improvement Trust before deciding the matter finally. The sub-Divisional Officer has not independently considered the matter regarding the considered the matter regarding the grant of the permission on its own merits and as observed by the Maharashtra Revenue Tribunal, has only proceeded on the basis of the report of the Nagpur Improvement Trust. It is true that the present 'no objection certificate' contained in the letter of 15th February 1972 was not before the sub-Divisional Officer when he passed that order, but now since the Improvement Trust has expressed its no objection to the purchase of the land subject to the conditions to be taken into consideration while considering the application for permission.

9. Accordingly, I set aside the orders of the sub-Divisional Officer as well as the Maharashtra Revenue Tribunal and send the case back to the sub-Divisional Officer to decide the matters afresh in accordance with law. The sub-Divisional Officer will give opportunity to the petitioner to be heard and further obtain the report of the Improvement Trust and also give opportunity to the petitioner to obtain from the Improvement Trust a further 'no objection certificate' for the purchase of the land in question and taking all the matters into consideration, he will decide the matter judicially. The petition, therefore, succeeds and is allowed. There will, however, be no order as to costs.

10. Petition allowed.


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