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Judgment
Rule. Rule made returnable forthwith with consent and taken up for final disposal. Both Petitions raise identical issues and were taken up for hearing together. Common submissions were canvassed and the Petitions are being disposed of by common judgment.
For factual clarity, the facts of W.P. No. 1238 of 2023 are referred. The Petition challenges the order of Maharashtra Revenue Tribunal [for short “Tribunal”] dismissing the revision filed by the present Petitioner against the order of Sub-Divisional Officer [for short “SDO”] dated 26th August, 2022 rejecting the Petitioner’s application seeking declaration of acquisition of right of re-purchase of the subject property on account of violation of Section 63-1A of the Maharashtra Tenancy and Agricultural Lands Act, 1948 [for short, “Tenancy Act”].
The Petitioner’s application was filed on 17th May, 2022 before the SDO contending that their pre-decessor Navsu Bhoir was the owner of subject land bearing Gat No. 122, which was sold to the Respondent No 1 on 15th May, 2007 vide registered sale deed for industrial use. Accordingly the revenue records were mutated. The Respondent No. 1 did not put the land for bona fide industrial use within the prescribed period of 15 years from the date of purchase i.e. from 15th May, 2007 to 15th May, 2022, resulting in violation of Section 63-1A of Tenancy Act.
The Respondent No. 1 resisted the application by filing two Affidavits. It was contended that only part of the land was conveyed by the Petitioner’s pre-decessor despite being aware of the entire land requirement for industrial purpose. The Respondent No 1 has the intent to put the land to industrial use and the survey officer has carried out measurement of the land, N.A permission was obtained, building permission has been obtained. The Respondent No. 1 sought extension of one year time period.
On 23rd August, 2022, after the matter was closed for orders, by SDO, a report came to be filed by the Tahsildar stating that there was no construction on the subject land and the same was not put to any industrial use.
The SDO observed that the Respondent No. 1 had filed an application on 9th July, 2021 under Section 44 of Maharashtra Land Revenue Code, 1966 for obtaining construction permission and sanad. The Collector on 19th July, 2021 had forwarded the application to Tahsildar/Assistant Director, Town Planning, who by communication dated 18th April, 2022 had called upon the City Survey Officer to carry out measurement and demarcation of boundaries pursuant to which necessary recommendation would be made for final demarcation. Noting the steps taken by the Respondent No. 1 and the COVID-19 pandemic situation, the SDO observed that the Respondent No. 1 intend to put the land to industrial use for which necessary procedure has been started by Respondent No. 1. The SDO noted that the G.R dated 1st January, 2016 provides for levying on non-agricultural tax of 2% after expiry of period of five years from date of purchase. The SDO accordingly granted extension of one year subject to payment of non agricultural tax within period of 15 days.
As against this, Revision came to be filed before the Tribunal under Section 76 of the Tenancy Act. The Tribunal by the impugned order dated 8th December, 2022 considered the orders of the Hon’ble Apex Court passed in Suo Motu Writ Petition (C) No. 3 of 2020 extending the period of limitation due to the national widespread of COVID-19 pandemic and held that concession needs to be given to the Respondent No 1. The Tribunal held the Petitioner’s application to be pre-mature and liable for rejection. The Tribunal further held that the Respondent No 1 had sincerely started industrial activity which has been obstructed by the Petitioners and though possession was given, it was stated that the Petitioners are in possession of the subject land. It observed that there was non-co-operation by the Petitioners during measurement of the land pursuant to the partition effected among the co-owners and even Civil Suit No. 92 of 2022 was filed before the Civil Court for injunction against the Respondent No 1A for not carrying out any development in the land. The Tribunal opined that the Petitioners were creating obstacles in starting industrial use whereas the Respondent No 1 is in the process of obtaining necessary permission and dismissed the Revision Application.
