State of Maharashtra Vs. Vithal Dudharam Pogale and ors. - Court Judgment

Excerpt:
civil - rehabilitation - section 22 of the maharashtra project affected persons rehabilitation act, 1986,(act) - respondent filed suit before trail court for grant of certificate of project affected person - trail court rejected application as respondent not covered under definition of affected person of act - appeal - claim granted - hence, present petition - whether appellate court committed any error of law in holding that respondents were entitled to be declared as project affected persons ? - held, as per scheme of act only one family member is entitled to certificate of project affected person - hence, petition dismissed as without merit - article 14: [r.m. lodha, s.a. bobde & s.b. deshmukh, jj] retiral benefit - classification between part time lecturers and full time teachers held, the part-time lecturers form a class by themselves and the said classification between part time lecturers and full-time teachers for purpose of granting retrial benefits cannot be said to be unconstitutional or bad in law -- consumer protection act, 1986 -- article 16; right to pension held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. retirement benefit; differentiation between full time teachers and part-time lecturers government resolution providing for retrial benefits to full-time teaching staff part-time lecturer were not entitled to said benefit held, it is true that the pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. however, the right of pension is always subject to the rules. it is not inherent in the employment. though pension is a payment for a past service rendered and it is a social welfare measure, but it is well settled that an employee is not entitled to pension de hors the rules. in the instant case the government resolution dated 21.7.1983 held that the said pension scheme is only applicable to the employees covered therein. a part time teacher, unfortunately, is not covered by the said scheme and, therefore, not entitled. - he contends that as said relief has not been claimed, proviso to section 34 of specific relief act is clearly attracted and suit as filed is not maintainable. he further argues that benefits like employment or other concessions are not automatic and project affected person is required to be considered by state government for grant of such benefits.b.p. dharmadhikari, j.1. heard shri mirza, learned assistant government pleader for the appellant and shri ghate and palikundwar, learned advocates for respondents no. 1 and 2.2. by this second appeal, the state government (original defendant) is challenging reversing judgment of lower appellate court whereby suit for grant of declaration filed by present respondents no. 1 and 2 along with their deceased mother raibai, came to be decreed.3. the appeal has been admitted on 21-1-2003 by formulating the following two questions as substantial questions of law:1. whether the appellate court committed any error of law in holding that the respondents were entitled to be declared as project affected persons ?2. whether the decree passed by the appellate court is hit by section 22 of the maharashtra project affected persons rehabilitation act, 1986, barring the jurisdiction of civil courts ?4. the facts are not much in dispute. the land of present respondents admeasuring 0.28.33 h.r. out of total 3.14 h.r. of land was acquired by state government for itiadoha project by award dated 18-2-1976. respondents no. 1 and 2 along with their mother raibai claimed that they were, therefore, rendered project affected and as such sought declaration from civil court of their status as project affected persons. the suit was opposed by present appellant, which accepted the acquisition and pointed out that as lands were held jointly, share of each plaintiff was about 1.04 h.r. and hence they were not entitled to grant of certificate as project affected persons. the trial court framed issues and answered them against the respondents. it found that as plaintiffs before it could not said to have less than 1 h. of land, they were not project affected persons as required by section 2(2) of maharashtra project affected persons rehabilitation act, 1986 (hereinafter referred to as act of 1986). it, therefore, dismissed the suit,5. the original plaintiffs then filed regular civil appeal no. 83 of 1994 before the district judge, bhandara. the appeal came to be allowed on 10-7-1995 and the appellate court found that in view of explanation to section 2 of maharashtra project affected persons and rehabilitation act, as land belonged to joint hindu family, each member thereof was entitled to grant of certificate as project affected person. it is this judgment of lower appellate court which has been questioned in present second appeal.6. shri mirza, learned assistant government pleader, has contended that section 22 of project affected act expressly stipulates that civil court will not have jurisdiction to decide such question. he contends that in these circumstances, though the lower appellate court has decreed the suit and no express objection to the jurisdiction of civil court was raised, as the issue goes to the root of the matter, the question can be considered for the first time in second appeal. he states that suit needs to be dismissed.7. during hearing, it transpired that suit filed was only for declaration and plaintiffs had not claimed any other relief. therefore, after noticing this, i had adjourned the matter to today to enable the parties to address me upon section 34 of specific relief act. today, accordingly, shri mirza, agp has contended that the certificate as project affected is definitely being sought for some employment or similar concessions and as such an injunction for that purpose ought to have been claimed in the suit. he contends that as said relief has not been claimed, proviso to section 34 of specific relief act is clearly attracted and suit as filed is not maintainable. even on this count, second appeal needs to be decided and allowed.8. shri ghate, advocate for respondents no. 1 and 2, on the other hand, contends that no objection to jurisdiction of civil court was raised either before trial court or before lower appellate court. he states that such an objection, therefore, cannot be raised for the first time before this court in second appeal. to substantiate his arguments, he relies upon the judgment of this court in the case of shraddha associates v. st. patrick's town co-op. hsg. soc. ltd. reported