Bombay High Court
Indubai Namdeo Shivkari And Ors vs State Of Maharashtra And Ors on 7 May, 2024
Author: Gauri Godse
Bench: Gauri Godse
2024:BHC-AS:21255
901-WP-6669-2003.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
rrpillai CIVIL WRIT PETITION NO. 6669 OF 2003
1. Indubai Namdeo Shivkari
Age : 45, Occ: Agriculture
And household, r/o. Chakan
Taluka Khed, District : Pune
2. Anusayabai Tukaram Raskar
Age : 622 Occ : Agriculture and
household, R/o. Chas,
Taluka Khed, District - Pune
(since deceased through Lrs)
2A. Bhikaji Tukaram Raskar
(since deceased through Legal heirs)
2A1. Radhabai Bhikaji Raskar
Age : 50 years, Occ : Agri
2A2. Deepak Bhikaji Raskar
Age : 37 years, Occ : Business
2B. Sundar Sakaram Jadhav
Age : 55 years, Occ : Agri
2C. Baby Sambhaji Agarkar
Age : 50 years, Occ : Agri
1/32
::: Uploaded on - 07/05/2024 ::: Downloaded on - 08/05/2024 19:54:38 :::
901-WP-6669-2003.docx
2D. Balasaheb Tukaram Raskar
(since deceased through Legal Heirs)
2D1. Swapnil Balasaheb Reskar
Age : 30 years, Occ : Service
2D2. Sujit Balasaheb Raskar
Age : 28 years, Occ : Service
2E. Subhash Tukaram Raskar
Age : 53 years, Occ : Service
2F. Maruthi Tukaram Raskar
Age : 48 years, Occ : Service
2G. Nanda Vilas Bhujbal
Age : 45 years, Occ : Agriculture
2A1 to 2G all residing at Post and
Village Chas, Taluka Khed
District Pune
3. Ganpat Sakharam Mali
(since deceased through legal heirs)
3A. Parvatibai Ganpat Mali
Age : 75 years, Occ : Agriculture
3B. Narayan Ganpat Mali
Age : 62 years, Occ : Agri
2/32
::: Uploaded on - 07/05/2024 ::: Downloaded on - 08/05/2024 19:54:38 :::
901-WP-6669-2003.docx
3C. Haribau Ganpat Mali
Age : 59 years, Occ : Agri
3D. Nanda Pandurang Raskar
Age : 55 years, Occ : Housewife
3E. Nanabhau Ganpat Mali
Age : 53 years, Occ : Agri
3F. Vilas Ganpat Mali
Age : 50 years, Occ :Agri
3A to 3F All R/at Bhima Koregaon,
New Wada Gaothan, Taluka Shirpur
4. Sudam Sakharam Mali
Age : 55, Occ : Agriculture
R/o. Bhima Koregaon
Tal. Shirur, District-Pune ..... Petitioners
Versus
1. State of Maharashtra
Through the Collector and
Deputy Director of Rehabilitation
(Land), Pune
2. Additional Commissioner
Pune Division, Pune
3/32
::: Uploaded on - 07/05/2024 ::: Downloaded on - 08/05/2024 19:54:38 :::
901-WP-6669-2003.docx
3. Damodar Devram Gawhane
Age : Adult, Occ : Agriculture
R/o. Dingrajwadi, Taluka Shirur
District : Pune
4. Smt. Gaubai Kashinath Raskar
(since deceased through legal heirs)
4A. Pandurang Kashinath Raskar
Age : years, Occ. Agri
4B. Shivaji Kashinath Raskar
Age : 55 years, Occ : Agri
4C. Dattatray Kashinath Raskar
Age : 48 years, Occ : Agri
4D. Suresh Dattatray Raskar
(since deceased through legal heirs)
4D1. Mandakani Suresh Raskar
Age : 46 years, Occ : Agri
4D2. Nitin Suresh Raskar
Age : 30 years, Occ : Business
4D3. Rajendra Suresh Raskar
Age : 25 years, Occ : Service
R/o. Bhima Koregaon,
Taluka Shirur, District Pune
4/32
::: Uploaded on - 07/05/2024 ::: Downloaded on - 08/05/2024 19:54:38 :::
901-WP-6669-2003.docx
5. Smt. Shiubai Sopan Waghule
(since deceased through Legal heirs)
5A. Shankar Sopan Waghule
Age : 63 years, Occ : Agri
5B. Sahebrao Sopan Waghule
Age : 52 years, Occ : Service
5C. Balu Sopan Waghule
Age : 55 years, Occ : Service
5A to 5C R/o. Bahirwadi, Chas,
Taluka Khed, District Pune
5D. Nanda Popat Pingle
Age : 53 years, Occ : Agriculture
R/o. Village Pabal, Taluka Khed
Dist. Pune
5E Hausabai Dnyaneshwar Jadhav
(since deceased through legal heirs)
5E1 Rajendra Dnyaneshwar Jadhav
Age : 45 years, Occ : Service
R/o. Village Khadus, Tal. Khed
Dist. Pune.
