Bombay High Court
Ramchandra Damodhar Dhanwate And ... vs The State Of Maharashtra And ... on 18 March, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3240 OF 2014
1) Shri Ramchandra s/o Damodhar Dhanwate,
Age-50 years, Occu:Agril.,
R/o-Puntamba, Tq-Rahata,
Dist-Ahmednagar,
2) Shri Dattatrya s/o Damodhar Dhanwate,
Age-50 years, Occu:Agril.,
R/o-Puntamba, Tq-Rahata,
Dist-Ahmednagar.
...PETITIONERS
VERSUS
1) The State of Maharashtra,
Revenue and Forest Department,
Mantralaya, Mumbai-32,
2) The Collector, Ahmednagar,
Dist-Ahmednagar,
3) The Committee for Distribution
of Land at Changdevmala,
Through Deputy Collector,
Election Branch, Ahmednagar,
4) The Tahsildar,
Rahata.
...RESPONDENTS
...
Mr. V.D. Sapkal Advocate for Petitioners.
Mr. P.S. Patil, A.G.P. for Respondent Nos.
1 to 4.
...
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CORAM: R.M. BORDE AND
A.I.S. CHEEMA, JJ.
DATE OF RESERVING JUDGMENT : 27TH JANUARY, 2016
DATE OF PRONOUNCING JUDGMENT: 18TH MARCH, 2016
JUDGMENT [PER A.I.S. CHEEMA, J.] :
1. Heard. Leave to amend. Rule. Rule made
returnable forthwith. With the consent of learned
counsel for the parties, the Petition is taken up
for final disposal at admission stage.
2. This Writ Petition is filed by the
Petitioners seeking quashing and setting aside of
allotment dated 11th September 2013 showing
allotment of land from Gut No.390 and Gut No.374/1
of village Puntamba in favour of the Petitioners
and their family. The Petitioners pray that the
Respondents should be directed to allot them land
from Survey No.265 (old), new Gut No.340 of
Puntamba, as per the guidelines issued by the
State.
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3. It is the case of the Petitioners and it
has been argued on behalf of the Petitioners that
father of the Petitioners had entered into lease
agreements with Changdeo Sugar Mill, Puntamba
("Karkhana" in brief) on 13th April 1940 and 21st
February 1956 with regard to lands then Survey
Nos. 265, 288, 289/1, 289/2, admeasuring 27 Acres
22 Gunthas. Land was given on lease to the said
mill. Subsequently, Maharashtra Agricultural Lands
(Ceiling on Holdings) Act, 1961 ("Ceiling Act" in
brief) came into force and land holdings above the
ceiling limit held by public were taken away by
the Government. Total holding by Karkhana was
considered and surplus was taken away by the
Government. Section 28-1AA of the Ceiling Act
contains the provision of power of State
Government to grant surplus land taken over from
industrial undertakings to State Corporations. In
this Section, amendments were made vide
Maharashtra Amendment 17 of 2003 making provision
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to disburse surplus land in favour of person who
had previously leased the land to the Undertaking.
For re-distribution of the land, guidelines have
been prescribed. Respondent No.3 is Committee
formed by State for distributing land under
Section 28-1AA of the Ceiling Act, under overall
control of the Collector.
4.
It is argued for the Petitioners that
Respondents had prepared & notified map showing
lands in yellow colour which had become available for
distribution at Puntamba. Initially, land Survey
No.265 (old) - now 340 (new), was not shown as
available for distribution and consequently the
Petitioners, who were required to apply within
statutory period of 90 days, made application for
land. They were asked to give preference on
affidavit for Gut Nos. 374/1 and 390, which came
to be allotted to them. The Petitioners had not
applied for any specific land but they were asked
to give affidavits for Gut Nos. 374/1 and 390 and
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thus they had filed such affidavits. Subsequently,
the Petitioners smelled foul play and started
making inquiries and came to know that their
earlier Survey No.265 of Puntamba, now Gut No.340,
had also become available for re-distribution. The
Petitioners claim that as per guidelines they have
preferential right to their own land and made
written request for grant of the said land instead
of land from Gut Nos. 374/1 and 390, but the
Respondents have not responded. Thus, this
Petition.
