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2021 DIGILAW 511 (BOM)

Keshao v. Additional Collector

2021-03-04

AVINASH G.GHAROTE, SUNIL B.SHUKRE

body2021
JUDGMENT Sunil B. Shukre, J. - Heard Shri N. S. Bhattad, learned counsel for the appellant and Shri N. R. Patil, learned A.G.P. for the respondents. 2. The facts of the case which are established on record may be summarized as below : (i) The petitioner is an ex-serviceman and being so, the petitioner applied on 26.04.1999 for allotment of agricultural land declared to be surplus under the provisions of the Maharashtra Agriculture Land (Ceiling on Holdings) Act, 1961 (for short 'Ceiling Act'). The application of the petitioner was processed and after a proper scrutiny, the application was allowed by Tahsildar Kuhi, District Nagpur. Tahsildar Kuhi allotted 0.95 R. land from out of Khasra No.78/1, Mouza Pimpri, Nagpur to the petitioner in the category of ex-serviceman. This category was the category as explained in Explanation (b) to Section 27(10) of the Ceiling Act. (ii) After few months since the allotment was made to the petitioner, some complaints were received by the Collector, Nagpur. The complaint alleged that in making allotments of surplus lands to various agriculturists, irregularities had been committed and the allotments were required to be reviewed. The Collector directed an inquiry into the matter and called for the report of the Deputy Collector. Accordingly, Deputy Collector made inquiry and submitted his report which was of the date, 05.05.2000. The report contained details of the lands in respect of which, serious irregularities were committed in making allotment of the lands to various beneficiaries. The Collector considered the report and examined the issue. The Additional Collector examined this issue and agreed with the findings noted in the Inquiry Report and accordingly, cancelled some of the allotments made to the beneficiaries which were specifically mentioned in the order passed in this regard by the Additional Collector on 02.06.2000. (iii) As the order dated 02.06.2000 included also the land allotted to the petitioner and the cancellation of the allotment was made by the order, the petitioner challenged the order by filing a Writ Petition No.2583 of 2000 before this Court. The only ground that was taken by the petitioner was that no opportunity of hearing was granted to the petitioner. Writ Petition No.2583 of 2000 was allowed by the Division Bench on 28.08.2000. The Division Bench remanded the matter back to the Additional Collector for consideration afresh after giving due opportunity of hearing to the petitioner. The only ground that was taken by the petitioner was that no opportunity of hearing was granted to the petitioner. Writ Petition No.2583 of 2000 was allowed by the Division Bench on 28.08.2000. The Division Bench remanded the matter back to the Additional Collector for consideration afresh after giving due opportunity of hearing to the petitioner. The petitioner was heard by the Additional Collector and rejected the contention of the petitioner that the allotment of the subject land made to the petitioner could not have been cancelled. The Additional Collector found that the annual income of the petitioner exceeded an amount of Rs.12,000/- per annum and therefore, in accordance with the condition of Explanation (c) to Section 27(10) of the Ceiling Act, the petitioner was not eligible for allotment of any agricultural land which was declared to be surplus land. (iv) Being aggrieved by this order, the petitioner filed another petition bearing Writ Petition No.2856 of 2006. This petition was rejected on merits of the mater although the petitioner could not be heard, he being absent on the date of hearing. This petition was decided by the learned Single Judge of this Court who opined that as the annual income of the petitioner at the relevant time was more than Rs.60,300/-, much more than the benchmark of Rs.12,000/- per annum, the petitioner was not eligible to be the beneficiary of distribution of the surplus land in accordance with Explanation (c) to Section 27(10) of the Ceiling Act. (v) The petitioner questioned the said judgment dated 18.01.2011 by filing a review application contending that the petitioner was not heard and that no consideration was accorded by the learned Single Judge to the contention that the income criteria of Rs.12,000/- per annum was not applicable to the petitioner, he being an ex-serviceman. The learned Single Judge found that this ground was not taken by the petitioner either before the Additional Collector or in the High Court when he filed a writ petition invoking Article 227 jurisdiction of the High Court and that in any case this submission pertained to factual aspect of the matter and therefore, no review of the impugned order would be permissible. Accordingly, the review application was also rejected by the learned Single Judge. 