Bombay High Court
Parubai Chintaman Pasalkar And Ora vs Deputy Collector ( Rehabilitation) ... on 24 January, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:5589-DB
This Order is modified/corrected by Speaking to Minutes Order dated907.WP1092_2024.DOC
06/02/2024
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1092 OF 2024
1. Parubai Chintaman Pasalkar ... Petitioners
2. Vaijanti Dinkar Pasalkar
3. Laxmibai Nivrutti Pasalkar
4. Hirabai Kisan Pasalkar
Versus
1. Deputy Collector (Rehabilitation), Pune
2. Additional Collector, Pune
3. Deputy Commissioner, Pune Revenue Division
4. Divisional Commissioner, Pune Revenue Division
5. The Principal Secretary, Relief & Rehabilitation,
Mantralaya, Mumbai.
6. State of Maharashtra ...Respondents
Mr. Nitin P. Deshpande for the petitioners.
Ms. S.D. Vyas, Addl. G.P. a/w. Ms. P.J. Gavhane, AGP for the State.
_______________________
CORAM: G. S. KULKARNI &
KISHORE C. SANT, JJ.
DATED: 24 January, 2024
_______________________
Oral Judgment: (Per G. S. Kulkarni, J.)
1. Rule, made returnable forthwith. Respondents waive service. By consent
of the parties, heard finally.
2. The question which falls for our consideration is as to whether the
provisions of Section 21 of the Maharashtra Project Affected Persons
Rehabilitation Act, 1999 ( for short "1999 Act") can be interpreted to
recognize the entitlement for any monetary compensation to be paid to the
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project affected persons, on the ground that they had suffered obstruction in
having the benefit of the alternate land allotted to them.
3. The petitioners claim to be project affected persons, who state that they
have lost their lands in Veer Baji Pasalkar Irrigation Project.
4. By an order dated 6 June, 2001, the Collector, Pune allotted lands to the
petitioners under the provisions of the 1999 Act. The petitioners were put in
formal possession of the land on 9 July, 2001. The possession receipt is
annexed to the petition. However, insofar as the physical possession is
concerned, obstructions were created by the original landowners from
cultivating the allotted lands. Considering such obstructions, the Collector
(Rehabilitation), Pune passed an order dated 20 May, 2011 invoking the
provisions of Section 21(4) of the 1999 Act inter alia levying penalty on the
landowners as also creating a lien of such amounts, on the balance land
belonging to the landowners. The relevant extract of the said order is required
to be noted, which reads thus:
(Translation of a photocopy of an Order, typewritten in Marathi)
Exhibit - 'F'
Read :-
1) Application dated 08.04.2010 of the Cadestral Surveyor
2) Report No. Land/W.S./406/11 dated 03.02.2011 from the Tahasildar,
Haveli.
3) Application dated 07.02.2011 of Shri Chintaman Dinkar Pasalkar
made on the 'Lokshahi Din'.
4) Under section 21 of the Maharashtra Project affected Persons
Rehabilitation Act, 1999.
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Collector Office, Pune,
(Rehabilitation Branch,
No. D.R.O./Vi.Ba.Pa./W.S./544/11
Date : 20.05.2011.
Subject :- Regarding levying monetary penalty on the Original
owner as he is causing hindrance to the management of
the land allotted to the project affected person.
ORDER :
-
Your land bearing Gat No. (Illegible)/2, 602/2, 609/2, 1065/2, 1146/2
situated at Uruli Kanchan, Tal. Haveli, District Pune has been acquired as per
Slab under Land Acquisition Act and it has come into the possession of the
Government in prescribed manner and the name of the Collector and Deputy
Director (Land), Pune has been entered against the said land.
Thereafter, under the Maharashtra Project affected Persons
Rehabilitation Act, 1999 and pursuant to the order of this Office, the said land
has been allotted to the Project affected persons by names Smt. Parubai
Chintaman Pasalkar, Smt. Vaijayanti Dinkar Pasalkar, Smt. Hirabai Kisan
Pasalkar and Laxmibai Nivrutti Pasalkar.