Mr. Suryavanshi, Learned counsel for Petitioner submits that Respondent No. 1 has suppressed the fact that the Respondent No 1 has alienated the land in favour of Respondent No 3 on 10th August, 2021. He submits that the documents sought to be produced along with the Affidavit-in-reply were not part of proceedings before the authorities. He would further submit that the SDO has noted that only application for permissions were filed in the year 2021 which does not constitute land putting to industrial use as contemplated by the explanation of Section 63-1A. He would further submit that there was no power vested in the SDO to grant extension of one year for putting the land to industrial use. He would further submit though the order of SDO requires payment of non agricultural tax within 15 days, the same has been deposited on 29th September, 2022. He would point out the Tahsildhar’s report stating that there is no activity carried out on the land. He would rely upon the decision in the case of Tata Chemicals Ltd. vs. The State of Maharashtra1.
Per contra, Mr. Shah, learned Senior Advocate appearing for Respondent No. 3 in Writ Petition Nos. 1238 of 2023 and 1239 of 2023 submits that the subject land was purchased in the year 2007 and therefore the unamended provisions of Section 63-1A of Tenancy Act would apply. He would submit that the unamended provisions provides for re-purchase by the vendor in event the land is not put to bona fide industrial use and the application did not seek resumption of land but repurchase of land. He would submit that taking note of Covid pandemic, the Hon’ble Apex Court had extended the period of limitation, which benefit is required to be given to the Respondent No 1.
Mr. Anturkar, learned Senior Advocate appearing for Respondent No. 1 in Writ Petition Nos. 1238 of 2023 and 1239 of 2023 submits that the application itself was pre-mature due to extension of limitation granted by the Hon’ble Apex Court in Suo Motu Writ Petition (C) No. 3 of 2020. He has taken this Court in detail through the various orders passed by the Hon’ble Apex Court granting extension not only to judicial and quasi judicial proceedings but also where the statute prescribed the time for certain acts. He submits that there is no machinery provided for repurchase of the land under the unamended provisions of Section 63-1A of Tenancy Act and therefore, the remedy of Petitioner lies before the Civil Court. He would submit that in the case of Sonali Sandeep Pudake vs. State of Maharashtra and Others2, the Nagpur Bench of this Hon’ble Court had given the benefit of exclusion of limitation even to the administrative order although it had held that the order in question appears to be quasi-judicial. He would submit that Hon’ble Tribunal has specifically held that obstacles have been created by the Petitioners by filing civil suit as well as by refusing to co-operate in demarcation.
In rejoinder, Mr. Suryavanshi would submit that it is not necessary for the Petitioner to approach the Civil Court as under Section 84CC of Tenancy Act, the Collector upon breach of any condition subject to which permission to transfer land was granted under Section 63 of the Tenancy Act is empowered to hold an inquiry and pass appropriate orders.
I have considered the submissions and perused the record.
The Petitioner’s application did not seek relief of resumption of land by the Collector, but a declaration as to the Petitioner’s entitlement to re-purchase, which arose upon the expiry of period of 15 years on ground of non compliance of Section 63-1A of Tenancy Act. The Petitioners were therefore, conscious of the fact that the unamended provisions of Section 63-1A of Tenancy Act were applicable as the Sale Deed was of the year 2007. The amendment to Section 63-1A of Tenancy Act investing the Collector with the power of resumption on violation of Section 63-1A of Tenancy Act was introduced in the year 2016.
This Court in the case of Tata Chemicals Ltd. vs. The State of Maharashtra (supra) while considering the provisions of Section 47A of the Hyderabad Tenancy and Agricultural Lands Act, 1950 which is similar to Section 63-1A of Tenancy Act, had taken the view that the statutory position as on the date of Collector’s sanction is required to be considered as in that case, the sale deeds were of the year 2007-08 and Collector’s sanction was given in the year 2007.
Learned counsel for the parties are ad-idem in present case that the unamended provisions of Section 63-1A apply which gives right of re-purchase to the original vendor. That being the position, there was no requirement of seeking relief of resumption of land and the relief of re-purchase is in consonance with the statutory requirement.
The unamended provisions of Section 63-1A required the cumulative satisfaction of two conditions (a) expiry of period of fifteen years from date of purchase and (b) the land not being put to bonafide industrial use. Considering the timelines in the present case, as the alienation in favour of the Respondent No 1 had taken place on 15th May, 2007, ordinarily the period of 15 years would expire on 14th May, 2022 and if the land was not put to industrial use, the right of re-purchase would accrue to the vendor. However, the intervening circumstance of Covid pandemic has changed the colour of the satisfaction envisaged while computing the period of 15 years. The national lockdown is one of the defence taken by the Respondent No 1 and also constitutes one of the grounds of rejection of revision application by the Tribunal, which is required to be tested.
