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Judgment
The challenge in the present petition is to the communication
dated 21 March 2013 of the 1st respondent whereby claim of the
petitioners for allotment of a developed plot of land under 12.5% scheme
has been rejected. The petitioners have also prayed that the respondents
be directed to grant the petitioners benefit of the 12.5% scheme.
Respondent no.1 under the directions of the State
Government was implementing a scheme popularly known as 12.5 %
scheme whereby those persons whose agricultural lands were acquired for
the "New Bombay Project'' and who had become landless were granted
12.5% developed plots in addition to the land acquisition compensation
paid to them.
The petitioners'' claim to be the heirs and representatives of
one Bhogilal Leharchand, who, the petitioners have averred was the
owner of 61 acres of land situated at Village Vashi, District Thane. These
lands were acquired by the Government of Maharashtra under the Land
Acquisition Act,1894 (for short ''1894 Act''), for the New Bombay project.
As regards the said land acquisition a notification under Section 4 of 1894
Act came to be issued on 3 February 1970. A notification under Section 6
of 1894 Act was issued on 14 May 1971 and thereafter an award came to
be declared under Section 11 of the 1894 Act on 20 November 1972. It is
stated that the land was divided into two parcels and there were two
separate awards. The petitioners'' father being aggrieved by the award,
had preferred references under Section 18 of 1894 Act. There was also a
reference for apportionment of compensation under Section 30 of the
Land Acquisition Act as there were several claimants who made a claim in
the compensation. A reference as preferred by the petitioners'' father for
enhancement of compensation was allowed.
In the year 1990, the State Government promulgated the said
policy for allotment of developed plot of land to a category of persons who
had become landless in the land acquisition undertaken for "New Bombay
Project". About 15 years after issuance of this policy, the petitioners being
legal heirs of late Bhogilal addressed a letter dated 5 December 2011 to
the Chief Land Officer, CIDCO requesting for allotment of land under
12.5% scheme at village Vashi. The letter set out that the petitioners were
legal heirs of late Bhogilal whose land admeasuring about 61 acres was
acquired under the land acquisition and the petitioners being legal heirs
had become entitled for allotment of 12.5% plot of land. The petitioners
also stated that late Bhogilal cannot be considered as absentee landlord
within the meaning of clause (J) of paragraph (1) of the Government
Resolution dated 6 March 1990. (Policy decision). It appears that there
was one more application made by the petitioners being application dated
21 December 2000, however a copy of the same is not annexed to the
petition.
Respondent No.1 by a communication dated 21 March 2013
replied to the petitioners, interalia stating that the Government Resolution
dated 6 March 1990 in clause "J" had provided that those persons who
were not by themselves cultivating the land (Absentee landlords) and
other persons like the owners of salt pans, public trust and other
institutions were not entitled for the benefit of the said Government
Resolution dated 6 March 1990. This letter of Respondent No.1 also refers
to the letter of the State Government dated 15 December 1997 whereby
the Government had informed that the lands in question were not in the
possession and cultivation of the petitioners'' father but the lands were
cultivated by the tenants. It was further recorded that the absentee
landlords were not entitled for the benefit of said 12.5% scheme of the
State Government. The petitioners were accordingly informed that they
were not entitled for allotment of 12.5% plot under the scheme. The
petitioners being aggrieved by the said communication and the decision of
respondent No.1 rejecting their application for grant of 12.5% plot are
before us in this petition.
Respondent No.1 has appeared as also has filed a reply
affidavit interalia contending that respondent No.1 as "a new town
development authority" has a power and authority under Section 118 of
the Maharashtra Regional and Town Planning Act,1966 (for short "MRTP
Act") to dispose off and lease the lands acquired under Section 113A of
the MRTP Act, vested in it by the State Government, alongwith the
Government lands. Respondent refers to New Bombay Disposal of Land
Regulations,1975 issued with the previous approval of the State
Government as amended in the year 2008 which confers a power in
Respondent No.1 to dispose of the lands. It is stated that the Government
of Maharashtra had acquired the privately held lands within the notified
area of Navi Mumbai (previously New Bombay) and vested the same
alongwith other Government lands to Respondent No.1 to sub-serve the
purpose of creation of a new city ''New Bombay''. It is stated that
Respondent No.1 CIDCO was acting as a statutory agent on behalf of the
State Government for the purpose of development of new town Navi
Mumbai. It is further stated that the State Government had acquired
privately held lands in the notified areas of New Bombay as per the
provisions of the Land Acquisition Act as also compensation was awarded.
Respondent no.1 has stated that there was a demand from the project
affected persons for providing developed plots within the notified area of
Navi Mumbai in addition to the statutory compensation payable under the
Land Acquisition Act and accordingly as per the mandate of Section
118(2) of the MRTP Act, the State Government has formulated a scheme
for allotment of developed lands to the Project Affected Persons (PAP)
which is popularly known as 12.5% scheme. In this regard, the State
Government had issued directions vide Government Resolution dated 6
March 1990 and further Government Resolution dated 28 October 1994.
