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Gulabrao Bablaji Ujjainkar and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1926 of 1975
Judge
Reported inAIR1976Bom363; 1976MhLJ393
ActsLand Acquisition Act, 1894 - Sections 4(1) and 17; Maharashtra Land Revenue Code, 1966 - Sections 11(2) and 13(3)
AppellantGulabrao Bablaji Ujjainkar and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateJ.N. Chandurkar, Adv.
Respondent AdvocateM.M. Qazi, Addl. govt Pleader and ;R.R. Deshpande, Hony. Asst. to the Addl. govt. Pleader
Excerpt:
the court ruled that an additional commissioner empowered under section 13(3) of the maharashtra land revenue code was a commissioner within the meaning of section 4 and 17 of the land acquisition act, 1894. - - (i) that the additional commissioner had no authority to issue the notification under section 4(1) of the land acquisition act and ,therefore, the notification as well as the direction issued by him is without jurisdiction being ultra vires of his powers ;(ii) the list of the landless labourers prepared by the authorities concerned is not correct because many persons mentioned in the aforesaid list have got their own houses in the village. for properly appreciating the controversy involved in this petition, it will be useful if the relevant provisions of the land acquisition..........the additional commissioner further issued a direction under sub-section (4) of section 17 of the land acquisition act that the provisions of section 5-a of the land acquisition act shall not apply in respect of the said lands. this notification is challenged by the petitioners mainly on two grounds; (i) that the additional commissioner had no authority to issue the notification under section 4(1) of the land acquisition act and , therefore, the notification as well as the direction issued by him is without jurisdiction being ultra vires of his powers ; (ii) the list of the landless labourers prepared by the authorities concerned is not correct because many persons mentioned in the aforesaid list have got their own houses in the village. therefore, according to the petitioners, there is.....
Judgment:

Dharmadhikari, J.

1. The five petitioners before us are challenging in this writ petition the notification dated November 18, 1975, issued by the Additional Commissioner. Nagpur Division, Nagpur, Declaring that the lands belonging to the petitioners are needed or likely to be needed for the public purpose , viz., providing of house sites to the landless labourers in the rural areas. By the same notification, the Additional Commissioner further issued a direction under sub-section (4) of Section 17 of the Land Acquisition Act that the provisions of Section 5-A of the Land Acquisition Act shall not apply in respect of the said lands. This notification is challenged by the petitioners mainly on two grounds; (i) that the Additional Commissioner had no authority to issue the notification under Section 4(1) of the Land Acquisition Act and , therefore, the notification as well as the direction issued by him is without jurisdiction being ultra vires of his powers ; (ii) the list of the landless labourers prepared by the authorities concerned is not correct because many persons mentioned in the aforesaid list have got their own houses in the village. therefore, according to the petitioners, there is no basis for the acquisition.

2. In reply to these contentions, it is contended by the respondents that vide the notification dated August 31, 1974, issued by the Government in exercise of the powers conferred upon it by sub-section (3) of Section 13 of the Maharashtra land Revenue Code, the Government has directed that every Additional Commissioner shall exercise all the powers and discharge all the duties and functions conferred on the Commissioner under the Land Acquisition Act. Therefore, according to the respondents, the Additional Commissioner is a Commissioner within the meaning of Sections 4(1) and 17 of the Land Acquisition Act. So far as the merits of the matter are concerned, an affidavit has been filed before us duly sworn by the Additional Commissioner that there are about 52 Landless labourers in the village to whom the plots are to be allotted and the averments made in the petition that some persons out of these 52 persons are having house of their own in the village is not correct. Therefore, the said allegation made in the petition is specifically denied by the respondents. For properly appreciating the controversy involved in this petition, it will be useful if the relevant provisions of the Land Acquisition Act, the Bombay General Clauses Act as well as the Maharashtra Land Revenue code are referred to.

