Hanumant Baburao Neharkar & Ors. v. State of Maharashtra & Ors.

1. Rule. With the consent of the learned Counsel for parties, Rule is made returnable forthwith.

2. By this Petition, Petitioners challenge the order dated 10 April 2018 passed by the Minister (Revenue) in Revision Application filed by the Respondent No.5. By the order, the learned Minister has set aside the orders passed by the Additional Commissioner, Pune, dated 10 July 2017 and Additional Collector, Pune dated 5 February 2015. The Additional Collector, by order dated 5 February 2015, had directed corrections in the order of allotment dated 25 January 1988 to the extent of the names of the allottees. In other words, the alternate land which was earlier allotted in the name of the Respondent No.5, is now shown to have been allotted in the joint names of Petitioners and the Respondent No.5. Aggrieved by the Additional Collector’s decision, the Respondent No.5 filed Appeal before the Additional Commissioner, which was rejected. He filed Revision before the Minister (Revenue), who has allowed Revision and has set aside the orders passed by the Additional Collector and the Additional Commissioner. The net result of order passed by the learned Minister is that the alternate land now stands allotted in the exclusive name of the Respondent No.5 and the Petitioners will have no right, title and interest therein. The Petitioners are aggrieved by the decision of the learned Minister and have filed the present Petition. URS 2 of 13

3. The challenge arises in the light of acquisition of land of original holder Shri Baban Tryambak Neharkar at Village Yedgaon, Taluka Junnar, District Pune. In lieu of acquisition of the land, alternate land at Village Bori (Budruk), Taluka Junnar, District Pune bearing Gat No.393/2 admeasuring 81 R was sanctioned. However, the order allotting the alternate land was issued in the name of Sadashiv Balshiram Neharkar, grandson of Baban Tryambak Neharkar. As a matter of fact, father – Baban had two sons – Baburao and Balshiram. Therefore, in ordinary course, the alternate land should have been allotted in the joint names of Baburao Baban Neharkar and Balshiram Baban Neharkar. However, since the occupancy price was paid by son of Balshiram i.e. Respondent No.5, the allotment of alternate land was made in the sole name of Respondent No.5 vide allotment order dated 25 January 1988. The heirs of other son of Baban i.e. Baburao are aggrieved by such action in allotting the land in the sole name of Respondent No.5 and instituted proceedings before the Additional Collector for correction of the allotment order. The Additional Collector proceeded to allow the application by order dated 5 February 2015 by adding names of Baburao and his two sons in the allotment order. First Revision of Respondent No.5 came to be rejected by the Additional Commissioner by order dated 10 July 2017. The Minister (Revenue) has however reversed the decisions of the Additional Collector and Additional Commissioner by the impugned order dated 10 April 2018, which is the subject-matter of the challenge in this Petition.

4. Mr. Nighot, the learned counsel appearing for Petitioners would submit that the correction carried out by the Additional Collector vide order dated 5 February 2015 was perfectly legal as the Respondent No.5 did not have any right to get the alternate land allotted in his sole name by ignoring the shares of other heirs of deceased Baban Tryambak URS 3 of 13 Neharkar. That, Baban admittedly had 2 sons namely Baburao and Balshiram and the son of Balshiram alone cannot claim ownership in respect of the acquired land and therefore could not have secured allotment in his sole name.

5. Mr. Nighot would attack the order passed by the learned Minister contending that the order passed by the Additional Collector was passed after granting due opportunity of hearing to the Respondent No.5. That, the learned Minister has erroneously held that Baburao refused to pay the occupancy price without any material to that effect on record. That, mere delay cannot affect the right of the Petitioners. That, this is not a case of challenge to revenue entries but mere case of correction of erroneous allotment order. The learned Minister has erroneously held that the Petitioners ought to have filed a suit when in fact jurisdiction of the Civil Court is barred under the provisions of Maharashtra Project Affected Persons Rehabilitation Act, 1986 or the New Rehabilitation Act of

1999. He would rely upon the Judgment of this Court in the case of Tukaram Dhondi Sutar (since deceased) through Legal Heirs Sakharam Tukaram Sutar Vs. Nana Bhau Tibile and others[1].

6. Per Contra, Mr. Shah, the learned counsel appearing for Respondent No.5 would oppose the Petition and support the order passed by the learned Minister. He would submit that the application filed by the Petitioners before the Additional Collector was hopelessly barred by limitation as the same was filed 25 years after issuance of the original letter of allotment. That, the Additional Collector did not have jurisdiction to entertain the application filed by the Petitioners. That, allotment of alternate land is not automatic and such allotment can be made only in favour of a person paying the occupancy price, which in the present case, 1 2018(4) Mh.L.J. 397 URS 4 of 13 is admittedly paid by the Respondent No.5 alone. That, all aspects are considered by the learned Minister while allowing the Revision by the impugned order. That such reasoned order passed by the Minister need not be disturbed in exercise of writ jurisdiction. He would submit that in the year 1992, the Petitioner No.1 filed Suit for partition and did not include the land in question for seeking partition, which would clearly debar his legal heirs from turning around and claiming any rights in respect of the alternate land. He would pray for dismissal of the Petition.

