JUDGMENT
A.M. Khanwilkar, J.
1. Heard counsel appearing for the parties. There is chequered history which has led to the filing of this petition. However, suffice it to observe that the Additional Collector had sent a communication dated 23rd March, 1981 to the petitioners purported to be an order of eviction. That was challenged before this Court by way of Writ Petition No. 1975 of 1985. That Writ Petition was allowed on 31st July, 1991. This Court directed the Collector to re-examine the matter by treating the said communication dated March 23, 1981 as show cause notice and pass necessary orders after affording fair opportunity to the petitioners. Consequent thereto, the Collector proceeded with the inquiry against the petitioners and passed order on 26th April, 1993 terminating the lease of the petitioners. That order was, however, challenged by the petitioners before the Additional Commissioner which appeal was allowed on 30th March, 1994 by setting aside the order passed by the Collector. After this order further show cause notice was received by the petitioners sometime in September 1997 indicating that the State Government was inclined to suo motu reconsider the order passed by the Additional Commissioner. The petitioners were informed that the said proceedings were stated to be heard immediately at a short notice of five days. In the circumstances, the petitioners in turn requested the State Government to defer the hearing because the notice was too short to respond thereto. The petitioners apprehended that the State Government would proceed ex parte against the petitioners for which reason the present petition came to be filed. When this writ petition was pending and was taken up for admission, statement was made on behalf of the State Government that the order under Section 257 of the Maharashtra Land Revenue Code has already been passed by the Minister (Revenue) on 18th May, 1998. In the circumstances, the petitioners with the liberty granted by this Court amended the writ petition so as to challenge the order passed by the Minister dated 18th May, 1998. When this writ petition was pending, another show cause notice came to be issued by the Collector on 19th March, 2002 calling upon the petitioners to show cause why the lease granted in their favour should not be cancelled on the ground that the petitioners had contravened the conditions of lease by mortgaging the government property for a loan to a bank. In the circumstances, the petitioners obtained leave of this Court to challenge even the fresh notice issued by the Collector dated 19th March, 2002. Accordingly, the petition has been amended and even that show cause notice is the subject matter of challenge in this petition.
2. Briefly stated the petitioners were granted reclamation lease in respect of lands admeasuring about 114 Acres, 18 Gunthas and 4 Annas situated at Village Marve, Malwani and Akse. It is not necessary to elaborate all the conditions of the said lease except to mention that the petitioners were expected to reclaim the entire land within 20 years from the date of commencement of the grant, which was 1st August, 1950 and shall maintain such reclamation during the residue of the term of 999 years of lease period and to keep the said land fit for cultivation or for agricultural purpose. The aforesaid document dated 23rd March, 1981, which is the basis on which the present proceedings have been initiated against the petitioners and directed to be treated as show cause notice by this Court, called upon the petitioners to show cause why the lease should not be determined as the petitioners had contravened the conditions of lease. That aspect was considered by the Collector in his order dated 26th April, 1994 and the Collector has recorded the finding against the petitioners that the petitioners have contravened the conditions of lease. As mentioned earlier, the petitioners carried the matter in appeal before the Additional Commissioner. The Additional Commissioner by a detailed judgment and order dated 30th March, 1994 has reversed each of the findings recorded by the Collector and found as of fact that the petitioners had not contravened any of the conditions of lease. On that basis the appeal preferred by the petitioners came to be allowed. Almost after lapse of more than three years, the State Government by invoking the powers under Section 257 of the Code, called upon the petitioners to show cause why the order passed by the Additional Commissioner should not be cancelled. The action of the State Government was based on the report submitted by the Collector to the State Government in that behalf, as is stated in the impugned order passed by the Minister, which reads thus :
“The Collector Mumbai Suburban, while submitting his proposal mentioned that the grounds which have been given by the Additional Commissioner, Konkan Division, while setting aside the order of the Collector are not consistent with the facts. The conclusion drawn by the Additional Commissioner that the land that had been in the possession of the respondent Company since the year 1950, was another land, is not consistent with the facts. As a matter of fact, the land in all admeasuring 114 Acre 8 Gunthas sanctioned to respondent Company was sanctioned from various survey numbers of Village Aksa, Malwani and Marve and the applicant company did not take any step to use the said land for agricultural purpose. When the inspection of the said land was carried out by the Office of the Collector, it was found that the respondent Company had brought the area of merely 25 Acres under the cultivation and that had used some portion from out of the rest of the lands for non-agricultural purpose.”
