Writ Petition No.1550 of 2014

21st July, 2015.

Petitioner Counsel: Shri S. ZIA QAZI
Respondent Counsel: Smt. B.P. MALDHURE, Shri P.C. MADKHOLKAR

Cases Cited:
Hinch Lal Tiwari Vs. Kamala Devi and Ors., (2001) 6 SCC 496 [Para 3,5,11]
Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh and Ors., 2011 ALL SCR 1051=(2011) 5 SCC 29 [Para 9]

JUDGMENT

JUDGMENT :- Rule. Heard finally with consent of learned counsel for the parties.

2. This writ petition takes exception to the order passed by the respondent no.1 dated 17.10.2013 thereby allowing the appeal filed by respondent no.4 and in turn setting aside order passed by the Additional Commissioner in proceedings under Section 247 of the Maharashtra Land Revenue Code, 1966 (for short the said Code). The respondent no.4 is a Society that is running a High School and Junior College. It made an application for allotment of land admeasuring 0.47 R at Survey No. 386 in terms of Government Resolution dated 30.06.1992. On 08.11.2007 the Collector allotted aforesaid land to the respondent no.4 Society for being used to accommodate the school building and playground. Being aggrieved the present petitioners filed an appeal under Section 247 of the Code.

In appeal, the Additional Commissioner found that a water body existed in part of field survey no.386 and the Nistarpatrak reflected such user. However said entry has been deleted and the land in question came to be allotted to the respondent no.1 without following the procedure prescribed by Section 20(2) of the Code. The allotment was therefore set aside. In appeal under Section 248 of the Code filed by respondent no.4, the State Government held that all adjoining lands had been converted for nonagricultural use and it was likely that the water body could give rise to contiguous diseases. On that count the order passed by the Additional Commissioner was set aside and the allotment in favour of respondent no. 4 was maintained.

3. Shri S. Z. Qazi learned counsel appearing for the petitioner submitted that the Additional Commissioner after considering the entire records found that the procedure contemplated by Section 20(2) of the Code had not been followed. He submitted that in the Development Plan notified in the year 2006 said site had been shown with the remark that a water body existed therein. It was on that basis that the allotment had been set aside. According to him, the Hon'ble Minister without considering these aspects set aside the order of the Additional Commissioner by observing that it was likely that the water body could result in spread of the diseases and that the said land could be used as playground. He placed reliance on the judgment of the Supreme Court in Hinch Lal Tiwari Vs. Kamala Devi and others (2001) 6 Supreme Court Cases 496.

4. Shri P. C. Madkholkar, learned counsel appearing for the respondent no.4 supported the impugned order. According to him after following the entire procedure as prescribed, the land in question had been allotted to the respondent no.4. He submitted that all adjoining lands had been converted for nonagricultural use and a school was being run in the vicinity. The land in question was to be used as playground.

He challenged the locus of the present petitioners on the ground that they had no legal right to question the allotment in favour of the respondent no.4. He also referred to the affidavit filed on behalf of respondent no.2 to indicate that all necessary procedure had been duly complied. He also submitted that due to the interim orders passed, all further developmental activities that were to be conducted by the respondent no.4 Society had come to a standstill. He then urged that the observations of the Supreme Court in Hinch Lal Tiwari (supra) were not applicable to the present case.

5. Smt. B. P. Maldhure, learned Assistant Government Pleader appearing for respondent nos. 1 to 3 relied upon the affidavit filed on record and submitted that on 20.03.2006 the Nistar Patrak has been modified and the entry as regards waterbody had been deleted.

6. I have carefully considered the respective submissions. The existence of a waterbody at Survey No. 386 to the extent of 0.47 R. is clear from the documents filed on record. The Nistar Patrak which recorded said entry came to be modified in terms of Section 161(3) of the Code. Prior to such modification, a proclamation was issued and objections had been called for. As there was no response pursuant to such proclamation, the Nistar Patrak came to be modified. The order dated 20.03.2006 indicates the procedure as contemplated by Section 161(3) of the Code for modifying the Nistar Patrak had been duly followed.

