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Narayan Son of Bapurao Deshmukh Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 912 of 1985
Judge
Reported in1987(1)BomCR73
ActsMaharashtra Restoration of Lands to Scheduled Tribes Act, 1974 - Sections 2(1) and 3; Maharashtra Resettlement of Project Displaced Persons Act, 1976 - Sections 11, 11(1), 12 and 12(1)
AppellantNarayan Son of Bapurao Deshmukh
RespondentState of Maharashtra and anr.
Appellant AdvocateA.D. Vyawahare, Adv.
Respondent AdvocateH. Ahemad, A.G.P. for State-respondent No. 1
DispositionPetition dismissed
Excerpt:
.....section 3 of the act it is necessary to see that the above purpose of the act is not defeated. the question, therefore, would be whether by restoring the land of the tribal transferor, the purpose of section 12(1) of the resettlement act is defeated. for instance in the instant case the village in question is situated in the affected zone and if the suit land was allowed to be restored to the tribal in this case, he would be entitled to get alternative land in accordance with the provisions of the resettlement act which beneficial right would otherwise be defeated, if it is held that during the period referred to in section 12(1) of the said act such a transfer was not permissible......of a notification under section 11(1), it is open to the state to acquire the lands for the project affected persons without recourse to the resettlement act. even the provisions of section 12(1) do not create any absolute prohibition because with the permission of the state government the transfers can be effected. it is thus clear that the resettlement act does not contain any intrinsic evidence to show an accrued right can be taken away under the said act.10. the scheme of the said act narrated earlier would show that the status quo is directed to be maintained under section 12(1) of the resettlement act to enable the authorities under the resettlement act to make all necessary enquiries to collect the data before the acquisition of the land required for the purposes of.....
Judgment:

H.W. Dhabe, J.

1. This is a writ petition arising out of the proceedings under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short, the Act).

2. The petitioner is a Non-Tribal who had purchased the field survey number 77/2, admeasuring 6 acres of village Chincholi, Tahsil Darwha, District Yeotmal by registered sale-deed dated 15-5-1957 from the respondent No. 1-Tribal. The said transfer made to him by the respondent No. 2 tribal was thus within the mischief of section 2(1)(i) of the Act. Sou motu proceedings were initiated against him by the Additional Tahsildar for transfer of the suit field to the respondent No. 2 tribal under section 3 of the Act. Accordingly after making necessary enquiries the learned Additional Tahsildar directed by his order dated 30-12-1978 that the suit field should be restored to the respondent No. 2-tribal. It appears that the petitioner had initially filed a writ petition in this Court challenging the validity of the Act, which was withdrawn some time in April, 1984. He thereafter filed an appeal under section 6 of the Act before the Maharashtra Revenue Tribunal (for short, M.R.T.). The learned M.R.T. by its order dated 15-10-1984 dismissed the appeal. Being aggrieved, the petitioner has preferred the instant writ petition in this Court.

3. The first contention raised on behalf of the petitioner is that the suit field originally belonged to the mother of the petitioner and that the sale-deed executed in favour of the respondent No. 2 by her was as a security for the loan of Rs. 900/- received by her from the respondent No. 2. According to him, the purchase by him of the suit field from the respondent No. 2 on 13-6-1957 was only a nominal one in view of the above facts. No material was placed on record to prove the loan transaction and also to prove that the suit field was sold by the mother of the petitioner to the respondent No. 2 by way of security. Therefore, as found by the learned M.R.T. when the suit field was in possession of the tribal-respondent No. 2 as its owner till 13-5-1957 on which date it was sold by him to the petitioner, the said transfer is clearly within the mischief of section 2(1)(i) of the Act. The finding of the learned M.R.T. is thus correct and has to be affirmed.

4. The important contention raised in this petition, however, is under the provisions of sections 11 and 12 of the Maharashtra Resettlement of Project Displaced Persons Act, 1976 (for short, 'the Resettlement Act'). It is contended that by notification dated 30-8-1979 issued under section 11 of the Resettlement Act, the village Chincholi is included in the affected Zone under the said notification. Since the village Chincholi is included in the affected zone in the aforesaid notification dated 30-8-1979, it is contended that the transfer of the suit field under section 3 of the Act from the respondent No. 2 to the petitioner is prohibited under section 12(1) of the Resettlement Act.

