Read Order:  DIKSHA DILIP PAWAR AND ORS Vs, THE COMPETENT AUTHORITY AND SUB- DIVISIONAL OFFICER AND ORS.

Mansimran Kaur 

New Delhi, April 16, 2022: Referring to the Maharashtra Land Revenue Code, 1996, the Bombay High Court has clarified that Sections 29, 36 and 36A do not take within its fold the exigency wherein the land is acquired compulsorily. These provisions do not prohibit compulsory acquisition of lands by the Government. 

The Division Bench of Justice S. V. Gangapurwala and Justice Vinay Joshi held that in case of compulsory acquisition of lands of tribals it would be inequitable for the Government to retain 10% from the amount of compensation payable to the tribals. Moreover, no source of power exists with the Government to retain 10% of the compensation payable in such cases.

The present writ petitioners claimed to be the owners of the writ lands. The petitioners were tribals. The lands in question were allotted to the ancestors of the petitioners long ago by the Government. The lands of the petitioners were Occupancy II lands. The above mentioned lands were acquired by an award dated February 25, 2020.  In the award, 10% from the compensation amount payable to the petitioners had been withheld and/or deducted relying upon the Government Resolution dated July 15 2010. The same was  the subject matter of these writ petitions.

The lands of the petitioners were acquired by following due process as provided under the provisions of the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 and 10% of the amount payable from the compensation was  withheld only on the ground that the lands of the petitioners were  tribal lands and if the petitioners would have sold the lands, the petitioners would have been required to pay nazrana of 50% of the sale amount. However, it being an acquisition, the 10% amount was retained relying upon a Government Resolution dated July 15, 2010.

The Counsel for the petitioners contended that the 10% deduction  in accordance with the notification of the Government  dated July 15, 2010 was erroneous on the ground that their case is that of compulsory acquisition. The Counsel for the petitioners relied on the case of State of Maharashtra Versus Babu Govind Gavate & Ors., contending that the notification of the Government dated July 15, 2010 is erroneous. 

The AGP for the respondents on the other hand, submitted that  as per the Government Resolutions dated September 11, 1968  and September 8, 1983, the permission to sell the agricultural land held on new and restricted tenure (Class II) should have been granted invariably on the condition that the alienee/holder shall pay to the Government an amount equal to 50% of the net unearned income. It was further submitted that since the tribals were not willing to sell their lands, the Government therefore took a decision under Government Resolution dated July 15, 2010  to recover only 10% of the net unearned income at the time of acquisition of land. The said decision was taken keeping in mind that the tribals are the weaker section of the society and therefore only 10% of the net income unearned income was recovered. It was further submitted that since the land was in the category of Class II Occupancy lands, thus the original owner of the land was with the State Government.

The Court, after considering the submissions from both the sides, observed that the land in question comes under Occupancy Class II. It was further observed that as per Section 36 A of   Maharashtra Land Revenue Code, 1996, the tribals cannot sell their land to non-tribals without obtaining the prior permission from the Collector/Competent Authority. Under Section 29 of the MLRC, Occupancy Class II persons hold unalienated land in perpetuity subject to restrictions on right to transfer. Sub-Section 2 of Section 36, states that the occupancy of the Schedule Tribes cannot be transferred except with the previous sanction of the Collector. However, in the present case the petitioners were  not alienating their lands but the lands were subject to compulsory acquisition, the Court observed. It was further observed that the restrictions mentioned under Section 36 A would have been only applicable if the tribals, on their own violation, would have entered into the transaction of sale and/ or alienation with the non-tribal. However, the same is not the case of compulsory acquisition. 

The Bench said, “The State exercises its power of eminent domain in compulsorily acquiring the property. Sections 29, 36 and 36A of the MLRC do not take within its fold the exigency wherein the land is acquired compulsorily. These provisions do not prohibit compulsory acquisition of lands by the Government. In case of compulsory acquisition, the petitioners even if they are reluctant to part with the properties have no option but to divest their rights over the properties which are the source of their livelihood. It would be inequitable for the Government to retain 10% amount from the amount of compensation payable to the tribal. Moreover, no source of power exists with the Government to retain 10% of the compensation payable to tribals.”

Thus, it was observed that it will be unfair on the part of the Government to deduce 10 % from the amount of compensation payable to tribals. Additionally, it was opined that in the case of compulsory acquisition, prior approval of the Collector is not needed. Thus, the impugned Government Resolution dated July 15, 2010 being violative of Article 14 of the Constitution was set aside.

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