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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.2941 of 2002
1] Smt. Ruplibai wd/o Chandrabhan Rathod,
aged about 70 years, Occ.-Cultivator,
2] Kisan Chandrabhan Rathod,
aged about 49 years, Occ.-Cultivator,
3] Smt. Rukhamabai w/o Baliram Rathod,
aged about 36 years, Occ.-Cultivator,
All are residents of village Dagadthar,
Tq. Mahagaon, District Yavatmal. .... Petitioners.
-Versus-
1] The State of Maharashtra
through the Collector (Ceiling), Yavatmal, Distt. Yavatmal.
2] The Tahsildar/The Surplus Land Determination Tribunal,
Mahagaon, District Yavatmal. .... Respondents.
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Mr. S.U. Nemade, Adv. For petitioners.
Mrs. Mehta, AGP for respondents.
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Coram : B.P. Dharmadhikari &
Mrs. Swapna Joshi, JJ.
Dated : 05th January, 2018.
ORAL JUDGMENT (Per Mrs. Swapna Joshi, J.) By this petition, the petitioners seek relief to quash and set aside the impugned notice dated 02-08-2002 issued by respondent no.2 and the impugned action which was being taken pursuant to it. The petitioners further pray that upon quashing the said notice, this Court be pleased to direct the respondents to make due enquiry of the ::: Uploaded on - 18/01/2018 ::: Downloaded on - 18/01/2018 23:44:23 ::: 2 050118 Judg. wp 2941.02.odt said matter by granting a reasonable opportunity of being heard to the petitioners and to decide the claim in accordance with law. 2] The petitioners claimed to be the joint owners and in possession of field bearing Survey No.66/1, admeasuring area of 13.20 acres situated at mouza Dagadthar, Taluka Mahagaon, District Yavatamal. The land was previously owned by one Kuberrao Khanderao Naik, resident of village Fulsawangi. It was then purchased by one Chandrabhan Baburao Rathod by a registered sale deed dated 18-09-1964. Prior to that, the agreement to sell of the said land in question was executed in between them and Chandrabhan Rathod was put in actual possession of the land in question at the relevant time. The petitioners claim that since then Chandrabhan Rathod was in cultivating possession of the land. The petitioners are his legal heirs and inherited the said property and thus they became the owner of the said land and they are also in cultivating possession of the said land. The petitioners submit that they received a impugned notice dated 02-08-2002, contending therein that the land admeasuring area of 9.30 acres is declared as surplus land and it was vested with the Government and was proposed to be allotted to the respective allottees on 17-08-2002. The petitioners were called upon to produce any such claim on or before 13-08-2002. The petitioners have challenged the said notice before this Court. 3] The learned Counsel for the petitioners Mr. Nemade vehemently argued that the petitioners are asked to produce the documents in respect of their possession and the notice indicates that the surplus land is to be distributed to the beneficiaries. Mr. Nemade, contended that the provisions contemplated under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act are not complied with by the concerned authority. He submits that the petitioners are still in possession of the land and according to him, there is no compliance of the provisions of Sections 14, 16 and 17 of the Maharashtra Agricultural ::: Uploaded on - 18/01/2018 ::: Downloaded on - 18/01/2018 23:44:23 ::: 3 050118 Judg. wp 2941.02.odt Lands (Ceiling on Holdings) Act, 1961 [for short, 'the said Act']. Mr. Nemade, further pointed out that as per the provisions of Section 21 of the said Act, the Collector is empowered to make declaration regarding surplus land etc. and it is also doubtful whether the said procedure was complied with by the Collector. Mr. Nemade, further contended that directly the distribution of the surplus land is proposed to be made and the possession is to be taken thereto without following the due process of law by the Collector. 4] The learned AGP submitted that the entire procedures are followed by the State and the notice has been rightly issued on the petitioners.