5/32
::: Uploaded on - 07/05/2024 ::: Downloaded on - 08/05/2024 19:54:38 :::
901-WP-6669-2003.docx
Mr. N. V. Bandiwadekar a/w. Mr. Sacin Kadam for the Petitioners.
Ms.M. S. Bane, AGP for Respondent Nos. 1 and 2.
Mr. Manoj A. Patil a/w.Mr. Jotiram R. Jadhav for Respondent No.3.
CORAM : GAURI GODSE, J.
RESERVED ON : 1st FEBRUARY 2024
PRONOUNCED ON : 7 th MAY 2024
JUDGMENT:
1. This petition challenges the Judgment and Order dated
16th August 2003 passed by the Divisional Commissioner, Pune
Region, in Revision Application filed by petitioner nos. 1 and 2.
The impugned order arises out of an allotment order issued
under the provisions of The Maharashtra Project Affected
Persons Rehabilitation Act, 1976 ("the Rehabilitation Act of
1976"). The Divisional Commissioner dismissed the revision
application filed by petitioner nos. 1 and 2 and confirmed the
order passed by the learned Collector on 15 th March 2003,
modifying the order of allotment of alternate lands in favour of
the petitioners.
901-WP-6669-2003.docx
2. For considering the submissions made by the parties, it is
necessary to note the facts of the case as under:-
(a) Petitioners and respondent nos. 4 and 5 are the
heirs and legal representatives of deceased Sakharam.
Petitioner nos. 1 and 2 and respondent nos. 4 and 5 are
daughters of Sakharam. Petitioner nos. 3 and 5, i.e.
Ganpat and Sudam, are sons of Sakharam. By a
registered partition deed dated 22nd September 1976, the
ancestral lands were divided between Sakharam and his
sons.
(b) Pursuant to the registered deed of partition, Sudam
made an application before the concerned Talathi on 23 rd
April 1977, intimating the registration of the partition deed
and requesting that the necessary entries be made in the
revenue records. The said application was kept pending,
and it appears that no entry was made in the revenue
records.
(c) By notification dated 20th September 1979, issued
901-WP-6669-2003.docx
under Section 11 of the Rehabilitation Act of 1976, lands
belonging to Sakharam and his sons were notified as
being in the affected zone for the Chaskaman project.
(d) Sakharam and his sons' lands were acquired under
the Land Acquisition Act 1894 ('Acquisition Act') pursuant
to the proposal submitted by the Executive Engineer of
Chaskaman Project, who is the acquiring body, for the
acquisition of lands that were being submerged in the
Chaskaman project.
(e) On 20th February 1982, mutation entry no. 5544 was
made for recording the execution of the registered deed
of partition.
(f) On 15th June 1989, Award under Section 11 of the
Acquisition Act was issued and separate areas from the
lands belonging to Sakharam, Ganpat and Sudam were
acquired. The statement 'A' of the award showed the
amount of compensation separately paid to them.
901-WP-6669-2003.docx
(g) On 6th June 1989, Sakharam expired, leaving behind
his sons Ganpat and Sudam, i.e. petitioner nos. 3 and 4,
and four daughters, i.e. petitioner nos. 1 and 2 and
respondent nos. 4 and 5.
(h) By order dated 26th October 1991, Sudam was
allotted alternate lands for a total area of 1.20 H-Are. By a
separate order dated 18th May 1992, Sakharam was
allotted a total area of 2.00 H-Are. By a third order dated
8th August 1994, Ganpat was allotted a total area of 1.60
H-Are. The learned Collector and Deputy Director of
Rehabilitation (Land) Pune ('Collector') passed all the
aforesaid orders of allotment in lieu of the acquisition of
lands belonging to the deceased Sakharam, Ganpat and
Sudam.
