1. This petition under Articles-226 and 227 of the Constitution of India has been preferred, with the following prayers :
"A) THIS HON'BLE COURT may be pleased to issue writ of mandamus or any other appropriate writ order and/direction by directing the Respondent No.2 to decide the proposal dtd.3.10.2011 and restore the use of land bearing Revenue Survey No.88 admeasuring 10,000 sq.mtrs. of Mubarakpur for grainyard (Khalawad) purpose and permanently grant the same in favour of Petitioners; AND B) THIS HON'BLE COURT may be pleased to issue writ of mandamus or any other appropriate writ order and/direction and be pleased to command the Respondent No.2 to provide 100 sq.mtrs plots in favour of landless agricultural labourers of Village: Mubarakpur from the private land admeasuring 10,000 sq.mtrs. of Revenue Survey No.1/1 of Village:Mubarakpur, Taluka:Nizar, Dist.Tapi; AND C) THIS HON'BLE COURT may be pleased to quash and set aside the orders passed by Respondents No.1 and 2 at Annexure-C to this petition;AND D) THIS HON'BLE COURT may be pleased to direct the Respondent no.2 to take decision upon the proposal dtd.3.10.2011; AND E) THIS HON'BLE COURT may be pleased to stay the order dated 6.9.2011 and 3.1.2011 at Annexure-C pending hearing and final disposal of this petition; AND F) THIS HON'BLE COURT may be pleased to grant ad-interim relief in terms of Para (D) & (E) pending hearing and final disposal of this petition; AND G) THIS HON'BLE COURT may be pleased to pass such other and further orders may be deemed just and proper in the facts and circumstances of the present case."
2. Briefly stated, the facts of the case are that, land bearing Revenue Survey No.88, admeasuring 10000 sq.mtrs. situated at Village Mubarakpur, Taluka: Nizar, District Tapi,is Government Khalawad land (Grain-yard). The petitioners are agriculturists and inhabitants of village Mubarakpur. It is stated that they and their predecessors are using the grain-yard for agricultural purposes for the last 150 years. The District Collector, Tapi, by his order dated 03.01.2011 has assigned the land in question as Gamtal land, for the purpose of allotting plots to 40 families of landless agricultural labourers, as per the policy of the State Government. The said order of the Collector was challenged by the petitioners before the Additional Secretary (Appeals), Revenue Department, by filing a Revision Application under Section-211 of the Bombay Land Revenue Code, 1879 ("the Code", for short). The Additional Secretary (Appeals), by the impugned order dated 06.09.2011 has rejected the Revision Application on the ground that the proposal made by the petitioners to the effect that alternative land admeasuring 10000 sq.mtrs. would be made available at their own cost to the families of the landless agricultural labourers, was not found to be viable, as the land-owner was not ready to part with the land. Moreover, the land is burdened with an encumbrance of Rs.1,00,000/- in favour of the Bank of Baroda, therefore, the said proposal could not be implemented. The Additional Secretary (Appeals), by the impugned order, held that as per the policy of the State Government to allot land to the families of landless agricultural labourers, 10000 sq.mtrs. of land from Survey No.88, has been converted from Khalawad land to Gamtal land for this purpose, by the order of the Collector dated 03.01.2011, which is in accordance with law, and no interference with the said order was required. Being aggrieved by the above-mentioned orders of the Collector and Additional Secretary (Appeals), the petitioners have approached this Court by way of the present petition.
3. Mr.Sunit S. Shah, learned advocate for Mr.N.V.Gandhi, learned advocate for the petitioners, has laid emphasis on prayer-13A made by the petitioners, by submitting that after passing of the impugned orders by the Collector and Additional Secretary (Appeals), a new development has taken place, which is that the land that is mentioned by the Additional Secretary (Appeals) in his impugned order is now available. However, the learned advocate for the petitioners was not in a position to apprise the Court whether the encumbrance over the land, in favour of Bank of Baroda, has been removed, or not. It is submitted that the petitioners and 26 beneficiaries out of 40 have entered into a Consent Agreement, stating that they would be willing to take the land that has been proposed by the petitioners. It is further submitted that a proposal in this regard has been made by the petitioners to the Collector on 03.10.2011. However, no response has been received by the petitioners, so far. It is contended that the only reason for converting the Khalawad land into Gamtal land by the Collector was that alternative land was not available, in spite of best efforts. Now that the other land is available, the land that was originally Government Khalawad land can easily be reconverted into Khalawad land as power to do so has been conferred upon the Collector, under Section-38 of the Code. That the petitioners and their predecessors have been using the Khalawad land as a grain-yard for about 150 years and if this land is allotted to landless agricultural labourers, the petitioners would face great hardship in carrying out their agricultural operations. It is contended that the petitioners are not against allotment of land to landless agricultural labourers, therefore, the proposal moved by them to the Collector on 03.10.2011, offering alternative land, ought to have been considered.
