1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2921 OF 2006.
Trimbakrao s/o Mugutrao Deshmukh,
aged 74 years, Occupation Retired
Captain, resident of Plot No.1,
Gayatro Nagar, Near Ajantha Colony,
Jalgaon, Tahsil and District Jalgaon. ... PETITIONER
VERSUS
1. The State of Maharashtra,
through Principal Secretary,
Revenue Department, Mumbai.
2. The District Collector,
District Buldana,
Collectorate Office,
District Buldana. ... RESPONDENTS
....
Shri A.K. Choube, Advocate for the petitioner.
Shri S.B. Ahirkar, Assistant Government Pleader for the
respondents.
....
CORAM : K.J. ROHEE &
PRASANNA B. VARALE, JJ.
DATE OF RESERVING JUDGMENT : 14TH OCTOBER, 2008.
DATE OF PRONOUNCING JUDGMENT:24TH OCTOBER, 2008.
ORAL JUDGMENT : (Per K.J. Rohee, J.)
::: Downloaded on – 09/06/2013 14:01:49 :::
2
Rule. Rule is made returnable forthwith. Heard
finally by consent of the parties.
2. The petitioner has moved the present writ petition
under Article 226 and 227 of the Constitution of India seeking
direction to the respondents to accord permission to the
petitioner to sell the land.
3. The petitioner is an Ex-serviceman. He served with
the Indian Army from 11.10.1952 to 31.10.1980. He was made
honorary Captain by the President of India. As the petitioner
was not having his own land, sometime in June/July, 1972, he
applied for allotment of land to Sub Divisional Officer,
Khamgaon for allotment of land. 3.44 HR land, having land
revenue of Rs.14/- in Gat No.152 situated at village Vihigaon,
Tahsil Khamgaon, District Buldana, was allotted to the
petitioner.
4. According to the petitioner, he is cultivating the said
land continuously. However, because of his old age and as he
::: Downloaded on – 09/06/2013 14:01:49 :::
3
is suffering from certain ailments like diabetes and back pain,
he is unable to cultivate it personally. On 09.01.1994, the
petitioner applied to the government for permission to sell the
said land. Since the petitioner did not receive any
communication from the government, he issued several
reminders. On 01.10.2003, the petitioner received a
communication from the respondents informing him that as
per the Rules framed on 19.10.2001, the persons who wanted to
sell the land allotted to them, have to deposit fifty per cent of
the market value and only on this condition being fulfilled,
permission to sell land would be granted. The petitioner
brought to the notice of the respondents that the Rules framed
on 19.10.2001 would not apply to his case because he had
applied for permission to sell his land prior to 19.10.2001. On
04.11.2003, the petitioner issued notice to the Collector,
Buldana (respondent No.2) under Section 80 of the Code of
Civil Procedure narrating all these facts. Along with the said
notice, he sent a demand draft for Rs.560/- as Nazrana being
forty times of the land revenue of Rs.14/-. The notice was
however not complied with. Whenever the petitioner made
::: Downloaded on – 09/06/2013 14:01:49 :::
4
enquiries with the respondents, no attention was paid to his
request. Hence, he filed the present writ petition for directing
the respondents to accord permission to sell his land as per the
Rules prevailing on the date of his application.
5. Respondent No.2 – Collector, Buldana filed affidavit-
in-reply. According to respondent No.2, the petitioner kept the
land barren during some seasons. According to respondent
No.2, the petitioner applied before the Sub Divisional Officer,
Khamgaon on 28.02.1997 for according permission to sell land
granted to him. Respondent No.2 made enquiries into the said
application and submitted his proposal to respondent No.1 on
28.09.2004. It is further contended by respondent No.2 that
after the petitioner made application to Sub Divisional Officer,
Khamgaon on 28.02.1997, the Sub Divisional Officer submitted
his report to respondent No.2 on 15.01.1998. As there were
certain deficiencies in the proposal of the Sub Divisional
Officer, after removal of those discrepancies, the proposal was
submitted to the government on 09.11.1998. By
communication dated 24.02.2003, respondent No.1 intimated
::: Downloaded on – 09/06/2013 14:01:49 :::
5
respondent No.2 to take decision. On 17.10.2003, the
petitioner again moved an application. Respondent No.2 again
informed respondent No.1 and by communication dated
25.07.2005, the application of the petitioner was rejected by
respondent No.1.
6. We have heard Shri A.K. Choube, the learned
Counsel for the petitioner and Shri S.B. Ahirkar, the learned
Assistant Government Pleader for respondents.