7. The Additional Commissioner in his order dated 09.08.2010 has recorded a finding that the grant of aforesaid land to the respondent no.4 was without making any enquiry and without following the procedure prescribed under Section 20(2) of the Code. This finding recorded by the Additional Commissioner has not been disturbed by the Hon'ble Minister. On the contrary, the issuance of proclamation under Section 161(3) of the said Code has been relied on to indicate as if objections had been called for grant of land to the respondent no. 4. The procedure required to be followed under Section 20(2) of the Code is separate and independent of the procedure that was followed for modifying the Nistar Patrak. Merely because proclamation was issued under Section 161(3) of the Code, the same would not mean that such procedure was also followed for purposes of Section 20(2) of the Code.

8. At this stage, reference to the decision of the Supreme Court in Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh and others (2011) 5 Supreme Court Cases 29 : [2011 ALL SCR 1051] can be usefully made. In the matter of allotment of land, in paragraphs 66 and 67 it has been observed as under:

"66. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors and invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.

67. This, however, does not mean that the State can never allot land to the institutions/organisations engaged in educational, cultural, social or philanthropic activities or are rendering service to the society except by way of auction. Nevertheless, it is necessary to observe that once a piece of land is earmarked or identified for allotment to institutions/organisations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the dcotrine of equality. The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similarly situated eligible persons, institutions/organisations to participate in the process of allotment, whether by way of auction or otherwise. In a given case Government may allot land at a fixed price but in that case also allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution."

The aforesaid observations highlight the importance of following the necessary produce while making allotment under Section 20 of the Code.

9. In so far as the aspect of locus of the petitioners is concerned, it is to be noted that in the memorandum of appeal filed by the petitioners before the Additional Commissioner it has been stated that the predecessor of the petitioners had been granted rights to use water from the waterbody for irrigation purposes vide order dated 20.09.1980. This right was also considered by the Additional Commissioner when he entertained the appeal at the behest of the petitioners. It therefore cannot be said that the petitioners had no locus to challenge the allotment. This objection raised on behalf of respondent no.4 does not deserve to be upheld.

10. In the appellate order, it has been held by the Additional Commissioner that the land in question is reflected in the Development Plan and existence of waterbody has been recognised. This notification is dated 16.08.2006 but said relevant aspect has not been considered by the Hon'ble Minister while setting aside the order passed by the Additional Commissioner. Moreover, the consideration that continuation of the water body could result in spread of diseases is hardly relevant in the matter of allotment of land under Section 20(2) of the Code. The impugned order therefore indicates consideration of irrelevant factors and nonconsideration of factors that were relevant in the matter. The importance of protecting material resources has been highlighted in the decision of the Supreme Court in Hinchal Tiwari (supra) and same appears to have been given a go by in the impugned order.

11. Hence, in the absence of any enquiry and due procedure being followed under Section 20(2) of the Code, the order passed by the Hon'ble Minister cannot be sustained. In view of aforesaid discussion, the following order is passed:

1] Order dated 17.10.2013 passed by the Hon'ble Minister is set aside.

2] The order dated 09.08.2010 passed by the Additional Commissioner stands restored.

3] It is open for the respondent no.4 to take appropriate steps if it seeks allotment of aforesaid land in accordance with law. Similarly, in terms of the order dated 09.08.2010 passed by the Additional Commissioner it is open for the petitioners to take appropriate steps for restoration of the Nistar entries, if advised. Rule is made absolute in aforesaid terms. No costs.

It is stated by the learned counsel for respondent no.4 that there is a building standing on part of Survey No. 386 that came to be allotted to the respondent no. 4 by order of allotment dated 08.11.2007. In that view of the matter, for a period of four months from today no coercive steps shall be taken to demolish the existing construction that is standing on 0.47 R. of Survey No. 386 of Mouza Virsi Tukum at Desaiganj, Wadsa.

Ordered accordingly.