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Gulam Rasool Haji Yacoob Killedar and ors. Vs. the State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1185 of 1970
Judge
Reported inAIR1978Bom59; 1978MhLJ144
ActsMaharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 47 and 47(1); Maharashtra Agricultural Lands (Ceiling on Holdings) Rule, 1961 - Rules 16, 16-A, 16-A(2) and 16-A(3)
AppellantGulam Rasool Haji Yacoob Killedar and ors.
RespondentThe State of Maharashtra and ors.
Appellant AdvocateMalcolm F.A. Pereira, Adv. and ;M.H. Alwaney, Adv., i/b., ;Wilfred Pereira and Co.,
Respondent AdvocateC.J. Savant and ; A.G. Sabnis, Addl. Govt. Pleaders
Excerpt:
the court ruled that while granting approval to an application seeking exemption from provisions of the maharashtra agricultural lands (ceiling on holdings) act, 1961, the state government must consider all the factors enumerated in rule 16-a of the act. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by..........that admittedly the petitioners and their predecessors-in-title have been conducting dairy farm on the land in question for over 30 years and looking to the objects and the scheme of the act and to the provisions relating to the exemption, the petitioners' lands ought to have been exempted by the state government from the provisions of the act. he has sought to show us that in the voluminous correspondence that has taken place between the government and the petitioners' firm from time to time, there is enough acknowledgment on the part of the government that the lands are being used for a dairy farm. it is not necessary for us to go into this and several questions thus sought to be raised by mr. pereira. his challenge to the order communicated by the communication of 10th jan......
Judgment:

Jahagibdar, J.

1. This petition has been preferred by five persons constituting a firm which has in its possession 508 acres and 28 gunthas of land at a place called Kelva Road, Taluka Palghar of District Thana. The petition seeks to challenge the refusal of the State Government to exempt the petitioners' lands under S. 47 (1) (ff) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. According to the petitioners they are on the said lands conducting a dairy farm and the provisions referred to above entitled them to get their land exempted from the provisions of the Ceiling Act.

2. By an Indenture of 15th Aug 1944 between the then Governor of Bombay and the firm of M/s. Moosa Haji Mohamed Killedar and Bros, the lands were leased to the predecessors of the petitioners for conducting a dairy farm. Since then the lands have been in possession of the petitioners' predecessors and after them with the petitioners. The lease was originally for a period of 35 years with effect from 1st Aug. 1938 which was taken as the beginning of the lease. The lease, therefore, expired in the year 1973 but subsequently in exercise of the right to renew the lease the petitioners have renewed the lease for a further period of 15 years. The lease, therefore, is extended up to the year 1988. Thus there is no dispute that the petitioners are in possession of 508 acres and 28 gunthas of land. It is mentioned that some proceedings were taken for evicting the petitioners by the Government by terminating the lease but we have now been informed that these proceedings have been dropped.

3. in the year 1964 one Yacoob Noormohamed Killedar who was one of the partners of the firm made an application to the Government under S. 47 (1) (f) of the Ceiling Act, read with R. 16 of the Rules framed under the Act, seeking exemption from the provisions of the Ceiling Act of the lands held by the firm. In that application which was dated 11th Sept. 1964. It was specifically mentioned that the application was on the ground that the lands were used for stud-farm-cum-dairy. Later on 26th July 1965 Yacoob Noormohamed Killedar made another application wherein it was mentioned that the lands mentioned in the application for which exemption was being sought were for the use of the dairy farm. Even in this application the provisions of Law which were referred to under which exemption was sought were S. 47 (1) (f) and R. 16. By a further letter addressed to the Collector of Thana on 16th Aug. 1965 Yacoob Noormohamed Killedar informed that by mistake he has mentioned R. 16 in his previous communication and it should be read as R. 16-A under which the application for exemption was being made. Even in the present petition the petitioners have consistently stated that their application was for exemption from the provisions of the Ceiling Act on the ground that the lands were used for dairy farm and they were entitled to claim exemption under S. 47 (1) (ff) read with R. 16-A of the Rules. We must, therefore, proceed on the basis that the proceedings from which this petition has arisen are proceedings under S. 47 (1) (ff) read with R. 16-A. By a communication dated 10th Jan. 1968 the Under Secretary to the Government of Maharashtra, Revenue end Forest Department, informed Yacoob Killedar that the Government had carefully considered his request for the grant of exemption under S. 47 (1) of the Act having regard to the number of cattle maintained on the land etc. The Government did not consider it necessary to exempt the lands held by him at Kelva Road. it is the order communicated by this letter that is the subject of challenge in this petition.

