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2022 DIGILAW 1546 (BOM)

Subhash S/o Eknath Nafade v. State of Maharashtra

2022-06-23

ANIL L.PANSARE, RAVINDRA V.GHUGE

body2022
JUDGMENT : RAVINDRA V. GHUGE, J. 1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties. 2. The petitioner, a 73 years old senior citizen, has put forth prayer Clause ‘A’ as under: “For a writ of mandamus Order or direction in nature of mandamus directing respondent No. 2 for issuance of Project Affected Person Certificate in favour of Aishwarya Chandrashekhar Nafade.” 3. The father of the petitioner, Eknath (since deceased) was the owner of land situated in Gut No. 26/4 of the village Nimbhora (Bk.), Tq. Bhusawal, Dist. Jalgaon. Out of such land, an area admeasuring 3 Acres 8 Gunthas was acquired for the construction of the thermal power station by Award dated 28.05.1962. Besides this portion of the land, a parcel of land admeasuring 10R was acquired out of land situated in Gut No. 22/1-B+2+3 in the same village, in 1975 for erecting a thermal power station. 4. By this petition, the petitioner has represented before us that as his daughter-in-law Smt. Aishwarya has not been granted a Project Affected Person (hereinafter referred to as ‘PAP’) Certificate, that we should exercise our extraordinary jurisdiction invoking the Writ of Mandamus and issue a direction to the Competent Authority to issue a Project Affected Person certificate in favour of Smt. Aishwarya. 5. This petition has been preferred on 17.04.2022. The State of Maharashtra introduced a Government Resolution dated 21.01.1980 for issuing PAP certificate to be utilized by a Project Affected Person for seeking recruitment in Government establishment. The said Resolution provides for the affected person to make an application and seek the certificate. 6. There is no dispute that the land was acquired prior to 1962 and 1975 and the present petitioner seeks issuance of the PAP certificate for his daughter-in-law. The said land in Gut No. 26/4 which was acquired for the public project is set out in the Award dated 28.05.1962. Details of the land that was acquired prior to 1975 are not set out in the petition. 7. The said land in Gut No. 26/4 which was acquired for the public project is set out in the Award dated 28.05.1962. Details of the land that was acquired prior to 1975 are not set out in the petition. 7. In this backdrop, Clause 2(c) of the Government Resolution dated 21.01.1980 becomes applicable, which reads thus: ^^mijksDr uksdjhfo"k;d loyrhP;k lanHkkZr ^^dsUæ 'kklu fdaok jkT; 'kklu ;kauh gkrh ?ksrysY;k ikVca/kkjs] oht vFkok brj dks.kR;kgh ÁdYikeqGs T;k O;Drhaps ?kj vkf.k@vFkok tehu iw.kZr% fdaok va'kr% laikn.;kr vkyh vlsy** v'kk O;Drhauk ^^ÁdYixzLr O;Drh** eku.;kr ;kos ;k lanHkkZr R;k O;Drhps ?kj vkf.k@vFkok tehu iw.kZr% fdaok va'kr% T;k ÁdYiklkBh laikfnr dj.;kr vkyh vlsy rks ÁdYi ^^egkjk"Vª ÁdYi foLFkkfirkaps iquoZlu dk;nk] 1976** [kkyh vf/klwfpr >kyk vkgs fdaok ukgh gs y{kkr ?ks.;kph vko';drk ukgh- rlsp uksdjhfo"k;d lanHkkZr ÁdYixzLr O;DrhP;k dqVqa ckrhy O;Drh o v'kk ÁdYixzLr O;Drhoj voyacwu vl.kkU;k O;Drh Eg.kwu ÁdYixzLr O;Drhpk irh vFkok v'kk O;Drhph iRuh] v'kk O;Drhps vKku eqyxs] v'kk O;DrhaP;k vfookfgr eqyh] v'kk O;Drhaps vKku HkkÅ fdaok cfg.kh] rlsp v'kk O;Drhps vkbZ o oMhy ;k O;Drhapk lekos'k xzkg; /kjkok ;k fu.kZ;kuqlkj 'kklu i=] eglwy o ou foHkkx Øekad vkjih,&1074@3500@1] fnukad 20 ekpZ 1975 e/;s fnysY;k ^^izdYixzLr O;Drhoj voyacwu vl.kkU;k O;Drh** ;k laKsP;k O;k[;sr vko';d cny dj.;kr ;kokA** 8. It is thus apparent from the said provision that a Project Affected Person will mean an include the person whose land has been acquired, his wife or her husband, the sons, unmarried daughters, minor brother or minor sister, mother or father. It, therefore, calls for no debate that the nucleus of this provision is the person who is actually the title holder and all those relations mentioned in the above reproduced provision are in relation to the said title holder. When this Government Resolution was introduced, the grandson or grand-daughters or even the daughter-in-law were not included in the definition of the family of affected person. 9. The State of Maharashtra introduced the Maharashtra Project Affected Persons Rehabilitation Act, 1999 on 14.03.2002 with effect from 01.04.2002. Section 2(2) defines an affected person as under: “2. When this Government Resolution was introduced, the grandson or grand-daughters or even the daughter-in-law were not included in the definition of the family of affected person. 