Dismissed

Machindra Ananda Nikam v. the State of Maharashtra and Others

Bombay HC6 Sept 2018WP/1734/2017

Case brief

AI extract

What is this about?

In a writ petition, the petitioner challenged the rejection of his application for allotment of surplus agricultural land, claiming the authority lacked power to condone delay. The Court upheld the rejection, ruling the time limits under Government Notifications were valid, the relevant amendment was constitutional under Article 31A, and the Tahsildar had no power to extend the statutory limitatio

What did the court decide?

The writ petition was dismissed. The impugned order rejecting the petitioner's application for land allotment was affirmed.

Machindra Ananda Nikam Vs the State of Maharashtra and… — Property and Title | Bombay HC (2018)

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1734.17wp

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.1734 OF 2017

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Machindra s/o Ananda Nikam, Age: 57 years, Occu: Agriculture, R/o. Savantsar, Tq. Kopargaon, Dist. Ahmednagar ..PETITIONER

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VERSUS

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The State of Maharashtra, Through its Secretary, Revenue & Forest Department, Maharashtra State, Mantralaya, Mumbai-32

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The Collector, Ahmednagar

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The Deputy Director, Land Acquisition (Land Ceiling Camp), Savntsar & Kokamthan, Ahmednagar

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The Sub-Divisional Officer, Shirdi Division, Shirdi, Dist. Ahmednagar

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Tahsildar, Kopargaon, Dist. Ahmednagar

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The Maharashtra State Farming Corporation, Camp Office, Laxmiwadi, Tq. Rahata, Dist. Ahmednagar

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..RESPONDENTS

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Mr N. R. Bhavar, Advocate for petitioner; Mr A. R. Kale, A.G.P. for respondent Nos.1 to 5; Mr P. V. Barde, Advocate for respondent No.6

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CORAM : PRASANNA B. VARALE AND MANISH PITALE, JJ.

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1734.17wp (2)

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DATE : 6th September, 2018

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ORAL ORDER:

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Heard learned Counsel appearing on behalf of respective parties. With consent of learned Counsel for respective parties, the petition is taken up for hearing/final disposal.

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Mr Bhavar, learned Counsel appearing on behalf of the petitioner submits that the petitioner – Machindra Ananda Nikam is legal heir of Ananda Pundalik Nikam. Ananda s/o Pundalik Nikam was the original holder of the land bearing Survey No.448/3, admeasuring 6 Acres 1 Guntha, situated at Savatsar in Kopargaon Taluka, District Ahmednagar. Ananda Nikam, during his life time leased the said land to Godavari Sugar Mills Ltd., Laxmiwadi for cultivation of sugarcane. The agreement to that effect was also executed between parties. During passage of time, the said land was taken in possession by the State of Maharashtra and later-on the possession was handed over to respondent No.6 - Maharashtra State Farming Corporation for cultivation.

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Mr Bhavar, learned Counsel for the petitioner submits that the land bearing Survey No.96/4, to the extent of 4 Acres 22 Gunthas, was allotted to Ananda Nikam and his family in the year 1977. He further submits that name of Ananda Nikam was entered in the revenue

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1734.17wp (3)

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records in respect of land bearing Survey No.96/4 and the land bearing Survey No.448/3, which was given in possession to respondent No.6 - Maharashtra State Farming Corporation is still in possession of respondent No.6. Ananda Pundalik Nikam died on 17^th October, 1991, leaving behind him Rahibai (his widow) and two sons, namely, Bhaskar Ananda Nikam and Machindra Ananda Nikam (petitioner). Mr Bhavar further submits that on 4^th May, 2012, a Notification was issued by the State of Maharashtra, whereby it was decided to re-allot lands, which were declared surplus to the original land holders. The copy of the Notification dated 4^th May, 2012 is placed on record at Exh.‘B’.