Earlier, the date 31.05.2007 had been fixed for handing over the
possession of the said land. Moreover, the Tahasildar and Taluka Executive
Magistrate, Haveli have given strict warning to the persons concerned that no
one shall cause any hindrance to the management and that if hindrance is
caused then, legal action shall be taken. However, despite the same, on the
date 07.04.2010, when the Circle Officer/Talathi/Cadestral Surveyor had
come to take possession, the possession has not been handed over. The
Cadestral Surveyor has submitted the report to that effect on the date
08.04.2010. Thus, it has clearly come to my notice that you have been
causing hindrance to the management of the said land intentionally.
Moreover, the Tahasildar, Haveli has informed that the original land owner is
causing hindrance as of today and requested to pass order of penalty against
Shri Dnyanoba Kanchan and others.
Thus, it has clearly come to my notice that you have been causing
hindrance to the management of the said land intentionally. Therefore, you
have violated the provisions of Section 21 of the Maharashtra Project affected
Persons Rehabilitation Act, 1999 and have not handed over possession of your
acquired land to Smt. Parubai Chintaman Pasalkar, Smt. Vaijayanti Dinkar
Pasalkar, Smt. Hirabai Kisan Pasalkar and Laxmibai Nivrutti Pasalkar,
(...incomplete) Virbaji Pasalkar, the project affected persons and have not
complied with the order of the Collector issued under Sub-Section 4 and thus,
have become liable for the penalty of an amount of Rs.1000/- for the period
from the date 06.06.2001 to 28.02.2011.
Hence, I hereby pass order that entry of an encumbrance of the
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monetary penalty of an amount of Rs.1,28,88,000/- at the rate of Rs. 1000/-
per person per day for the period from the date 06.06.2001 to 30.04.2011,
thus, Rs.32,22,000/- per person for total four Dam affected persons, till
removing the hindrance being caused by you, shall be made against the other
remaining land belonging to you and that the said amount shall be recovered
as per the provisions of the Maharashtra Land Revenue Code.
(Sd/-)
Collector and Deputy Director
Rehabilitation (Land)
5. The case of the petitioners is that despite the authorities handing over
the possession of the lands to the petitioners, the petitioners were prevented
from cultivating the allotted lands and it is for such reason, Section 21(4) of the
1999 Act was invoked by the Collector, whereby a fine of Rs.1000/- per day
came to be imposed on the original land owners. The petitioners have
contended that such fine is now admittedly shown as encumbrance in 7/12
extracts of the lands belonging to the land owners.
6. The petitioners contend that, in fact, it is the petitioners who were the
allottees of the land and who had suffered due to such obstruction as created by
the original landowners and accordingly, the petitioners would become entitled
to such amounts. The petitioners have contended that on account of frequent
obstructions from the original landowners preventing the petitioners from
peacefully occupying the lands, the petitioners were compelled to sell the lands
in question by a registered sale deed dated 19 January, 2015, copy of which is
annexed to the petition.
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7. Thus, the contention of the petitioners that they being project affected
persons, having lost their lands for the irrigation project, the alternate lands
which were allotted to them by way of rehabilitation, could not be enjoyed by
them due to obstruction of the landowners and ultimately they were required
to sell the said lands. It is hence the petitioners contention that the provisions
of Section 21 of 1999 Act needs to be interpreted by the Court to hold that the
amount of penalty as levied and collected under section 21(4) ought to enure
to the benefit of the petitioners and such amounts need to be paid by the
Collector to the petitioners. On such premise, the petitioners are before the
Court praying for the following only relief:
"A) this Hon'ble Court may, by way of appropriate writ Order or
direction, direct the respondents to pay to the petitioners amount paid
by the landowners pursuant to the order bearing no.
gi.pu.aa/vi.ba.pa/ka.vi/544/2011, dated 20.05.2011 passed by the Addl.
Collector, Pune (Exh. F) and order bearing no.
gi.pu.aa/vi.ba.pa/ka.v/26/2012 dated 05.09.2012 passed by the
Additional Collector, Pune (Exh. G)."
8. Mr. Deshpande, learned counsel for the petitioners would submit that
Section 21(1) treats obstruction by the landowners, as an offence. According
to him, it is a one time offence, however, the order under section 21(4) being
not complied by the landowners, then it is certainly a damage which is caused
to the project affected persons and for which, an amount of Rs.1000/- per day
is fixed to compensate the persons like the petitioners as provided in terms of
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Section 21(4) of the 1999 Act. Mr. Deshpande submits that it is for such
reason, necessarily such amounts of penalty as levied by the Collector, is
required to be paid to the petitioners by the Collector as compensation.
