A.M. Khanwilkar, J.
1. Rule. This matter was heard forthwith for final disposal by consent of both the sides on 17th September 2003, having regard to the fact that short question is involved.
2. This writ petition under Article 227 of the Constitution of India takes exception to the judgment and order passed by the Principal Secretary, Revenue & Forests Department, Government of Maharashtra, dated 21st April 2003, holding that the Petitioner is liable to pay non-agricultural assessment in respect of lands situated at Villages Ojhar, Konkangaon and Sakore, taluka Niphad, district Nasik. It is common ground that the said lands were acquired by the State Government and the acquisition proceedings concluded some time in 1968. As the lands thereafter vested in the State Government, the same were made over to the President of India for establishing MIG factory and related purposes by a registered document dated 19th November 1971. It is also not in dispute that the President of India thereafter allowed the Petitioner to occupy the subject lands for constructing MIG factory and that the Petitioner is in possession of those lands since then. An indenture was executed between the Petitioner and the President of India on 22nd June 1978, whereby the parties agreed for transfer of the subject lands to the Petitioner. However, this purported transfer deed has not been registered. It appears that the Accountant General, Maharashtra-II, Nagpur, raised an audit objection regarding non-charging of non-agricultural assessment in respect of the subject lands, which were in possession of the Petitioner Company. In view of the said objection, taken some time in 1993, correspondence ensued between the officers of the Government of Maharashtra and the Petitioner Company, including the Ministry of Defence, Government of India. According to the stand taken by the officers of the State of Maharashtra, the lands' were amenable to non-agricultural assessment, as the Petitioner was a separate entity and occupant in respect of the subject lands. Besides, they proceeded on the premise that the subject lands have been transferred in favour of the Petitioner and the Union of India had no concern with the same. On the other hand, the Petitioner Company asserted that the lands continued to belong to the Union of India. Besides, the Petitioner Company was 100 per cent. owned and controlled by the Union of India, for which reason also the Petitioner Company was exempted from paying non-agricultural assessment in respect of the subject lands. The stand taken on behalf of the Petitioner Company was not acceptable to the officers of the State Government. In the circumstances, demand notice in Form - I was issued to the Petitioner by Respondent No. 4 on 5th July 2001, demanding sum of Rs. 10,98,11,575/-, being the non-agricultural assessment in respect of the subject lands. That demand notice was followed by another demand notice dated 23rd August 2001. Once again, the Secretary to the Government of India, Ministry of Defence took up the matter with the Chief Secretary of the State of Maharashtra contending that the subject lands belonged to the Union of India and were exempted under Article 285(1) of the Constitution of India from payment of non-agricultural assessment. It is the Petitioner's case that the said representation was pending with the higher authority and, yet, the officers of the State Government persisted with the demand against the Petitioner Company. In this backdrop, the Petitioner filed Writ Petition before this Court, being Writ Petition No. 6209 of 2001. That writ petition came to be disposed of by order dated 16th January 2002, directing the Respondent No. 2 to decide the representation dated 27th August 2001 made by the Secretary to Government of India, Department of Defence, preferably within three months from the date of receipt of the order of this Court. Thereafter, Civil Application No. 247 of 2002 was filed by the Petitioner for further relief in the above numbered disposed of writ petition. That Civil Application was disposed of on 6th February 2002 by directing the Respondent No. 2 to consider the representation dated 27th August 2001, as well as dated 31st January 2002. When the proceedings were pending before Respondent No. 2 in terms of directions passed by this Court, the Petitioner Company deposited 25 per cent. of the demanded amount, i.e. Rs. 2,74,52,894/- with Respondent No. 4. The proceedings before Respondent No. 2 were kept for hearing on 27th March 2002 when the representative of the Petitioner as well as the officers of the State of Maharashtra participated; whereafter Respondent No. 2, by his judgment and order dated 1st June 2002, affirmed the opinion and conclusion recorded by the revenue officers that the Petitioner Company was obliged to pay non-agricultural assessment in respect of the subject lands. On the basis of the decision of the Respondent No. 2, the revenue officers once again demanded the amount from the Petitioner Company, which was outstanding. The Petitioner Company, in turn, questioned the correctness of the decision of the Respondent No. 2 and the demand regarding non-agricultural assessments to be paid by the Petitioner Company in respect of the subject lands, by way of Writ Petition No. 4006 of 2002. That writ petition was allowed by judgment and order dated 4th October 2002, and the matter was remanded to the Respondent No. 2 to consider the same afresh in accordance with law, keeping all the questions open. Once again, after remand, Respondent No. 2 has finally decided the matter by judgment and order, which is impugned in this writ petition, thereby affirming the demand set up against the Petitioner Company for payment of non-agricultural assessment in respect of the subject lands. It is relevant to note that the assessment order has excluded certain portion of the lands, which have been utilised by the Petitioner Company for public purpose and that aspect is not subject matter of challenge in this petition.
