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2006 DIGILAW 1523 (BOM)

DEORAO s/o ROMA SHINDE v. State of Maharashtra

2006-09-22

A.B.CHAUDHARI, D.S.ZOTING

body2006
ORAL JUDGMENT A. B. CHAUDHARI, J. :- By the present Letters Patent Appeal, the appellants have challenged the judgment and order dated 21st February, 2005, in Writ Petition No. 800/1993, passed by the learned Single Judge of this Court, who maintained the order made by the Additional Commissioner, on 20th February, 1993 in the revisional jurisdiction conferred upon him by the provisions of section 45-A of the Maharashtra Agricultural Lands, Ceiling on Holdings Act, 1961 (hereinafter referred to as the "Ceiling Act" for the sake of brevity). The learned Single Judge further directed the respondents to prepare and publish an appropriate programme for re-distribution of the entire land including the lands in possession of the petitioners. He further directed that since the possession of the petitioners was protected by interim order dt. 18-6-1993 while admitting the writ petition, the same would continue with the petitioners, unless otherwise, the petitioners are found to be not eligible for allotment as landless persons for want of availability of land. The learned Single Judge further directed that if it is found, after undertaking exercise of re-distribution by the Tahsildar, that the petitioners were not eligible or that the land is not available, the petitioners shall vacate the land and hand-over possession thereof to the Tahsildar and such possession shall be handed over within two weeks after allotment is over. 2. A short factual background giving rise to the present lis is given below. By order dated 15-6-1992, the S.L.D.T., Manora, declared 66 acres and 33 gunthas agricultural lands at Mouza Amgavan and Kondoli belonging to the land holder Puranmal Bajrang Rathi as surplus. The said agricultural land thus became available for distribution. Section 27 of the Ceiling Act provides for mode, priority and the manner of distribution of such lands available for distribution. The said provision is quoted below :- "27. Distribution of Surplus Land. - (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 hot capable of being disposed of for cultivation) which is acquired by and 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 authorized in this behalf by the State Government in the order of priority set out in sub-sections (2), (3), (4) and(5). (2) Where the surplus land belonged to a holder, who at any time before the commencement date, by resuming land from his tenant for personal cultivation under any tenancy law, has rendered that tenant landless, the surplus land shall first be offered to that tenant. (3) Where any part of the holding of a person which consists of one or more compact blocks is declared as surplus land under this Act, then such surplus land - (a) shall first be offered to the landlord who had leased the land to such person and such landlord has not exercised his right of resumption under the relevant tenancy law or under section 19; and (b) then to a person, who being previously employed on the compact block as an agricultural labourer or as technical or other staff engaged on or in relation to the agricultural produce raised or grown thereon, has been rendered unemployed as a result of the land of such block being declared surplus land. (4) Thereafter, fifty per cent of the surplus land (excluding lands referred to in sub-sections (2) and (3) shall be reserved for distribution to landless persons belonging to the Scheduled Castes, Scheduled Tribes (whether residing in the Scheduled area or not) and landless persons belonging to such nomadic tribes, vimukta jatis and backward classes as may be notified by the State Government from time to time, and land so reserved shall be granted to such persons in accordance with the rules made in this behalf. Such rules may provide for fixing priorities. (5) Thereafter, all surplus land (including surplus land which has not been granted under sub-sections (2) and (3) shall be offered in the fallowing order of priority, that is to say, - (i) a person from whom any land has been resumed by his landlord for personal cultivation under any tenancy law, and who in consequence thereof has been rendered landless, provided that such person is a resident of the village in which the surplus land for distribution is situate or within eight kilometres thereof; [(ia) A non-Tribal-transferee whose land (being land of a Tribal transferor transferred to the non-Tribal-transferee) has been restored to the Tribal transferor under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, and who holds no other land and who earns his livelihood principally by manual labour on agricultural land. Explanation :- For the purposes of this clause, the expressions "non Tribal-transferee" and "Tribal-transferor" shall have the meanings respectively assigned to them in the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974; (ii) A person who had leased his land to any undertaking referred to in section 28, provided that, such person is a resident of the taluka in which the surplus land for distribution is situate, the net annual income of such person from all sources does not exceed four thousand rupees, and such person has not been granted any land under section 28-1AA; (iii) serving members of the armed forces, and ex-servicemen, or where any such person dies before any land being granted to him by Government under this Act or any law for the time being in force or any executive orders, then his dependents; (iv) landless persons: Provided that, if there are persons having the same order of priority, then the person who is a resident within either kilometres of the outer limit of the village in which the surplus land for distribution is situated should be preferred: Provided further that. where the surplus land was previously held by a joint farming or a farming society, it shall first be offered to the person whom the society undertakes to take as its member and such person becomes the member of the society. " 3. Shri R. D. Bhuibhar, the learned counsel for the appellants urged that (i) the learned Single Judge having found that the order dated 30-10-1982 of cancellation of allotment of lands to the appellants was without jurisdiction, reliefs prayed for by the appellants ought to have been granted to them. (ii) That the appellants were in possession of the lands allotted to them right from the date of distribution and during the pendency of the lis, under the interim order passed in the Writ Petition No. 800 of 1993 dated 18-6-1993 and, therefore, in the absence of any attribution of mala fides or malpractice on their part, it was not legal and proper to order re-distribution at such a late stage. (iii) That the appellants should not be deprived of agricultural lands in their possession for no fault of theirs. 4. Shri A. S. Sonare, the learned A.G.P. appearing on behalf of the respondent Nos. (iii) That the appellants should not be deprived of agricultural lands in their possession for no fault of theirs. 