(i) On 28th June 2000, Respondent no. 3 filed an
application before the learned Collector requesting to
withdraw the orders of allotment on the ground that an
excess area was allotted.
901-WP-6669-2003.docx
3. By order dated 15th March 2003, the learned Collector
partly allowed the application filed by respondent no.3, modified
the allotment orders, and directed withdrawal of an area
admeasuring 0.61 H-Are from Gat No. 73/2 allotted to Sudam
and an area admeasuring 0.99 H-Are from Gat No. 118 allotted
to Sakharam. Being aggrieved by the said order, petitioner nos.
1 and 2 filed a revision application before the Divisional
Commissioner, Pune as heirs and legal representatives of
deceased Sakharam and on behalf of petitioner nos. 3 and 4
and respondent nos. 4 and 5. Petitioner nos. 1 and 2 stated in
the revision application that as petitioner nos. 3 and 4
respondent nos. 4 and 5 were not available at the relevant time
revision application was also filed on their behalf.
4. By order dated 16th August 2003, the learned Divisional
Commissioner rejected the revision application and confirmed
the order dated 15th March 2003. The said order for modifying
the allotment order was confirmed on the ground that
Sakharam and his sons could not be considered separate
901-WP-6669-2003.docx
families as, on the relevant cut-off date of 20 th September 1979,
the acquired lands stood in the name of Sakharam. Hence, this
petition.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:
5. Learned senior counsel for the petitioners submitted that
though the execution of the partition deed was recorded in the
revenue records at a later date, pursuant to the registered deed
of partition, the lands under acquisition stood in the name of
deceased Sakharam and his sons as independent holders. He
submitted that under Section 154 of The Maharashtra Land
Revenue Code, 1966 ("MLRC") once the document is
registered, intimation of the same is forwarded by the Sub-
Registrar to the revenue authorities for giving effect of the same
in the revenue record. Hence, on registration of the deed of
partition, the lands under acquisition stood divided in the name
of Sakharam and his sons as independent holders.
6. Learned senior counsel for the petitioners further
submitted that in the award passed under Section 11 of the
901-WP-6669-2003.docx
Acquisition Act, Sakharam and his sons are shown as separate
holders, and the compensation was separately awarded in lieu
of the acquisition of independent land of Sakharam and his
sons. He thus submitted that as Sakharam and his sons were
independent holders of their exclusive lands, all three were
accepted as displaced persons within the meaning of Section
2(7) of the Rehabilitation Act of 1976, and separate alternate
lands were allotted to them.
7. Learned senior counsel submitted that though it was not
mandatory on the part of the petitioners to make an application
for making relevant entry in the revenue record, petitioner no. 4
had filed an application before the concerned Talathi on 23 rd
April 1977 requesting for giving effect to the deed of partition in
the revenue records. Pursuant to the said application mutation
entry no. 5544 was affected on 20 th February 1982. Though the
mutation entry was affected at a later date, Sakharam and his
sons became independent holders of their individual lands in
terms of the registered deed of partition. Hence, they were
901-WP-6669-2003.docx
rightly considered as separate units eligible for allotment of
alternate lands independently. He, thus, submitted that after
accepting the aforesaid persons as displaced persons and
being allotted independent alternate lands, the learned
Collector had no jurisdiction to modify the allotment orders on
an application filed by respondent no.3.
8. Learned senior counsel submitted that respondent no. 3
had no locus to make an application for cancelling allotment in
favour of Sakharam and his sons. The lands belonging to
respondent no. 3 were acquired for declaring the area as the
benefitted zone for alternate land to the displaced persons. He
thus submitted that once respondent no. 3 had accepted the
acquisition of his lands, he had no right, title or interest in the
lands which were acquired and allotted in the name of
Sakharam and his sons.
9. Learned senior counsel for the petitioners pointed out
Section 12 of the Rehabilitation Act of 1976 and submitted that
restriction imposed on transfer, sub-division, partition or
901-WP-6669-2003.docx
conversion of land would not apply to the petitioners' land as
the partition was already effected and registered prior to the
notification issued under Section 11 of the Rehabilitation Act of
1976. He submitted that inaction on the part of the revenue
authorities of not recording the execution of the registered deed
of partition in the revenue record would not change the status of
independent holders pursuant to the deed of partition. The
award, passed under Section 11 of the Acquisition Act,
accepted Sakharam and his sons as independent holders, and
each holder was given an independent amount of
compensation. He thus submitted that each holder constituted a
separate family and thus were independently displaced persons
under the Rehabilitation Act of 1976 eligible for allotment of
alternate land independently.