3. Mr. Tulzapurkar, for the Petitioner, contends that the impugned judgment has answered the issue against the Petitioner Company on the following reasons :
(i) By an agreement dated 22nd June 1978, the Government of India has transferred the said property to the Petitioner. The said document is not required to be registered under Section 17 of the Registration Act, inasmuch as the notional value of the property was shown in the said document as Re. 1/-.
(ii) The Petitioner had transferred certain lands to Defence Research and Development Organisation on 10th October 1981, admeasuring 2328 sq. yds. and that, therefore, the Petitioner was the owner of the property.
(iii) The Petitioner is a separate legal entity and that it is a commercial organisation and, therefore, exemption available to the Central Government under Article 285(1) of the Constitution of India cannot be claimed by the Petitioner.
(iv) The Accountant General, Maharashtra - II, Nagpur had raised an audit objection stating that the Petitioner was a public sector company and, therefore, it was liable to pay non-agricultural assessment; and that, it was not exempted under Section 117 of Maharashtra Land Revenue Code.
(v) The VII x XII extracts show that the name of the Petitioner has been entered into the occupant's column and, that, therefore, the right, title and interest vested in the Petitioner and not in the Central Government; and that, even if the Petitioner is to be treated as an occupant under Section 168(1) of the Land Revenue Code, the revenue charges can be recovered from the occupant. Since the Petitioner is an occupant, it is liable to pay non-agricultural assessment.
4. Mr. Tulzapurkar contends that each of the aforesaid reasons is untenable. According to him, the principal basis on which the Respondent No. 2 has proceeded to address the point in issue is that the title in respect of the subject lands has vested in the Petitioner Company on account of Indenture dated 22nd June 1978. The learned Counsel submits that Respondent No. 2 has clearly misdirected himself in deciding the issue by relying on this document, because the said document is admittedly an unregistered document and if that is so, it will have no legal effect; more so, title of the subject lands will and is not passed on to the Petitioner Company in law. He submits that notwithstanding existence of the said document, the title of the subject lands remains with the Union of India; and if that is so, on account of Article 285(1) of the Constitution of India, no non-agricultural assessment can be levied in respect of such lands. The learned Counsel submits that the Respondent No. 2 has clearly overlooked the settled legal position that Section 54 of the Transfer of Property Act postulates only two ways of transfer of tangible immovable property, such as in the present case. He submits that even transfer of any tangible movable property of value of less than Rs. 166/- can be effected only in two ways; (a) by a registered document; and (b) by delivery of possession of the property. To buttress this submission, reliance has been placed on I.L.R(1892) .21 623 (Full Bench) Makhan Lal v. Bunku Behari Ghose and Anr., at page 626. He further submits that mere delivery of unregistered document cannot operate as delivery of, property; there must be a real delivery of property in pursuance of a sale deed and mere constructive possession is not sufficient. Reliance has been placed on the decisions reported in 1912 15 IC 228, Konnormal Oswal and Anr. v. Nabin Chandra Das; A.I.R. 1921 P.C. 8, Mathura Prashad and Ors. v. Chandra Narayan Chowdhury and others; A.I.R. 1934 Nagr 13 , Nathu v. Gulabchand; A.I.R. (36) 1943 Bom 431, Tribhovan Hargovan v. Shankar Desai; and A.I.R. 1953 Bom 437 (Full Bench) para 4, Bhikhabhai Nanabhai Patel v. Chimanlal Maganlal Shah and Ors.. He further submits that the unregistered document cannot be used to establish the title, but can be used only for collateral purpose and collateral purpose mentioned in Section 49 of the Registration Act, 1908, means the purpose, which excludes all references to the contract relating to the immovable property. Reliance