4. We must refer to the relevant provisions of the Act and the Rules in this connection. Section 47 of the Act, as it then stood, enumerates several lands which shall be exempted from the provisions of the Act. Clauses (f) and (ff) of S. 47 are as follows:--

'(f) land held for stud-farms, as may be approved by the State Government in the manner prescribed;

(ff) land held on the 27th day of November 1964 for dairy farms as may be approved by the State Government in the manner prescribed;' These were the clauses as they stood when the Government's decision was communicated to Yacoob Noormohamed Killedar by the letter dated 10th Jan. 1968. In May 1968 Clause (ff) was amended. However we are not concerned with that amendment because the provisions of S. 47 as they stood on the date on which the Government's decision was taken must be held to apply to the facts of this case.

5. Mr. Pereira appearing in support of this petition has sought to challenge the order of the Government on several grounds. He has contended that admittedly the petitioners and their predecessors-in-title have been conducting dairy farm on the land in question for over 30 years and looking to the objects and the scheme of the Act and to the provisions relating to the exemption, the petitioners' lands ought to have been exempted by the State Government from the provisions of the Act. He has sought to show us that in the voluminous correspondence that has taken place between the Government and the petitioners' firm from time to time, there is enough acknowledgment on the part of the Government that the lands are being used for a dairy farm. It is not necessary for us to go into this and several questions thus sought to be raised by Mr. Pereira. His challenge to the order communicated by the communication of 10th Jan. 1968 on the ground that the order of the Government is vitiated by the non-application of mind and by violation of the rules of natural justice must succeed. We have already mentioned above that one of the lands which could be exempted from the provisions of the Ceiling Act is the land held on 27th day of Nov. 1964 for dairy farm as may be approved by the State Government in the manner prescribed. The manner of approval is provided in R. 16-A. That rule says that a person in charge of a dairy farm seeking approval of the State Government under Clause (ff) of sub-section (1) of S. 47 shall apply to the State Government through the Collector within whose jurisdiction all or major portion of the lands in the farm are situate. It is further stipulated that the application shall be accompanied by a list of lands which are held by the farm on 27th day of Nov. 1964, a list of lands which are held by the farm at the time of the submission of the application and the certified copy of the record of rights relating to each land referred to in the list. It is further provided that the application shall contain several other particulars such as number of animals maintained on the farm during the three years immediately preceding the year of application; the area of land under fodder crops and the total quantity of fodder produced therein during each of such three preceding years, and the total quantity of fodder required by the animals on the farm. It is also mentioned that application shall contain information on the question whether the lands comprised in the farm or any portion thereof is used for a purpose other than that of dairy farming and how the produce from the farm is utilised. Sub-rule (3) of R. 16-A says that where any dairy farm is approved by the State Government, the fact about such approval shall be notified in the official gazette.

6. It is not in dispute that the petitioner Yacoob Noormohamed made an application on 26th July 1965 for securing exemption for the lands of the petitioners from the provisions of the Act under S. 47 (1) (ff). Looking to the power given to the Government under S. 47 (1) (f) and (ff) and the manner in which the approval is to be granted as provided in R. 16-A, there is, in our mind, no doubt that when an application has been made a person that application has to be disposed of by the State Government after holding an appropriate inquiry, in the information that is sought in and along with the application which is to be made under R. 16-A, there are several relevant factors which will weigh with :he Government while granting or refusing to grant approval under R. 16-A. Those items of information are relevant to the formation of the opinion by the State Government while granting or refusing to grant approval. It is, therefore, clear that all these relevant items of information which must inform the mind of the Government while taking a decision must be considered by the Government before any decision is taken under R. 16-A. For example the list of lands and the area of the land as will be evidenced by the extracts from the record of rights will be before the authority under R. 16-A. They will be considered with reference to other particulars mentioned in sub-rule (2) viz., the number of animals and the extent of the land which is being utilised for the purpose of feeding animals. The decision to be taken under R. 16-A therefore will be a decision which will be influenced by the information which is called for under Rule 16-A.