10. Learned senior counsel for the petitioners further
submitted that even otherwise, after an order of allotment of
alternate lands was passed, the learned Collector was not
empowered to modify or review the order. Thus, the order dated
901-WP-6669-2003.docx
15th March 2003 passed by the learned Collector is without
jurisdiction and hence is a nullity.
11. Learned senior counsel for the petitioners further referred
to the definition of the word 'Family' under Section 2(9) of the
Rehabilitation Act of 1976. He submitted that Schedule B of the
Rehabilitation Act of 1976 prescribed slabs for the allotment of
alternate land. By accepting Sakharam and his sons as an
independent family, the order was passed for the allotment of
alternate lands in terms of the slabs for allotment as per
Schedule B of the Rehabilitation Act of 1976. He submitted that
in a similarly situated facts of a separate case, the same
authorities had considered the holders of lands as independent
families based on a deed of partition, though, the deed of
partition was not given effect to in the revenue records.
However, the same authorities have taken a different stand in
the present case. He thus submitted that once independent
areas of lands were allotted accepting Sakharam and his sons
as an independent family, the said order could not have been
901-WP-6669-2003.docx
recalled and/or reviewed by the learned Collector on an
application filed by respondent no. 3 who had no locus to
challenge the allotment orders. He thus submitted that the
orders impugned in the petition are contrary to the provisions of
the Rehabilitation Act of 1976 and hence require to be quashed
and set aside.
12. In support of the submissions made on behalf of the
petitioners, learned senior counsel relied upon following
decisions.
(a) Harshad Chiman Lal Modi vs. DLF Universal Limited
and Another. 1
(b) The United Commercial Bank Ltd vs. Their Workmen. 2
(c) Kiran Singh and Others vs. Chaman Pasvan and
Others.3
(d) M/s.Sheikh Hussain & Sons vs. State of Andhra
Pradesh and Others.4
(2005) 7 SCC 791
AIR 1951 SC 230
AIR 1954 SC 340
AIR 1964 AP 36 Full Bench
901-WP-6669-2003.docx
(e) Devindar Singh and Another vs. The Deputy
Secretary Cum Settlement Commissioner and
Others.5
(f) Mrs. Shivanee Prasanna Deshpande vs. The State of
Maharashtra.6
(g) Balwant Singh and Another vs. Daulat Singh (Dead)
By Lrs and Others.7
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
13. Learned counsel for respondent no. 3 supported the
impugned orders on the ground that the sub-division of lands
pursuant to the deed of partition was effected in the revenue
record after the relevant cut-off date of 20 th September 1979, i.e
the date of notification issued under Section 11 of the
Rehabilitation Act of 1976. Hence, on the date of issuance of
notification, the acquired lands belonged to one single family
and there could not have been any allotment by considering the
AIR 1964 Punjab 291
Writ Petition 10133 of 2016
(1997) 7 SCC 137
901-WP-6669-2003.docx
members of the same family as independent units. He thus,
submitted that since the land belonging to respondent no. 3
was allotted to the petitioners by way of alternate land,
considering the petitioners as independent holders and
independent displaced persons; respondent no. 3 is entitled to
challenge the illegality committed by the concerned authorities
by allotting excess land in favour of Sakharam and his two
sons.
14. Learned counsel for respondent no. 3 to support his
submissions that Sakharam's family and his two sons could not
be considered independent units for separate allotment of
alternate lands relied upon the following decisions;
(a) Bharat Singh and Others Vs State of Haryana and
Others.8
(b) Rajasthan Pradesh Vaidya Samiti, Sardarshahar and
Another Vs Union of India and Others. 9
(c) Ashwini Ashish Dighe Vs Union of India and Others. 10
(1988) 4 SCC 534
(2010) 12 SCC 609
2022 SCC OnLine Bom 139
901-WP-6669-2003.docx
(d)Shivgonda Balgonda Patil and Others Vs The Director of
Resettlement and Others.11
(e)Noor SK Bhikan Vs State of Maharashtra and Others. 12
15. Learned AGP submitted that in view of Section 21 of The
Maharashtra General Clauses Act, the authority empowered to
pass the order of allotment is also empowered to review/ recall
his own order if any illegality is found in the original order of
allotment. She further submitted that in view of Schedule B of
the Rehabilitation Act of 1976, Sakharam and his sons were
required to be considered as one unit as there was no sub-
division of the lands acquired. Learned AGP thus submitted that
once the family of Sakharam and his two sons were illegally
considered as separate units, the allotment of alternate land by
passing separate orders in their favour was contrary to
Schedule B of the Rehabilitation Act of 1976. She further
submitted that once such illegality was pointed out to the
concerned authority it was obligatory to rectify the illegality.
