TMI Blog2011 (7) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... pment Corporation (for short 'MIDC') for construction of its factory. The Appellant commenced construction of its plant in or about the year 1997 and on completion, commenced actual use for industrial purpose, in the year 1999. 2. The Appellant was served with a demand notice dated 26.2.2002 by the Gar Kamgar Talathi, Chikhali, demanding payment of ₹ 45,25,538/- as non-agricultural cess and additional non-agriculture cess, for the period 1995-96 to 2001-02. As the said payment was not made, default notices dated 1.3.2002 and 5.3.2002 were issued under Section 174 of the Maharasthra Land Revenue Code, 1966 ('Code' for short) informing that if the amount demanded was not paid within seven days, the amount due will be recovered with 25% of the amount due as penalty. At that stage the Appellant filed a writ petition before the Bombay High Court for quashing the demand notice 26.2.2002, 1.3.2002 and 5.3.2002. The Appellant contended that it was a government lessee . Alternatively, it was contended that it was the tenant of the Development Authority. It was submitted that neither a government lessee nor a tenant of the Development Authority was liable to pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted below: (19) - land revenue means all sums and payments, in money received or legally claimable by or on behalf of the State Government from any person on account of any land or interest in or right exercisable over land held by or vested in him, under whatever designation such sum may be payable and any cess or rate authorised by the State Government under the provisions of any law for the time being in force; and includes premium, rent, lease money, quit rent, judi payable by a inamdar or any other payment provided under any Act, rule, contract or deed on account of any land; (23) - occupant means a holder in actual possession of unalienated land, other than a tenant or Government lessee; provided that, where a holder in actual possession is a tenant, the land holder or the superior landlord, as the case may be, shall be deemed to be the occupant; The expressions to hold land or to be a land holder or holder of land is defined in Section 2(12) and mean to be lawfully in possession of land, whether such possession is actual or not. The term tenant and government lessee referred in the definition of occupant are defined in Section 2(40) and Section 2( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily liable, and shall be entitled to credit, for the amount recovered from him, in account with the person who is primarily liable. 5. It is not in dispute that the land in question is unalienated land and that in regard to such land, only the 'occupant' as defined in the Code is primarily liable to pay the non-agricultural assessment to the state government. Section 2(23) makes it clear that where the land is in the actual possession of a tenant, the superior landlord or the land holder is deemed to be the occupant. It is also not in dispute that the Development Authority is the 'occupant' and the Appellant is not the occupant, but only a tenant under the occupant. Re: Question (i) 6. There is no dispute that a government lessee is not liable to pay any land revenue. Section 2(11) read with Section 38 defines a 'government lessee' as a lessee under a lease granted by a Collector in regard to unalienated unoccupied land belonging to the government. In this case the lands in question for which the non-agricultural assessment has been demanded, were not leased by the Collector to the Appellant. The lease deed states that the lands leased were held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the relevant statutory provisions and the terms of lease and not with reference to position prevailing with reference to some other lease taken by the Appellant from MIDC. The status, objects, functions and area of operation of MIDC and the Development Authority are different. Any decision or clarification issued in regard to lands held by MIDC or lands leased by MIDC will not apply to lands held or leased by the Development Authority. As noticed above, the circular dated 29.3.1975 relied upon by the Appellant is not relevant as it applies only to lessees of MIDC, which as agent of the state government granted certain leases and consequently such lessees as government lessees were exempted from paying the non-agricultural assessment. The said notification did not refer to Pimpri-Chinchwad New Town Development Authority as the agent of the state government in regard to grant of leases to Appellant and others. In fact there is no document which shows the state government to be the owner of the lands leased by the Development Authority, nor any document to show that the state government had either constituted or recognized the Development Authority as its agent in regard to l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es incidental thereto. Section 116 empowers Development Authorities to acquire lands. Section 118 deals with disposal of lands by Development Authorities and Sub-section (1) thereof which is relevant is extracted below: 118.(1) Subject to any directions given by the State Government under this Development Act, a Development Authority may dispose of any land acquired by it or vesting in it to such persons, in such manner, and subject to such terms or conditions as they consider expedient for securing the development of the new town in accordance with proposals approved by the State Government under this Act: Provided that, a Development Authority shall not have power, except with the consent of the State Government, to sell any land or to grant a lease of any land for a term of more than ninety-nine years, and the State Government shall not consent to any such disposal of land unless it is satisfied that there are exceptional circumstances which render the disposal of the land in that manner expedient. 10. It is evident from Section 113, 114 and 118 of MRTP Act that the Development Authority is a body corporate which can acquire, hold, manage and dispose of land. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Development Authority to Appellant is a government land. The contention of Appellant that the Development Authority is the agent of state government and that the Appellant is a government lessee are therefore rejected. Re: Question (ii) 11. The Appellant next contends that even if it is not a government lessee, being a lessee of the 'occupant', it is not liable to pay the land revenue. There is no dispute that Section 39 of the Land Revenue Code, fastens liability to pay land revenue upon the occupant and not on the tenant of the occupant. Section 168(1)(a) of the Code also reiterates that in the case of unalienated land, the occupant shall be primarily liable to the state government for making the payment of land revenue including all arrears. Sub-section (2) of Section 168 provides that in case of default of the person primarily liable, the land revenue shall be recoverable from any person in possession of the land. It is therefore contended by the Appellant that the state government can make the demand for any land revenue only upon the occupant, that is, the Development Authority in this case, which is primarily liable. It is submitted that only if it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad New Town. Regulation 5 relates to disposal of land by lease. It provides that the Development Authority may from time to time dispose of plots of land on lease, to the persons eligible, in consideration of a premium and an annual ground rent. Part IV of the Regulation contains the conditions of lease. Regulations 10(iv) and 10(v) relating to the question of payment of rates and taxes and land revenue and cesses are extracted below: (iv) The lessee shall during the continuance of the lease, pay all the rates, taxes, fees and other charges due and becoming due in respect of demised land by the Development Authority or lessee thereof. (v) The lessee shall during the continuance of the lease pay the land revenue cesses assessed or which may be assessed on the demised land. Regulation 16 provides that in the event of conflict between the Regulations and provisions of a lease deed entered into by the Development Authority, the provisions of the Regulations will prevail. There is however no conflict between the Regulations and the terms of the lease. Clause 2(c) of the lease deed dated 3.1.1995 between the Development Authority as lessor and Appellant as lessee, reiterates the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Town Development Authority (Disposal of land Regulations), 1973, the position of the lessee would be similar to a tenant referred to in Sub-Section 1(c) of Section 168 of the Code which provides that in the case of the land in possession of a tenant, such tenant if he is liable to pay land revenue therefor under the relevant tenancy laws, shall be primarily liable to the state government for the payment of land revenue, including all arrears. The liability of the Appellant as tenant, to pay the land revenue, though not under a 'tenancy law' in its strict sense, but is nevertheless under a statutory regulation governing the tenancy and therefore the demand by the state government directly against the Appellant, can be justified by the principle underlying Section 168(1)(c). In the view we have taken, it is not necessary to consider the further submission that the term 'tenancy laws' used in Section 168(1)(c) should be understood in a broad sense, and if so interpreted, would include any law regulating or governing tenancies, and as the Regulations govern tenancies by the Development Authority, the Regulations will fall within the term 'tenancy laws' and con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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