Partly allowed

Shri Vasant Rajaram Shah v. the State of Maharashtra and Ors.

Bombay HC15 Jan 2007WP/1872/1991

Case brief

AI extract

What is this about?

Held that the petitioner is entitled to the benefit of the Government Resolution dated 23rd November 1957 regarding non-completion of construction. The impugned order was set aside due to violation of procedural principles, including lack of prior notice and failure to apply the relevant Government Resolution mandating regranting of the plot with market value premium.

What did the court decide?

The Rule is made absolute. The order of the Sub-Divisional Officer dated 30th September 1981 is upheld to the extent of directing regrant of the plot to the petitioner according to point 4(b) of the G

Shri Vasant Rajaram Shah Vs the State of Maharashtra and… — Property and Title | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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WRIT PETITION NO. 1872 OF 1991

Vasant Rajaram Shah.

... Petitioner.

V/s.

The State of Maharashtra & Ors. ... Respondents.

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Mr. N.Y. Walawalkar i/b Mr. A.M. Kulkarni for the Petitioner. Mrs. V.S. Mhaispurkar, A.G.P. for Respondent Nos.1 to 5.

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.... CORAM : S.J. VAZIFDAR, J. DATED : 15TH JANUARY 2007.

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ORAL JUDGMENT :

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The Petition is filed to quash and set aside an order dated 26th February 1991 passed by the learned Minister for Revenue, arising out of proceedings and

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orders I shall refer to in this judgment.

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Respondent Nos.2 to 5 are the Additional Commissioner, Pune, the Collector, Sangli, the Sub-Divisional Officer, Sangli and the Range Forest Officer, Tasgaon.

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In 1960 by way of extension of gaothan, 187 small

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plots	were	allotted	to	persons according	to	their
eligibility	to	enable	them	to put up	very	small
constructions		thereon	for	residential use.	These	are
small	plots	allotted	to	persons.	The	plots

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admeasuring about 450 sq.mtrs. and the area permitted

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to be constructed thereupon is only about 45 sq.mtrs.

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The Petitioner was allotted plot No.5 on the

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terms	and	conditions	contain	ed in	an	a	llotment	letter
dated	28th May	1960.	Clau	se 2	requi	red	the	Petitioner
to	construct	a perm	anent	concrete	buil	ding	within	two
years	admeasuring	not	more	than	1/10th	of	the	total
area.	Under	clause 12	if	any	of	the	terms	and

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conditions are violated the allotment would be

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cancelled.

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There is no complaint against the Petitioner for

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not	having	paid the	amount	due as	provided	in claus	e 1
of	the	allotment	letter.	The	Petitioner	unfort	unately
failed		to complete	the	constructi	on for	a sub	stantial
period	inter	alia due	to	the illness	of his	mother	who
subseq	uently	expired	and	financial	difficulties.		It
is	true	that the	construc	tion was	only of	about	45

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sq.mtrs.	It	must however	be noted	that these	plots
were	given with	a view to	extend the	gaothan and	the
allottees	were	persons of	only	modest	means.
Unfortunate	cir	cumstances,	especially	financial	and

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emotional would add to the burden of their already

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modest means.

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6.	There	is no dispute about the	fact	that the
Petitioner		did face		these	unfortunate	circumstances
and	financial	difficulties.		This	is important	in view
of	the	circular/policy	of	the	Government	to alleviate

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the difficulties faced precisely by persons such as

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the allottees of the said plots.

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7.	It is true that the	Petitioner did	not build any
concrete	or	permanent	construction	on	the	plot	till
about	1976.	He	obtained perm	ission	from	the	Vita
Municipal	Corporation	for	building	on	27th	April	1976.
He	in fact	constructed	one room	and	has	been in	use

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thereof. He continues to remain in possession of the

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said plot.

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Before the authorities the Respondent contended

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that the Appellant had not constructed a house on the said plot but had only constructed a small shed on one corner of the said plot. Considering the view I have taken I will presume this allegation is to be correct.

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It is, therefore, not necessary for me to consider the nature of the construction.