is placed on A.I.R. 1932 Lah 655, Bahawal v. Amrik Singh. The learned Counsel submits that as the Petitioner was always in possession of the property, the possibility of argument of oral sale in favour of the Petitioner, in such a situation, is impermissible. Reliance is placed on (1907) 34 Cal 207, Sibendrapada Banerjee v. Secretary of State for India in Council. He further submits that it is imperative to establish the change of character of possession of the transferee when the transferee was already in possession and that can be shown if the vendor converted by appropriate declaration or acts the previous possession of the vendee, which is lacking in this case. He further submits that, in such a case, even that argument is unavailable. Reliance is placed on : AIR1933Cal411 , Kulachandra v. Jogendra; and (1945) 49 C.W.N. 649, Birendra Kishore Roy v. Naruzzaman Peada. He, therefore, submits that the Respondent No. 2 has obviously ignored the above principles, for which reason the conclusion reached that the Indenture dated 22nd June, 1978, resulted in transfer of title in favour of the Petitioner Company being in the nature of sale is untenable; and if that finding and conclusion was to be effaced, then the entire decision would fall to the ground.
5. According to Mr. Tulzapurkar, there is no valid transfer of title in favour of the Petitioner Company; whereas the Petitioner Company is only occupying the subject lands for and on behalf of the Union of India and is engaged in the production of MIG aircrafts and related matters; and for which reason, by virtue of Article 285 of the Constitution of India, the lands are clearly excluded from the levy of nonagricultural assessment.
6. Insofar as the second reason, which weighed with the Respondent No. 2, the learned Counsel contends that this finding clearly disregards that the land, which has been transferred to the Defence Research and Development Organisation was not belonging to the Petitioner Company, but has been transferred by the Union of India and, in any case, that was not the subject matter in issue in the present proceedings.
7. Insofar as the second ground is concerned, it is necessary to mention at this stage that the learned Advocate-General, appearing for the State of Maharashtra, fairly accepted that the said reason cannot be supported. In that backdrop, it will not be necessary for me to elaborate insofar as this reason is concerned.
8. Insofar as the third reason, which weighed with the Respondent No. 2, is concerned; Mr. Tulzapurkar contends that, no doubt, the Petitioner Company has been registered under the provisions of the Companies Act; even then it is the instrumentality of the Union of India; as it is fully owned and controlled by the Union of India. He submits that the fact remains that the subject lands continue to be owned by the Union of India and, if that is so, mere possession of the Petitioner Company of the subject lands cannot be the basis for demanding non-agricultural assessment.
9. On the same argument, Mr. Tulzapurkar has criticised the fourth reason, which has weighed with the Respondent No. 2; and submits that merely because the Accountant General has raised objection, that by itself cannot be the basis to levy non-agricultural assessment in respect of the subject lands, unless it is further shown that the land is now owned and the title has passed on to the Petitioner Company.
10. With regard to the fifth reason, Mr. Tulzapurkar contends that mere mentioning of the name of the Petitioner Company in the VII x XII extracts as occupants does not create any right, title and interest in the Petitioner Company, nor it would affect the right, title and interest of the Union of India in respect of the subject lands in any manner and if the lands continue to be owned by the Union of India, even if the Petitioner Company is occupant, that cannot be the basis to demand non-agricultural assessment as that demand is qua the lands and not the person in possession. In such a case, Section 168 of the Maharashtra Land Revenue Code can be of no avail for demanding non-agricultural assessment from the Petitioner Company.