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Mr Bhavar, learned Counsel for the petitioner invited attention of this Court to an amendment effected in April 2003 to the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short “The Act”) . It may be necessary for our purposes to refer to Sub-section (3) of Section 28-1AA of the said Act, which reads thus:

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“[(3) The State Government may, subject to the provisions of sub-section (4), after ascertaining the views of the persons interested in the land referred to in sub-section (1), also grant such land to a person who had previously leased his land to the undertaking, who (not being a public trust), requires that land for his personal cultivation, to the extent of the ceiling area as stipulated in the Act, or the actual

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(4)

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area of the land leased by such person to the undertaking, whichever is less, subject to such other terms and conditions as may be specified in this behalf :

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Provided that, a person, who was required to file return under section 12 or 12A of the Act in respect of the lands held by him as on the 19th September 1975, and whose land was declared surplus under the provisions of this Act, shall not be entitled to such grant :

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Provided further that, a person, who has applied for grant of such land after 90 days from the commencement of the Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment) Act, 2001, shall not be eligible for grant of such land :]”

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It is the further submission of Mr Bhavar, learned Counsel for the petitioner that the petitioner, being legal representative of deceased Ananda Pundalik Nikam and as the petitioner and his family is willing to utilize the land for personal cultivation, he submitted an application in prescribed format along with necessary documents on or about 9^th July, 2013 for allotment of the land bearing Survey No.448/3, to the extent of 1 Acre 19 Gunthas, in the office of of Tahsildar, Kopargaon. The application was pending for a considerable length of time and though the petitioner, on many occasions made an enquiry with the office of respondent No.4, no heed was paid to the request of the petitioner to decide the said application and as such, the petitioner was left with no choice but to file writ petition, namely, Writ Petition No.11248 of 2015 in this Court, seeking directions to the authorities to decide the application dated 9^th July, 2013. The Division Bench of

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(5)

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this Court, by an order dated 19^th November, 2015 disposed of the said writ petition with directions to respondent No.4 – Sub Divisional Officer, Shirdi, to take decision on the application in accordance with law, as expeditiously as possible, preferably within a period of eight weeks from the date of the order.

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Mr Bhavar, learned Counsel for the petitioner then submits that in spite of directions by this Court, the application was not decided and as such, the petitioner again submitted an application on 22^nd September, 2016 and vide an order dated 28^th November, 2016, respondent No.4 rejected the application dated 9^th July, 2013, filed by the petitioner on the ground that the application of the petitioner is beyond the limitation as prescribed under the Notification dated 2^nd February, 2012 and another ground for rejection is that respondent No.4 is not the competent authority to extend the period of limitation and the authority for extension of such period lies with the State Government. Mr Bhavar vehemently submits that the application of the petitioner is rejected only on a technical ground and delay caused in approaching the authority was unintentional one. He also submits that the petitioner is an agriculturist and is not conversant with the legal niceties. He also submits that as the application was pending before the authority for a considerable long time, the petitioner had approached this Court by filing writ petition and the Division Bench of

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1734.17wp (6)

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this Court directed the authorities to decide the application within a stipulated period. He further submits that father of the petitioner was the original land holder and merely because the petitioner approached the authorities belatedly, the delay cannot be a ground for refusal of the prayer to return the land to the petitioner. He then submits that the stipulation of time fixed by the State Government under the Notifications dated 2^nd February, 2012 and 4^th May, 2012 takes away the right of the land holder and the same being arbitrary, the Notifications dated 2^nd February, 2012 and 4^th May, 2012, be quashed and set aside. He further submits that as the order dated 28^th November, 2016 causes a serious prejudice to the petitioner, the same be quashed and set aside.

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Per contra, learned Asstt. Govt. Pleader appearing for respondent Nos.1 to 5 and Mr Barde, learned Counsel appearing for respondent No.6 supported the order impugned in the petition. They vehemently submit that the State Government, by issuing Notification, initially granted period of 90 days and the same was further extended by 90 days and in spite of providing two such opportunities, the petitioner approached the authorities after lapse of nearly five years and such inordinate delay could not have been condoned by the authority and the petitioner is to blame himself for an inordinate delay and the order impugned in the petition passed by respondent No.4,

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1734.17wp (7)

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who does not possess any power to extend the period stipulated by the State Government under the Notifications. This being a very clear position of facts, the petition being meritless, same be dismissed, is the submission of learned Asstt. Govt. Pleader and Mr Barde, learned Counsel for respondent No.6.

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Mr Bhavar, learned Counsel for the petitioner placed reliance on the judgment in the matter of Collector, Land Acquisition, Anantnag & anr. Vs. Mst. Katiji & ors. , reported in (1987) 2 Supreme Court Cases 107 .

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Per contra, learned Asstt. Govt. Pleader and learned Counsel for respondent No.6 that the provisions of Limitation Act would not be applicable to the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 and as such, there is no question of continuation of delay. Learned Asstt. Govt. Pleader and learned Counsel for respondent No.6 submit that a challenge raised to the validity of Notification dated 4^th May, 2012 clearly fails in view of the judgment of this Court in the matter of Shrigonda Taluka Sakhar Kamgar Union & ors. Vs. The State of Maharashtra & ors., reported in 2013 BCI 1271.