3. The petitioner, having been left with no other alternative, has approached this Court by filing the present Letters Patent Appeal. 4. Accordingly, the review application was also rejected by the learned Single Judge. 3. The petitioner, having been left with no other alternative, has approached this Court by filing the present Letters Patent Appeal. 4. Shri Bhattad, learned counsel for the appellant submits that the learned Single Judge has committed an error of law by recording a finding that the question of the petitioner being ex-serviceman and getting allotment of land in the category of ex-serviceman is something which relates to the factual aspect of the dispute and not of law and therefore, review was not permissible. According to him, it is an admitted fact that the land in question was allotted to the petitioner in the category as ex-serviceman, which has been explained in Explanation Clause (b) to Sub-section 10 of Section 27 of the Ceiling Act. He further submits that unfortunately, this aspect of the matter which goes to the root of the whole case was not considered by the Additional Collector and even the High Court at any point of time and this aspect arising from admitted facts, no longer remains a factual aspect but, turns itself into an aspect of law and therefore, ought to have been considered in right perspective even when the petitioner had not raised it anywhere. He submits that in this case, the petitioner had at least raised it at the time when he filed a review application and it is well settled law that question of law can be raised at any stage of the dispute and whenever it is raised and even if it is not raised, the Courts or the Authorities would be bound to consider to the same in accordance with law. He submits that this has not been done in the present case, and therefore, not only the order passed on the review application but also the earlier orders passed by the learned Single Judge as well as the Additional Collector are all bad in law. 5. Shri N. R. Patil, learned A.G.P. for the respondents submits that the facts of the dispute are sufficiently explained in the reply filed by the respondent No.1. 5. Shri N. R. Patil, learned A.G.P. for the respondents submits that the facts of the dispute are sufficiently explained in the reply filed by the respondent No.1. He submits that from the statements made in this reply, particularly those appearing in paragraph Nos.4, 5, 6 and 7, would show that the allotment of the land in question was made to the petitioner in the category as ex-serviceman but, the Additional Collector being duty bound to comply with the Government Resolutions and Circulars issued from time to time in the matter, could not be said to be at fault in this case as what he has done is only to ensure compliance with the guidelines contained in the Office Circular dated 23.05.1988 issued by the Department of Revenue and Forest. He invites our attention to the Circular which states that whenever the surplus land is allotted to an ex-serviceman, the income criteria in the nature of ceiling of Rs.12,000/- per annum would be attracted and therefore, whenever the annual income of the ex-serviceman exceeds this amount, he would not be considered as eligible for allotment of surplus land. Therefore, he submits that there is no merit in this appeal. 6. The facts narrated earlier and the rival arguments reproduced here would clearly establish it on record that so far as the category in which the subject land came to be allotted to the petitioner is concerned, there is no dispute between the parties. The parties agree that the land in question was allotted to the petitioner in the category as ex-serviceman. The moment this is accepted, the provisions contained in Section 27 read with Explanation (b) appended to Subsection 10 of the Ceiling Act would come into picture and therefore, the allotment of land to a person like the petitioner, an ex-serviceman, would have to turn strictly on the criteria prescribed therein. The criteria prescribed in these provisions of law do not show that there is also a rider in the nature of ceiling of annual income of Rs.12,000/-. These provisions show that whenever an applicant claims allotment of surplus land in the category of an ex-serviceman, his application is required to be considered independently of any income criteria. The criteria prescribed in these provisions of law do not show that there is also a rider in the nature of ceiling of annual income of Rs.12,000/-. These provisions show that whenever an applicant claims allotment of surplus land in the category of an ex-serviceman, his application is required to be considered independently of any income criteria. This would be clear from the Explanation (b) appended to Section 27(10) of the Ceiling Act which, for the