7. The only point which is involved in the present
petition is whether the government was justified in refusing
permission to the petitioner to sell his land on the ground that
there was no provision to give such sanction by accepting
Nazrana.
8. In this connection, the provisions of Section 29 of the
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961
(hereinafter referred as “the Act of 1961”) are material. Section
29 reads as under :-
::: Downloaded on – 09/06/2013 14:01:49 :::
6
“29. (1) Without the previous sanction of the
Collector, no land granted under Section 27 or
granted to a joint farming society under Section 28,
shall be –
(a) transferred, whether by way of sale
(including sale in execution of a decree of a civil
Court or of an award or order of any competent
authority) or by way of gift, mortgage, exchange,
lease or otherwise; or
(b) divided whether by partition or
otherwise, and whether by a decree or order of a
civil Court or any other competent authority,
such sanction shall not be given otherwise than in
such circumstances, and on such condition
[including condition regarding payment of
premium or nazarana to the State Government], as
may be prescribed :
[Provided that, no such sanction shall be
necessary where land is to be leased by a serving
member of the armed forces or where the land is to
be mortgaged as provided in sub-section (4) of
section 36 of the Code for raising a loan for
effecting any improvement of such land.]
(2) If sanction is given by the Collector to
any transfer or division under sub-section (1)
subsequent transfer or division of land shall also
be subject to the provision of sub-section (1).
(3) Any transfer or division of land, and
any acquisition thereof, in contravention of sub-
section (1) or sub-section (2) shall be invalid; and
as a penalty therefor, any right, title and interest of
::: Downloaded on – 09/06/2013 14:01:49 :::
7
the transferor and transferee in or in relation to
such land shall, after giving him an opportunity to
show cause, be forfeited by the Collector and shall
without further assurance vest in the State
Government.”
9. A perusal of the above provision would show that a
land granted under Section 27 of the Act of 1961 could be
transferred by way of sale with the previous sanction of the
Collector. Such sanction could be given on the conditions
including the condition regarding payment of premium or
Nazarana to the State Government as may be prescribed. In
this connection, we will have to consider the provisions of the
Maharashtra Agricultural Lands (Lowering of Ceiling on
Holdings) Distribution of Surplus Land and (Amendment)
Rules, 1975 (hereinafter referred as “the Amendment Rules of
1975”). Rule 12 of the Amendment Rules of 1975 is most
material. It provides as under :-
“12. Provision for transfer of land in under
Section 29 :- Under Section 29, the Collector may
sanction transfer of land in any of the following
circumstances, that is to say :-
::: Downloaded on – 09/06/2013 14:01:49 :::
8
(a) if the land is required by an industrial
undertaking in connection with any bonafide
industrial operation carried on or to be carried on
by such undertaking :
(b) if the land is required for bonafide
non-agricultural purpose;
(c) if the land is required for the benefit of
any educational or charitable institution;
(d) if the land is required by a co-
operative society;
(e) if the land is being exchanged –
(i) for land of equal of nearly equal value
owned and cultivated personally by member of the
holders’ family, or
(ii) for land of equal or nearly equal value
in the same village owned and cultivated
personally by a land owned a view to forming
compact block of his holding or better
management thereof;
provided that, the total land held and
cultivated personally by any of such holders
whether as owner or tenant or partly as owner and
partly as tenant does not exceeding the ceiling area
as a result of the exchange;
(f) if the land is being leased by a lessor
who is a person under disability;
(g) if the land is being partitioned among
the heirs or survivors of the deceased grantee of the
land, and no party after the shares are defined on
partition gets land which is a fragment :
::: Downloaded on – 09/06/2013 14:01:49 :::
9
Provided that no sanction shall be
accorded to any transfer of land falling under
clauses (a), (b), (c) or (d) unless the transferoragrees to the condition to pay to the State
Government a Nazarana equal to 40 times the
assessment of land.”
The proviso of Rule 12 clearly shows that the sanction would be
accorded to transfer of land on condition that the transferor
pays to State Government Nazarana equal to 40 times the
assessment of land.
10. It seems that on 09.01.1994, the petitioner moved an
application for permission to sell the land allotted to him. The
said application was however sent by the petitioner to the
Chief Minister, Bombay, instead of sending it to Collector,
Buldana (respondent No.2). On 09.02.1994, the Desk Officer,
Revenue and Forest Department, Mantralaya, Mumbai
informed the petitioner that his application dated 09.01.1994
has been forwarded to Collector, Buldana for further action
and that the petitioner should contact Collector, Buldana. It
seems that thereafter no action was taken by the Collector.