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1734.17wp (8)

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A heavy reliance is placed on the judgment and order dated 29^th August, 2008, passed by this Court in the matter of The Commissioner of Central Excise VS. Shruti Colorants Ltd., reported in MANU/MH/0786/2008, to submit that the provisions of Limitation Act would not be applicable to the provisions of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 being a local Act.

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On hearing learned Counsel appearing on behalf of respective parties at length, we are of the opinion that there is considerable merit in the submissions of learned Asstt. Govt. Pleader as well as Mr Barde, learned Counsel for respondent No.6 and the challenge raised to the order passed by respondent No.4 which is impugned in the petition fails and the grounds raised in the petition are unsustainable.

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It is not in dispute that the amendment effected to the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 by Notification dated 2^nd February, 2012 refers to a prescribed stipulation of the period. This amendment itself was on the backdrop of consistent demand for re-allotment of the land. The stipulation was of 90 days and it was to run from 2^nd February, 2012 and was to expire on 1^st May, 2012. Then, by issuing a Notification dated 4^th May, 2012, the issue of re-allotment was again considered with the

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1734.17wp

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(9)

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guidelines and modalities. The copy of the Notification dated 4^th May 2012 is placed on record. Perusal of the guidelines shows that a time bound programme was fixed for re-allotment of the land. It may be useful to refer to this time bound programme, which reads thus:

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“ekth [kaMdk&;kauk tehu okVi dj.;kckcr dkyc/n dk;Zdze

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	v½ ik= izfrfgrkaph ¼Allottee½
1½	IkzkIr >kysY;k vtkZaph vuq”ks’k Nkuuh dj.ks	vtZ izkIr	>kY;kP;k fnukadkiklwu
		10 fnol
2½	ik= izfrfgrkaph izk#i ;knh vuq”ks’k {ks=klg izfl/n dj.ks	VtkZph Nk fnol	uuh iw.kZ >kY;kuarj 10
3½	izk#i ;knhoj gjdrh o lwpuk ekxfo.ks	izfl/nhP;k	fnukadkiklwu 15 fnol
4½	izkIr gjdr o lwpukaoj lacaf/krkauk lquko.kh nsÅu fu.kZ; ns.ks	15 fnol
5½	Ik= izfrxzfgrkaph ;knh ftYgkf/kdkjh ;kaP;k ekU;rslkBh ikBfo.ks	15 fnol
6½	Ik= izfrxzfgrkaP;k ;knhl ftYgkf/kdkjh ;kauh ekU;rk ns.ks	15 fnol
7½	izkIr izfrxzfgrkaph vuqKs; {ks=klg vafre ;knh izfl/n dj.ks	10 fnol

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c½ ekth [kaMd&;kaUkk okVi djko;kP;k tfeuhpk vkjk[kMk r;kj dj.ks

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1½	OkkVi {ks= tfeuhph fuoM dj.ks	lq/kkjhr	ekxZn”kZd lwpuk ykxw
		>kY;kP;k	fnukadkiklwu 15 fnol
2½	OkkVi djko;kpk izk#i vkjk[kMk r;kj dj.ks	lq/kkjhr	ekxZn”kZd lwpuk ykxw
		>kY;kP;k	fnukadkiklwu 30 fnol
3½	izk#i vkjk[kMk izfl/n dj.ks	10 fnol
4½	izk#i vkjk[kM;koj gjdr o lwpuk ekxfo.ks	30 fnol

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(10)

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1734.17wp

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d½ OkkVi ik= tfeuhph ekst.kh o udk”ks r;kj dj.ks

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izfrxzfgrkauk okVi djrkuk jLrs] lkekbZd cka/k o brj lqfo/kaklkBh vko”;d vlysyh tehu izfrxzfgrkauk okVi djko;kP;k {ks=krwu oxGwu moZfjr tehu izfrxzfgrkauk okVi dsyh tkbZy v”kk r&gsus ekst.kh d#u udk”ks r;kj dj.ks-

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M½ tfeuhps izR;{k okVi

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1½ ,dkp Hkw[kaMklkBh ,dkis{kk tkLr izfrxzfgrkapk vtZ vkY;kl fpB;k

