NIKETAN LAND AND ESTATE PVT. LTD. Vs. STATE OF MAHARASHTRA
LAWS(BOM)-2017-1-36
HIGH COURT OF BOMBAY (AT: STATE)
Decided on January 10,2017

M/S. Niketan Land And Estate Pvt. Ltd. Appellant
VERSUS
STATE OF MAHARASHTRA Respondents

JUDGEMENT

R.M.SAVANT, J. - (1.) Rule with the consent of the learned counsel for the parties made returnable forthwith and heard.
(2.) The writ jurisdiction of this Court is invoked against the order dated 24/02/2010 passed by the Respondent No.2 i.e. the Collector, Nashik by which order the application filed by the predecessor of the Petitioner for grant of permission to transfer the land and for its conversion from agricultural to nonagricultural came to be allowed on the terms and conditions mentioned therein. The terms and conditions mentioned in the impugned order entail the payment of unearned income to the State Government, as also the condition that the land in question would continue to remain as Occupancy Class II land. The Petitioner is principally aggrieved by the aforesaid condition mentioned in the impugned order.
(3.) The factual matrix involved in the above Petition can in brief be stated thus : The subject matter of the application filed by one Namdeo Eknath Bankar was the land bearing Survey No.836 at Nashik. The said land was allotted in the year 1949 by the State Government to the father of the said Namdeo Bankar on new and impartible tenure on permanent grant basis. The father of the said Namdeo Bankar had accordingly executed a Kabuliyat in form FI in terms of the requirements mentioned in the allotment letter. The said Kabuliyat which is in the nature of an undertaking would be referred to in the instant judgment a bit later. In so far as the categorization of lands into Class I and Class ­ II is concerned, the same finds place in Section 29 of the Maharashtra Land Revenue Code. The said Section also sets out the attendant attributes of the lands belonging to each of the aforesaid categories. The said Section 29 is reproduced herein under for the sake of ready reference : "Section 29: Classes of persons holding land. (1) There shall be under this Code the following classes of persons holding land from the State, that is to say (a) Occupants ­ Class I (b) Occupants ­ Class II (c) Government lessees. (2) Occupants Class I shall consist of persons who ­ (a) hold unalienated land in perpetuity and without any restrictions on the right to transfer; (b) immediately before the commencement of this Code hold land in full occupancy or Bhumiswami rights without any restrictions on the right to transfer in accordance with the provisions of any law relating to land revenue in force in any part of the State immediately before such commencement; and (c) notwithstanding any notification or order issued under Section 150 of the Madhya Pradesh Land Revenue Code, 1954, are holders of land in Bhumidhari rights in any local area in Vidarbha and are permitted hereafter, subject to the rules made by the State Government in this behalf, on payment of a premium (not exceeding three times the assessment payable in respect of such land) to be included in occupants Class I. (3) Occupants Class II shall consist of persons who, (a) hold unalienated land in perpetuity subject to restrictions on the right to transfer; (b) immediately before the commencement of this Code hold (I) land in Vidarbha in Bhumiswami rights with restrictions on the right to transfer or in Bhumidhari rights under the Madhya Pradesh Land Revenue Code, 1954; and (ii) elsewhere hold land in occupancy rights with restrictions on the right to transfer under any other law relating to land revenue; and (c) before the commencement of this Code have been granted rights in unalienated land under leases which entitle them to hold the land in perpetuity, or for a period not less than fifty years with option to renew on fixed rent, under any law relating to land revenue and in fore before the commencement of this Code; and all provisions of this Code relating to the rights, liabilities and responsibilities of Occupants Class II shall apply to them as if they were OccupantsClass II under this Code." Hence a reading of the aforesaid provision indicates that in so far as Class II land is concerned, it is subject to restrictions on the right to transfer.;


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