3. The Land Acquisition Act, in its application to the State of Maharashtra, was amended by the Bombay Act VIII of 1958. By the said Amending Act, in Section 4(1) as well as in Section 17, the words 'Commissioner' were added. By the same Act, the Bombay General Clauses Act was also amended and in Section 3(13), the term 'Commissioner' was defined as under:

' ' Commissioner' shall mean the Commissioner of a division appointed under the Bombay Land Revenue Code, 1879.' Thereafter the Bombay Land Revenue Code as well as the other Revenue codes applicable to the other parts of a State were repealed and a Consolidated Act known as the Maharashtra Land Revenues. Code , 1966, was enacted. Therefore, obviously, in view of the provisions of Section 9 of the General Clauses Act, any reference made to the repealed Revenue Code, including the Bombay Land Revenue Code, in any other enactment including Land Acquisition Act, will have to be construed in reference to the provisions of the re-enacted Maharashtra land Revenue Code.

4. In the Maharashtra Land Revenue Code, the term 'Commissioner' is not defined but Section 6 of the Code provides that the State Government shall appoint a Commissioner for each division; and may appoint in a division an Additional Commissioner and so many Assistant commissioners as may be expedient, to assist the Commissioner Section 11 of the Code then lays down that unless the State Government directs otherwise, all revenue officers in a division shall be subordinate to the commissioner. then Section 13(3) of the Code reads as under :

'The Additional Commissioner an d the Assistant Commissioner, and the Additional Collector and the Additional Tahsildar shall each exercise within his jurisdiction or part thereof such powers and discharge such ditties and functions of the Commissioner, the Collector or, as the case may be, the Tahsildar under the provisions of this Code or under any law for the time being in force, as the State Government may, by notification in the Official Gazette, direct in this behalf.'

As already observe, by the notification issued under Section 13 (3) of the Maharashtra Land Revenues Code, 1966, on August 30, 1974, the Government of Maharashtra has directed every Additional Commissioner shall exercise all the powers and discharge all the duties and functions conferred on the Commissioner under the Acts specified in the Schedule appended to the said notification which includes the Land Acquisition Act.