AIR 1992 Bombay 72
(2011) 7 SCC 589
901-WP-6669-2003.docx
Hence, by the orders impugned, the learned Collector has
rightly reviewed his own order and reduced the area of
allotment of alternate land in favour of Sakharam and his sons
by accepting them as one unit. Learned AGP thus submitted
that there is no bar or any illegality in the order passed by the
Collector and confirmed by the Divisional Commissioner.
Learned AGP thus submitted there is no substance in the
argument made on behalf of the petitioners for considering
Sakharam and his sons as independent holders of land.
16. Learned AGP also relied upon a circular dated 9 th May
1973 to support the order passed by the learned Collector for
recalling the original order of allotment. She submitted that the
said circular directed that the formula for allotment of alternate
agricultural land to the project affected persons from the
affected areas are required to be allotted as per the formula
prescribed under the said circular. She thus submitted that in
view of the said circular learned Collector was justified in
rectifying the original order of allotment by reducing the area in
901-WP-6669-2003.docx
conformity with Schedule B of the Rehabilitation Act of 1976.
17. In response to the learned AGP's submissions, the
learned senior counsel for the petitioners submitted that Section
21 of The Maharashtra General Clauses Act will apply to
general orders applicable throughout the State and not to
review or recall orders passed concerning private individuals.
With reference to the reliance placed on the circular dated 9 th
May 1973 learned senior counsel for the petitioners submitted
that the learned Collector has not passed the order by relying
upon the said circular. He submitted that even otherwise, the
circular was before the said Rehabilitation Act of 1976 under
which the order of allotment was passed. Hence, the circular
would not apply to decide the allotment of alternate lands to the
displaced persons, and the allotment is to be made only
pursuant to the provisions of the said Rehabilitation Act of 1976.
CONSIDERATION OF SUBMISSIONS AND FINDINGS :
18. I have considered the submissions. Perused the papers.
The basic facts regarding the acquisition of petitioners' land for
901-WP-6669-2003.docx
the Chaskaman Project and their entitlement to receive
alternate land being displaced persons under the Rehabilitation
Act of 1976 are not disputed. The controversy is with regard to
the eligible area for allotment. By notification dated 20 th
September 1979, issued under Section 11 of the Rehabilitation
Act of 1976, lands belonging to Sakharam and his sons were
notified as being in the affected zone for the Chaskaman
project. Hence, in view of Section 12 of the Rehabilitation Act of
1976, there was a restriction on transfer, sub-division or
partition, without permission of the State Government.
However, prior to the said cut-off date, the lands were already
partitioned by way of a registered deed of partition executed
between Sakharam and his sons. Thus, mutation entry effected
after the cut-off date would not amount to a breach under
Section 12 of the Rehabilitation Act of 1976. The learned senior
counsel for the petitioners is, therefore right in submitting that
effecting the mutation entry is merely an act of making an entry
in the register of mutations for recording execution of the
registered deed of partition under Sections 150 read with 154
901-WP-6669-2003.docx
of MLRC.
19. After the lands were partitioned by a registered partition
deed, Sakharam and his two sons were absolute holders of
their independent lands. Accordingly, the compensation amount
under the Land Acquisition Act was also separately paid to
Sakharam and his two sons. Hence, no fault can be found in
the original allotment orders separately issued in the names of
Sakharam and his two sons, Ganpat and Sudam. The learned
Commissioner has erroneously referred to Section 85 of MLRC,
which provides for making an application by a co-holder for the
partition of shares in the holding. In the present case, the
parties had already partitioned the lands by executing a
registered deed of partition much before the cut-off date.
