1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1058 OF 1991 1. Suryakant S/o Madanlal Dudhedia } Age : Major, Occ. : Business, } R/o : Shrirampur, Tq. Shrirampur, } Dist. Ahmednagar. } 2. Chandrakant S/o Madanlal Dudhedia} Age : Major, Occ. : Business, } R/o : Shrirampur, Tq. Shrirampur, } Dist. Ahmednagar. } 3. Jayantilal S/o Madanlal Dudhedia } Age : Major, Occ. : Business, } R/o : Shrirampur, Tq. Shrirampur, } Dist. Ahmednagar. } .... PETITIONERS V E R S U S 1. The State of Maharashtra } Through Govt. Pleader, } High Court, Bench at } Aurangabad. } 2. The Executive Engineer } B & C, Public Works Division, } Sangamner, Dist. : Ahmednagar } 3. The Tahsildar } Tq. Shrirampur, Dist. Ahmednagar } 4. The Collector, } Dist. Ahmednagar } 2 5. The Commissioner } Nashik Division, at Nashik } .... RESPONDENTS Mr. M.N.Navandar, Advocate for Petitioners. Mr. N.H.Borade, A.G.P. for State – Respondent No. 1. CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 27/01/2010 ORAL JUDGMENT : 1. By this petition, the petitioners challenge orders rendered by the learned Collector and the Tahsildar regarding recovery of Rs. 1,50,000/- from them. 2. The petitioners are real brothers interse. Agricultural lands G.Nos. 36,37,38 and 40 situated at village Shirasgaon are inherited by them from their father namely Madanlal Dudhediya. On 24/1/1977, they had obtained permission for non agricultural use of the said lands from the Sub Divisional Officer, Sangamner. They entered into an agreement with the Food Corporation of India ( for short ‘ F.C.I.’ ) to construct 2 godowns. It appears that there was a scheme floated by the World Bank to render financial help for construction of wear 3 houses to be used by the F.C.I. The petitioners alleged that they had obtained No Objection Certificate ( for short ‘ N.O.C. ’ ) from the village Panchayat Shrirampur for the purpose of construction of the godowns in the above agricultural lands. In or about 1977, they constructed 2 godowns. 3. On 12/4/1977, they were served with a notice by the Public Works Department to the effect that the construction of godowns was illegally carried out by them, because it was in breach of Ribbon Development Rules. It was alleged that the godowns were constructed within 100 ft. from centre of the proposed High-way and as such the same was illegal. By sending reply dated 18/4/1977, they explained that the construction of godowns was legal and proper distance was left from middle point of the road. 4. The petitioners alleged that for the first time on 9/5/1977, the Dy. Engineer of Public Works Department informed that a proposal for construction of railway over bridge was under consideration and, therefore, they shall not construct any part of the land within the area of 200/300 ft. from centre of the road. Reply was given to the notice. It was explained that more than 80 ft. distance was left from centre of the road and the construction of godown was duly completed as per the N.O.C. It was also stated that there was no notification issued U/s 4 (1) of the Land Acquisition Act for the purpose of acquisition of the lands in 4 question and, therefore, they were not required to stop the construction work. They filed Special Civil Application No. 1481 of 1977 seeking mandamus against the respondents. Ad-interim relief was granted by the Court. The work of construction was thereafter completed and both the godowns were handed over to the F.C.I. They withdrew the Special Civil Application No. 1481 of 1977 on 16/6/1980 when the matter was at the stage of final hearing. 5. The petitioners alleged that they were under the impression that the chapter was over. Yet, on 24/2/1987, again they received a notice addressed to their deceased father alleging that amount of Rs. 1,50,000/- was to be recovered from him. Their father had demised in or about 1982. They preferred an Appeal bearing No. 172 of 1987 U/s 247 of the Maharashtra Land Revenue Code, 1966. The learned Divisional Commissioner, Nashik dismissed their Appeal on 7/9/1988. They preferred a Revision Application. On 14/2/1989, they received communication about admission of the Revision application and interim stay granted by the Hon’ble Minister. They alleged that without hearing them, the Revision was dismissed and the stay was vacated as per communication dated 11/12/1990. They submit that the recovery of the amount against them is illegal and improper. 