9. The State of Maharashtra introduced the Maharashtra Project Affected Persons Rehabilitation Act, 1999 on 14.03.2002 with effect from 01.04.2002. Section 2(2) defines an affected person as under: “2. In this Act, unless the context requires otherwise: (1) ------ (2) “affected persons” means: (a) an occupant whose land in the affected zone (including land in the gaothan) is required under section 14 for the purposes of a project: Explanation - For the purpose of this sub-clause, where any agricultural land is recorded in the relevant village records in the name of one of the brothers as a Karta or Manager of a Hindu Joint Family, then every brother [or sister] (or [son or sons or daughter or daughters of each deceased brother or deceased sister as one separate unit of such brother or sister] deceased brother all together as one unit) who has a share in the lands, whether his name is recorded in such village record or not, shall be treated as affected person.” [The further portion of this Section is not invoked by the petitioner and is not relevant] 10. The first explanation (underlined portion) below sub-Section 2(a) indicates that the affected person will include the brothers/sisters of the Karta or Manager of a Hindu Joint family, every brother, or son or sons of any deceased brother, all together as one unit, who has a share in the lands, whether his name is recorded in such village record or not. In short, such family is treated as ‘one unit’ and one PAP certificate can be granted to a member of such unit, nominated by the affected person. 11. Section 6 of the Act prescribes the duties and functions of the Project Authority. Section 6 reads thus: “6. In short, such family is treated as ‘one unit’ and one PAP certificate can be granted to a member of such unit, nominated by the affected person. 11. Section 6 of the Act prescribes the duties and functions of the Project Authority. Section 6 reads thus: “6. It shall be the duty of the project authority: (a) to carry out such work for providing the necessary civic amenities in a new gaothan or extension of an existing gaothan as the case may be, established for rehabilitation of affected persons, as may be entrusted to it by the State Government or the Commissioner or the Collector; (b) to take measures for the speedy rehabilitation of the affected persons under the overall supervision and guidance of the Collector; (c) subject to any reservations validly made and subject to availability of posts, to give highest priority in Class III and Class IV category of service on the project establishment, to one member of the affected family nominated by the affected person, if such member is eligible for such employment according to the recruitment rules for such posts: Provided that, while recruiting a member of the affected family, against such quota, the project authority shall, as far as possible, employ not less than fifty per cent. of such nominees who are affected by the project under execution, as may be prescribed: Explanation - For the purpose of this clause the expression “family” means the spouse, son, married or unmarried daughter or brother or sister or daughter-in-law or grandson, or grand-daughter (which includes son or daughter of the daughter also) of the affected persons, or adopted son or daughter who is residing with and is dependent on such affected person.” [The remaining portion of this Section is not applicable] 12. The explanation below Section 6(c) indicates that the expression family would mean a spouse, son, married or unmarried daughter or brother or sister or daughter-in-law or grandson or grand-daughter (which includes son or daughter of the daughter also) of the affected person, or adopted son or daughter who is residing with and is dependent on such affected person. It is thus clear that all these relations are to be considered in connection with the affected person and not all such relations who may succeed the affected person in perpetuity, as branches of the ever growing family tree. 13. It is thus clear that all these relations are to be considered in connection with the affected person and not all such relations who may succeed the affected person in perpetuity, as branches of the ever growing family tree. 13. It is beyond debate that the daughter-in-law of the originally affected person is entitled subject to the condition that she must be dependent on the affected person. No doubt the son of the petitioner was a member of the affected family of the affected person. 14. The contention of the petitioner is that Eknath was the first person who was affected. The petitioner Subhash being his son is also affected as a member of the affected person’s family. This submission is well placed. However, he submits that as a daughter-in-law is included within the definition of affected person or family of affected person, the daughter-in-law of Subhash i.e. Aishwarya would be construed to be a daughter-in-law within the meaning of affected persons and family. We find this submission to be fallacious for the reasons that when Eknath is the affected person, the definition of affected persons and family of the affected person relates back to Eknath and not Subhash because Subhash is the son of Eknath. If such argument is to be accepted, then the daughter-in-law of the son of Subhash i.e. Chandrashekhar, would also become an affected person which is not permissible as she would be the great grand daughter-in-law of the affected person. 