5. However, Shri J. N. Chandurkar, the learned counsel for the petitioners, contended before us that the powers under Section 4(1) and Section 17(4) of the Land acquisition Act are conferred by the legislature only on the Commissioner. The Land Acquisition Act deals with the acquisition of the private property of a person and, therefore, should be strictly construed. He further contended that under the Constitution , it is one of the fundamental rights of the citizen to hold the property. The Land Acquisition Act deals with the deprivation of the property of the citizens. If this is so, then such a legislation will have to be strictly construed. He further contended that by the Land Acquisition Act, wide powers are being conferred upon the Commissioner to form an opinion and acquire the property. Therefore, in its wisdom, the legislature has chosen a very high officer of the status of the commissioner for exercising the said powers which relate to the formation of opinion and issuing of the notifications or directions based on his subjective satisfaction. he further contended that the Land Acquisition Act is a Central legislation and by issuing a notification under sub-section (3) of Section 13, it is not open to the State Government to modify or amend the Land Acquisition Act itself thereby conferring the powers upon the Additional commissioners or the Assistant Commissioners when the legislation in its wisdom has not chosen to do so. He further contended that the Additional commissioner is subordinate to the commissioner and he cannot be equated with the 'commissioner' for all purposes. In support of this proposition, he has relied upon two decisions of the supreme court in Hari Chand Aggarwal v. Batala Engineering Co., Ltd., : 1969CriLJ803 and Ajaib Singh v. Gurbachan Singh AIR 1965 SC 1619. It is not possible for us to accept these contentions. It cannot be forgotten that the Land Acquisition Act was amended by the State legislature by Act VIII of 1958, which is called the Bombay Commissioners of Division Act, 1957. By this Act, Section 3-A was added in the Land Acquisition Act and in Sections 4, 5A, 6, 7 and 17, after the words 'appropriate government', the words ' or the commissioner' were inserted. By the same Act, the definition was introduced in the Bombay General Clauses Act, defining the term ' Commissioner'. This Act had received the assent of the President of India. Though the words ' or commissioner' were inserted in the various provisions of the Land Acquisition Act, the said term is not defined in the Land Acquisition Act, 1894 itself. So far as the State of Maharashtra is concerned, the Land Acquisition act, 1894 ,which is the Central enactment, in its application to the State of Maharashtra, meaning thereby as amended by the State of Maharashtra, governs, the filed. As the term 'commissioner ' is not defined in the Land Acquisition act itself, obviously for understanding the meaning of the said expression, a reference will he to be made to the Bombay General Clauses act, 1904 as amended. However, a contention is raised by Shri Chandurkar that the Land Acquisition act , being a central Act, for understanding the meaning of the expression 'Commissioner ' recourse could only be taken to the general Clauses act, viz..,, the Central Act and not to the Bombay General Clauses Act. in our opinion, this will not be the correct position. As already observed, by Act No. VIII of 1958 which is a State enactment. Therefore, for properly understanding the meaning of the expression introduced by the State legislature, recourse could only be taken to the State general Clauses Act. The expression the Land Acquisition act by any Central enactment. The said words were inserted in the various provision of the Land acquisition Act by the State Legislation. If this is so, for understanding the true import and the scope of the said expression. recourse will has to e taken to the State General Clauses Act, viz, the Bombay General clauses Act only. In the Bombay General clauses Act the expression 'Commissioner is defined meaning thereby a Commissioner of a division appointed under the Bombay Land Revenue Code, 1879 as already observed the words Bombay Land Revenue Code' will has to be read as the Maharashtra Land Revenue Code, 1966 , in new of the provisions of Section 9 of the Bombay General clauses act. Therefore, for properly understanding the true scope and import of the said expression, a reference will have to be made to the Maharashtra Land Revenue Code, the Government is given a power to appoint a commissioner for each division, including an Additional commissioner and an Assistant commissioner. Then Section 13 (3)_ of the Code confers a power upon the State Government by issuing a notification in the Official Gazette to direct that the Additional Commissioner shall exercise the powers and discharge the duties and functions of the Commissioner under the provision of the Maharashtra Land Revenue Code as well as under any law for the time being in force. the notification to which a reference has already been made, in terms confers a power upon the Additional Commissioner to exercise all the powers and discharge all the duties and functions conferred on the Commissioner under the Land Acquisition Act. If this is so, then in our opinion, once such powers are conferred upon the Additional Commissioner for all practical purposes , so far as the Land Acquisition Act is concerned, he becomes a Commissioner. It is no doubt true that sub-section (2) of Section 11 lays down that unless the State Government directs otherwise, all revenue officers in a division shall be subordinate to the Commissioner. But in our opinion, once a direction is issued under section 13(3) empowering the Additional Commissioner to discharge the duties and functions of the Commissioner under the Land Acquisition act, then obviously such a subordination comes to an end. It may be that for certain administrate purpose or for the purposes of transfer etc., the Additional Commissioner may be subordinate to the Commissioner. However, it is apparent that the Additional commissioner exercises the same powers and duties once the notifications under section 13(3) of the Maharashtra Land Revenue Code `is issued in his favour and thereafter for the purpose of the Land Acquisition Act, he is a Commissioner for all practical purposes. After he is invested with the powers of the Commissioner under the Land Acquisition Act, he exercise the functions and powers of the 'Commissioner under the Land Acquisition Act, he still remains an Additional Commissioner, an officer subordinate to the Commissioner. If such a construction is accepted , then the very purpose of conferring powers under sub-section (3) of Section 13 of the Maharashtra Land Revenue Code will be frustrated. The said provisions become redundant. It is not possible for us, therefore, to accept such a contention. This is not a wherein any strict construction of a Land Acquisition Act, is therefore, cannot for. The Additional Commissioner is a responsible officer in the hierarchy Revenue Officers. Practically he is often rank of the Commissioner. When he exercises the powers or discharges the duties under the Land Acquisition Act . He shall be deemed to be doing so as the Commissioner. As observed by the Supreme Court in Roop Chand v. State of Punjab : AIR1963SC1503 a delegate who exercises the powers in terms of a statute is not otherwise, stands on a different footing. In this context, the Supreme Court imposed a question and observed as under.