6. Heard learned counsel for the petitioners and the learned 5 A.G.P. 7. A short question involved in the petition is, “ Whether the recovery of amount of Rs. 1,50,000/- can be effected by the respondents and is legally permissible under Rule 17 of the Maharashtra Land Revenue Rules, 1967 ? ” 8. Rule 17 of the Maharashtra Land Revenue Rules, 1967 is as follows : “ (17) Procedure for recovering sums recoverable as an arrear of land revenue - (1) Where any sum due to any department of Government or a local authority or a co-operative society is recoverable as an arrear of land revenue from any defaulter, such department, local authority or, as the case may be, co-operative society may send a requisition in writing for recovering the sum to the Tahsildar of the Taluka in which the defaulter resides or has property. (2) Such requisition shall contain the following particulars, namely, (a) Full name and address of the defaulter; (b) The sum to be recovered ; (c) The provision of law under which the 6 sum is recoverable as an arrear of land revenue ; (d) The process by which the sum may be recovered ; (e) The property against which the process may be executed ; (3) On receipt of such requisition, the Tahsildar shall dispose it of in accordance with the provision of the Code and these rules ’’. On plain reading of Rule 17 (C), it is conspicuous that the Tahsildar is required to issue notice with specific mention of the provision of law, under which the sum is recoverable as arrears of the land revenue. The petitioners were not liable to pay any amount towards taxes, land revenue or otherwise. The claim put-forth by the respondents was on the basis of alleged excess expenditure required to be incurred due to alleged shifting of venue of the railway over bridge from the lands of the petitioners to some other land. 9. It is worthy to be noted that there was no notice issued under the Land Acquisition Act regarding proposed acquisition of the land for the purpose of railway over bridge in the lands of the petitioners. There was no prior intimation given to them that a part of their land was reserved for construction of a railway bridge. They were not made to understand that construction of the godowns was likely to be detrimental to the proposed plan for construction of railway over bridge. In the earlier round of litigation, no allegation was made that 7 the construction of 2 godowns was objected to for the reason that it was likely to impair the work of construction of the railway over bridge. The petitioners were not under legal obligation to with-hold the construction work only because the respondents had some proposal to construct a railway over bridge unless the land was acquired. There is no record to show that by using the urgency clause, notice of acquisition was dispensed with and the land was proposed to be taken over for the purpose of such construction. The notice dated 24/2/1987 does not give any particulars about the nature of recovery. It is stated that the amount of Rs. 1,50,000/- was to be recovered as per order rendered by the Collector, Ahmednagar. The impugned order rendered by the learned Additional Commissioner, Nashik Division ( Exh. D ) shows that the Public Works Department was required to reschedule site of the proposed construction of the railway bridge due to the construction of the 2 godowns. The alleged shifting of site of construction had caused additional expenditure of Rs. 1,50,000/-. The impugned order reveals that interim stay was granted by the High Court in Writ Petition preferred by the petitioners’ father. Obviously, he got constructed 2 godowns while the interim stay order was operative. If the Public Works Department had to shift the construction site due to such intervening development and particularly on account of interim stay granted by the High Court, it can not be said that father of the petitioners had committed any default and was, therefore, liable to pay the alleged amount. 8 10. For the reasons stated herein above, I find that the impugned notice and the order rendered by the learned Divisional Commissioner are quite unsustainable. Hence, the petition is allowed. The impugned notice issued regarding recovery of Rs. 1,50,000/- and the order of the learned Divisional Commissioner, Nashik are set aside. Rule is made absolute accordingly. No costs. [ V.R.KINGAONKAR ] JUDGE knp/WP1058.91