Writ Petition No.9612 of 2011

6th August, 2013

Petitioner Counsel: Shri S.B. Talekar
Respondent Counsel: Smt.V.A. Shinde

JUDGMENT

A.H. Joshi, J. :- Rule. Rule made returnable forthwith and taken up for final hearing with the consent of learned Advocates for the parties.

2. Heard learned Advocate for the petitioner and the learned AGP for the respondent nos.1 to 4.

3. The petitioner is a society and public trust. It runs a senior college in a rental accommodation at village Chittepimpalgaon Tq. & Dist.Aurangabad, where 600 students are taking education.

4. The petitioner applied to Tahsildar, Aurangabad, for allotment of 5 Acres land which are Survey Nos.142 and 143 of village Chittepimpalgaon, from Gairan abutting highway, as is seen from map at page no.66 of the paper book. Said application was filed on 14.1.2012.

5. It is seen from the paper book that the petitioner claimed allotment of land pursuant to Government circular dated 28.6.1999 which governs the policy pertaining to allotment of land subject to the statute and rules in that regard.

6. According to the petitioner, entire process required to be completed at lower level, prior to the decision of allotment of land is completed. The petitioner's request for allotment of land was to be decided by the Collector, Aurangabad, who has by letter dated 30.8.2011 rejected the same. Copy of said letter of rejection is placed on record at Annexure H - page no. 104 of the paper book.

7. It is spelt out from Annexure H - the letter of rejection, that in view of Clause (2) of paragraph (9) of the Government decision dated 12.7.2011, the Government has put a total ban on allotment of piece of land from Gairan area to private individuals, private organizations or private associations, and hence the petitioner's application was rejected by the Collector, Aurangabad.

8. The petitioner has challenged the decision of the Collector dated 30.8.2011 at Annexure H at page no.104 of the paper book as well as the policy decision of the State Government dated 12.7.2011 at Exhibit E seen at page no.46 to the extent of Clause (2) of paragraph No. (9) thereof.

9. During the course of submissions, learned Advocate for the petitioner has made the petitioner's stand explicit as follows:

[i] That the challenge in the petition is restricted to Clause (2) of paragraph No.(9) of the Government resolution-Annexure E.

[ii] Though the petitioner's request for allotment of land is rejected, the petitioner would not press for quashing of the impugned letter issued by the Collector, however, would seek a direction that the petitioner's application which would be filed sooner for any other land, may be considered on its own merits.

10. Heard both the sides, perused the record annexed to the petition, Act, Rules and the Government resolution etc.

11. It would be useful to refer to the grounds of challenge raised in the petition and draw them ad-verbatim.

Challenge to the Constitutional validity of Government decision dated 12.7.2011 :-

"I] At the outset, the Government Resolution dated 12th July, 2011 issued by the Principal Secretary to Government, Revenue & Forest Department, Mantralaya, Mumbai-32, is ultravires Articles 14, 294, 295 and 296 r/w Item/Entry No.231 of IXth Schedule of the Constitution of India; and at the same time runs counter to the sovereignty of the State and, therefore, unconstitutional.

IV] The Government Resolution dated 12th July, 2011 is contrary to several provisions in the MLR Code including Sections 20 and 31 and at the same time, statutory rules framed under Section 328 of the MLR Code, 1966.

V] The Collector, Aurangabad, ought to have appreciated that the administrative instructions cannot override the provisions of MLR Code, particularly when the said Act i.e. MLR Code is saved even from challenge on the ground of violation of fundamental rights by its inclusion in 9th Schedule of the Constitution of India.

VIII] The Collector, Aurangabad, was wrong in sitting over the statutory provisions as well as statutory Rules and also the judgments of the Supreme Court rendered subsequent to Jagpal Singh's case decided on 28.1.2011 by the Apex Court."

12. Learned Advocate for the petitioner has placed emphasis on Sections 20 and 31 of the MLR Code. Section 20(1) reads as follows:

"20. Title of State in all lands, public roads, etc., which are not property of others:-

(1) All public roads, lanes and paths, the bridges, ditches, dikes and fences, on, or beside, the same, the bed of the sea and of harbours and creeks below the high water mark, and rivers, streams, nallas, lakes and tanks and all canals and watercourses, and all standing and flowing water and all lands wherever situated, which are not the property of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights in or over the same, or appertaining thereto the property of the State Government and it shall be lawful for the Collector, subject to the orders of the Commissioner, to dispose of them in such manner as may be prescribed by the State Government in this behalf, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.

Explanation:In this section "high watermark" means the highest point reached by ordinary spring tides at any seasons of the year."

(emphasis by way of underlining is supplied by us.)

13. Scheme of Section 31 of the MLR Code reiterates and re-incorporates the scheme namely allotment can be done on payment of certain amount "in the manner as prescribed". Thus, the power to prescribe is vested with the Government. Section 31 has been and has to be referred only for said limited purpose.

14. The power to make Rules under Section 328 (2) (iv) of the Code reads as follows:

"328. Rules:

(1) The State Government may make rules not inconsistent with the provisions of this Code for the purpose of carrying into effect the provisions of this Code.

(2) In particular and without prejudice to the generality of the foregoing provisions, such rules may provide for all or any of the following matters:-

(i) to (iii) .... .... .... .... .... ....

(iv) Under sub-section (1), the manner of disposal of the property of the State Government and under sub-section (5) of section 20, the rules to be made for giving notice."

15. The State Government has framed Rules namely the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971. The rules carve out different classes of persons or institutions, to whom the land may be given and the terms and conditions of grant.

16. In the background of the challenge, we have to analyse and see the compass of power of the State under Section 20 of the MLR Code. The analysis of the scheme of Section 20 is as follows :

(a) The State has power to dispose the land;

(b) The power to dispose is exercisable in the manner as may be prescribed by the Government;

(c) The manner in which prescription should be given is guided under the Rules;

(d) The Rules do not restrict the power of the State to decide any policy as regards the purpose or lands which shall not be available for allotment.

17. In the premises noted hereinbefore, this Court has found that the petitioner has failed to make out grounds whatsoever for seeking declaration that the policy decision and in particular Clause (2) of paragraph No.(9) of the Government decision dated 12.7.2011 in any manner encroaches upon the enabling power of the State Government.

18. It is to be noted that the legislature has vested the power in the executive and the executive has decided as to how the State should act. The doctrine of ultravires is not shown to apply to the challenge except submission based on ingenuity and argumentativeness. The challenge has to fail and it fails.

19. Insofar as the petitioner's right to apply is concerned, the law does not create any bar in making any application upon rejection of one application. We, therefore, need not make any observation as regards the prospects and requirement of filing of such application.

20. We, therefore, dismiss the petition and discharge the Rule. No order as to costs.

Petition dismissed.