5] On plain reading of notice dated 02-08-2002, there is a reference of Ceiling Case bearing No.2/60-A(5)/82-83 of mouza Fulsawangi and it has been mentioned that out of the field of the petitioners i.e. Survey no.66/1, area 9.30 acres has been declared surplus and has been allotted to the beneficiaries. It is further stated that the said land is vested with the Government and since the immediate possession is proposed to be given to the alloted beneficiaries, the opportunity was being given to the petitioners and they were asked to produce the relevant documents with regard to the possession in respect of the said field.
6] The petitioners were declared as surplus land holders in respect of field no.66/1 admeasuring area 9.30 acres. The petitioners were informed that their land was allotted to the beneficiaries and the land was vested with the government and the possession of the land was proposed to be given to the alloted beneficiaries. If appears that the said notice dated 2-8-2002 was conclusive. In fact the possession of the surplus land was never taken hence there was no question of vesting of the land with the government and thereafter its distribution in accordance with the provisions of the Act. Significantly, mere declaration of the land as surplus under Sec. 21(1) of the said Act was ::: Uploaded on - 18/01/2018 ::: Downloaded on - 18/01/2018 23:44:23 ::: 4 050118 Judg. wp 2941.02.odt not sufficient and the land cannot be vested in government unless the possession thereof is taken under Sec. 21(4) of the Act, thereafter, the Tahsildar is empowered to distribute the land in accordance with law. 7] It appears that after declaring the land as surplus neither the possession of the surplus land was taken by govt. nor the same was required u/s 27 of the Act. The govt. is supposed to take possession of the surplus land.
8] In the instant case the above said procedures were not followed by the authority. The provisions of under Sec. 14 of the said Act, reads as under :-
"14. Power of Collector to hold enquiry.-(1) As soon as may be after the expiry of the period referred to in section 12, or the further period referred to in sub- section (2) of section 13, the Collector shall [either suo motu whether or not a return had been filed or] on the basis of the returns submitted to him under either of those sections, and such record as he may consider it necessary to refer to, hold an enquiry in respect of every person [or family unit] holding and in excess of the ceiling area, and shall, subject to the provisions of this chapter, determine the surplus land held by such person [or family unit].
[(2)Where a person or family unit holds land in two or more talukas of the same district, the enquiry shall beheld by such officer or authority, exercising the powers of the Collector whom the Collector-in-charge of the district may by order in writing designate.]"
9] In this case no enquiry was held as per the above said provisions. There is nothing on record to show that such enquiry was made by the Collector.
10] The provisions u/s 17 speaks about notice to the persons affected by enquiry under Sec. 14 of the Act, the same reads as under :-
::: Uploaded on - 18/01/2018 ::: Downloaded on - 18/01/2018 23:44:23 :::5 050118 Judg. wp 2941.02.odt "17.Notice to persons affected by enquiry under section
14.--1) For holding an enquiry under section 14, Collector shall cause public notice, in the prescribed form, to be given at convenient places in the village or villages in which the land comprised in the holding is situate, specifying in the notice the land in respect of which enquiry is to be held to ascertain the surplus land (if any) held by the person [or family unit], and calling upon all persons interested in the land to submit to the Collector their objections within a period of [fifteen days] from the date of publication of the notice. [Where a public notice has been given as provided in this sub- section, then the holder and all persons who are - interested in the land shall be deemed to have been duly informed of the contents of such notice. If in the course of any proceedings a question arises whether a person was duly informed of the contents of the notice given in pursuance of this sub-section, the publication of the notice in the manner provided in this sub-section shall, notwithstanding anything contained in sub-section (2), he conclusive proof that he was so informed of the contents of such notice.] (2) The Collector shall serve notices to the same effect on the holder, and all other persons who are known or believed to be interested in the land, calling upon them to appear before him personally or through an agent on a date and at a time and place (such date not being earlier than fifteen days after the issue of notice), to be stated in the notice.