at : 2003(3)bomcr814 , particularly para 8. he further argues that in any case question whether a person is project affected or not, is not required to be decided by any authority or government functioning under the scheme of maharashtra project affected persons act, 1986. he states that, therefore, section 22 has no application and suit was maintainable. he further states that only declaration has been sought and it has not been brought on record that plaintiffs were entitled to claim some other relief and they omitted to claim it. he argues that as there is no such plea or evidence on record, reliance upon the provisions of section 34 of specific relief act is misconceived. he further argues that benefits like employment or other concessions are not automatic and project affected person is required to be considered by state government for grant of such benefits. it is his argument that if such person is found fit and eligible then only benefit is extended to him. according to him, as such, it cannot be said that while filing suit, plaintiffs were entitled to claim any other relief in the shape of injunction and they have omitted to ask it. according to him, therefore, no substantial question of law arises in this second appeal and the second appeal, therefore, needs to be dismissed.9. the first question about applicability of section 22 of maharashtra project affected persons rehabilitation act, is required to be considered in the light of objection raised by shri ghate that such an issue was not raised at all before the trial court or before the lower appellate court. it is obvious that if section 22 is held to be applicable, the civil court will not have jurisdiction to grant relief in view of section 9 of civil procedure code. thus, it will be a case of inherent lack of jurisdiction and said objection can be raised at any point of time. the preliminary objection raised by shri ghate, advocate, for respondents no. 1 and 2 is, therefore, misconceived.10. section 22 stipulates that question which is required to be decided or dealt with by project authority, collector, commissioner or state government under 1986 act, cannot be decided by civil court. therefore, the appellant state government has first to show that the issue of status of present respondents as project affected persons is required to be decided either by project authority or collector or commissioner or by the state government under any provision contained in 1986 act. there is no such section pointed out and in fact in entire act, there is no provision which enables any of the above authorities to decide such status of a person. in the absence of any provision therefor, it cannot, therefore, be said that suit for declaration by a person, who is affected by project, that he is project affected person is not hit by provisions of section 22 of 1986 act. in view of this, question formulated at the time of admission of appeal, therefore, needs to be answered against the appellant.11. this brings me to second contention about applicability of section 34 of specific relief act. the proviso to section 34 states that the court shall not make any such declaration where plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. here, it has not been pointed out that when suit was instituted plaintiffs were entitled to seek any other relief and they have not claimed it. thus, there is no plea of such omission and there is no proof of such omission. it is obvious that provisions of section 34 of specific relief act are, therefore, not applicable. the words used are further relief than a mere declaration of title. the question is whether a project affected person is entitled to claim any further relief. it is to be noticed that though government has made some reservation for project affected persons in employment, the person is required to apply and after he applies, his case is required to be examined in accordance with various government circulars and law. if he satisfies those circulars and is found eligible then only he become entitled to preference. it is, therefore, apparent that at the relevant time, in absence of any evidence on record, it could not have been said that plaintiffs were entitled to seek further relief than a mere declaration of their title as project affected person.12. the learned agp has, however, pointed out that when the suit was instituted, plaintiff no. 3 - raibai, was about 75 years old. he states that she has expired and her legal heirs are brought on record. he points out that those legal heirs are daughters and as one of the daughters has already expired, her husband has also been brought on record. it is settled law that married daughters cannot be treated as family members and hence project affected person for the purposes of 1986 act. in fact when agp was raising this contention, shri ghate, advocate has expressly stated that original plaintiffs no. 1 and 2 (present respondents no. 1 and 2) have also not asserted that daughters of raibai are in any way entitled to declaration of status as project affected person. in view of this express statement and understanding, it is not necessary for me to record any finding in this respect except to note that the judgment and decree delivered by lower appellate court will govern present respondents no. 1 and 2 only. the trial court has dismissed the suit after noticing that individual holding of plaintiffs after notional partition was not less than 1 h. and therefore, they were not affected persons.13. however, it is an admitted position that section 2(2)(c) has no application in present facts because land of respondents was not in benefit zone but it was in affected zone. therefore, provisions of section 2(2)(a) are applicable and as such view taken by lower appellate court in this respect requires no interference. the question framed by this court while admitting the appeal, therefore, needs to be answered in negative by holding that lower appellate court has not committed any error by reversing the judgment and decree of trial court. it is obvious that as per the scheme regulating grant of employment or concessions, only one family member is entitled to the benefit of the scheme and this aspect and eligibility can be considered by government when occasion therefor arises.14. in view of the above discussion, i do not find any merit in the contentions raised by the learned agp. second appeal is, therefore, found to be without any merits. the same is dismissed. however, in the circumstances of the case, there shall be no order as to costs.