Bombay High Court High Court

Captain vs The State Of Maharashtra on 24 October, 2008

Bombay High Court
Captain vs The State Of Maharashtra on 24 October, 2008
Bench: Prasanna B. Varale
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         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.)

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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

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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

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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

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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 :-

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“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

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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 :-

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(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 :

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Provided that no sanction shall be
accorded to any transfer of land falling under
clauses (a), (b), (c) or (d) unless the transferor

agrees 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.

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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 to

pay 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 was

originally 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

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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

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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.

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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
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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




                                 
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