3. On the basis of that report show cause notice was issued to the petitioners, but as mentioned earlier only short notice of only five days was given to the petitioners. The petitioners obviously requested for sometime. But no response was received from the Minister with regard to the request for grant of time. The petitioners in the circumstances approached this Court by way of present writ petition and while this writ petition was filed the order came to be passed by the Minister (Revenue) on 18th May, 1998. On fair and careful reading of the said order the reasons which weighed with the Minister to pass the impugned order as can be deciphered are as follows :
4. Firstly, that the petitioner company did not use the lands sanctioned to them by the Government for the purpose for which it was sanctioned. Secondly, the Additional Commissioner erroneously assumed wrong date as the commencement of lease period. Thirdly, the Additional Commissioner did not consider the entire evidence and the conclusions reached by the Additional Commissioner that the Collector did not give sufficient attention to the report dated 1st June, 1951 of the Mamlatdar, Borivli was not correct and, in turn, observed that the record clearly establishes that the petitioners had violated the terms and conditions of the lease. It is then observed that the Additional Commissioner has not conducted the inquiry or hearing in proper manner, as it has been overlooked that the petitioner has used the land for non-agricultural purposes without obtaining prior permission of the Collector. On the above reasoning, the decision of the Additional Commissioner came to be set aside and the order passed by the Collector determining the lease of the petitioners came to be confirmed. I shall first deal with the first aspect of the matter.
5. Counsel for the petitioners contended that in the first place, the Minister has exceeded his jurisdiction in invoking the powers under Section 257 of the Code after lapse of more than three years from the order passed by the Additional Commissioner. It is next argued that in any case the Collector being subordinate authority to the Additional Commissioner could not have made any representation to the Minister for invoking powers under Section 257 of the Code. It is next argued that even going by the reasons recorded by the Minister as correct, the same does not warrant interference in exercise of powers under Section 257, because the scope of the said proceeding is circumscribed by the provisions itself which mandates that the subordinate authority ought to have exercised its powers illegally or improperly. Insofar as the aforesaid conclusions recorded by the Minister is concerned, it is contended that each of the said conclusions is error apparent on the face of the record. It is argued that the order as passed by the Minister cannot be sustained either on facts or in law. Learned AGP on the other hand has however, supported the order passed by the Minister dated 18th May, 1998 which is the subject matter of challenge in this Writ Petition. He submits that the conclusion reached by the Minister is supported by the material on record and for that conclusion exercise of power under Section 257 of the Code was inescapable. He submits that merely passage of time cannot be the basis to interfere with the order as passed by the Minister because the Minister has acted on the basis of the report submitted before him and thought it necessary to set aside the order passed by the Additional Commissioner for the reasons already recorded in the order.
6. Having considered the rival submissions, indeed the counsel for the petitioners may be right in contending that although Section 257 of the Code does not specify for any period during which the power ought to be exercised, but even in that case the authority is expected to invoke that power in a reasonable period. In my view, it is not necessary to examine the question as to whether in the fact situation of the present case the power has been exercised within reasonable time or not for the reasons which I will indicate a little later. I shall straightway address to the conclusions on the basis of which the Minister proceeded to reverse the decision of the Additional Commissioner. The first point that has weighed with the Minister is that the petitioner company did not use the land sanctioned to them by the Government for the purpose for which it was sanctioned and this resulted in violation of the terms and condition of the lease. This finding, it is rightly contended on behalf of the petitioners, is clearly an error apparent on the face of the record, inasmuch as, even the Collector in his order in paragraph 16 has clearly opined as under :
“I am aware that the lessee need not physically undertake the agricultural operations but he cannot neglect the obligation of maintaining the lands in the state fit for undertaking agricultural operations.”
7. The Additional Commissioner has adverted to this aspect of the matter and upon analyzing the material on the record has found that the petitioners had reclaimed the entire land within the stipulated period of 20 years from 1st August, 1950. It has also found as of fact that after the reclamation of land, the land is rendered cultivable. It has then taken, the view that there is no condition in the lease deed that the land reclaimed must be brought under cultivation but all that is required is that the land should be fully reclaimed and made fit for cultivation. Since that requirement has been complied by the petitioners it is not possible to comprehend as to how the petitioners can be said to have contravened any of the terms and conditions of lease. To my mind, the reasons as recorded by the Additional Commissioner in taking that view cannot be said to be either perverse or improper or contrary to the record. On the other hand, each of the reasons recorded in paragraph 3.5 of the judgment of the Additional Commissioner is supported by the record. Whereas, without adverting to any relevant material the Minister has made bald observation that he has formed a clear opinion that the petitioner company did not use the lands sanctioned to them by the Government for the purpose for which it was sanctioned. In that sense, the conclusion as reached by the Minister cannot be sustained; nor it was a case for exercising suo motu powers under Section 257 of the Code.