11. On the other hand, the learned Advocate-General for the State of Maharashtra contends that the Indenture dated 22nd June 1978 executed between the petitioner and for and on behalf of the President of India clearly creates title, right and interest in the Petitioner Company as that is in the nature of 'grant'. He submits that if that document is to be construed as grant, the the argument canvassed on behalf of the Petitioner that there has been no sale would of no consequence and, in that eventuality, the argument regarding application of Section 54 of the Transfer of Property Act would be unavailable. He submits that every sale is a transfer, but every transfer is not a sale. According to him, grant given by the Union of India in favour of the Petitioner Company, nonetheless, would result in 'transfer' as is the wide meaning of expression 'transfer' postulated by the provisions of Section 5 of the Transfer of Property Act. He has also relied on the decisions reported in A.I.R. 1937 Ran 47, Ma Kyin Hone and Ors. v. One Boon Hock and Ors.; and : AIR1967Pat191 Murli Prasad v. Parasnath Prasad and Ors. to buttress this contention. According to him, if the transaction is one in the nature of grant, even then it would be a transfer in favour of the Petitioner Company; and if that is so, the land would cease to be belonging to or owned by the Union of India, for which reason the Petitioner Company would be amenable to non-agricultural assessment in respect of the land owned and possessed by them. The learned Advocate-General further contends that if the document in question is construed as a grant, then the provisions of Section 17 of the Registration Act of compulsory registration of such a document would be inapplicable by virtue of the excepted category provided in Sub-section (2) thereof. Clause 7 of Sub-section (2) of Section 17 of the Registration Act clearly excludes registration of document, which is 'grant' of immovable property by the Government and, therefore, non-registration of that document would make no difference, but the title has immediately passed on to the Petitioner Company on execution of that document. He further submits that the said document has been executed for and on behalf of the President of India and being a formal document and expression of the intent of the Union of India, the approach of this Court should be to uphold that transaction and not to denude its efficacy, so as to accept the argument that there was no transfer in favour of the Petitioner Company as pressed into service by the Petitioner. The learned Advocate-General, therefore, submits that neither Section 34 of the Transfer of Property Act, which relates to sale, nor Section 17 of the Registration Act, which relates to requirement of registration of specified documents, have any bearing on the point in issue. He submits that the document was, in fact, executed with purpose of perfection of title of the Petitioner Company and if the argument as canvassed by him were to be accepted, the Petitioner Company was obviously liable to pay non-agricultural assessment in respect of the lands which were admittedly possessed by them. He has also relied on the decision of the Apex Court reported in : AIR1999SC1734 Electronics Corporation .of India Ltd. v. Secretary Revenue Dept. Govt. of A.P. to contend that since the Petitioner Company is in possession of the subject lands and their status is referable to the Indenture dated 22nd June 1978, the Petitioner Company is obliged to pay the non-agricultural assessment in respect of the subject lands. The learned Advocate-General, alternatively, contends that assuming that Section 54 of the Transfer of Property Act has no application to the case on hand; however, the Registration Act would override the provisions of the Transfer of Property Act, it being a subsequent Legislation. And having regard to the purpose of the provisions of the Registration Act, no fault can be found with the conclusion reached by Respondent No. 2 that the Petitioner Company was obliged to pay the amount towards non-agricultural assessment in respect of the subject lands. The learned Advocate-General has also supported the conclusion reached by the Respondent No. 2 that the Petitioner Company, being described as occupant in the VII x XII extracts, was obliged to pay the non-agricultural assessment in respect of the subject lands, having regard to the plenitude of Section 168(1) of the Maharashtra Land Revenue Code. The learned Advocate-General has relied also on the decision of the Supreme Court reported in : AIR1999SC2552 Board of Trustees for the Vishakhapatnam Port Trust, etc. v. State of Andhra Pradesh and Ors. in support of his submission that the liability of the Petitioner Company to pay the non-agricultural assessment in respect of the subject lands is not extricated.