Respondent no.1 has stated that in terms of the directions contained in
clause "J" of the Government Resolution dated 6 March 1990, the
Government has excluded certain categories of PAPs from the entitlement
of benefit of 12.5% scheme which are as follows:-
(i) Absentee landlord ;
(ii) Salt pan owners;
(iii) Public Charitable Trust and other institutions.
In the reply affidavit Respondent No.1 has also averred that
respondent no.1 being an implementing agency on behalf of the State
Government for allotment of the land under 12.5% scheme to the PAPs,
while implementing the scheme, it had faced difficulties as to which
categories can be treated as "absentee landlords" and therefore
respondent no.1 had sought a clarification from the State Government.
The State Government vide its clarification dated 15 December 1997
defined the "absentee landlord" as under:-
"The Terms, "Agricultural land owners not cultivating themselves their own lands (Absentee landlord)" will be applicable to the land holders whose lands have been acquired, as follows:
The acquired land is fit for cultivation, but the same was not in the possession of land owner and the cultivators only were cultivating the said land.
The land owners not cultivating themselves their own lands as aforesaid will not get the benefit of this scheme."
Respondent no.1 has stated that the decision to declare the
petitioners'' father as ''absentee landlord'' was taken in accordance with the
notification dated 6 March 1990 read with clarification dated 15
December 1997, which in explicit terms excluded absentee landlords
namely owners who are not cultivating the land personally, to claim
benefit under the scheme. It is the case of Respondent No.1 that this
policy dated 6 March 1990 and the clarification dated 15 December 1997
are accepted by the petitioners as this policy is not challenged by them. It
is stated that there is nothing arbitrary in the decision rejecting the claim
of the petitioners, as the petitioners'' father late Bhogilal was not
cultivating the land himself. It is stated that the petitioners'' also cannot
contend that late Bhogilal was the cultivator as it is expressly observed in
the Award dated 20 November 1972 that there are more than 100 persons
who are "cultivators in actual possession of the land", and though name of
Bhogilal was shown as owner as also specific names of cultivators were
also shown in column no.7. It is stated that the petitioners reliance on the
common judgment dated 30 November 1978 in Land Acquisition
References Nos.34 of 1975 and 35 of 1975 would not assist the petitioners
as the said issue was not the subject of the said land acquisition
references. It is stated that the mere fact that several occupants of the
said lands were cultivating the land clearly showed that late Bhogilal was
not cultivating the lands himself. It is further stated that the reliance on
the order of the learned District Judge dismissing the Land Acquisition
Reference Nos. 2o to 190 of 1973 also would not assist the petitioners as
the said dismissal was on technical defects in the references made by the
counter-claimants and not due to lack of merits. It is stated that no
adverse finding has been recorded to suggest that there were no occupants
on the said lands and late Bhogilal was in possession of the same.
Apart from the above defence respondent No.1 has also
averred that the petition is barred by delay and laches inasmuch as the
acquisition of the land was notified in the year 1970 and the 12.5 %
scheme was implemented in the year 1990 after about 20 years from the
said acquisition. The petitioners'' representation for allotment of land
under 12.5% scheme was for the first time made vide letter dated 5
December 2011 that is about 21 years after the implementation of the
scheme. It is thus stated that there is an inordinate and unexplained delay
on behalf of the petitioners to assert this claim, even assuming the
petitioners had a legal right to assert the same. It is submitted that on this
count itself the writ petition be dismissed.
On the rival pleas of the parties as noted above, we have
heard the learned Counsel for the parties and with their assistance we
have also perused the documents as placed on record.
There is no dispute that the lands belonging to the petitioners''
father late Bhogilal, were subject matter of the acquisition under
Notification dated 3 February 1970, issued under Section 4 of 1894 Act
followed by a notification dated 14 May 1971 issued under Section 6 of
1894 Act and the subject matter of award dated 20 November 1972. A
perusal of the award would show that the Special Land Acquisition Officer
has observed that there are complications involved in the ownership and
title over the lands. It is observed that though the lands were owned by
late Bhogilal as the lands were lying fallow, they were issued to village
folk by the Government in pursuance to its policy. The cultivators being
lessees of the Government, they did not acquire any tenancy rights under
the tenancy law over the lands. However, their names appeared in the
7/12 extract under the village extract VII-A under the ''Crops" column in
pencil. The cultivators who were in actual possession of the land had
created interest in favour of one Mr.J.M.Patel who had purchased the land
without ascertaining the issue of ownership. It is therefore averred that
that in the circumstances it became a civil dispute and the land acquisition
officer therefore was unable to decide the interest of the contesting parties
in this land and apportion the compensation, the land acquisition officer
therefore thought it appropriate to deposit the compensation as awarded
in the Civil Court under Section 30 of the 1894 Act.