::: Downloaded on – 09/06/2013 14:01:49 :::
10
11. In the meantime, on 19.10.2001, the Rules were
revised and the Maharashtra Agricultural Lands (Lowering of
Ceiling on Holdings) (Distribution of Surplus Land) and
(Amendment) Rules, 2001 came into force. By the
amendment, the existing proviso was substituted by following
proviso :-
“Provided that, no sanction shall be
accorded to any transfer of land falling under
clauses (a) and (b) unless the transferor agrees topay to the State Government an amount equal to 75
per cent of the unearned income i.e. 75 per cent of
the difference between current market value and
the occupancy price at which the land wasoriginally granted to the applicant and in case of
transfer of land falling under clauses (c), (d) and (d-
1) 50 per cent of the unearned income.”
12. It was only on 03.11.2003 that Collector, Buldana
(respondent No.2) wrote a letter to the Secretary, Revenue and
Forest Department, Mantralaya, Mumbai informing him that
the petitioner brought to his notice that permission to sell such
land was granted to one Shri Uttamrao Santukrao More by the
government on 03.06.1995 by accepting Nazarana as per the
::: Downloaded on – 09/06/2013 14:01:49 :::
11
Rules prevailing at that time and such permission should be
granted to the petitioner. Collector, Buldana, however,
informed that he was not competent to accord such sanction.
He, therefore, forwarded the petitioner’s application and
documents to the Statement Government. It seems that on the
very next day i.e. on 04.11.2003, the petitioner issued notice
under Section 80 of the Code of Civil Procedure to Collector,
Buldana seeking permission to sell his land. Along with the
said notice, the petitioner also forwarded demand draft of
Rs.560/- towards Nazarana being 40 times the land revenue of
Rs.14/-. It was only on 25.07.2005 that Under Secretary,
Revenue and Forest Department, Mantralaya, Mumbai
informed the petitioner that as per the prevailing Rules, there is
no provision for according sanction by accepting the amount
of Nazarana and as such the prayer of the petitioner was
rejected.
13. From the above discussion, it would be seen that the
application of the petitioner was pending since 09.01.1994.
Collector, Buldana (respondent No.2) did not take any action
::: Downloaded on – 09/06/2013 14:01:49 :::
12
till 2003. In the meanwhile, the Amendment Rules of 1975
were amended. In fact, under Amendment Rules of 1975,
sanction to sell land could have been granted on payment of
Nazarana equal to 40 times the assessment of land. However,
nothing was done by Collector, Buldana. Collector, Buldana
moved the State Government only in the year 2003 i.e. after the
Amendment Rules of 1975 were revised by notification dated
19.10.2001 where under the transferor was required to pay an
amount equal to 75 per cent or 50 per cent of the unearned
income. This was to the detriment of the petitioner and that
too for no fault of the petitioner. Had Collector, Buldana
(respondent No.2) acted promptly in deciding the application
of the petitioner of 1994, sanction could have been granted to
the petitioner to sell land by accepting Nazarana equal to 40
times the assessment of land which in the present case comes
to Rs.560/-. Collector, Buldana did not take any action for
years together on the application of the petitioner. As such the
application of the petitioner would be governed by
Amendment Rules of 1975 and not by the revised Rules of 2001.
::: Downloaded on – 09/06/2013 14:01:49 :::
13
14. In view of these circumstances, the State
Government was not at all justified in rejecting the prayer of
the petitioner for grant of sanction to sell the land by accepting
Nazarana equal to 40 times. The situation is that the State
Government should not have refused the prayer of the
petitioner and in fact the Collector should have granted
sanction to the petitioner to sell the land by directing the
petitioner to pay to the State Government Nazarana equal to
40 times the assessment of land. Hence the petition needs to
be allowed. We, therefore, pass the following order.
15. The petition is allowed. Respondent No.2 –
Collector, Buldana is hereby directed to accord sanction to the
petitioner within a period of two weeks from the date of
communication of this order to sell his land in question on the
petitioner paying Nazarana of Rs.560/- to the State
Government. Rule is made absolute in aforesaid terms.
JUDGE JUDGE
rrg.
::: Downloaded on - 09/06/2013 14:01:49 :::
14
16. At this stage, Shri S.B. Ahirkar, the learned Assistant
Government Pleader prays for staying this order for a period of
four weeks to enable the State to approach the Apex Court.
Prayer is rejected.
JUDGE JUDGE
rrg.
::: Downloaded on - 09/06/2013 14:01:49 :::