4. Shri A. S. Sonare, the learned A.G.P. appearing on behalf of the respondent Nos. 1, 2 and 3, supports the judgment and order passed by the learned Single Judge and agreed that the distribution of land was required to be made in accordance with the mandate of sub-sections (4) and (5) of section 27 of the Ceiling Act. 5. Shri R. D. Najbile, the learned counsel for the interveners/respondent Nos. 4 to 7 stated that his clients being ex-servicemen, were entitled to the allotment of lands in their favour and, therefore, he supports the judgment and order passed by the learned Single Judge. 6. It would be seen that section 27(5) of the Ceiling Act provides for a particular order of priority in which the distribution of surplus lands will have to be made by the concerned Authority. Any deviation made by the Authority in distributing the lands would violate the provision of section 27(4) and (5) of the Act, as has been done in the instant case. Section 27 of the Ceiling Act, therefore, requires an Authority to distribute the lands in the manner laid down by the section 27(5) and in no other manner. When section 27 requires a particular thing to be done in a particular manner, it should be done in the manner prescribed thereunder and not in any other manner. In the instant case, the Additional Commissioner as well as the learned Single Judge, have recorded a clear finding that category No. (iv) i.e. landless persons could not have been considered for the purpose of distribution of land unless category No. (iii) of serving members of armed forces and Ex-serviceman were distributed the remaining surplus land after distribution of 50% surplus land to the reserved category namely SC, ST, NT, VJ and OBC, etc. Out of 66.33 acres of lands, 50% i.e. 32.29 acres was kept reserved for distribution to landless persons belonging to SC, ST, NT, VJ and OBC, etc and was accordingly distributed to the landless persons in that category. Remaining 50% surplus land could have been only thereafter thrown for distribution to the category No. (iii) persons, as stated in sub-section 5(iii) of section 27 of the Ceiling Act. Remaining 50% surplus land could have been only thereafter thrown for distribution to the category No. (iii) persons, as stated in sub-section 5(iii) of section 27 of the Ceiling Act. Thus, after exhausting the said category No. (iii), if at all the land remains available for distribution, category No. (iv) of landless persons could have been considered. The Tahsildar instead of acting in the manner provided as aforesaid for distribution of lands, sub-divided the remaining 50% lands into two categories viz. Ex-serviceman, etc. and landless persons, and then distributed 18.21 acres of land to the landless persons in general category i.e. petitioners/appellants. The Additional Commissioner as well as the learned Single Judge both found that this action of the Tahsildar was in violation of the provisions of section 27(4) and (5) of the Ceiling Act. The Additional Commissioner, therefore, held that insofar as the distribution of 50% of the land to the SC, ST, NT, VJ and OBC, etc. is concerned, the same was legal and proper and that distribution was, therefore, confirmed by the Additional Commissioner. However, insofar as the distribution of land to the appellants to the extent of 18.21 acres is concerned, the same being in violation of section 27(4) and (5) of the Ceiling Act, the Additional Commissioner remitted the matter to the S.L.D.T. for distribution in accordance with the observations made by him in his order. The learned Single Judge held that the action of the Sub-Divisional Officer in exercise of the purported revisional jurisdiction under section 45 of the Ceiling Act was clearly without jurisdiction as he did not possess the revisional powers and, therefore, his order dated 30-10-1982 of cancellation of allotment to the appellants was held illegal. The learned Single Judge, however, maintained the order of the Additional Commissioner since the same was well within the revisional jurisdiction. 7. Having heard the learned counsel for the respective parties, we find that section 27 of the Ceiling Act provides for order of priority and the manner in which surplus lands are required to be distributed by the Authority. The statutory provision contained in section 27(4) and (5) of the Act cannot be overlooked. 7. Having heard the learned counsel for the respective parties, we find that section 27 of the Ceiling Act provides for order of priority and the manner in which surplus lands are required to be distributed by the Authority. The statutory provision contained in section 27(4) and (5) of the Act cannot be overlooked. In the case reported in 2003(2) see 111, Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others, in paragraph 40, the Apex Court observed as under:- "The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of Statute. They must act within the four comers thereof." 8. From the above discussion, it is clear that the Tahsildar has not acted in accordance with the provisions of section 27(4) and (5) of the Ceiling Act. The distribution of lands to the petitioners was rightly found to be illegal. Though, the learned Single Judge has found rightly that the Sub Divisional Officer acted without jurisdiction, the Additional Commissioner was right in exercise of revisional powers and in view of that position, the learned Single Judge was right in refusing to grant relief to the appellants/petitioners. 9. The submissions of the learned counsel for the appellants that the appellants are in possession of the land on the basis of interim order made by this Court on 18-6-1993 were at no fault and therefore deserved relief in their favour, cannot be accepted. The interim order dated 18-6-1993 was made by this Court at the instance of the appellants in the first place and secondly the act of the Court in making interim order and continuing the same from 1993 till disposal of petition should not prejudice anybody. It is well-settled that "actus curiae neminem gravabit" viz. an act of Court shall prejudice no man. 10. So far as the direction issued by the learned Single Judge to prepare and publish appropriate programme for the distribution of· entire land is concerned, we disagree with the same. It is well-settled that "actus curiae neminem gravabit" viz. an act of Court shall prejudice no man. 10. So far as the direction issued by the learned Single Judge to prepare and publish appropriate programme for the distribution of· entire land is concerned, we disagree with the same. As earlier stated, 32.33 acres of land was already distributed on 15-6-1992 to the landless persons belonging to the SC, ST, NT, VJ and OBC, etc. There is no reason to disturb the said allotment as was rightly confirmed by the Additional Commissioner. The direction issued by the learned Single Judge for distribution of entire land is, therefore, modified and the directions issued by the Additional Commissioner in his order dated 20-2-1993, and in particular, in paragraphs 5 and 6, are confirmed. 11. With the above modification, the present Letters Patent Appeal is disposed of; No order as to costs. Order accordingly.