5. Respondents have filed affidavit in reply
dated 30th June 2014. Learned A.G.P. has
submitted, and it is not in dispute that father of
Petitioners had entered into lease agreement with
Changdeo Sugar Mill, Puntamba with regard to
Survey No.265 of Puntamba. Respondents had
prepared map with reference to lands available for
re-distribution. According to them, the map
prepared was correct. The affidavit mentions that
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"initially the land Survey No.265, now Gut No.540
(should be - Gut No.340?) at Puntamba was not
available for the allotment and therefore the same
was not shown in the map prepared by Maharashtra
State Farming Corporation." It is argued for the
State that the Petitioners had made request for
Gut Nos. 374/1 and 390 as their preference and as
the said land had been made available at that time
by the Maharashtra State Farming Corporation, the
same was distributed to the Petitioners. Old
Survey No.265 was not available for distribution
and therefore it was not shown in yellow colour in
the map which was to indicate the lands available
for re-distribution. It is argued that the
Petitioners willingly opted for land from Gut Nos.
374/1 and 390 and accordingly filed affidavits,
copies of which have been filed. Such application
was made before Respondent No.2 - Collector on 6th
March 2013. It is stated that nobody has submitted
demand application for land from Survey No.265
(old) of Puntamba in respect of Changdevnagar
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Farm. The Committee members recommended Survey
No.265 (old) to be allotted to the Petitioners but
the same cannot be taken into consideration as
Petitioners have already been allotted land from
Survey Nos. 374/1 and 390 as per their wish.
Initially Survey No.265(old) was not available for
distribution, therefore, recommendations of the
Committee are not useful looking to the factual
position. The land from Survey Nos. 374/1 and 390
was distributed to the Petitioners on 9th April
2013. Survey No.265(old) - 340(new) become
available from Maharashtra State Farming
Corporation by its letter dated 19th August 2013,
for distribution. The request of the Petitioners
to allot Survey No.265(old) - 340(new) cannot be
considered at this stage. The learned A.G.P.
agreed at the time of arguments, that till now
land Survey No.265(old) - 340(new) has not been
allotted to anybody.
6. Sub-section (3) of Section 28-1AA of the
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Ceiling Act, substituted by Maharashtra Act 17 of
2003, in which third and fourth Proviso were added
by Maharashtra Act 8 of 2006 and Act of 1 of 2012,
respectively, reads as under:
"(3) The State Government may, subject to the
provisions of sub-section (4), after
ascertaining the views of the persons
interested in the land referred to in sub-
section (1), also grant such land to a person
who had previously leased his land to the
undertaking, who (not being a public trust),
requires that land for his personal
cultivation, to the extent of the ceiling area
as stipulated in the Act, or the actual area
of the land leased by such person to the
undertaking, whichever is less, subject to
such other terms and conditions as may be
specified in this behalf :
Provided that, a person, who was required
to file return under section 12 or 12A of the
Act in respect of the lands held by him as on
the 19th September 1975, and whose land was
declared surplus under the provisions of this
Act, shall not be entitled to such grant :
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Provided further that, a person, who has
applied for grant of such land after 90 days
from the commencement of the Maharashtra
Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 2001, shall not be eligible
for grant of such land:
Provided also that, a person who had not
applied for grant of such land within the
period of 90 days from the date of
commencement of the Maharashtra Agricultural
Lands (Ceiling on Holdings) (Amendment) Act,
2001, or who has applied for grant of such
land after the said period, shall be eligible
for grant of such land if he applies for grant
of such land within a period of 90 days from
the date of commencement of the Maharashtra
Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 2006.