20. By issuing separate orders in the years 1991, 1992 and
1994, the learned Collector allotted alternate lands to
Sakharam, Ganpat and Sudam. Thus, they were accepted as
displaced persons under the Rehabilitation Act of 1976.
Sakharam expired on 6th June 1989 leaving behind his sons,
901-WP-6669-2003.docx
i.e. Ganpat and Sudam, and his four daughters, i.e. petitioner
nos. 1 and 2 and respondent nos. 3 and 5 as his heirs and legal
representatives. Thus, it is the case of the petitioners that they
were put in possession of the allotted land, and they started
cultivating the land.
21. Respondent No. 3 filed a complaint after more than nine
years of the orders of allotment, stating that excess land was
allotted to Sakharam and his sons. He filed the complaint on
the ground that the allotted land, Gat No. 73/2, was acquired
from him and should not have been allotted as excess area was
allotted to the petitioners by wrongly considering Sakharam and
his two sons as separate families. Thereafter, on his complaint,
the learned Collector called for a report from the Rehabilitation
Officer. Based on the report the learned Collector modified the
original orders of allotment after more than nine years and
reduced the area to 2.80 hectares from the originally allotted
area of 4.80 to Sakharam and his sons independently. The
learned Collector relied upon the mutation entry effected after
901-WP-6669-2003.docx
the cut-off date and held that Sakharam and his sons were joint
holders and thus had to be considered as one family. Hence,
the learned Collector modified the original orders of allotment
and reduced the area of alternate lands by considering the
entitlement by holding Sakharam and his sons as one family.
The learned Commissioner dismissed the petitioners' revision
application and confirmed the modification of the allotment
orders by referring to the provisions of the Rehabilitation Act of
1976 for holding that Sakharam and his sons were required to
be treated as one unit.
22. Section 17 of the Rehabilitation Act of 1976 provides for
the extent of land to be granted to the displaced persons
depending upon the number of members in a family as far as
practicable according to the provisions of Part I of Schedule B.
The said Schedule provides the calculations for allotment of
alternate land to the displaced persons for a project depending
upon the area of the land lost by the displaced persons. Section
2(7) and 2(9) of the Rehabilitaiton Act of 1976 defines
901-WP-6669-2003.docx
'displaced person' and 'family' respectively as under:
2(7) "displaced person" means any occupant who, on
account of the acquisition of his land in the affected zone
[including land in the gaothan (hereinafter referred to as
"the old gaothan)] for the purpose of a Project has been
displaced from such land, or any agricultural labourer;
2(9) "family", in relation to a displaced person, means
the family of the displaced person consisting of such
person and his or her spouse, minor sons, unmarried
daughters, minor brothers or sisters, father and mother
and other members residing with him and dependent on
him for their livelihood;
23. In the present case, the ancestral lands were divided by
way of a registered deed of partition before the cut-off date.
Thus, restrictions under Section 12 of the Rehabilitation Act of
1976 would not apply. Thus, once there was a partition between
Sakharam and his sons, they could not be treated as one family
as defined under the said Act. In view of the registered deed of
901-WP-6669-2003.docx
partition, Sakharam and his sons were holding their
independent lands. Their lands were acquired under the Land
Acquisition Act, and were also paid the compensation amount
independently, which is evident from the Award under Section
11 of the Land Acquisition Act. Thus, Sakharam and his sons
were displaced persons as defined under the Rehabilitation Act
of 1976 and were entitled to alternate land as provided under
Section 17 of the Rehabilitation Act of 1976. Thus, the reasons
recorded by the learned Collector for modifying the original
allotment orders and the reasons recorded by the learned
Commissioner confirming the same, are not in accordance with
the relevant provisions of the Rehabilitation Act of 1976.
24. Apart from the learned Collector's Order being erroneous,
the order modifying the original orders of allotment is without
jurisdiction. Learned AGP was unable to point out any provision
which permits the learned Collector to review the original order
of allotment of alternate lands. The impugned order passed by
the learned Collector is in the nature of review, substantially
901-WP-6669-2003.docx
modifying the quasi-judicial order of allotment. In the absence
of any provision in the Rehabilitation Act of 1976 granting an
express power of review, the impugned order passed by the
learned Collector is ultra vires, illegal and without jurisdiction . At
the highest, the orders of allotment could have been tested by a
higher authority if challenged. The impugned order passed by
the learned Collector has the drastic consequence of taking
away the allotted lands, which could not have been done under
the garb of modification/correction.