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9. It would be convenient at this stage to con	sider
in some detail a Resolution	of the First Resp	ondent
dated 21st November 1957 which	has admittedly not	been
considered in the impugned	orders. The Res	olution
enumerates the various factors	which were taken	into
consideration by the first	Respondent including as	to
whether the time limit for	the construction of	a
building on such plots should	be extended and if	so,
to what terms and conditions	such extension ought	to
be subjected. It is also	important to note,	as
recorded in the Resolution,	that the first Resp	ondent
considered in their approach	to these qu	estions
various factors to be taken	into account such	as
encouragement to building acti	vities and the need	for
assuring the Government a	reasonable share in	the
unearned income. The Petitio	ner in support of	his

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contention		would be entitled	to	rely	essentially	on
Point 4	(b).	Before setting out	the	sa	me, it would	be
useful	to	note that the first	Respon	dent	has even	in
the oth	er	point endeavoured to	enab	le	the allottees	to
utilize	and	exploit the plots	allot	ted	to them	in
various		ways including by p	ermittin	g	transfers on	the
payment	of	premium and conversion	of	the	tenure of	the
land	again	on payment of pr	emium	to	the Govern	ment.
The	first	Respondent has also	form	ulated	schemes	for
regularizing		unauthorized sales no	d	oubt	upon cha	rging
substantial		amounts. Point 4(	b) o	f	the Reso	lution

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which is important in the present case reads as under

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" Point No.4:The Collector should extend the period for constructing building and condone breach of building conditions with reference to the following principles :-

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(a).....................

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(b) Where it is established that the
default is not for reasons beyond the
control of the grantee and where
difficulties are financial and the grantee
is unable to establish that he can solve
the difficulties within a year or two, the
plot should be resumed and steps should be
taken to regrant the plot to him on
payment of the difference of the present
market value and the occupancy price
originally paid or 10 times the non

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agricultural assessment	to		determined
with reference to	the	market	value
prevalent at the time of regrant,
whichever is greater."

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10. I have construed point 4(b) late	r. It is
important to note at this	stage that		the	clause
contemplates the authorities taking	a posit	ive	step	of
resuming the plot and regran	ting the sa	me	in	the
manner stipulated therein. In	other		words	the
authorities and not the plot	holders are		to	initiate
the action of regranting the	plots. A		plot	holder
would be legitimately entitled	to presume		that in	the
circumstances mentioned in	the Point		No.4(b),	the
authorities would follow the	process of	res	uming	the
plots and thereafter re-granting th	e same to		them.	In
other words, the allottees	would be		justified	in
presuming that it was not	necessary f	or	them	to
initiate the process for having	the plots		regranted	to

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them. There is nothing in the Resolution that

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militates, against such construction either.

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11.		By a letter d	ated 21st Aug	ust 1976	addr	essed
to	the	Petitione	r the	Tahasil	dar	stated	that	as	the
Petitioner	had	not	constructed	up	on	the	said	plot,	the
same	was	forfeited	as per	an	ord	er dated	19th		August

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1976	issued	by the	Assistant	Collect	or,	Sangli.
Admittedly,	the	order dated	19th August	1976	was	not
served	on	the Petitioner	prior thereto.		Ad	mittedly,
again	prior	to the order	dated 19th	August	1976	being
passed	the	Petitioner was	not	heard.		Further
admittedly,	pr	ior to the	order dated	19th	August	1976
being	passed,	the Petitioner	was not	put to	notic	e of
any	proposed	action to	that effect.	Indeed	this	is
the	position	even qua the	notice of	forfeitu	re	dated
21st	August	1976. The	action agains	t the	P	etitioner
and	even	his knowledge	thereof initia	ted	with	the

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service of the notice of forfeiture dated 21st August

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1976 upon him.

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12.	The	Petitioner	challenged	the or	der of
forfeiture	dated	21st	Au	gust	1976	before	the
Sub-Divisi	onal	Officer,	San	gli.	The	Petitioner	on
being	informed	that	he	ought	to	prefer an	appeal
before	the	Collector	did	so	by	filing	Appeal
No.LND/A	ppeal	No.1/77	b	efore	the	Collector,	Sangli
i.e.	Respon	dent	N	o.3.		The	Petitioner’s
application	/appeal	set	out	the	difficult	ies faced	by
the	Petitioner	from	the ti	me	he was	given	possession
of	the said	plot	including	the	illness	of his	mother

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and her subsequent demise and the financial

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difficulties faced by him.