sake of convenience, is reproduced as below :- "(b) an ex-serviceman means a former member of the armed forces of the Union (not being a person who has ceased to be a member of the armed forces as a result of his being duly dismissed or discharged after a court martial or on account of bad character or as a result of desertion, or who has not been attested);" There is another Explanation in Clause (c) which prescribes income criteria. But, the criteria of income as prescribed in Explanation (c) to Section 27(10) of the Ceiling Act is applicable only to a dependent in relation to any serving member of Armed Forces or ex-serviceman and the dependent has been defined to be either widow or son or son's son or unmarried daughter or father or mother whose gross annual income for the year immediately preceding the month in which surplus land is granted under Section 27(10) of the Ceiling Act, does not exceed Rs.12,000/-. It appears to us that the Additional Collector has confused himself between the criteria prescribed in Explanation (c) with the one stated in Explanation (b). What was applicable to the case of the petitioner was the criteria of Explanation (b) and not of Explanation (c). This confusion is also seen in the office Circular dated 23.05.1988 which has been issued only by way of a further clarification of Explanation (c) to Section 27(10) of the Ceiling Act. But, while issuing the clarification, instead of mentioning only about the dependents of any serving member or an ex-serviceman, the Circular also mentions serving member as well as ex-serviceman. The Circular of course refers to only Section 27(10), Explanation (c) and does not refer to Explanation (b) of the Ceiling Act. But, while issuing the clarification, instead of mentioning only about the dependents of any serving member or an ex-serviceman, the Circular also mentions serving member as well as ex-serviceman. The Circular of course refers to only Section 27(10), Explanation (c) and does not refer to Explanation (b) of the Ceiling Act. So, it is clear that the Circular only intended to clarify the Explanation (c) and in its such effort, the Circular appears to have also traversed beyond Explanation (c) and entered the arena of Explanation (b), which was not really required. The Explanation (b) is completely independent of Explanation (c) and the criteria mentioned in both these Clauses, in so far as annual income is concerned, are distinct and separate. 7. For the reasons stated above, we find that the impugned order passed by the Additional Collector cannot be said to be an order consistent with the requirements of law as contained in the applicable provision of Explanation (b) to Section 27(10) of the Ceiling Act and therefore, we find that the order dated 22.11.2000 is bad in law. 8. After having found the basic order dated 22.11.2000 as illegal, we will also have to find that the judgment rendered by the learned Single Judge on 18.01.2011 in Writ Petition 2856 of 2006 and also the order dated 12.02.2013 passed in review application being C.A.O. No.787 of 2012 as bad in law and something which cannot be sustained anymore. In view of the admitted facts, the aspect of the petitioner being an ex-serviceman no longer remained to be an aspect of fact and had converted itself into an aspect of law and therefore, it could have been raised at any stage of the dispute which indeed having been raised at the time of filing of the review application, ought to have been considered appropriately by the learned Single Judge of this Court but, it had not happened. In any case, we have already found the basic order as illegal and therefore, we further find that there is no need for remanding the matter again to the learned Single Judge or even to the learned Additional Collector for reconsideration as it would only lead to consumption of more time without there occurring any different result from such process. 9. 9. Before parting with the judgment, we would direct the Department of Revenue and Forest to revisit the Circular dated 23.05.1988 and modify it in the light of the observations made herein above so as to confine it to only those cases which are contemplated under Explanation (c) to Section 27(10) of the Ceiling Act. We would also direct it to circulate the such modification to all the concerned with further direction that if there are similarly situated ex-servicemen whose allotment of lands have been cancelled erroneously presuming that their annual income was more than Rs.12,000/- at the relevant time, the benefit of this judgment shall also be given to all such similarly situated ex-servicemen. 10. In the result, the appeal is allowed and the original allotment order dated 26.05.1999 is restored which would necessarily mean that all the orders which had the effect of cancelling the allotment have stood quashed and set aside by this order.