Provided also that, a person who had not
applied for grant of such land within the
period of 90 days from the date of
commencement of the Maharashtra Agricultural
Lands (Ceiling on Holdings) (Amendment) Act,
2001, or who has applied for grant of such
land after the said period, shall be eligible
for grant of such land if he applies for grant
of such land within a period of 90 days from
the date of commencement of the Maharashtra
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Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 2011."
7. In this regard, Maharashtra Government
issued guidelines vide Government Resolution
No.ICH-3498/Pra.Kra.23/Part-G/L-7, dated 4th May
2012. The Annexure, inter-alia, in Para 4.6 of the
guidelines provides that while doing the
distribution to earlier lessors, priority should
be given to the person who had previously leased
the land. It is rightly argued on behalf of the
Petitioners that earlier when the concerned map
was issued showing in yellow colour portions of
lands available, the earlier Survey No.265 (old) -
340(new) was not included and thus the Petitioners
had no other option but to request for land from
other Gut Numbers. The Petitioners were under the
pressure of applying within prescribed 90 days and
thus fault cannot be found with the Petitioners.
According to the learned counsel for Petitioners,
when admittedly the old Survey No.265 of the
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Petitioners was not shown in the map and the same
was released by the Corporation vide letter dated
19th August 2013, Petitioners were entitled to
exercise their right of preference to their own
land, which they did vide application dated 1st
October 2013 (Exhibit E) followed by complaint
dated 26th August 2013 (Exhibit F) and other
letters, copies of which have been filed at
Exhibits G and H. Looking to the guidelines issued
by the Government and the provisions as referred
above, we find that there is substance in the
contentions raised by the Petitioners.
8. In the matter of Shrigonda Taluka Sakhar
Kamgar Union, 'Shramik' and others vs. the State
of Maharashtra, through Secretary, Revenue and
Forest Department and others, reported in 2014(3)
ALL M.R. 138, while dealing with the provisions of
Section 28-1AA of the Ceiling Act, this Court has,
even otherwise, observed in Para 44 that,
stipulation of period of 90 days or the time for
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claiming such return by itself can not play any
decisive role and can not be always material
factor.
9. Looking to the facts of the present matter, we
find that the Petitioners were entitled to their
preferential claim to old Survey No.265 of
Puntamba. The land was released by the Maharashtra
State Farming Corporation vide Exhibit R-4 dated
19th August 2013 & was not notified and thus
application Exhibit E dated 1st October 2013 and
Complaint Exhibit F dated 26th August 2013 of the
Petitioners could not have been ignored.
10. At the time of arguments, the learned
counsel for Petitioners submitted that the
Petitioners and their family members to whom land
has been allotted from Gut Nos. 374/1 and 390,
would surrender the same to the Government and
should be allotted, in exchange, the concerned
land from Survey No.265(old) - 340(new). The
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submission needs to be accepted.
11. For the above reasons the Writ Petition
is allowed. Subject to Petitioners and their
family members offering and surrendering to
Respondent No.2 the land from Gut Nos.374/1 and
390 of village Puntamba allotted to them vide
allotment dated 11th September 2013 within a
period of three months from today, the Respondents
shall simultaneously allot land from Survey
No.265(old) - 340(new) from Puntamba, to the
Petitioners and their family members. The land
shall be to the extent of the ceiling area as
stipulated in the Maharashtra Agricultural Lands
(Ceiling on Holdings) Act, 1961, or the actual
area of the land leased by Damodhar Dhanwate to
the Undertaking, whichever is less, subject to
such other terms and conditions as may be
specified and subject to Proviso below sub-section
(3) of Section 28-1AA of the Ceiling Act.
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12. These orders are passed in peculiar facts
and circumstances of this case and shall not be
treated as precedent.
13. Rule is accordingly made absolute in above
terms. There shall be no order as to costs.
[A.I.S. CHEEMA, J.] [R.M. BORDE, J.]
asb/MAR16