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13.		Mr.	Walawalkar,	the learned Senior Counsel
appearing		on	behalf	of the Petitioner,	submitted,	as
stated		in	the	application/appeal that	possession	of
the	plot	was	actually	handed over in 1967.	The	view
that	I	hav	e taken	would not prejudice	d the	Petitioner
even	assum	ing	that poss	ession was handed	over in	1960.
It	is	theref	ore not	necessary for me	to consid	er this
question		of	fact.	Finally, the	applic	ation/appeal
also		sets	out the	various other co	ntentions	regarding
the	forf	eiture	having	been made without	hearing	the

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Petitioner or even giving him notice of the proposed

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forfeiture.

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The Collector by a well considered and

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reasoned		order	allowed the	Appeal	setting	aside	the
order	dated	19th	August 1	976. In	so	far as	the
Petitioner’s		plot	No.5 was	co	ncerned,	the	order
directed		the	Sub-Divisional	Officer	-	Respondent	No.3
to	consi	der the	Petitioner’s	case in	the	light of	the
Government		Resoluti	on dated	21st N	ovember	1957	read
with	the	Land	Revenue Rules.	It	was	further	ordered

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that	the	extension of time	fo	r construction if	needed
would	operate	from the date	of	the order. F	inally it
was	ordered	that the allotment	in	favour of	Respondent
No.5	may	be reviewed and	rev	ersed after giving	that
departmen	t a	hearing. It	appe	ars that meanwhile	on
4th	April	1997, the	Assista	nt Commissioner	has
allotted	the	plot to Respondent		No.5. The	possession,
however,	con	tinued with the	Petition	er. It was	held
that	the	procedure required	for	forfeiture had	not
been	followed	. That the	orde	r may have	incorrectly
observed	that	the Assistant	Collect	or had not	followed
the	procedure	under Section	268	of the	Maharashtra
Land	Revenue	Code, 1966 is	of	no consequences.	The
fact	is t	hat the forfeiture	was	not only	without
notice	to	the Petitioner bu	t	without considering	the

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effect and ambit of the Resolution dated 21st November

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15.	Pursuant to	the aforesaid orde	r, Respondent
No.3	- Sub-Divisio	nal Officer	by an order	dated	27th
November	1979	after hea	ring the Petiti	oner,	correctly
considered	the Resolu	tion dated	21st November	1957	and
granted	the Peti	tioner per	mission to	construct	a
building	on the	said plot	and cancelled	the	allotment

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dated	4th A	pril	1977	in	favou	r of	Re	spondent	No.5.
Respondent	No.3	fu	rther	orde	red	that	the	plot	should
be r	etained	by	the	Petiti	oner	on pa	yment	of	premium
equal to	twice	the	N.A.		as	sessment	paya	ble in	respect
of the	plot at	the	time	of	his	grant	for	breach	of the
condition,	viz.			the	non-	completion	of		construction
within	the	period		stipulat	ed	in	the	letter	of

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allotment. The Petitioner was granted a period of one

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year for completing the work.

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.		Strictly the	directions is	sued by the order
dated	27th	Novembe	r 1979	were not	in acco	rdance	the
Government		Resolution	dated	21st	Nove	mber	1957.
Having	held	in	favour	of the	Petitioner,		Respondent
No.3 ou	ght to	have	regranted	the plo	t to	Petiti	oner on
making	payme	nt as	stipulated	in Point	No.4(b)	of	the
Government	Re	solution.	It	is crucial	to	note	here
also	that	the date	for	determination	of	the	market
price	should	be at	the lat	est the da	te of	this	order
viz.	22nd	Nove	mber 19	79. The	Petitioner		obviously

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cannot be prejudiced by fixing the date any later

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merely in view of the pendency of the proceedings.