5. In examining the above contention raised on behalf of the petitioner, it is necessary to examine briefly the scheme of the Resettlement Act. As is clear from the preamble of the said Act, it is an Act to provide for the resettlement of certain persons displaced from lands which are acquired for projects of public utility and for matters connected therewith. The expression 'displaced person' as defined in section 2(7) of the Resettlement Act, means any occupant who, on account of the acquisition of his land in the affected zone (including land in the gaothan) for the purpose of the project has been displaced from such land, or any agricultural labourers. The definition of 'Project' given in section 2(12) shows that it is a work of public utility, the construction, extension, improvement or development of which results in displacement of persons from lands which may be used for such work. 'Affected Zone' as defined in section 2(1) in relation to a project, means the lands declared under section 15 to constitute the area of the affected zone under that Project. The expression 'Benefited Zone' is also defined in section 2(3) in relation to a project which means the lands declared under section 15 to constitute the area of the benefited zone under that project.

6. Section 10 of the Resettlement Act casts an obligation upon the State Government to resettle as many displaced persons as possible upon the land in the benefited zone or in other villages or areas. For that purpose section 11 enables the State Government to make the provisions of the Act applicable to any project by issuing a notification in that regard specifying the villages or areas which are in the affected or benefited zone. After this notification is issued under section 11(1) of the Resettlement Act, section 13 provides for an enquiry and collection of data for determining which lands are necessary to be included in the affected zone or benefited zone and also the information relating to the displaced persons or their families. After this data is collected a provisional declaration is to be made under section 14(1) of the Resettlement Act of affected zone or benefited zone. The purpose of issue of provisional notification is to call for objections in regard of the same. Final notification is thereafter issued under section 15 of the Resettlement Act specifying the areas of affected zone or benefited zone under the Resettlement Act. After the said notification is issued, the steps are taken for acquisition of the lands as provided in section 16 of the Resettlement Act.

7. I may now turn to section 12(1) of the Resettlement Act, which is material for this case. It is provided therein that notwithstanding anything contained in any law for the time being in force, no land in the villages or areas specified in the notification under section 11 shall, after publication of that notification in the Official Gazette, and until the Deputy Director makes a declaration of the effect that all proceedings for the acquisition of lands in the benefited zone are completed be transferred, whether by way of sale including sale in execution of a decree of a Civil Court or of an award or order of any other competent authority or by way of a gift, exchange, lease or otherwise, sub-divided or partitioned except with the permission in writing of the State Government, which can be granted upon the grounds given in section 12(2). It is provided in section 12(3) that any transfer, sub-division or partition of land made in contravention of sub-section (1) or of any condition imposed under sub-section (2) shall be void and inoperative.

8. The question raised before me on behalf of the petitioner is that the order of the Additional Tahsildar directing restoration of the land from the petitioner to the respondent No. 2 is a 'transfer' within the meaning of section 12(1) of the Resettlement Act. According to him, it would mean 'sale' or at any rate it would be a transfer under the statute which would be covered by sub-clause (a) of sub-section (1) of section 12 of the Resettlement Act. The above contention on behalf of the petitioner is controverted on behalf of the State. It is further urged on behalf of the State that section 12(1)(a) of the Resettlement Act would not be applicable to the transfer of the suit field in the instant case, because, the suit field is already transferred to the respondent No. 2 by the order of the Additional Tahsildar dated 30-12-1978 before the notification dated 30-8-1979 is issued by the State Government under section 11 of the Resettlement Act. It is, however, submitted on behalf of the petitioner that any subsequent events which have taken place during the pendency of the appeal, can be taken into consideration before the suit field is directed to be restored to the respondent No. 2.

9. In my view, the contention raised on behalf of the State that section 12 would not be applicable to the transfer of the suit field in this case deserve to be upheld. It may be seen that the right has accrued to the respondent No. 2 much prior or the notification dated 30-8-1979 issued under section 11 of the Resettlement Act. In other words, it would mean that the provisions of the Resettlement Act were not applicable when the suit field was directed to be restored to the respondent No. 2. It is a settled principle of the interpretation of statute that the accrued rights cannot be affected except by express statutory provisions which have retrospective operation. It may be seen from the provision of section 11(1) of the Resettlement Act that the provisions of the Resettlement Act are made applicable to any project when the notification to that effect is issued under section 11(1) of the Resettlement Act. It may further be seen as held by the Full Bench of this Court in the case of Ganpat Pawar v. Special Land Acquisition Officer 1984 Mh.L.J. 752 that the Resettlement Act is an enabling Act since section 11(1) is enabling and discretionary and in the absence of a notification under section 11(1), it is open to the State to acquire the lands for the project affected persons without recourse to the Resettlement Act. Even the provisions of section 12(1) do not create any absolute prohibition because with the permission of the State Government the transfers can be effected. It is thus clear that the Resettlement Act does not contain any intrinsic evidence to show an accrued right can be taken away under the said Act.