4. Mr.Neeraj Soni, learned Assistant Government Pleader, appearing on supply of an advance copy of the petition, has opposed the submissions made by the learned advocate for the petitioners by submitting that the order of the Collector dated 03.01.2011 has been confirmed by the impugned order of the Additional Secretary (Appeals) dated 06.09.2011, which is challenged before this Court. The Collector cannot sit in appeal over the said order of the Additional Secretary (Appeals), that has now attained finality, subject to the decision of this Court.
5. Having heard the learned counsel for the respective parties and upon perusal of the averments made in the petition and material on record, it is evident that land bearing Survey No.88, admeasuring 10000 sq.mtrs., of village Mubarakpur, which was originally Government Khalawad land (Grain-yard), has been converted into Gamtal land by order dated 03.01.2011 of the Collector. A perusal of the said order indicates that the said order has been passed, as no other Gamtal land is available for allotment to the families of 40 landless agricultural labourers, as per the policy of the State Government. The power of the Collector to assign land for any particular purpose, as in the present case, is not under challenge, as, admittedly, the said power is vested upon the Collector under Section-38 of the Code. What is being prayed for, in effect, is to reverse the order dated 03.01.2011 and re-assign the land as Government Khalawad land instead of Gamtal land, and allot the land proposed by the petitioners to the families of the landless agricultural labourers. In the view of this Court, a direction to this effect cannot be granted by this Court, for reasons that follow.
6. The impugned order of the Collector has been confirmed by the Additional Secretary (Appeals), by order dated 06.09.2011. From the said order, it is evident that the land has been earmarked for allotment to the families of 40 landless agricultural labourers. From the contents of the said order, it is clear that at the relevant point of time, the concerned Authority appears to have made an earnest endeavor to ensure that the proposal made by the petitioners regarding grant of alternative land, is examined and, if possible, implemented. The said proposal was not found to be viable, as there is an encumbrance of Rs.1,00,000/- in favour of Bank of Baroda upon the land in question and the owner was not agreeable to the proposal. It is only after exploring all other options that, ultimately, a decision has been taken by the Collector to earmark 10,000 sq.mtrs. of land from Survey No.88 for the purpose of allotment to the families of 40 landless agricultural labourers. In the view of this Court, this action is in accordance with law and is not vitiated on any count. The order of the Collector has now merged in the order of the Additional Secretary (Appeals) and, as such, the Collector is bound by the order of the superior authority, unless and until it is set aside by this Court. The impugned orders contain cogent reasons which are in consonance with the peculiar facts of the case. As the said orders have been passed in accordance with law, the interference of this Court is not warranted.
7. In the above background, after passing of the order by the Additional Secretary (Appeals), the petitioners have again moved a proposal to the Collector on 03.10.2011, offering the same land that had been proposed earlier, for the purpose of allotment to the landless agricultural labourers. It has been submitted before this Court on behalf of the petitioners that 26 out of 40 landless agricultural labourers are agreeable to the proposal made by the petitioners and a Consent Agreement, has been arrived at between them in this regard. Be that as it may, the fact remains that this is a private arrangement purported to be made by the petitioners and some of the beneficiaries. As such, the Consent Agreement cannot nullify the orders passed by the quasi-judicial authorities, which are found to be in accordance with law by this Court. Elaborate reasons for converting the Government Khalawad land into Gamtal land have been given by the authorities which are factually not disputed. Any subsequent development, if it can be so called cannot be a subject matter for adjudication by this Court.
8. Considering the prayers made in the petition and as this Court is of the view that the impugned orders of the Collector dated 03.01.2011 and of the Additional Secretary (Appeals) dated 06.09.2011, do not suffer from any illegality or irregularity so as to warrant interference, the prayer made by the petitioners at paragraph-13A, to direct the Collector to decide their proposal dated 03.10.2011, cannot be granted. Any direction to decide the proposal would have the effect of nullifying the said orders, which cannot be done, in view of the conclusion arrived at by this Court.
9. On one hand the petitioners are challenging the impugned orders passed by the authorities below, and on the other hand, they are praying for a direction to the Collector to consider their proposal which seeks to nullify the said orders. The order of the Collector has merged in the order of the Additional Secretary (Appeals) dated 06.09.2011 and the Collector would be bound by the order dated 06.09.2011. In the circumstances, the direction sought by the petitioners, as also the prayers to set aside the impugned orders, are not worthy of acceptance.
10. For the aforestated reasons, there is no merit in the petition, which stands rejected.
(Smt.
Abhilasha Kumari, J.) ~gaurav~ Top