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Respondent No.5 preferred an Appeal before the

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Additional	Co	mmissioner/Resp	ondent		No.2.		The
Additional	Commission	er by	an	ord	er da	ted	30th
September	1980, se	t aside	the ord	ers	dated	10th	August
1979 and	27th	November	1979	on	the	ground	that
Respondent	No.5	in wh	ose favour	the	plot	had	been

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subsequently allotted on 27th November 1957 had not

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been heard.

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. It is pertinent to note a few things about

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this	order.	Respondent No.2 correc	tly	noted th	at the
Collector’s		order dated 10th August		1979	correctly
held	that	the Assistant		Collector/Sub	-Divisional
Officer’s		order dated 19th August	1976	passed	without
granting	the	Petitioner an opportunity	of	having	heard
was	an	irregularity which vitiated	t	he	proceeding.
This	is of	crucial importance, for	while	the	aforesaid
two	orders	were set aside, the same	was	only on	the
ground	of	Respondent No.5 not having	been	heard.	The
forfeiture		initiated with the order	dated	19th	August

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1976 was itself held to have been vitiated by the

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irregularity of the Petitioner not having been heard.

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The order, however, expresses a doubt about

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the	Government	Resolution coming to the	rescue	the
Petitioner	merely	because the construction	had	not
been	put up	in accordance with the	allotment	letter.
While	making	this observation, Respondent	No.2	does

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not appear to have construed the Government Resolution

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and in particular Point No.4(b) at all.

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The Sub-Divisional Officer by an order dated

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30th	September 1	981	after		hearing	the	parties
including	Respondent		No.5 regr	anted	the pl	ot to	the
Petitioner.	He fur	ther	ordered	tha	t the	Petitio	ner be
informed	about		punitive	non-	agricultural		assessment
charges	as per	the	Governm	ent	Resolution	dated	21st
November	1957 an	d	that the	same	should	be	recovered

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within three months. He also ordered the allottee to

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complete the construction within one year.

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The order considers in detail inter alia all

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the	aforesaid	facts.	It is	also	important	to	note
that	the	order consid	ers the	fact	that	two	other
allottees	whose	plots had	also	been	forfeited	had	been
permitted	to	retain	their	plots.	After	co	nsidering

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the correspondence between the authorities inter-se,
he came to the conclusion that the Petitioner’s plot
ought to have been reallotted in the similar manner.
Indeed it was noted in the order that the papers and
proceedings in respect of the said plots discloses
that the decision taken in respect of the two plots
was precisely in accordance with the Government
Resolution requiring the authority to first forfeit
the plot and then to re-allott the same to the holders
of the plot. This was indeed a fair and responsible
approach adopted by the authorities. The
Sub-Divisional Officer also considered and construed
the Government Resolution dated 21st November 1957 in

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coming to the conclusion. I am in agreement with the line of reasoning adopted by him.

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does not require such a condition to be imposed on the

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Petitioner upon the plot being regranted to him.

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The Petitioner’s long but successful battle

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for	his	shelter ended at this stage. Respondent	No.5
challenged	t	he order dated 30th September 1981	by
filing	Appea	l No.4/1981 before the Collector	-
Respondent		No.3. Respondent No.3 by an order	dated
6th Nov	ember	1985 allowed the Appeal and set aside	the
order	dated	30th September 1981 and directed	the
possession	of	the plot to be given to Respondent	No.5.
It is	su	fficient to note only a few things about	the
order.	Fir	stly, it is held that a two	storied
building	was	to be constructed on the plot.	The
letter	of	allotment does not contain any	such
requirement.		Secondly, it remained to be noticed	that
prior	to	forfeiture, the Petitioner was neither	heard
nor	info	rmed about the proposed forfeiture d	epriving
him	of a	right to remedy the breach, if any. Wh	at is
of cruc	ial	importance however, is, that the order	does
not	consid	er or construe the Government Re	solution
dated	21st	November 1957 and the rights	and
contentions	of	the Petitioner based thereon. Though	a

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major part of the Petitioner’s case is based on the

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same circular has not been considered.