'The question then arises, when the Government delegates its power for sample to entertain and decided the appealed under Section 21 (4), to an officer to the officer pursuant to such delegate hear the appeal and made an order the order an order of the officer of the Govt.? We think it must be the order under a statutory power. It is the statutory can, therefore, be exercised only in terms of the statute and not otherwise. In this(4). That section gives a power to the Government. It would follow that order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Acts enables the Government to delegate its power but such a power when delegated remains the power of the Government, for the Government can only do and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the Government. It is of interest of observe that Wills J. said in Huth v. Clark (1890) 25 QBD 391 that the word delegate means little more than an agent. An agent of course exercises no powers of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under Section 41(1) of the power of the Govt. under Section 21(4) is for the purposes of the Act, an order of the Government. If it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government -- and of course it had to be one or the other -- then we would have an order made by a person on whom the Act did not confer any power to make it. That would be an impossible situation. There can be no order except as authorised by the Act. What is true of Section 21(4) would be true of all other provisions in the Act conferring powers on the Government which can be delegated to an officer under Section 41(1). If we are wrong in the view that we have taken, then in the case of an order made by an officer as delegate of the Government power under Section 21 (4) we would have an appeal entertained and decided by one who had no power himself under the Act to do either. Plainly, none of these thing could be done'.

Therefore, in our opinion, once under Sub-section (3) of Section 13 of the Maharashtra Land revenue Code the powers of the Commissioner are conferred upon the Additional Commissioner, then he exercises the powers of the Commissioner under Section 4(1) and 17 of the Land Acquisition Act as a Commissioner and not as an Additional Commissioner, and therefore, is a Commissioner within meaning of Section 4 as well as Section 17 of the Land Acquisition Act.

6. The decision on which reliance has been placed by Shri Chandurkar, viz, in Hari Chand Agarwal v. Batala Engineering Co. Ltd. : 1969CriLJ803 and Ajaib Singh v. Gurbachan Singh AIR 1965 SC 1619 , are of no assistance while construing the present provisions and deciding the controversy involved in the present petition. These two cases are clearly distinguishable . In Ajaib Singh's case, the Additional District Magistrate, who had been invested with the powers of the District Magistrate under Section 10(2) of the Code of Criminal Procedure , was in charge of the office of the District Magistrate when the latter was transferred. He passed an order detaining the appellant under the Defense of India Rules 1962. In this context it was held in that case that the Act and the Rules, show unmistakably that the power of detention can only be exercised by the State Government or an officer or authority to whom it might be delegated but who shall in no case be lower in rank than a District Magistrate. As the Additional District Magistrate is lower in rank in the District Magistrate and even though he had been invested with the powers under the Code and also under any other law for the time being in force he is still not the District Magistrate unless the Government appoints him as such under Section 10(1) of the Code of Criminal Procedure.

7. In the Second case, viz, in Wari Chand case, by a notification issued in exercise of the powers conferred by Section 40(1) of the Defence of India Act (1962) the Central Government directed that the powers exercisable by it under the various section shall also be exercisable by each of the authorities mentioned in Column 3. These authorities were all the Collectors, District Magistrates, and the Dy. Commissioners, in the State. It would thus be seen that the Central Government in making authorization of the powers under Section 29 of the act, authorised officers of a very high status to exercise the powers. The authorisation showed that the function to be discharged under the notifications were made to be performed by the officers like the Collectors, and and the District Magistrates and no other officers. Therefore, on the construction of the particular statute and the words of the notifications, their Lordships, therefore, held that the Additional District Magistrate could not exercise the powers under Section 29. Here in this case we are not concerned with the construction of a notification as such. Here in terms under Sub-section (3) of Section 13 of the Maharashtra Land Revenue Code, the powers are conferred upon the Additional Commissioner. In view of this notifications issued under the Maharashtra Land Revenue Code, the Additional Commissioner became the Commissioner for all practical purposes and in that capacity has issued the notifications and directions under Section 4(1) and 17(4) of the Land Acquisition Act as a Commissioner. In this view of the matter, in our opinion, these two cases will not held Shri Chandurkar.