(3) The notices under sub-section (3)may also call upon the holder--
(a). to state any objections or suggestions to the particulars given in the notice
(b). to show cause, where necessary, why--
[(i.) any land transferred in contravention of the provisions of section 8, or any and transferred during the period specified in clause (a) of sub-section (1) of section 10, or any land partitioned in contravention of the provision of section 11 should not be taken into consideration in calculating the ceiling area as provided in sub-section (1) of section 10 or section II, ::: Uploaded on - 18/01/2018 ::: Downloaded on - 18/01/2018 23:44:23 ::: 6 050118 Judg. wp 2941.02.odt (ii.) any land acquired in willful contravention of section 9 should not be for riled as provided in subsection (3) of section 10]. (iii.) any land held in excess of the ceiling area should not be forfeited to the State Government as provided by sub-section (3) of section 13, (iv.) any land referred to in sub-section (2) of section 10 or in section [11-A]; held by him should not be deemed to be surplus land as provided in that sub section or in section [11-A];
(c).to state the land to be retained by the holder under section 16; and to furnish to the Collector in the prescribed form, the prescribed particulars of the land so to be retained.
[Explanation.-- Subject to the provisions of this Act and of the Amending Ac, 1972, in this section and in the following provisions of this Act, the expression holder', unless the context requires otherwise, includes a family unit]."
11] Admittedly, no notice was served upon the petitioners to ascertain the surplus land held by the petitioners. 12] The Collector is supposed to follow the provisions of Section 18 of the Act regarding ascertaining the exact area available with every family unit for the purpose of declaration as the surplus land. 13] Significantly, the main object of the Act is to ascertain the total holding of agricultural land in the State and to distribute the land to the landless people whenever a land in excess of ceiling area with a particular family unit is available. The duty is cast upon the Collector to ensure that no landholder is allowed to suppress the fact regarding the total holding of the land with such landholder and no prejudice is caused to any land holder while assessing the total holdings of land with such land holder. The Collector should not simply take away the land from petitioners in whose possession the land is and give it to other.
14] Under the provisions of Sec. 21(1) of the said Act the
Collector is required to make declaration regarding the surplus land
which is apparently not made by the Collector. As discussed above,
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mere declaration of surplus land under Sec. 21(1) of the Act, the land does not vest with the govt. unless the possession thereof is taken under Sec. 21(4) of the said Act and the land cannot be said to be acquired by govt. The govt is not empowered to distribute the land as per the provisions contemplated under Sec. 27 of the said Act. 15] In the instant case the above said mandatory provisions were not followed by the Collector. The Tahsildar and the Surplus Land Determination Officer without verifying the above said aspect has proposed to distribute the land to the beneficiaries without hearing the petitioners, in violation of the aforesaid provisions. 16] It is not clear from the said notice, whether the above said procedures to hold enquiry with regard to the excess area under Section 14 and whether public notice to be caused by the Collector under Section 17 of the said Act were followed by the Collector or not. Significantly after following the due procedure, the possession is to be secured. The possession appears to be with the petitioners. Significantly, this Court has protected the possession of the petitioners vide order dated 17-08-2002. It appears from the said notice, that the Collector has not followed the necessary provisions under the said Act, hence there is no question of directly allotting the land to the beneficiaries without obtaining the possession of the land from the petitioners. In these circumstances the petitioners are required to be given an opportunity to appear before the Tahsildar and give the reply of the notice along with documents and the due process of law is to be followed. Hence, the following order is passed.
ORDER a] Writ Petition No.2941 of 2002 is allowed.
b] The petitioners are directed to appear before the
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Collector on or before 05-02-2018.
c] The Collector to give an opportunity to the
petitioners to submit their necessary reply and the relevant documents thereof and thereafter to give an opportunity of hearing to the petitioners and then decide the matter in accordance with law within a period of three months.
d] Interim order of this Court dated 17-08-2002 to continue till final disposal of the matter before the Collector.
e] Rule is made absolute in above terms. No costs.
JUDGE JUDGE
Deshmukh
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