15. The submission of the petitioner is that Aishwarya, being the daughter-in-law of Subhash, who in turn becomes the grand-daughter-in-law of the first affected person Eknath, is also entitled. This would then mean that for generations to follow the definition will have be read in succession and include every succeeding son, grandson, great grandson and accordingly grand and great grand daughter-in-law of the originally affected person in 1962. 16. We cannot ignore the definition of the affected persons, the explanation there below, the explanation below Section 6 as regards family and Clause 2(C) of the Government Resolution dated 21.01.1980, which have clearly excluded the word ‘grand daughter-in-law’. The word daughter-in-law is mentioned only in relation to the family of the first affected person. The affected person being Eknath, the wife of the present petitioner Subhash could have been eligible as she would be the daughter-in-law of the person affected. The word daughter-in-law is mentioned only in relation to the family of the first affected person. The affected person being Eknath, the wife of the present petitioner Subhash could have been eligible as she would be the daughter-in-law of the person affected. When the words like son, daughter, brother, sister, daughter-in-law, grandson and grand-daughter have been specifically set out, we cannot read what does not meet the eye. A specific exclusion of the grand-daughter-in-law amplifies the intent and object of the legislature keeping in view that the grandson and grand-daughters have been included in family, grand-daughter-in-law is excluded. 17. The learned A.G.P. has rightly raised the issue of delay before us. The lands have been acquired prior to 1962 and 1975 and the Awards with relation to such acquisitions having been delivered on 28.05.1962 and prior to 1975. This petition having been filed in April 2022 after 60 years and 47 years, respectively, that he pleads the ground of delay. 18. The learned Advocate for the petitioner informs us that though Eknath was the affected person and the present petitioner Subhash is his son, none had moved an application for seeking PAP certificate. The learned Advocate for the petitioner tenders an apology that nowhere in the petition has it been pleaded that the present petitioner is seeking PAP certificate for the 1975 acquisition. He submits that one son of the petitioner, namely Deepak has already received a PAP certificate for the acquisition prior to 1962. After his demise, his wife has secured employment on the basis of the said certificate. The petitioner is now seeking a PAP certificate in favour of his second daughter-in-law in relation to the 1975 acquisition. Even on this count, this petition has been filed after 47 years and to seek an employment for the daughter-in-law on the ground the she is unemployed. The petitioner’s family has to be treated as one unit. Eldest son of the petitioner has already received the PAP certificate. The petition is completely silent as regards the job or profession of the second son i.e. Chandrashekhar. It is nowhere stated as to whether Chandrashekhar is in any employment. Now his wife wants a PAP certificate to secure employment. 19. The Hon’ble Apex Court in case of Karnataka Power Corporation Ltd. Vs. K. Thangappan and Another, (2006) 4 SCC 322, has dealt with a matter suffering from delay. It is nowhere stated as to whether Chandrashekhar is in any employment. Now his wife wants a PAP certificate to secure employment. 19. The Hon’ble Apex Court in case of Karnataka Power Corporation Ltd. Vs. K. Thangappan and Another, (2006) 4 SCC 322, has dealt with a matter suffering from delay. It has been held that in the face of a considerable delay and no explanation to that effect, exercise of discretion can be refused on account of omission on the part of the claimant to assert his right. 20. This petition also does not state whether the petitioner was the exclusive title holder or successor to the predecessor in title in so far as the land in Gut No. 22/1-B+2+3 which was acquired prior to 1975. As such, even on account of non-furnishing of material information and delay, this petition suffers. 21. It is apparent from the pleadings set out in the petition that the petitioner has suppressed the details about his father being an owner of land Gut No. 22/1-B+2+3. The petitioner has also not disclosed the whereabouts of his son i.e. Chandrashekhar who is the husband of Aishwarya. When Aishwarya is married to Chandrashekhar, she would be dependent upon him. There is also no pleading that Aishwarya is dependent upon her father-in-law and not upon her husband. 22. In view of the above, this petition is dismissed. Rule is discharged.