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22.	The Petitioner challenged the order dated 6th
November	1985 by filing Appeal	No.A.LND.SR.225	before
the	Additional Commissioner, Pune -	Respondent	No.2,
who by	an order dated 12th February	1980 dismissed	the
same.	Respondent No.2 however, sought	to get over	the
difficulty	of the absence of the	hearing to	the
Petitioner	by holding that after	the order	of
forfeiture	his contentions had been	considered.	I
will p	resume that this post-decisional	hearing did	not
cause	any prejudice to the Petitioner.	It is h	owever,
important	to note that even Respondent	No.2 rested	the
order	only on the ground that t	he Petitioner	had
failed	to complete the construction	within the	time
stipulated	in the allotment letter.	Respondent	No.2
also	does not even consider/construe	the Gov	ernment
Resolution	dated 21st November 1957.	The	further
observation	that Respondent No.5 is	a Department	of
the	Government and that its requirem	ent is genuine	is
irrelevant	to the question whether	the Petitioner	was
entitled	to have the plot regranted to	him as per	the

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Resolution. In the event, in my view, the order is

¶112

liable to be set aside.

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¶114

The petitioner challenged the order by filing

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Appeal	No	.GAO/3690/20	03/R/12 be	fore	the		learned
Minister	for	Revenue,	Government	of	Maharashtra.		By
an	order	dated	31st August	1980,	learned		Minister
vacated	the	stay	order granted	by	him	earlier	in
favour	of	the Pe	titioner.	The	Petitioner	c	hallenged
the	same	by filin	g Writ Pe	tition	No.4060/1990	in	this
Court.	The	Writ	petition was	allowed	and	the	stay
earlier	granted	by	the le	arned	Minister	to	the
Petitioner	was	restored.	The	Appeal	was f	inally	heard

¶116

by the learned Minister who passed the impugned order

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dated 26th February 1991.

¶118

It appears that the learned Minister’s

¶119

attention	was	not	properly	invited	to	some	crucial
aspects.	It	further	appears	that	the	learned	Minister
was	persuaded	to	proceed	on	an	entirely	incorrect
basis.	For	instan	ce, the	order	records	that it	was
after	due	enquiry	and	after	giving	reasonable	liberty
to the	Petition	er that	the	plot	had b	een forfeited	and
granted	to	Respondent	No.5.	If	the	said ob	servation
pertained	to	the pe	riod pr	ior	to	the order	of

¶120

forfeiture, it is certainly incorrect as I have

¶121

already noted.

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¶123

25.		What vitiates	the order however	is the fact
that	it	does	not consider	the Gove	rnment		Resolution
dated	21st	November	1957 a	nd the	rights		of the
Petitioner		emanating	therefrom.	The	Petitio	ner	had
been	agitati	ng his	rights	mainly	on	this	basis.

¶124

Despite the same, his case in respect thereof has not

¶125

been considered.

¶126

26.		The	Petitioner	is therefore e	ntitled to	the
benefit		of	Point	No.4(b)	of	the Govern	ment	Resolution
dated	29th		November	1957.	The	impugned	ord	ers are

¶127

vitiated inter-alia for the reasons that the

¶128

Government Resolution has not been considered.

¶129

27.			The Pe	titioner ha	s been ag	itating his r	ights
for	over		20	years.	I	do not	think	it necessary		and
fair	to		remand	the	matter.	He	is, as	I have		noted
earlier,		a	person	with	but	limited	means	and I	do	not

¶130

intend adding to his burden by compelling him to go

¶131

through yet another round of litigation.

¶132

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In the circumstances, the following order is

¶134

passed :-

¶135

(i) The Rule is made absolute in terms of prayer

¶136

clause (a).

¶137

(ii)	The	order of the Sub	-Divisi	onal Office	r date	d
30th	September	1981	is	upheld	to	the	extent	that	it
orders	the	plot to	be	regrant	ed	to	the		Petitioner.
However,	the	conditions	on	which	it		shall	be	regranted

¶138

shall be as per Point No.4(b) of the Government

¶139

Resolution dated 21st November 1957.

¶140

(iii) The date for the purposes of assessment of the market price to be paid by the Petitioner is fixed as on 27th November 1979. The condition regarding the

¶141

Petitioner having to complete the construction on the

¶142

plot within one year shall however not be applied.

¶143

(vi) No order as to costs.

Shri Vasant Rajaram Shah v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Shri Vasant Rajaram Shah v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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