7. Unfortunately the decision of the Government communicated by the Undersecretary to the Government by his letter dated 10th Jan. 1968 does not disclose that all the relevant facts which ought to go into the making of decision under R. 16-A were considered by the Government. In fact the letter laconically says as follows:--

'However having regard to the number of cattle maintained on the land etc.....'

In our opinion, the decision as communicated by this letter dated 10th Jan. 1968 is not a decision which has been arrived at after considering all the relevant factors which, as we have mentioned above, ought to be taken into consideration. The number of cattle maintained on the land is one only of the several relevant factors which have been mentioned in R. 16-A. The fodder which is raised on the lands, the quantity of fodder and other agricultural produce, if any. raised in the land and the extent of the land necessary for the dairy farm are also equally, if not more, important facts which ought to go into the formation of the mind of the Government.

8. Even before us no material has been placed by the Government either by way of affidavit-in-reply or otherwise, to show that there was a proper application of mind to all the relevant facts as required by R. 16-A. Accepting this part of the criticism of the order as communicated by the letter dated 10th Jan. 1968 made by Mr. Pereira we hold that there is no proper decision at all as required by R. 16-A on the question whether the petitioners' lands ought to be exempted from the provisions of the Ceiling Act.

9. Mr. Savant, appearing in opposition to this petition, has vehemently contended that it is not necessary for the Government to give a detailed judgment. If the letter dated 10th Jan. 1968 shows that the Government did take into consideration the number of the cattle in relation to the lands it should be enough for holding that a proper decision has been taken under R. 16-A. Mr. Savant points out that for the district in which these lands are situate the ceiling prescribed is 126 acres of land. From the material on record it is seen that the petitioners have round about 125 head of cattle, Mr. Savant says that both these facts must be presumed to be in the mind of the authority when that authority took the decision under R. 16-A. He, therefore, contended that all the necessary and the relevant factors must be deemed to have been considered by the authority when that decision was taken. We are unable to agree with these submissions of Mr. Savant because the decision as communicated by the letter of 10th Jan. 1968 does not disclose that the various factors mentioned in R. 16-A have been taken into account at .all. The use of the word 'etc.' in the communication is not only unfortunate but it is indicative of the fact of the absence of the application of the mind to all the material under R. 16-A.

10. We are also of the opinion that the very fact that R. 16-A requires any application to be made with all the particulars mentioned in that rule postulates that before a decision is taken by the Government an inquiry should be held by the Government. The range of the inquiry will be a matter for the determination of the Government itself but it is necessary that in the inquiry the person making the application is heard. In the instant case, pursuant to the application made on behalf of the petitioners a statement was no doubt made on 8th of October 1966 by a person on behalf of the petitioners. From 8th October 1966 till 10th Jan. 1968 when the communication in question was addressed to the petitioners, it appears, there was no contact at all between the petitioners and the Government. There is no indication as to what report was sent by the Collector to the State Government for taking a decision under R. 16-A. In our opinion, if the report has been made by the Collector through whom the application is forwarded, the contents of the report should be disclosed to the petitioners so that he will be in a position to inform the mind of the Government while the Government comes to a particular decision. This has not been done in the present case. We have, therefore, no hesitation in holding that the decision which has been communicated by the letter dated 10th Jan. 1968 is not a decision at all as required by R. 16-A read with S. 47 (1) (ff) of the Act and it is therefore liable to be set aside and is hereby set aside.

11. The petition, therefore, will have to be allowed. We hereby direct that the Government shall consider the application made on behalf of the petitioners for exemption of their lands from the provisions of the Ceiling Act under Section 47 (1) (ff) read with R. 16-A as it then stood after giving reasonable opportunity to the petitioners of being heard in support of their application, The Government will also take into account all the necessary factors as enumerated in R. 16-A before arriving at a decision on the application of the petitioners. We also hereby direct that the Government i.e. Respondent No. 1 to this petition shall not proceed with any inquiry or proceedings under Chapters 2 to 7 of the Ceiling Act till the application for exemption made on behalf of the petitioners is finally disposed of. Respondent No. 1 shall pay costs of this petition.

12. Order accordingly.


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