8. The next reason which has weighed with the Minister is that the Additional Commissioner has not considered the correct date of commencement of lease period. Even this reason deserves to be stated to be rejected. On the other hand on adverting to paragraph 1 as well as 3(1)(a) and 3.2. of the judgment of the Additional Commissioner, it is obvious that the Additional Commissioner has recorded finding of fact that although the lease deed has been executed in 1956, the date of commencement of lease is with effect from 1st August 1950 when the grant was made in favour of the petitioners. This view is unquestionable. Viewed in this perspective, even the second reason recorded by the Commissioner cannot be sustained at all, being an error apparent on the face of the record.
9. The next reason which has weighed with the Minister is that the Additional Commissioner has not considered the entire evidence and the conclusion reached by him that the Collector did not give sufficient attention to the report dated 1st June, 1951 of the Mamlatdar, Borivli is improper. Even this reason does not commend to me. On the other hand, on perusal of the judgment of “the Additional Commissioner, it is obvious that it has adverted to all the relevant material on the record. The view taken by the Additional Commissioner is upon analyzing the said material on record and is a possible view; for which reasons it was not open to the Minister to reverse the said conclusion merely by observing that the Additional Commissioner has not considered the entire evidence on record. The Minister has not pointed out any specific material which has been left out by the Additional Commissioner from consideration. Insofar as the report of Mamlatdar dated 1st June, 1951 is concerned, the same has been adverted to by the Additional Commissioner in paragraph 3.7 of his judgment. The Additional Commissioner has considered the efficacy of the said report and proceeded to answer the matter in issue in favour of the petitioners. As mentioned earlier, the view taken by the Additional Commissioner is a possible view and some error here or there committed by the Additional Commissioner cannot be the basis of invoking powers under Section 257 of the Code because that remedy can be invoked only in cases of apparent illegality or impropriety committed by the lower authorities. In any case, the reason recorded by the Minister is untenable for the reasons already recorded earlier.
10. The Minister has then observed that when notices were issued to the petitioners the same was done after taking inspection of the actual site and upon perusal of the said notices it is obvious that the petitioners had violated the terms and conditions of the lease. In the first place, the notices referred to are of year 1968 which were only show cause notices. Statement made in the show cause notices alone cannot be the basis of arriving at a conclusion of infringement of any of the conditions of the lease deed. On the other hand, it is seen from the record that the petitioners had contested the said notices in the year 1968 and gave satisfactory explanation for which reason presumably, no further action was taken by the concerned authority thereafter. If it is so, that cannot be made the basis for taking action against the petitioners much less at this distance of time. Assuming that we were to give benefit to the respondent of having initiated action even that would relate back only to the year 1981, when the impugned show cause notice was issued on 23rd March 1981. In that sense, no action has been taken against the petitioners since 1968 till 1981 in spite of the offending structure erected by the petitioners. In other words, it will have to be held that the concerned authorities have tolerated and regularized the offending structure. Counsel for the petitioners invited my attention to the conditions of lease to contend that there was no inhibition under the said lease deed for the petitioners to convert the land to non-agricultural use. Be that as it may, the structure referred to in notices dated 16th February, 1968 or the cause mentioned in the said notices cannot be the basis for taking action at this distance of time and at any rate even in the year 1981 when the impugned show cause notice was issued against the petitioners. In the circumstances, it was not a case for the Minister to interfere by invoking suo motu powers and especially with the well reasoned view taken by the Additional Commissioner.