25. The Hon'ble Supreme Court in Kalabharati Advertising
v. Hemant Vimalnath Narichania13, has held in paragraphs 12
to 14 as under;
"Legal Issues
Review in absence of statutory provisions
12. It is settled legal proposition that unless the
statute/rules so permit, the review application is not
maintainable in case of judicial/quasi-judicial orders. In the
absence of any provision in the Act granting an express
power of review, it is manifest that a review could not be
made and the order in review, if passed, is ultra vires,
(2010) 9 SCC 437
901-WP-6669-2003.docx
illegal and without jurisdiction. (Vide Patel Chunibhai
Dajibha v. Narayanrao Khanderao Jambekar [AIR 1965
SC 1457] and Harbhajan Singh v. Karam Singh [AIR 1966
SC 641] .)
13. In Patel Narshi Thakershi v. Pradyuman Singhji
Arjunsinghji [(1971) 3 SCC 844 : AIR 1970 SC 1273] ,
Major Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1
SCC 321] ,Kuntesh Gupta (Dr.) v. Hindu Kanya
Mahavidyalaya[(1987) 4 SCC 525 : 1987 SCC (L&S) 491 :
AIR 1987 SC 2186] ,State of Orissa v. Commr. of Land
Records and Settlement [(1998) 7 SCC 162] and Sunita
Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1
SCC (Cri) 537] this Court held that the power to review is
not an inherent power. It must be conferred by law either
expressly/specifically or by necessary implication and in
the absence of any provision in the Act/Rules, review of an
earlier order is impermissible as review is a creation of
statute. Jurisdiction of review can be derived only from the
statute and thus, any order of review in the absence of any
statutory provision for the same is a nullity, being without
jurisdiction.
14. Therefore, in view of the above, the law on the
point can be summarised to the effect that in the
absence of any statutory provision providing for
review, entertaining an application for review or under
901-WP-6669-2003.docx
the garb of clarification /modification/correction is not
permissible."
emphasis applied
26. In the facts of the present case, the principle of law laid
down by the Hon'ble Supreme Court in the said decision is
squarely applicable to the present case. Hence, except for the
decision of this Court in the case of Shivanee Deshpande, I do
not find it necessary to discuss the case laws relied upon by the
learned senior counsel for the petitioners, as the same
concerns territorial and pecuniary jurisdiction and defects in the
constitution of a tribunal. Thus, the legal principles laid down in
the said decisions are not relevant to the controversy involved
in the present case. This Court, in the case of Shivanee
Deshpande, held that unless the power of review is specifically
or by necessary implication provided, the authority cannot
review its own order. In view of the aforesaid legal principle,
there is no substance in the arguments made by the learned
AGP based on the Maharashtra General Clauses Act.
27. In view of the facts of the present case, and the
901-WP-6669-2003.docx
controversy regarding the jurisdiction of the learned Collector,
none of the decisions relied upon by learned counsel for
respondent no. 3 are relevant. The learned counsel for
respondent no. 3 was unable to point out what was the
prejudice caused to respondent no. 3 for raising objections to
the orders of allotment. Thus, there is substance in the
argument of the learned senior counsel for the petitioners that
respondent no. 3 has no locus standi to raise an objection to
the orders of allotment in favour of the petitioners.
28. Thus, in view of the above, the impugned orders are not
sustainable. For the reasons recorded above, the petition
deserves to be allowed.
29. Hence, the petition is allowed by passing the following
order;
(i) The order dated 16th August 2003 passed by the
Divisional Commissioner in Revision Application No. 5 of
2003 (Exhibit 'E') and the order dated 15 th March 2003
passed by the Collector and Deputy Director
901-WP-6669-2003.docx
Rehabilitation (Land), Pune and Report dated 29 th July
2002 of the Rehabilitation Officer of Chaskaman Project
are quashed and set aside.
(ii) Allotment Orders dated 26th October 1991 in favour of
Sudam Sakharam Mali, 18th May 1992 in favour of
Sakharam Mali and 8th August 1994 in favour of Ganpat
Sakharam Mali passed by the Collector and Deputy
Director Rehabilitation (Land), Pune are confirmed.
30. The Writ Petition is allowed in the above terms with no
order as to costs.
[ GAURI GODSE, J.]
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2024.05.07
20:55:54
+0530