9. In supporting the contentions, Mr. Deshpande has referred to the
provisions of Section 357(1)(b) of the Code of Criminal Procedure (for short
"Cr.P.C.), which provides for "Order to pay compensation" when a Court
imposes a sentence of fine or a sentence (including a sentence of death) of
which fine forms a part. This, provided that the Court may, when passing
judgment, order the whole or any part of the fine recovered to be applied inter
alia in the payment to any person as compensation for any loss or injury caused
by the offence, when compensation is, in the opinion of the Court, recoverable
by such person in a Civil Court. It is Mr. Deshpande's contention that the
intent of what has been provided by the legislature under section 357(1)(b) of
Cr. P.C. needs to be applied even qua the provisions of Section 21 of the 1999
Act and accordingly, for such reason the petitioners are required to be
compensated by making payment of such amounts of fine imposed by the
Collector.
10. On the other hand, Ms.Gavhane would submit that the intent of the
provision of Section 21 of the 1999 Act imposing fine is independent from
what the provisions of Section 357 of Cr. P.C. would provide. She submits that
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the petitioners are indirectly seeking compensation which can be the claim of
the petitioners to be agitated in a Civil Suit and that too against the private
respondents. It is her submission that the petitioners cannot make a claim of
such amounts from the State Government, considering the clear purport of the
provisions of Section 21 of the 1999 Act, which is in the nature of "penalty"
and levied on persons who are not complying with the order and/or who fail to
comply with the order passed by the authorities under the provisions of the
1999 Act. It is her contention that such penalty as recovered can never form
part of any compensation or any loss or damage caused to the persons like the
petitioners, and for any such loss or damage the petitioners would be required
to pursue appropriate remedy as may be available to them in law.
11. We have heard the learned counsel for the parties and with their
assistance we have also perused the record and the relevant provisions.
12. To appreciate the contentions as raised by the petitioners, we may note
the provisions of Section 21 of the 1999 Act, which falls under Chapter IV
titled as "Miscellaneous". Section 21 reads thus:
21. Penalty
(1) If any person knowingly furnishes any false information under
this Act or obstructs in cultivation of land given to an affected
person under this Act, he shall be punished with imprisonment
which may extend to three months or with a fine which may extend
to five thousand rupees, or with both :
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Provided that, in the absence of special and adequate reason
to hold the contrary to be mentioned in the judgment of the
court, such fine shall not be less than one thousand rupees.
(2) Whoever abets any offence punishable under this Act or
attempts to commit any such offence shall be deemed to have
committed that offence and shall, on conviction, be punished
with the punishment provided for such offence under sub-
section (1).
(3) Nothing in sub-sections (1) and (2) above shall prevent the
Collector from holding a summary inquiry and from removing
the obstruction forthwith.
(4) If any person refuses or fails to comply with the order of the
collector in accordance with sub-section (3) above, he shall be
liable to fine up to rupees one thousand per day till he removes
obstruction.
(5) If any beneficiary contravenes the provisions of clauses (a)
and (b) of subsection (3) of section 10, the Collector, after
conducting a summary enquiry, may order the stoppage of water
supply and power supply or stoppage of grant-in-aid, or recall
the Government's share contribution to the beneficiary :
Provided that, an appeal may be filed within a period of
fifteen days against the order of the Collector passed under sub-
section (3), (4) or (5) as the case may be, to the Commissioner
and the Commissioner shall dispose of the appeal within a
period of one month from the date of filing of such appeal."
(emphasis supplied)
13. On a plain reading of sub-section (1) of Section 21 of the 1999 Act, it is
clear that it is a penal provision and is attracted in a situation, if any person
knowingly furnishes any false information under the 1999 Act or obstructs in
cultivation of land given to the project affected person under the Act, in such
an event, it provides that he shall be punished with imprisonment which may
extend to three months or with a fine which may extend to five thousand
rupees, or with both. However, what is of relevance in the context of the issue
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as raised by the petitioners, are the provisions of sub-section (3) and (4) of
Section 21. Sub-section (3) provides that nothing in sub-sections (1) and (2)
shall prevent the Collector from holding a "summary inquiry" and from
removing the obstruction forthwith. Further, sub-section (4) provides that if
any person refuses or fails to comply with the order of the Collector in
accordance with sub-section (3) above, he shall be liable to pay a fine up to
rupees one thousand per day, till he removes obstruction. Proviso to Section 21
ordains that an appeal may be filed within a period of 15 days against an order
passed by the Collector inter alia under section(3), (4) and (5) to the
Commissioner.