12. Besides the learned Advocate-General, Mr. Apte has appeared on behalf of the Union of India, Respondent No. 5. He has placed reliance on the Indenture executed on 19th November 1971, whereby the State Government transferred the subject lands in favour of the Union of India and since then the lands have vested in the Union of India. He has also placed reliance on letter dated 9th November 2001 issued by the Director, Government of India, which clearly asserts that the land still belongs to the Union of India. According to him, the subject lands have been made over to the Petitioner Company under the Indenture dated 22nd June 1978 for the purpose of carrying on the activity, for which reason the lands have been acquired. He submits that from the documents on record, it was amply clear that the lands still continue to be owned and vested in the Union of India. He has adopted the arguments advanced by Mr. Tulzapurkar, appearing for the Petitioner Company, and submits that there is no question of levying non-agricultural assessment in respect of the lands, which were belonging to the Union of India, in view of Article 285 of the Constitution of India.
13. Having perused the relevant records with the assistance of the learned Counsel appearing for the parties, and considering the rival submissions, I have no hesitation in observing that the Respondent No. 2 has not only misdirected himself in deciding the matter against the Petitioner Company, but has failed to consider the relevant documents, for which purpose the matter was remanded for fresh enquiry to him by this Court on the earlier occasion. Be that as it may, the principal question in this case is whether the lands are owned by the Union of India or stood transferred in favour of the Petitioner Company and have ceased to be the property of the Union. The Respondent No. 2 has answered this question essentially by placing reliance on the Indenture dated 22nd June 1978. According to him, by this Indenture, the lands stood transferred in favour of the Petitioner Company and have ceased to be property of the Union. Respondent No. 2 has positively found that the said transaction was in the nature of 'sale' in favour of the Petitioner Company. This reasoning clearly overlooks the settled legal position. As rightly contended by Mr. Tulzpurkar, sale has been defined in Section 54 of the Transfer of Property Act, 1882. Section 54 reads thus :
'54. 'Sale' defined.---
'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.---
Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.---
A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.'
14. In the present case, the Respondent No. 2 has proceeded on the premise that the document in question mentioned the consideration as Re. 1/- and, therefore, the value being leas than Rs. 100/-, registration of such a document was not necessary. This reasoning obviously overlooks the settled legal position, which flows from the second part of Section 54 of the Transfer of Property Act, which provides that in case of tangible immoveable property, as in the present case, of a value of less than Rs. 166/-, such transfer may be made either by a registered instrument or by delivery of the property. Accordingly, there are only two ways of transfer of tangible immoveable property even if the value is less than Rs. 100/-; firstly, by a registered document; and secondly, by delivery of possession of the property. Indeed, Respondent No. 2 has only addressed itself to the aspect of registration of the document and not founded its decision by holding that the transfer was by delivery of possession of the property in favour of the Petitioner Company. Mr. Tulzapurkar has rightly contended that assuming that Respondent No. 2 was to proceed on that basis, even then mere execution of unregistered document cannot operate as delivery of property, for there must be real delivery of the property in pursuance of such agreement and mere constructive possession is not sufficient. The above legal position has been enunciated in the decisions reported in I.L.R.(1892) 21 Cal 623; 1912 15 IC 228; A.I.R. 1921 P.C. 8 ; A.I.R. (30) 1943 Bom 431; and A.I.R. 1953 Bom 437. Mr. Tulzapurkar has rightly contended that it was imperative for the Respondents to establish that there has been change of character of possession of the Petitioner upon execution of the Indenture in question. That is so because the Petitioner was already in possession when the said document came to be executed. However, neither Respondent No. 2 has found, nor it is canvassed on behalf of the State of Maharashtra, that there is anything to show that the Union of India converted by appropriate declaration or acts the previous possession of the Petitioner. If that is lacking, then obviously, merely because the Petitioner was already in possession when the Indenture in question came to be executed cannot be the basis to conclude that there has been transfer of the property in favour of the Petitioner by delivery of possession, as such. Reference can be usefully made to the decisions reported in : AIR1933Cal411 ; and (1945) 49 C.W.N. 649. Viewed in this perspective, it is not possible to sustain the conclusion reached by the Respondent No. 2 that the Indenture dated 22nd June 1978 results in 'sale' in favour of the