10. The scheme of the said Act narrated earlier would show that the status quo is directed to be maintained under section 12(1) of the Resettlement Act to enable the authorities under the Resettlement Act to make all necessary enquiries to collect the data before the acquisition of the land required for the purposes of Resettlement. Here, in the instant case the land is already directed to be restores to the respondent No. 2 before the notification under section 11(1) of the Resettlement Act came in to force i.e. before the application of the said Act to the project in question. It cannot, therefore, be held that the Resettlement Act is intended to defeat the rights of the persons which they acquired before the notification is issued under section 11(1) of the said Act. The submission that the subsequent even viz. the notification under section 11(1) can be taken into consideration in the appeal and in this writ petition is not valid because it would then result in defeating the accrued right of the respondent No. 2.

11. In this view of the matter, although it is not necessary to see what interpretation of section 12(1) of the Resettlement Act is and whether it includes the transfers made under section 3 of the Act, it may be seen that both the Acts are special enactments enacted for special purposes. The language of section 3 of the Act shows that these provisions are to be given effect to not withstanding anything contained in any law for the time being in force, or any judgment, decree or order of any Court, Tribunal or Authority. The provisions of sub-section (1) of section 12 of the Resettlement Act also intent that they should be given effect to notwithstanding anything contained in any law for the time being in force. Since both the Acts are enacted to advance the special objective for which they are enacted, it is necessary to construe them harmoniously.

12. In harmoniously construing the provisions of section 12(1) of the Resettlement Act with the provisions of section 3 of the Restoration Act, it is necessary to bear in mind that the purpose of section 12(1) of the Resettlement Act is to maintain status quo in respect of the lands covered by the notification issued under section 11 of the said Act from the date of notification till the proceedings for acquisition of land in the benefited zone are concluded. The said provisions are thus procedural in nature. However, the provisions of section 3 of the Act confer a substantive right upon a tribal transferred that he is entitled thereunder to restoration of his land which he had transferred during then period in question to the non-tribal transferee. By using the non-obstante clause the intention of the legislature is to restore the land of the tribal transferor at all costs. Therefore, harmoniously construing section 12(1) of the Resettlement Act with section 3 of the act it is necessary to see that the above purpose of the Act is not defeated.

13. Turning to section 12(1) of the Resettlement Act, it can be seen that the purpose of its enactment is that there should be status quo to enable the authorities under the Resettlement Act to make all necessary enquiries and to collect relevant data in respect of the matters provided under section 13 of the Act so that a proper notification in respect of villages or areas covered under the affected zone and the benefited zone can be issued. The further purpose of its enactment is that it should be possible to acquire the lands in the benefited zone for resettlement of the project affected persons. The question, therefore, would be whether by restoring the land of the tribal transferor, the purpose of section 12(1) of the Resettlement Act is defeated. It may also be seen that the prohibition of transfer is not absolute and as provided in the section 12(1) of the Resettlement Act, the transfer can be effected with the permission of the State Government.

14. In my view, the above object of section 12(1) of the Resettlement Act is not affected by allowing a transfer of the land to the tribal transferor under section 3 of the Act. Construing, therefore, section 12(1)(a) in the light of its aforesaid object, in my view the statutory transfers except the sale made in execution of a decree or awarded or order of Competent Court or Authority are not intended to be covered by the said section. It may be seen that even though statutory transfers of such lands are allowed to be effected, such lands would be available for resettlement of persons if necessary and if such persons themselves are project affected persons, they would be entitled to get the benefits of Resettlement Act itself. For instance in the instant case the village in question is situated in the affected zone and if the suit land was allowed to be restored to the tribal in this case, he would be entitled to get alternative land in accordance with the provisions of the Resettlement Act which beneficial right would otherwise be defeated, if it is held that during the period referred to in section 12(1) of the said Act such a transfer was not permissible. In this view of the matter the contention raised on behalf of the petitioner under section 12(1) of the Resettlement Act deserved to be rejected.

15. In the result, the writ petition fails and is dismissed. However, in the circumstances of the case, there would be no order as to costs.


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