The Hon’ble Apex Court in Suo Motu Writ Petition (C) No. 3 of 2020 took judicial note of the prevailing Covid pandemic situation and passed various orders under Article 142 of Constitution of India to obviate the difficulties faced by the lawyers and litigants by reason of the statutory limitations. Vide order dated 23rd March, 2020, the Hon’ble Apex Court extended the period of limitation for filing petitions/applications/suits/appeals/all other proceedings till further orders. By order of 10th July, 2020, the Hon’ble Apex Court noted that Section 29A , Section 23(4) of the Arbitration and Conciliation Act, 1996 and Section 12A of Commercial Courts Act, 2015 does not prescribe period of limitation but fixes a time to do certain acts and extended the time limit prescribed under the said enactments. By order of 23rd September, 2021, the Hon’ble Apex Court excluded the period from 15th March, 2020 to 2nd October, 2021 in computing the period prescribed in Section 29A, Section 23(4) of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of Negotiable Instruments Act, 1881 and any other laws which prescribe period of limitation for instituting the proceedings, outer limits within which the Tribunal or Court can condone the delay and termination of proceedings.
By the final order of 10th January, 2022, in view of the second surge of Covid 19 pandemic, the Hon’ble Apex Court directed that period from 15th March, 2020 to 28th February, 2022 shall stand excluded for computing the period of limitation as may be prescribed under any general or special laws in respect of judicial or quasi-judicial proceedings and also stand excluded in computing the period prescribed under Section 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of Commercial Courts Act, 2015 and provisos (b) and (c) of Section138 of Negotiable Instruments Act, 1881 and any other law which prescribe period of limitation for instituting the proceedings, outer limits, within which the Court or Tribunal can condone the delay or terminate the proceedings.
The above orders of the Hon’ble Apex Court would indicate that the judicial notice was taken by the Hon’ble Apex Court of the prevalent situation due to Covid pandemic severely restricting the operations and movements and extended the period of limitation not only for the purpose of judicial and quasi judicial proceedings but also in respect of the time prescribed by the statute for carrying out certain acts under the Arbitration and Conciliation Act and the Commercial Courts Act.
I see no reason to deprive the Respondent No. 1 of the benefit of extensions granted by orders of the Hon’ble Apex Court by carving out an exception for cases under the Tenancy Act, where time limit was fixed by statute for putting the land to specific use. Upon extension being granted, while computing the period of 15 years, the period from 15th March, 2020 to 28th February, 2022 will have to be excluded. When so excluded, the Respondent No. 1 would be ipso facto entitled to extension of two years and the order of Sub-Divisional Officer even if it grants extension of period of one year is immaterial. The Tribunal by granting the benefit of extension has held the application to be pre-mature which does not warrant interference.
As the Tribunal had upheld the finding of SDO that the Petitioner’s application was premature, it was not necessary for the Tribunal to render findings on merits. As the application was held to be pre-mature, the right of the Petitioners to file appropriate proceedings after expiry of the period was not foreclosed. Though an issue was raised as regards the maintainability of the application before the SDO, it is not necessary to decide the issue of maintainability as firstly no such contention was raised before the authorities and secondly the application itself has been held to be pre-mature.
Insofar as sale to Respondent No. 3 is concerned, Mr. Suryavanshi has not pointed out any statutory embargo on alienation of property within period of 15 years. Similarly the contention of delayed payment of N.A. tax is irrelevant if period stands extended.
In view of the above discussion, there is no warrant for interference with the impugned order dated 8th December, 2022 in exercise of powers under Article 227 of Constitution of India. In event, the Petitioners seek to invoke their right after expiry of statutory period, the concerned authority to consider the application afresh without being influenced by the earlier orders of SDO and the Tribunal.
The Petition is dismissed with the above observations. Rule stands discharged in above terms.
Nothing survives for consideration in pending Applications, if any, and the same stands dismissed.
At this stage, a request is made for continuation of the interim relief, which was in operation in favor of the Plaintiff since 2nd January, 2024. Interim relief is extended for period of six weeks from today.