Petitioner Company. It is perhaps because of this legal position, the learned Advocate-General made an attempt to persuade this Court that the document in question was in the nature of 'grant' and not a 'sale', so as to extricate from the rigours of Section 54 of the Transfer of Property Act. It was his submission that on reading the document as a whole, it was possible to take the view that it was in the nature of 'grant' made in favour of the Petitioner Company and if that contention was to be accepted, even that would amount to transfer in favour of the Petitioner Company, so as to make the Petitioner Company liable to pay non-agricultural assessment, being a separate entity, and the status of the land was no more property of the Union. However, Mr. Tulzapurkar has rightly contended before this Court that, the argument that the document in question is in the nature of 'grant' was never put in issue before the authorities below; more so, no such plea has been specifically taken in the counter affidavit as filed before this Court either in the earlier two writ petitions or, for that matter, in the present writ petition. He has rightly contended that whether the transaction is 'grant' or 'sale' is a question of fact, which ought to have been specifically taken at least in the reply filed before this Court and, having failed to do so, cannot be permitted to be raised for the first time, that too across the Bar during the final arguments of the case. He rightly submits that the Petitioners are, in fact, taken by surprise by this argument. There is force in the argument of Mr. Tulzapurkar that in the event the Respondents were to take that contention specifically, several aspects would have been required to be examined to find out whether the transaction can be styled as 'grant' as contended on behalf of the Respondents. Reliance can be usefully placed on the decision of Allahabad High Court reported in I.L.R.(1914)35 176, to buttress the above proposition that whether the transaction is 'grant' or otherwise would depend on several factors that will have to be gone into in such an enquiry. In the circumstances, in my considered view, it is not open for this Court to permit the Respondents (State of Maharashtra) for the first time, to contend before this Court that the Indenture in question dated 22nd June 1978 is a 'grant' and, therefore, no registration of that document was necessary in view of the provisions of Section 17(2) of the Registration Act, and that on execution of the said document, with immediate affect, the transfer has bean affected in favour of the Petitioner Company and the property is no longer property of the Union.
15. That brings ma to the decision on which reliance was placed by the learned Advocate-General in the case of Electronics Corporation of India Ltd. (supra). On careful examination of this case, to my mind, the same will have no application to the fact situation of the present case. Inasmuch as in that case, it has been noted by the Apex Court that the definition of 'owner' as contained in the Andhra Pradesh Non-Agricultural Assessment Act, 1963, was expanded, so as to include even the lessee in respect of the land owned by the State Government. It is in that background, the Apex Court has examined the matter and observed that having regard to the amended provisions of that Act, even the lessee of the land owned by the State Government or the Central Government was liable to pay non-agricultural lands assessment. In other words, on account of legal fiction, even the transaction of lease has been held by the Apex Court to be one creating right, title and interest in respect of the land owned by the State Government or the Central Government in favour of the lessee; and, in that context, such a person is 'owner and lessee' and liable to pay non-agricultural lands assessment, though the land originally belonged to the State Government or the Central Government. Understood thus, the said decision will have no bearing in the fact situation of the present case, for there is no parallel provision in the Maharashtra Land Revenue Code, whereby the lessee of the State Government or the Central Government can be treated to be owner or deemed to be owner, so as to become liable to pay non-agricultural assessment.
16. The other decision of the Apex Court, which has been relied upon by the learned Advocate General, is in the case of Board of Trustees for the Vishakhapatnam Port Trust (supra). Even that case will have no application to the fact situation of the prevent case. In that case, the Apex Court was dealing with the statutory provision, which clearly postulated that all property, assets and funds and all rights to levy rates vested in the Central Government or, as the case may be, any other authority for the purposes of the port immediately before the appointed date, shall vest in the Board. In other words, on account of this statutory provision, the property vested in the Board, though it was originally owned by the Union. Once again, on account of this deeming provision, the Apex Court has examined the said matter to hold that the Board was not entitled to claim exemption on account of Article 285 of the Constitution of India. No such statutory provision has been brought to my notice in the present case.
