Judgment:
S.A. Bobde, J.
1. The petitioner challenges the order dated5.10.186/11.2.1987 passed by the Collector, Nasik,cancelling the allotment of agricultural lands to thepetition under the provisions of the MaharashtraAgricultural Lands (Ceiling on Holdings) Act, 1961,hereinafter referred to as the 'Act'. The Tahsildar,Nasik, as Chairman of the Surplus Lands DeterminationTribunal allotted four hectares 35 areas of land to thepetitioner. The allotment was made after advertisementwas published and no application was received inpursuance thereof. The lands were allotted to thepetitioner for horticultural i.e. for growing certainfruit bearing trees. Thereafter, on 24.10.1985 theGovernment made a reference to the Commissioner, NasikDivision. In the reference, the Government seems tohave assumed that the land is not cultivable and,therefore, the allotment ought to have been done underSection 27(9) of the Act. In the reference, theGovernment observed that the land has been improperlyallotted to the petitioner and actually called upon theCommissioner to revise the allotment order underSection 45A of the Act and thereupon cancelled theallotment and redistributed the same.
2. The Collector, Nasik, issued a notice to thepetitioner and the petitioner replied to the saidnotice. Nevertheless, the Collector, Nasik, hascancelled the allotment by the impugned order dated5.10.1986.
3. Mr. Gorwadkar, learned counsel for the petitioner,submitted that the impugned order is illegal andsuffers from non-application of mind as also from thevice acting under dictation.
4. It is obvious from the letter of the Governmentdated 24.10.1985 that the Government has directed theCommissioner, Nasik, to revise the order and to cancelthe same and also to redistribute the same. Thisclearly amounts to dictating to the Commissioner. Sucha direction, which is duly complied with, is alsocontrary to the express words of Clause (b) ofSub-section (1) of Section 45A which reads as follows:-
'45A. (1) Subject to the provisions ofthis section, the Commissioner may suomotu or on an application made to him byan aggrieved person or on a referencemade in this behalf by the StateGovernment, at any time-
(a) call for the record of any inquiryor proceedings under Section 25 (exceptin cases where an appeal has beenfiled), or as the case may be, section27 for the purpose of satisfying himselfas to the legality or propriety of anyinquiry or proceedings (or any partthereof), and
(b) pass such order thereon as hedeems fit after giving the partiesconcerned a reasonable opportunity ofbeing heard:
Provided that, except in the case ofa reference from the State Government,no such record shall be called for afterthe expiry of a period of one year fromthe date the award of compensation ismade by the Collector under Section 25,or as the case may be, the grant of landis made by the Collector under Section 27. (2) .....
It is obvious from Clause (b) that it is theCommissioner who has the discretion to 'pass such orderthereon as he deems fit' and it is not for theGovernment to dictate what order should be passed.Indeed, the Government has given a direction contraryto Section 45A and the Collector, exercising the powersof the Commissioner, seems to have abdicated hisdiscretion. This is clearly not permissible and theimpugned order deserves to be set aside on this countalone, See Purtabpur Co. v. Cane Commr., Bihar : [1969]2SCR807 . In that case, the CaneCommissioner who had reserved an area for a particularfactory for a particular period had altered thereservation on the order of the Chief Minister. TheSupreme Court observed:-
'The power exercisable by the CaneCommissioner under Clause 6(1) is astatutory power. He alone could haveexercised that power. While exercisingthat power he cannot abdicate hisresponsibility in favour of anyone--not even in favour of the StateGovernment or the Chief Minister. Itwas not proper for the Chief Minister tohave interfered with the functions ofthe Cane Commissioner. In this casewhat has happened is that the power ofthe Cane Commissioner has been exercisedby the Chief Minister, an authority notrecognised by Clause (6) read with Clause(11) but the responsibility for makingthose orders was asked to be taken bythe Cane Commissioner.
14. The executive officers entrustedwith statutory discretions may in somecases be obliged to take into accountconsiderations of public policy and insome context the policy of a Minister orthe Government as a whole when it is arelevant factor in weighing the policybut this will not absolve them fromtheir duty to exercise their personaljudgement in individual cases unlessexplicit statutory provision has beenmade for them to be given bindinginstructions by a superior.'
5. Apart from this, it appears that the Commissionerhas, while exercising the revisional power travelledoutside the scope of the reference by the StateGovernment. The letter containing the reference by theGovernment refers to the nature of the land. It statesthat the land in question is not agricultural landsand, therefore, could have been only distributed underSection 27 Sub-section (9). Now under the Act, theland is distributed under Section 27 of the Act.Section 27(1) reads as follows:-
'27.(1) Subject to any rules made inthis behalf, land (other than grazingland or tank land or land notified bythe State Government as not capable ofbeing disposed of for cultivation) whichis acquired by the Vests in the StateGovernment under Section 21 shall,subject to the provisions of the Code,be granted by the Collector or any otherofficer authorised in this behalf by theState Government in the order ofpriority set out in Sub-sections (2),(3), (4) and (5).'
Sub-section (9) of Section 27 reads as follows:-
'(9) Where land which vests in the StateGovernment under Section 21 is grazingland or tank land or land notified underSub-section (1), the State Governmentmay dispose it of in such manner as itthinks fit.'
It is, therefore, obvious that where the land is notcapable of being disposed of by cultivation, it can beallotted by the Collector or any other officer in thisbehalf. In the present case, the land was distributedby the Tahsildar. Where the land is not capable ofcultivation, it is required to be distributed by theState Government. The Government has in its letterreferred to above, referred this aspect to theCommissioner for decision while observing that the landis not cultivable and, therefore, the action forcancellation and redistribution should be taken. Thefactual aspect of this matter is really concluded bythe certificate dated 16.9.1980 which was relied uponat the time of distribution of the land. Thatcertificate clearly states that the land is found to besuitable for cultivation of horticulture plants and,therefore, it was distributed. There is no disputethat horticulture is included in the definition ofagriculture vide Section 2 Sub-section (1). TheCollector has travelled wide outside the reference ofthe Government and has held the distribution illegal onseveral grounds. One of the grounds given by theCollector is that the land has been distributed by theTahsildar without convening a meeting of thedistribution committee. Such a ground has been heldnot to be good in law by a decision of this Court inLaxminarayan Maniklal Pathak and Anr. v. State ofMaharashtra and Anr., reported in 1986 M.L.J. 528.This Court upheld the decision of the Tahsildar actingas Chairman and held that this is recognised bySub-section (6) of Section 2AO of the Act. TheCollector has further set aside the allotment on theground that the petitioner is not landless even thoughthe allotment order itself did not grant the lands tothe petitioner because she is landless. Suffice it tosay that the Tahsildar has travelled beyond the scopeof the reference made by the Government. Thisconstitutes a material irregularity.
6. In the circumstances, it is clear that the impugnedorder is not sustainable and deserves to be set aside.In the result, the rule is made absolute. The impugnedorder dated 5.10.1986/11.2.1987 is quashed and setaside. There shall be no order as to costs.
7. P.S. to give ordinary copy of this judgement tothe parties concerned.