8. It was conceded by Shri. Chandurkar that the Commissioner referred to in the Land Acquisition Act is not referred to as a persona designata. But the reference is made to him in the Land Acquisition Act is in his official capacity. Once, therefore, the powers of the Commissioner are conferred upon the Additional Commissioner by issuing necessary notification under Sub-section (3) of Section 13 of the Code, then to that extent he is equated with the status of the Commissioner for exercising the powers conferred upon him either under the Maharashtra Land Revenue Code or other. laws including the Land Acquisition Act. Such a view seems to have been taken by the Supreme Court in Central Talkies Ltd. v. Dwarka Prasad, : 1961CriLJ740 and, in our opinion, the law laid down therein by the Supreme Court will aptly apply to the present case also. In the result, therefore, it is not possible for us to accept the contention of Shri. Chandurkar.

9. So far as the merits of the case are concerned, in para 4 of the petition, a statement is made by the petitioners that a number of person whose names are mentioned in the list are in fact having their won houses in the village. The statement made in the petition is obviously vague, . If a reference is made in this behalf to the scheme viz, the scheme for making a provision of the house sites to the landless persons in the rural areas, it is quite clear that the scheme aims at providing house sites to the landless workers in the rural areas. The scheme contemplates providing of house sites free of costs to the families of the landless workers who do not already own a house site or a built up house or a hut on the land of their own. With the house sites so provided, the workers will have a built up house or a hut thereon an can live in peace without being constantly threatened with the eviction by the owner of the land on which they have built up their house or huts in the village, are having those houses or huts on the land belonging to them. If these house are built up on the lands belonging to others, then they are severed by the provisions of the scheme as they cannot live in peace, because there is a constant threat of eviction by the owners of the lands on which they have built up their house or huts. By the scheme framed by the Central Government, the Central Government wants to provide house sites to the landless laborers. No averment is made in the petition that any of the person whose names are given in the list have got their own house sites and the houses belonging to them are built up on the same. In this view of the matter, in our opinion, it cannot be said that the acquisition of the land for providing house sites to those persons is uncalled for or unwarranted. Even otherwise, in the additional affidavit filed by the Additional Commissioner, he has specifically denied these allegations made by the petitioners in the petition. He has stated on oath that there are about 52 landless labourers who do not have their won house at all. In this view of the matter, it is not possible for us to accept the contention of Shri. Chandurkar that the acquisition proceedings are wholly bad.

10. It was also contended by the petitioner that their lands are covered by the flood zones, and therefore, are unsuitable for the purposes of constructing of huts. This position is also denied by the respondents in their return. According to the respondents there is no nalla adjacent to this survey number and, therefore, the land is safe from floods. It appears from the record that the spot was duly inspected by the Sub-Divisional Officer-cum-Land Acquisition officer with panchas, and on spot inspection as well as from other materials available on record, the authorities concerned formed an opinion that there is no nalla adjacent to this survey number and the land in question is safe from floods. This is obviously a question of fact. Apart from it, this Court while exercising its extraordinary jurisdiction under Article 226 and 227 of the Constitution of India, cannot sit in appeal over the opinion formed by the competent authorities, nor can it substitute its own opinion in place of the opinion of those competent authorities.

11. After considering all the material placed on record and after inspecting the spot, the competent authorities have found that the land in question is suitable for the purposes of construction of the houses. Therefore, in our opinion it is not correct to say that the authorities concerned had not applied their mind to the relevant facts and circumstances of the case, or the opinion formed by them is either mala fide or is not based on any material on record.

12. In the result, therefore, the petition fails and is dismissed. However, in the circumstances of the case, there will be no order as to costs.

13. petition dismissed.


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