17. As the learned Advocate-General has cited two other decisions, I would think it appropriate to deal with those decisions. He has relied on the decision reported in the case of Ma Kyin Hone and others (supra) and Murli Prasad (supra). In both these decisions, it has been held that the expression 'transfer' is very wide and would include every transaction whereby the party divests himself or is divested himself of portion of interest, that portion subsequently vesting or being vested in another party. There can be no difficulty in accepting this proposition, because even Section 5 of the Transfer of Property Act, which defines 'transfer of property' makes similar provision. The question, however, in the present case is: whether there has been such transfer by such an action, so as to result in land, ceasing to be property of the Union? I have already elaborated with regard to that in the earlier portion and, in my considered view, it is not possible to hold that by virtue of Indenture, dated 22nd June 1978, or for any other reason, the Union of India has ceased to be owner of the subject lands.
18. Serious grievance was made on behalf of the State Government that neither the Petitioner nor the Union of India was disclosing the status of the Petitioner Company for possessing the subject lands. Even this submission overlooks the correspondence, which has ensued between the authorities from time to time. At every stage, the Petitioner Company, as well as the Union of India, have consistently taken the position that the ownership of the land was still with the Government of India and the lands have been transferred to the Petitioner Company for the purpose of MIG aircraft factory. This is the consistent stand taken on behalf of the Petitioner as well as the Union of India as can be discerned from the various correspondence on record. In the previous writ petition, No. 6209 of 2001, the Petitioner Company, in paragraph 19 of the said petition, has asserted that the lands were held by the Union of India and that the Petitioner was merely an 'agent' of the Union of India and the Petitioner is engaged in manufacture of the defence needs of the country.
19. Taking overall view of the matter, it is not possible to describe the status of the Petitioner either as 'owner' by virtue of purported sale or as a 'grantee', as contended by the other side. Even if the Petitioner was to be held as lessee, because it has been described in the VII x XII extract as occupant, as observed by the Respondent No. 2, even then it would make no difference, because, as already observed above, there is no express provision in the Maharashtra Land Revenue Code, whereby the lessee of the land owned by the State Government or the Central Government can be treated as owner thereof, as was in the case of Electronic Corporation of India (supra). A priori, we will have to accept the stand of the Petitioner Company that the land is still owned by the Union of India and is the property of the Union and the Petitioner Company is only using the land, which, for the stated purpose, is assigned to them. In such a situation, the character of the land, being the property of the Union, remains unaltered; and if that is so, by virtue of Article 285 of the Constitution of India, it is not amenable to levy non-agricultural assessment.
20. On the above reasonings, it is not necessary for me to elaborate on the other two reasons indicated by the Respondent No. 2, for neither the fact that the Petitioner is shown as occupant, nor the audit objection raised by the Accountant General, Maharashtra-II, Nagpur, would be of any consequences. In my view, since the land is the property of the Union, by virtue of Article 285 of the Constitution of India, it is not amenable to Levy of non-agricultural assessment.
21. In the circumstances, this writ petition succeeds. The impugned judgment and order, as well as the coercive orders passed by the authorities below are set aside. As mentioned earlier, in terms of directions given by this Court in Writ Petition No. 6209 of 2001, the Petitioner Company has already deposited sum of Rs. 2,74,52,895/- with the Respondent No. 4. For the view that I have taken, it will be necessary for the Respondents, State of Maharashtra and its officers, to take appropriate steps for refund of the 'said amount to the Petitioner Company. That be done in any case not later than 8 weeks from today.
22. Rule made absolute accordingly. No order as to costs.
A. M. KHANWILKAR, J.
17th October 2003
23. Today, Mr. Sonwane, A.G.P., mentioned the matter and prayed for extension of time, 8 is weeks' further time from today as prayed for granted. Counsel for the petitioner is present.
24. All concerned to act on the ordinary copy of this judgment duly authenticated by the Court Stenographer.