14. On a cumulative reading of sub-section (3) and sub-section(4), it is clear
that sub-section (4) is required to be read in the context of a 'summary inquiry',
which the Collector may hold in sub-section (3) and as a consequence thereof,
if the Collector forms an opinion that if any person refuses or fails to comply
with the order of the Collector, he shall be liable to pay a fine up to rupees one
thousand per day till he removes obstruction. Thus, such provision clearly
indicate that it is a penal provision, in regard to the non-compliance of the
order passed by the Collector under Section 21(3), for which penalty is
imposed on persons who refuse or fail to comply with the order of the
Collector, as passed in accordance with sub-section (3), and for which the
provision itself quantifies such amount to be paid.
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15. Considering the purport of such provision which is purely in the nature
of a penalty, it would be difficult to accept Mr. Deshpande's contention that
such penalty being recovered by the Collector, is in the nature of any
compensation for any loss or damage being caused to the project affected
persons. The amount of penalty as prescribed by sub-section (4) is in the
nature of a deterrent to the person who is refusing to comply with the orders
passed by the Collector. Such reading of sub-sections (3) and (4) would in fact
run contrary to the plain language of the provision.
16. No doubt, damage or loss may be suffered by the project affected
persons and if such person is not permitted to use the land allotted to him,
however, such person would be required to be compensated from the amounts
of penalty as levied under sub-section (4) of Section 21, cannot be accepted.
This for the reason, that as to what Mr. Deshpande would canvass in a given
situation, would be required to be held to be a civil damage as suffered by the
project affected persons (being quantified in monetary terms), which is
subjective and in a given situation which would be required to be proved.
17. It can never be construed that the amount of Rs.1000/- per day as
provided under sub-section (4) of Section 21 can be recognized as an exact
measure of civil damage on the principles and/or akin to any liquidated
damages as Section 73 of the Contract Act would provide in the event of a
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breach of a contract. To read into Section 21(4) any principle of a fixed
quantum of damage, in terms as to what the law would mean to be any
"liquidated damages", under Section 73 of the Contract Act, cannot be the test.
Such principle cannot be recognised or borrowed to be applicable or implied
under sub-section (4) of Section 21 of the 1999 Act.
18. The provisions of Section 21 of 1999 Act by its very existence and
purport remains to be a penal provision. It cannot be construed to be a
provision conferring any right, entitlement on the project affected person even
if he has suffered on account of any obstruction, to receive compensation
which itself would be required to be proved, and more particularly that their
claim to Rs.1000/- per day would be the exact quantum of the damage as
suffered by them.
19. We may observe that it is a settled principle of law that a penal provision
is required to be strictly construed. In such context, we may refer to the
decision of the Supreme Court in R. Kalyani vs. Janka C. Mehta & Ors. 1
wherein the Supreme Court considering the interpretation of penal provisions,
referred to the celebrated works on interpretation of statues of Francis
Bennion's Statutory Interpretation as also Craies Statute Law. Also the
1 (2009) 1 SCC 516
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decision in Tuck & Sons vs. Priester2 was considered in such context. The
relevant extract of the said decision needs to be noted, which reads thus:
"36. Although the legal principle that a penal statute must receive
strict construction, it is not in doubt or dispute, we may notice
some authorities in this behalf. In Section 263 of the Francis
Bennion's Statutory Interpretation it is stated :
"A principle of statutory interpretation embodies the
policy of the law, which is in turn based on public policy.
The Court presumes, unless the contrary intention
appears, that the legislator intended to conform to this
legal policy. A principle of statutory interpretation can
therefore be described as a principle of legal policy
formulated as a guide to legislative intention."
38. In Craies and Statute Law (7th Edn. At p. 529) it is said that
penal statutes must be construed strictly. At page 530 of the said
treatise, referring to U.S. v. Wiltberger, [18 US (5 Wheat) 76
(1820)], it is observed, thus :
"The distinction between a strict construction and a
more free one has, no doubt, in modern times almost
disappeared, and the question now is, what is the true
construction of the statute? I should say that in a
criminal statute you must be quite sure that the offence
charged is within the letter of the law. This rule is said to
be founded on the tenderness of the law for the rights of
individuals, and on the plain principle that the power of
punishment is vested in the Legislature, and not in the
judicial department, for it is the Legislature, not the
Court, which is to define a crime and ordain its
punishment."