A perusal of the Award nowhere shows that late Bhogilal was
in possession of the land and that he was actually cultivating the land. It
also appears that this assertion was never made either before the Special
Land Acquisition Officer or in the reference proceedings. There is nothing
on record to indicate, as to whether during his life time late, Bhogilal
asserted this position. Admittedly, the State Government notified the
12.5% scheme by a Government Resolution dated 6 March 1990. The
scheme was formulated to give some reliefs to the persons who were
deprived of their source of livelihood, by allotment of land on a
reasonable price in addition to statutory compensation already paid under
the 1894 Act. The scheme in regard to the category of persons who would
become entitled for allotment of 12.5% land was clarified by the
Government vide its clarification dated 15 December 1997, as noted
above, interalia providing that the persons who were not cultivating their
lands personally and who fall within the term of absentee landlord, would
not to be entitled for allotment of plot of land under 12.5% scheme. This
clarification also reflects the object as contained in the main scheme
namely that the scheme was to mitigate the loss of livelihood, of those
persons who were cultivating the lands and had become landless. The
petitioners do not dispute or challenge this Government Resolution which
would provide the category of ''absentee landlord'', being not entitled for
the benefit under 12.5% scheme.
The petitioners, however, on the basis of the observations as
made in the award and in the orders passed by the District Court in the
adjudication of the References, are contending to the contrary, that late
Bhogilal was actually cultivating the land. We are afraid that this
assertion of the petitioners cannot be accepted as nowhere in the award or
in the orders of the Civil Court, it is accepted that late Bhogilal was
actually cultivating the lands. In fact the observations are contrary
namely that the land was leased to villagers who were actually cultivating
the lands and their names also came to be recorded in the revenue record
and in view of this position, the Special Land Acquisition Officer could not
apportion the amount of compensation payable under the Award. In any
event, it is not the case of the petitioners that their father late Bhogilal had
not received compensation. The scheme of 12.5% is over and above the
compensation. The private persons claiming such a benefit would become
eligible for such allotment if they fall in the eligible category, under the
said scheme.
On the above background, we cannot accept the contention of
the petitioners that the impugned communication dated 21 March 2013
issued by Respondent No.1 rejecting the representation/ application of the
petitioners for allotment of developed plot of land under 12.5 % scheme,
is in any manner arbitrary or illegal. There cannot be two opinions that
Respondent No.1 being a public body is required to act in accordance with
law and in the present context, the policy / scheme dated 6 March 1990
notified by the State Government to help the cultivators who were actually
cultivating the land, by granting plot under the said 12.5 % scheme. The
scheme specifically prohibits allotment of plot of land to such persons who
were not actually cultivating the land or who are termed as absentee
landlords under the scheme. The State Government in its clarification
dated 15 December 1997 has explained as to who are the absentee
landlords as noted above. Thus, the petitioners cannot make a claim
contrary to the terms and conditions of 12.5% scheme / policy and claim
allotment of a plot as a matter of a legal entitlement.
Before concluding, we cannot overlook another aspect of the
case namely the belated attempt of the petitioners in making their claim.
In our opinion, Respondent No.1 would be justified in its contention that
there is inordinate and an unexplained delay, in the petitioners filing this
petition after about 21 years of the 12.5% scheme / policy being notified
by the State Government. As noted by us above, the petition is completely
silent on as to whether the petitioners'' father late Bhogilal asserted this
position. However, the fact remains that the petitioners for the first time
by their application dated 5 December 2011 sought allotment of plot
under 12.5% scheme from respondent no.1 which shows that it was
about 21 years after the 12.5% scheme was notified by the State
Government. There is not a whisper of explanation as provided in the
petition to explain this delay even assuming that the petitioners had any
legal rights to assert, what they contend. This Court surely would not
come to the help of those persons who are not diligent and who are
sleeping over their rights. The law in this regard is well settled. In taking
this view we would be consistent with our observations in our order dated
31 January 2017 as made in the case "Nirabail Parshuram Koli & Ors. Vs.
The City & Industrial Development Corporation Maharashtra & Ors." (Writ
Petition No.1602 of 2015). In dealing with the issue of delay this Bench
has observed thus:-
"6. Thus, there is no dispute with regard to the acquisition proceedings. The contention is only on the subsequent Government Resolution/policy of 1990. At the time when the acquisition proceedings were complete, such scheme of 12.5% was not in vogue, which has come subsequently in the year 1990 i.e. about 20 years, after the acquisition proceedings had attained finality. We cannot permit persons like the petitioners to approach the Court as and when they desire to seek such reliefs. In this proceeding, we also cannot verify a locus/entitlement of the petitioners who make such a claim. We need not undertake the enquiry as to the eligibility and entitlement of the petitioners as being urged by the petitioners in the several paragraphs of the Writ Petition."
We are therefore of the clear opinion that apart from the
petitioners having failed to make out any case on the merits, it would also
be required to be held that the petition is barred by delay and laches.
In view of the above discussion, we see no merit in the writ
petition. It is accordingly rejected. No order as to costs.