Shakuntala Arjun Pawar vs State Of Maharashtra Through Its ...

on 20 January, 2003

Bombay High Court

Shakuntala Arjun Pawar vs State Of Maharashtra Through Its ... on 20 January, 2003
Equivalent citations: 2003 (3) BomCR 56, 2003 (2) MhLj 413
Author: S Bobde
Bench: S Bobde
JUDGMENT S.A. Bobde, J.

1. The petitioner challenges the order dated 5.10.186/11.2.1987 passed by the Collector, Nasik,
cancelling the allotment of agricultural lands to the petition under the provisions of the Maharashtra
Agricultural Lands (Ceiling on Holdings) Act, 1961, hereinafter referred to as the "Act". The
Tahsildar, Nasik, as Chairman of the Surplus Lands Determination Tribunal allotted four hectares
35 ares of land to the petitioner. The allotment was made after advertisement was published and no
application was received in pursuance thereof. The lands were allotted to the petitioner for
horticultural i.e. for growing certain fruit bearing trees. Thereafter, on 24.10.1985 the Government
made a reference to the Commissioner, Nasik Division. In the reference, the Government seems to
have assumed that the land is not cultivable and, therefore, the allotment ought to have been done
under Section 27(9) of the Act. In the reference, the Government observed that the land has been
improperly allotted to the petitioner and actually called upon the Commissioner to revise the
allotment order under Section 45A of the Act and thereupon cancelled the allotment and
redistributed the same.

2. The Collector, Nasik, issued a notice to the petitioner and the petitioner replied to the said notice.
Nevertheless, the Collector, Nasik, has cancelled the allotment by the impugned order dated
5.10.1986.

3. Mr. Gorwadkar, learned counsel for the petitioner, submitted that the impugned order is illegal
and suffers from non-application of mind as also from the vice acting under dictation.

4. It is obvious from the letter of the Government dated 24.10.1985 that the Government has
directed the Commissioner, Nasik, to revise the order and to cancel the same and also to redistribute
the same. This clearly amounts to dictating to the Commissioner. Such a direction, which is duly
complied with, is also contrary to the express words of Clause (b) of Sub-section (1) of Section 45A
which reads as follows:-

"45A. (1) Subject to the provisions of this section, the Commissioner may suo motu or on an
application made to him by an aggrieved person or on a reference made in this behalf by the State
Government, at any time-

(a) call for the record of any inquiry or proceedings under Section 25 (except in cases where an
appeal has been filed), or as the case may be, section 27 for the purpose of satisfying himself as to
the legality or propriety of any inquiry or proceedings (or any part thereof), and

(b) pass such order thereon as he deems fit after giving the parties concerned a reasonable
opportunity of being heard:

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 Shakuntala Arjun Pawar vs State Of Maharashtra Through Its ... on 20 January, 2003

Provided that, except in the case of a reference from the State Government, no such record shall be
called for after the expiry of a period of one year from the date the award of compensation is made
by the Collector under Section 25, or as the case may be, the grant of land is made by the Collector
under Section 27.

(2) .....

It is obvious from Clause (b) that it is the Commissioner who has the discretion to "pass such order
thereon as he deems fit" and it is not for the Government to dictate what order should be passed.
Indeed, the Government has given a direction contrary to Section 45A and the Collector, exercising
the powers of the Commissioner, seems to have abdicated his discretion. This is clearly not
permissible and the impugned order deserves to be set aside on this count alone, See Purtabpur Co.
v. Cane Commr., Bihar . In that case, the Cane Commissioner who had reserved an area for a
particular factory for a particular period had altered the reservation on the order of the Chief
Minister. The Supreme Court observed:-

"The power exercisable by the Cane Commissioner under Clause 6(1) is a statutory power. He alone
could have exercised that power. While exercising that power he cannot abdicate his responsibility
in favour of anyone-- not even in favour of the State Government or the Chief Minister. It was not
proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In
this case what has happened is that the power of the Cane Commissioner has been exercised by the
Chief Minister, an authority not recognised by Clause (6) read with Clause (11) but the responsibility
for making those orders was asked to be taken by the Cane Commissioner.

14. The executive officers entrusted with statutory discretions may in some cases be obliged to take
into account considerations of public policy and in some context the policy of a Minister or the
Government as a whole when it is a relevant factor in weighing the policy but this will not absolve
them from their duty to exercise their personal judgement in individual cases unless explicit
statutory provision has been made for them to be given binding instructions by a superior."

5. Apart from this, it appears that the Commissioner has, while exercising the revisional power
travelled outside the scope of the reference by the State Government. The letter containing the
reference by the Government refers to the nature of the land. It states that the land in question is not
agricultural lands and, therefore, could have been only distributed under Section 27 Sub-section (9).
Now under the Act, the land is distributed under Section 27 of the Act. Section 27(1) reads as
follows:-

"27.(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 not capable of being disposed of for cultivation) which is
acquired by the 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 authorised in this behalf by the State
Government in the order of priority set out in Sub-sections (2), (3), (4) and (5)."

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 Shakuntala Arjun Pawar vs State Of Maharashtra Through Its ... on 20 January, 2003

Sub-section (9) of Section 27 reads as follows:- "(9) Where land which vests in the State Government
under Section 21 is grazing land or tank land or land notified under Sub-section (1), the State
Government may dispose it of in such manner as it thinks fit."

It is, therefore, obvious that where the land is not capable of being disposed of by cultivation, it can
be allotted by the Collector or any other officer in this behalf. In the present case, the land was
distributed by the Tahsildar. Where the land is not capable of cultivation, it is required to be
distributed by the State Government. The Government has in its letter referred to above, referred
this aspect to the Commissioner for decision while observing that the land is not cultivable and,
therefore, the action for cancellation and redistribution should be taken. The factual aspect of this
matter is really concluded by the certificate dated 16.9.1980 which was relied upon at the time of
distribution of the land. That certificate clearly states that the land is found to be suitable for
cultivation of horticulture plants and, therefore, it was distributed. There is no dispute that
horticulture is included in the definition of agriculture vide Section 2 Sub-section (1). The Collector
has travelled wide outside the reference of the Government and has held the distribution illegal on
several grounds. One of the grounds given by the Collector is that the land has been distributed by
the Tahsildar without convening a meeting of the distribution committee. Such a ground has been
held not to be good in law by a decision of this Court in Laxminarayan Maniklal Pathak and Anr. v.
State of Maharashtra and Anr., reported in 1986 Mh.L.J. 528. This Court upheld the decision of the
Tahsildar acting as Chairman and held that this is recognised by Sub-section (6) of Section 2AO of
the Act. The Collector has further set aside the allotment on the ground that the petitioner is not
landless even though the allotment order itself did not grant the lands to the petitioner because she
is landless. Suffice it to say that the Tahsildar has travelled beyond the scope of the reference made
by the Government. This constitutes a material irregularity.

6. In the circumstances, it is clear that the impugned order is not sustainable and deserves to be set
aside. In the result, the rule is made absolute. The impugned order dated 5.10.1986/11.2.1987 is
quashed and set aside. There shall be no order as to costs.

7. P.S. to give ordinary copy of this judgement to the parties concerned.

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