11. The next reason indicated by the Minister is that the materials on record would establish that the lands have been put to non-agricultural use. In the first place, no details have been mentioned by the Minister in the order to support this conclusion. On the other hand, the finding of fact recorded by the Collector as well as by the Additional Commissioner is that the petitioners have reclaimed the entire land and made it fit for cultivation. There is nothing on the record to show that the entire land has been put to non-agricultural use. As mentioned earlier, the only material which was pressed into service with regard to conversion of land to non-agricultural use is with reference to notices issued to the petitioners by the concerned authorities in the year 1968 which indicates that only some portion of land was being used for non-agricultural structures without obtaining previous permission. On the other hand, it is the case of the petitioners that there are only four structures standing on the entire land admeasuring about 114 Acres; two structures are in the nature of farm houses (Bungalow) admeasuring about 2000 sq.ft. each and two structures are staff quarters of even smaller area and one godown. As mentioned earlier, there is nothing on record to show nor it is the case of the respondents that the entire land has been converted to non-agricultural use. Learned counsel appearing on behalf of the respondents has not invited my attention to any document on record to contend that there were several structures on the suit land. The only document that can be taken into account which is the basis of action against the petitioners is notice of 16th February, 1968 which states that some portion of land is being used for non-agricultural structures without obtaining previous permission. The fact that the said structures have been regularized has been asserted by the petitioners in their reply filed before the authorities as far back as on 27th March, 1968 and presumably because of that reply no further action was initiated against the petitioners on that basis. I have already observed that the cause which relates back to the year 1968 cannot be the basis for taking proposed action of determination of lease against the petitioners at this distance of time. Accordingly, there is no tangible material on record and in any case brought to my notice by the counsel for the respondent which would support the opinion expressed by the Minister that the land has been converted to non-agricultural use by the petitioners. Needless to observe that the erection of a farm house or small structures to house the staff, cannot mean that the entire land has been put to non-agricultural use. In fact that user is permissible user being associated with agricultural activity.
12. Taking overall view of the matter, none of the reasons recorded by the Minister were available against the petitioners nor could have been the basis for invoking powers under Section 257 of the Code. Accordingly, the impugned judgment and order passed by the Minister dated 18th May, 1998 deserves to be set aside being bad both on facts and in law.
13. That takes me to the fresh show cause notice issued to the petitioners on 19th March, 2002 (Ex.L). Ordinarily, this Court would have relegated the petitioners to contest the said show cause notice before the concerned authority who has issued the same. But on plain reading of the said show cause notice, to my mind, it is more than clear that it is a subtle attempt of the concerned authority to overreach the pending proceedings before this Court. The action of determination of lease was pending before this Court. Interestingly, a new ground is sought to be made out in this show cause notice. It is stated that the petitioners have mortgaged the Government property for a loan of Rs. 1 Crore with the Indian Bank in or about July 1988 in contravention of the condition of lease. Although, ostensibly this is the ground stated in the show cause notice, the real intention of issuing the notice is spelt out from the recital of the show cause notice which reads as under :
“Moreover you have obtained interim order from the Hon’ble High Court in W.P. No. 1029/98.”
14. Obviously, such a view or approach cannot be countenanced at all. It is not open to the authority to take action against the petitioners because the petitioners have taken recourse to remedy of writ petition before this Court on legitimate grounds. Assuming that the Collector was justified in issuing the show cause notice dated 19th March, 2002, the only reason that can be culled from the said show cause notice is that the petitioners have mortgaged the subject land to the Indian Bank. It is stated in the same notice that the mortgage was effected as back as in July 1988. All that has been mentioned is that the authority has “now acquired knowledge” about the said event. This stand taken in the show cause nonce is clearly demonstrated to be false to the knowledge of the authority. That position can be substantiated from the letter sent by the Collector dated 27th July, 1992 to the Indian Bank as well as Bank of Baroda which is Exh. N to the petition. In other words, as back as in July, 1992 the office of the Collector was fully aware about the fact that the petitioners have mortgaged the subject land to the Indian Bank. If it is so, that could not have been made the basis of taking action after lapse of over 10 years therefrom, as is being done by the show cause notice dated 19th March, 2002. It is, therefore, obvious that the proposed action under the impugned show cause notice dated 19th March, 2002 is the outcome of the challenge set up by the petitioners to the order of the Minister before this Court and which was pending consideration of this Court. What is relevant to note is that the petitioners have amended the petition and have expressly asserted that the present show cause notice is issued out of ulterior design of the authority. No reply has been filed denying the fact asserted in the amended petition. In other words, that fact has remained uncontroverted. Taking any view of the matter, even the show cause notice under consideration cannot be sustained and the same will have to be quashed and set aside for the aforesaid reasons.
15. Accordingly this petition succeeds. The order passed by the Minister (Revenue) dated 18th May, 1998 in proceedings under Section 257 of the Maharashtra Land Revenue Code is quashed and set aside and instead the order passed by the Additional Commissioner Konkan Division dared 30th March, 1994 in Appeal LND 31/93 is restored. In addition, the show cause notice issued by the Collector dated 19th March, 2002 Ex. L. is also quashed and set aside.
Rule is made absolute in the above terms with costs.
Parties be given a copy of this order duly authenticated by the Associate/Personal Assistant.