WRIT PETITION 3584 of 1990 on 11 September 1990

IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADLETTERS PATENT APPEAL NO.171 OF 2007 INWRIT PETITION NO.3584 OF 1990

Vijaykumar s/o Motilal Hirakhanwala,age: 72 years, Occ: Business,R/o 91, E 1, Cid, Ridge Road,Bombay 400 006.Appellant

Versus

1 The State of Maharashtra, through its Secretary, Revenue and Forest Department and Urban Development Department, Mantralaya, Mumbai-32.

2 The District Collector, Jalna, District Jalna.Respondents Mr.J.R.Shah, advocate for the appellant.Mr.S.G.Sangle, A.G.P. for Respondents.

CORAM : R.M.BORDE &

A.I.S.CHEEMA, JJ.th DATE : 29 November, 2013.

JUDGMENT (Per R.M.Borde, J.):

1The appellant, in this Letters Patent Appeal, is challenging the order passed by learned Single Judge in Writ Petition No.3584 of 1990, decided on 6[th] August, 2007.

2Certain undisputed facts, giving rise to presentation of instant Letters Patent Appeal, can be summarised as below:

The agricultural land S.No.386 and 389 situate at Jalna, District Jalna, admeasuring 04 hectares 01 are were owned, at the relevant time, by appellant Vijaykumar Motilal Hirakhanwala. He tendered an application seeking conversion of user of land for non agricultural purpose to the revenue authorities. The application tendered by the appellant, as contemplated by Section 44 of the Maharashtra Land Revenue Code, 1960, was not considered for pretty long time by the District Collector. As such, appellant was constrained to approach this Court by presenting Writ Petition No.2185 of 1990 seeking order for expeditious disposal of the application by the Collector. This Court, by order dated 31.07.1990, directed the Collector to decide the application tendered by the appellant on 4[th] August, 1989, in accordance with provisions of Section 44 of the Maharashtra Land Revenue Code, within a period of six weeks from the date of the order. The application, in pursuance to the order passed by this Court, was taken up for consideration by the Collector, who, by his order dated 11.09.1990, accorded permission for conversion of user of land for non agricultural purpose to the extent of 2 hectares and 69 ares, however, omitted to accord permission in respect of change of user of land for non agricultural purpose to the extent of 1 hectare and 32 ares. The District Collector refused to accord permission for conversion of user of land to the extent of the area

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specified above for the reason that the land. to that extent. is reserved for public purpose under the development plan prepared by the planning authority.

3The order passed by the Collector on 11.09.1990 was subjected to challenge in Revision Petition presented before the Additional Divisional Commissioner, who, after hearing the parties, was pleased to dismiss the Revision by order dated 24.07.1992. The order passed by the Collector, which has been confirmed by the Additional Divisional Collector, was subjected to challenge in Writ Petition No.3584 of 1990 presented by the appellant, which came to be dismissed by the learned Single Judge of this Court by order dated 6[th] August, 2007.

4During pendency of the writ petition, appellant served notice as contemplated under Section 127 of the MRTP Act on the planning authority for acquisition of the land under reservation. The planning authority, however, did not take steps for the period specified under Section 127 of the MRTP Act nor passed an order releasing the land from reservation. The appellant, as such, approached this Court by filing Writ Petition No.7127 of 2009 claiming a declaration that the land is free from reservation and the reservation, designation or allotment, under the relevant development plan, is deemed to have lapsed by operation of provisions of Section 127 of the MRTP Act. The Division Bench of

Conclusion

this Court, by judgment and order dated 03.03.2011, was pleased to allow the writ petition and granted a declaration that the land is free from reservation, designation or allotment under the relevant development plan.

5The appellant contends that in view of the order passed by the Division Bench of this Court in Writ Petition No.7127 of 2009, order passed by the Collector, refusing to accord permission for conversion of user of land for non agricultural purpose, deserves to be quashed and set aside.

6It ought to be appreciated that the reason for refusing permission for conversion of user of land for non agricultural purpose, posed by the Collector, does not survive and as such, appeal presented by the appellant deserves to be allowed. The reservation, designation or allotment, under the relevant development plan prepared by the planning authority in respect of disputed land is lapsed and such a declaration has already been issued by the Division Bench of this Court in Writ Petition No.7127 of 2009 decided on 03.03.2011. In view of the decision rendered by this Court in Writ Petition referred to above, the Collector needs to be directed to reconsider the application tendered by appellant on 04.08.1989 under the provisions of Section 44 of the Maharashtra Land Revenue Code, 1960, for conversion of user of land to the extent of 1 hectare and 32 ares.

7In the result, order dated 11.09.1990. passed by the Collector refusing to accord permission for conversion of user of aforesaid land as well as order dated 24.07.1992, passed by the Revisional authority and decision rendered by the learned Single Judge in Writ Petition No.3584 of 1990 decided on 06.08.2007, are quashed and set aside and the matter stands remitted back to the District Collector, Jalna, for reconsideration of the application tendered by the appellant on 04.08.1989 under Section 44 of the Maharashtra Land Revenue Code. The Collector, taking into account the order dated 03.03.2011, passed by the Division Bench of this Court in Writ Petition No.7127 of 2009, declaring the land in question free from reservation, designation or allotment, under the relevant development plan, shall take decision in the matter in accordance with the provisions of Maharashtra Land Revenue Code. The District Collector, Jalna, is directed to take decision, as expeditiously as possible, preferably within a period of three months from today.

8Appeal is allowed accordingly. However, there shall be no order as to costs. In view of disposal of appeal, pending Civil Application does not survive and stands disposed of accordingly.

A.I.S.CHEEMA JUDGEadb/lpa17107

R.M.BORDE JUDGE