39. In Tuck & Sons v. Priester, [(1887)] 19 QBD 629(CA)]
which is followed in London and County Commercial Properties
Investments v. Attn Gen., [(1953) 1 WLR 312], it is stated:
"We must be very careful in construing that section,
because it imposes a penalty. If there is a reasonable
interpretation, which will avoid the penalty in any
particular case, we must adopt that construction. Unless
penalties are imposed in clear terms they are not
2 (1887) 19 QBD 629 (CA)
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enforceable. Also where various interpretations of a
section are admissible it is a strong reason against
adopting a particular interpretation if it shall appear that
the result would be unreasonable or oppressive."
20. We may also observe that the reliance of Mr. Deshpande on the
provisions of Section 357 of Cr. P.C. so as to persuade us to import the logic
and intent of such provision into section 21(4) is also not well-founded.
Section 357 of Cr.P.C. is the power of the Court to be exercised when the
Court inter alia imposes a sentence or a sentence of which fine forms a part of
the order of the Court, when passing a judgment in criminal proceedings. It is
in such context, it provides that the Court may order the whole or any part of
the fine recovered to be applied inter alia as what has been provided in sub-
section (1)(b) of Section 357, namely, in the payment to any person, as
compensation for any loss or injury caused by the offence, when compensation
is, in the opinion of the Court, recoverable by such person in a Civil Court.
Thus, when the provision itself contemplates that the whole or any part of the
fine recovered may be applied to the payment of any person as and by way of
compensation, it would be certainly a different situation, from what the
legislature has provided in Section 21(4) of 1999 Act, when it does not make
the provision of payment of such fine to the project affected person who has
suffered any obstruction.
21. For the above reason to borrow the purport of Section 357 (1)(b) of Cr.
P.C. into Section 21(4) of 1999 Act would in fact amount to providing
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something which the legislature itself has refrained from providing. If such
contention of Mr. Deshpande is accepted, we would entrench on the legislative
field amounting to judicial legislation which is not the province of the Court,
being purely the legislature's prerogative. A penalty provision which is certainly
penal in nature cannot be construed to be a compensatory provision, intended
to compensate the person, who alleges that he was deprived of his land because
of any obstruction. Such proposition if accepted would travel contrary to the
intention of the legislature.
22. This apart in the present case, it clearly appears to us that the Writ
Petition is completely an after thought, inasmuch as in 2015 the petitioners
have already sold their lands. They have received the amounts by sale of such
lands which came to be allotted to them as project affected persons. We cannot
delve on the issue as to whether selling such land was as a result of any
obstruction or otherwise, which itself is an issue requiring evidence to be laid.
In any event, the order on the basis of which claim is being made by the
petitioner is also dated 20 May, 2011. Even if the petitioners were to assert any
cause of action to make a claim for any damages either against the persons
obstructing or even against the State Government, the petitioners could not
have maintained a Civil Suit in the year 2024, when the present petition has
been filed. Any suit to be filed by the petitioners thus even otherwise was
barred by limitation. Hence, the cause of action for the petitioners to claim any
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damages against the State Government or to claim such amount on the basis of
the order dated 20 May, 2011 cannot be said to have accrued in the year 2024.
23. For the aforesaid reasons, we are not inclined to entertain this petition. It
is accordingly dismissed. Rule discharged. No costs.
24. Needless to observe that our aforesaid observations would not in any
manner affect any recovery of the said amounts which appears to be a charge of
the State Government under the order dated 20 May, 2011 passed by the
Collector as also reflected in the revenue records.
25. We may also observe that in any proceedings wherein order under
section 21(4) of the 1999 Act has been passed, the jurisdictional Collectors
shall immediately take steps and recover such amounts which are due and
payable to the State Government. The orders passed by the Collector(s) under
Section 21(4) of the 1999 Act cannot merely remain in the files of the
Collector and are required to be executed expeditiously and without any delay.
26. Let this order be circulated by the Secretary of the rehabilitation and
resettlement department, to all the District Collectors in Maharashtra, with
directions that appropriate recovery of the revenue be undertaken on orders
passed under section 21(4) of the 1999 Act.
(KISHORE C. SANT, J.) (G. S. KULKARNI , J.)
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