Shakuntala Arjun Pawar vs State Of Maharashtra Through Its ...
2003 Latest Caselaw 73 Bom

JUDGMENT

S.A. Bobde, J.

1. The petitioner challenges the order dated 5.10.186/11.2.1987 passed by the Collector, Nasik, cancelling the allotment of agricultural lands to the petition under the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, hereinafter referred to as the "Act". The Tahsildar, Nasik, as Chairman of the Surplus Lands Determination Tribunal allotted four hectares 35 ares of land to the petitioner. The allotment was made after advertisement was published and no application was received in pursuance thereof. The lands were allotted to the petitioner for horticultural i.e. for growing certain fruit bearing trees. Thereafter, on 24.10.1985 the Government made a reference to the Commissioner, Nasik Division. In the reference, the Government seems to have assumed that the land is not cultivable and, therefore, the allotment ought to have been done under Section 27(9) of the Act. In the reference, the Government observed that the land has been improperly allotted to the petitioner and actually called upon the Commissioner to revise the allotment order under Section 45A of the Act and thereupon cancelled the allotment and redistributed the same.

2. The Collector, Nasik, issued a notice to the petitioner and the petitioner replied to the said notice. Nevertheless, the Collector, Nasik, has cancelled the allotment by the impugned order dated 5.10.1986.

3. Mr. Gorwadkar, learned counsel for the petitioner, submitted that the impugned order is illegal and suffers from non-application of mind as also from the vice acting under dictation.

4. It is obvious from the letter of the Government dated 24.10.1985 that the Government has directed the Commissioner, Nasik, to revise the order and to cancel the same and also to redistribute the same. This clearly amounts to dictating to the Commissioner. Such a direction, which is duly complied with, is also contrary to the express words of Clause (b) of Sub-section (1) of Section 45A which reads as follows:-

"45A. (1) Subject to the provisions of this section, the Commissioner may suo motu or on an application made to him by an aggrieved person or on a reference made in this behalf by the State Government, at any time-

(a) call for the record of any inquiry or proceedings under Section 25 (except in cases where an appeal has been filed), or as the case may be, section 27 for the purpose of satisfying himself as to the legality or propriety of any inquiry or proceedings (or any part thereof), and

(b) pass such order thereon as he deems fit after giving the parties concerned a reasonable opportunity of being heard:

Provided that, except in the case of a reference from the State Government, no such record shall be called for after the expiry of a period of one year from the date the award of compensation is made by the Collector under Section 25, or as the case may be, the grant of land is made by the Collector under Section 27.

(2) .....

It is obvious from Clause (b) that it is the Commissioner who has the discretion to "pass such order thereon as he deems fit" and it is not for the Government to dictate what order should be passed. Indeed, the Government has given a direction contrary to Section 45A and the Collector, exercising the powers of the Commissioner, seems to have abdicated his discretion. This is clearly not permissible and the impugned order deserves to be set aside on this count alone, See Purtabpur Co. v. Cane Commr., Bihar . In that case, the Cane Commissioner who had reserved an area for a particular factory for a particular period had altered the reservation on the order of the Chief Minister. The Supreme Court observed:-

"The power exercisable by the Cane Commissioner under Clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone-- not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by Clause (6) read with Clause (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner.

14. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgement in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior."

5. Apart from this, it appears that the Commissioner has, while exercising the revisional power travelled outside the scope of the reference by the State Government. The letter containing the reference by the Government refers to the nature of the land. It states that the land in question is not agricultural lands and, therefore, could have been only distributed under Section 27 Sub-section (9). Now under the Act, the land is distributed under Section 27 of the Act. Section 27(1) reads as follows:-

"27.(1) Subject to any rules made in this behalf, land (other than grazing land or tank land or land notified by the State Government as not capable of being disposed of for cultivation) which is acquired by the Vests in the State Government under Section 21 shall, subject to the provisions of the Code, be granted by the Collector or any other officer authorised in this behalf by the State Government in the order of priority set out in Sub-sections (2), (3), (4) and (5)."

Sub-section (9) of Section 27 reads as follows:- "(9) Where land which vests in the State Government under Section 21 is grazing land or tank land or land notified under Sub-section (1), the State Government may dispose it of in such manner as it thinks fit."

It is, therefore, obvious that where the land is not capable of being disposed of by cultivation, it can be allotted by the Collector or any other officer in this behalf. In the present case, the land was distributed by the Tahsildar. Where the land is not capable of cultivation, it is required to be distributed by the State Government. The Government has in its letter referred to above, referred this aspect to the Commissioner for decision while observing that the land is not cultivable and, therefore, the action for cancellation and redistribution should be taken. The factual aspect of this matter is really concluded by the certificate dated 16.9.1980 which was relied upon at the time of distribution of the land. That certificate clearly states that the land is found to be suitable for cultivation of horticulture plants and, therefore, it was distributed. There is no dispute that horticulture is included in the definition of agriculture vide Section 2 Sub-section (1). The Collector has travelled wide outside the reference of the Government and has held the distribution illegal on several grounds. One of the grounds given by the Collector is that the land has been distributed by the Tahsildar without convening a meeting of the distribution committee. Such a ground has been held not to be good in law by a decision of this Court in Laxminarayan Maniklal Pathak and Anr. v. State of Maharashtra and Anr., reported in 1986 Mh.L.J. 528. This Court upheld the decision of the Tahsildar acting as Chairman and held that this is recognised by Sub-section (6) of Section 2AO of the Act. The Collector has further set aside the allotment on the ground that the petitioner is not landless even though the allotment order itself did not grant the lands to the petitioner because she is landless. Suffice it to say that the Tahsildar has travelled beyond the scope of the reference made by the Government. This constitutes a material irregularity.

6. In the circumstances, it is clear that the impugned order is not sustainable and deserves to be set aside. In the result, the rule is made absolute. The impugned order dated 5.10.1986/11.2.1987 is quashed and set aside. There shall be no order as to costs.

7. P.S. to give ordinary copy of this judgement to the parties concerned.