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Vkdwu tfeuhps okVi dj.ks-

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2½ tehu okVikckcr;s vkns”k ikfjr dj.ks3½ vf/kdkj vfHkys[kkr Qsjcny@QsjQkj uksanh ?ks.ks-

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4½ tehu okVikP;k vaeyctko.khckcr vafre vgoky “kklukl lknj

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dj.ks-”

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On the backdrop of the aforesaid facts, if the order impugned in the present petition is perused, it clearly shows that in view of the directions of this Court, dated 19^th November, 2015 in Writ petition No.11248 of 2015, respondent No.4 provided an opportunity of hearing to the parties including the petitioner. The parties to the proceedings advanced their oral and written submissions and then by referring to the amendment and the Notification dated 4^th May, 2012, respondent No.4 arrived at a conclusion that the application submitted by the petitioner was beyond the prescribed period and the State

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(11)

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Government had not delegated any power to respondent No.4 to condone delay and accept an application which is filed beyond the prescribed period and accordingly, respondent No.4 passed the order. The reasons so assigned are reiterated in the affidavit-in-reply filed on behalf of respondent No.1 to 4 through Shri. Kishor Ambadas Kadam, Tahsildar, Kopargaon.

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Learned Asstt. Govt. Pleader as well as Mr Barde, learned Counsel for respondent No.6 have placed heavy reliance on the judgment of Shrigonda Taluka Sakhar Kamgar Union & ors. Vs. The State of Maharashtra & ors., reported in 2013 BCI 1271. A challenge was raised to the amendment of 2006 and 2012 and the challenge failed. It would be useful for our purposes to refer to the observations made by the Division Bench of this Court, which read thus:

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“41. …………. When decision to return land taken in 2001 and affirmed by Maharashtra Amendment Act No. XVII of 2003 is already upheld and has immunity because Article 31A of the Constitution of India, the question of this nature does not arise at all. In so far as absence of protective umbrella of Article 31B of the Constitution of India is concerned, the challenge to Amendment Act No. XVII of 2003 has failed already. Present challenge on very same grounds only to extensions of time, therefore, cannot succeed. The purpose of amendment is found already to be

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1734.17wp

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(12)

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to further agrarian reforms. Once the return of land to original landlords who leased out lands to Sugar Factories is found essential to achieve agrarian reforms, it is apparent that procedure therefor evolved by State Legislature cannot be faulted with. None of the precedents show that it is the time restraint of 90 days or then, by implication, absence of any provision to extend said period of 90 days; which has weighed with Hon. Apex Court or this Court while upholding the constitutional validity. Petitioners have failed to demonstrate determinative property of the said stipulation of period of 90 days in the matter.

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Before referring to the judgments of Hon'ble Apex Court on this issue, we find it important to note that Chapter VI of 1961 Act deals with subject of distribution of surplus land. Section 27 is the general provision for said purpose. Section 28 is special provision in respect of lands taken over from Industrial undertaking under 1961 Act. Its purpose is to ensure efficient cultivation and continuous supply of raw material to such Industrial undertaking. Section 28 has been amended lastly by Maharashtra Amendment Act No. 50 of 1973 with effect from 1st October 1969. Thus, this provision was very much in existence when Hon'ble Apex Court delivered its judgment in the case of Godavari Sugar Mills Ltd. Vs. S.B. Kamble & others (supra). Here, there is special scheme for distribution of surplus lands. Sub-Section 2 of Section 28 opens with non-obstante clause and expressly overrides Section 27. Primacy has been given to maintain the integrity of area so declared surplus and acquired, in one or more compact blocks. It enables State Government to grant such land or any part thereof to joint

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1734.17wp

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(13)

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Farming Society of persons who had previously leased such land to the undertaking. It also enables grant to Farming Society of agricultural labour employed by undertaking of such land, of technical or other staff, to Farming Society of adjoining landlords who are small holders and lastly to Farming Society of landless persons. Thus, in the interest of maintaining assured supply of raw material to Industrial undertaking i.e. in public interest, Government gave preference to Farming Societies of the persons mentioned supra. It is in the background of this scheme that Section 28(1)AA needs consideration.”

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Considering all above referred aspects, we are of the opinion that no error is committed by respondent No.4 in the order dated 28^th November, 2016, which is impugned in the present petition. Thus, the petition fails and same stands dismissed accordingly.

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(MANISH PITALE, J.) (PRASANNA B. VARALE, J.)

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sjk

Machindra Ananda Nikam v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Machindra Ananda Nikam v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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