7. Ms.Bhende, learned AGP, would appear on behalf of the State and justify the order passed by the learned Minister.

8. Rival contentions of the parties now fall for my consideration.

9. There is no dispute to the factual position that Baban Tryambak Neharkar was the original owner of the acquired land. He had two sons, namely Baburao and Balshiram. The Petition is filed by Baburao and his 2 sons Hanumant and Anand. Balshiram had 4 sons namely Sadashiv, Bajirao, Jalindar and Mangesh. Baban Tryambak Neharkar died on 15 October 1987 by which time it appears that his son Balshiram was already dead. After Baban’s death, Mutation entry No. 5933 dated 1 November 1987 was effected to bring on record heirs of deceased Baban on various properties except the acquired property, because the acquisition of acquired land was complete before Baban’s death.

10. It appears that the acquisition of land at Village Yedgaon, Taluka Junnar, District Pune happened during the lifetime of father Baban Tryambak Neharkar. Therefore, alternate land in lieu of acquired land could have been allotted in favour of Baban Tryambak Neharkar. However URS 5 of 13 before the allotment could be made, Baban expired on 15 October 1987 and shortly thereafter decision for allotment of alternate land was taken on 25 January 1988. The unique problem in the present case has occurred on account of allotment of land being done after death of the original holder Baban Tryambak Neharkar. If the allotment of alternate land was to be made during the lifetime of father-Baban Tryambak Neharkar, the alternate land would have come to the share of both his sons Baburao and Balshiram. Mere allotment of alternate land after the death of father Baban Tryambak Neharkar, would not alter the position. Thus Baban’s both sons would be entitled to a share in the alternate land.

11. Mr. Shah has attempted to contend that the Mutation Entry no. 5933 certified on 19 November 1987 does not cover the acquired land. The said Mutation Entry no.5933 was certified to bring on record heirs of Baban Tryambak Neharkar. Mr. Nighot has pointed out that since the land bearing Gat No.58/4A at Village Yedgaon, Taluka Junnar, District Pune was already acquired for the project, the said land was rightly not included in Mutation Entry No.5933. By the time Mutation Entry NO. 5933 was effected on 19 November 1987, the allotment of alternate land was yet to take place. Thus, the other heirs of Baban were made to believe as if their names were mutated in respect of all lands (except acquired land). Respondent No.5 thereafter surreptitiously applied for allotment of alternate land and secured such allotment by order dated 25 January 1988. It appears that the other brother Baburao was not even aware about the allotment of alternate land in the name of Respondent No.5. This could be the possible reason why the alternate land was not included in the partition Suit No.84/1992 instituted by Hanumant Baburao Neharkar. URS 6 of 13

12. The statutory scheme of Rehabilitation Act, 1986 is such that the entire family will be granted one alternate land. The Act ensures that persons affected by acquisition of their lands for construction of irrigation project are allotted alternate land in the benefited zone. It cannot be that when the family looses its land in the affected zone for execution of irrigation project, only one family member gets a windfall in the form of irrigated land in the benefit zone to the exclusion of other family members. As observed above, if the benefit of alternate land was to be availed by father Baban Tryambak Neharkar, both his sons would have succeeded to the said alternate land after father’s death. Therefore, the alternate land allotted in the name of Respondent No.5 was obviously meant for the entire family and not for Respondent No.5 alone. Therefore, seeking allotment of land in his sole name by the Respondent No.5 was an act of misrepresentation and no limitation would apply to set aside an order which is an outcome of fraud and misrepresentation. Respondent No.5 misrepresented the authorities that he alone was entitled for rehabilitation benefit on account of his father’s death. Since the order dated 25 January 1988 is an outcome of misrepresentation on the part of Respondent No.5, limitation would not come in the way of the Additional Collector in correcting the error which had occurred on account of misrepresentation by the Respondent No.5.

13. The learned Minister has recorded the finding that the allotment letter was issued in the sole name of Sadashiv as Baburao had refused to pay the occupancy price in respect of the alternate land. He has further held that Sadashiv on the other hand showed willingness to pay the occupancy price of alternate land and this is how the alternate land was issued in the sole name of Sadashiv. However, there is absolutely no material on record to support this finding of the learned Minister. In fact, URS 7 of 13 while entertaining the application for correction of the name of allottee in the allotment order, the Additional Collector had directed conduct of inquiry through Settlement Officer, Kukadi Project, Junnar. The said Settlement Officer recorded statements of Petitioners and the Respondent No.5. In his entire statement recorded on 18 December 2013, the Respondent No.5 had nowhere stated that Baburao was ever called upon to pay the occupancy price or that he refused to pay the same. Thus, the finding of the learned Minister about refusal on the part of Baburao to pay the purchase price is perverse.

14. No doubt, there was delay on the part of the Petitioners in approaching the Additional Collector for seeking correction of the allotment order. In ordinary course, such correction could not have been made after lapse of 25 long years. However, in the present case, there appears to be a glaring error in allotting the alternate land in favour of one of the several legal heirs, which has arisen on account of misrepresentation on the part of Respondent No. 5. There is no justifiable reason for excluding the branch of Baburao from allotment of alternate land. There is nothing on record to indicate that Respondent No.5 ever informed by his brother that alternate land could be allotted for the family in lieu of acquisition of their father’s property or that any share in occupancy price needed to be paid by Baburao. Respondent No.5 has scrumptiously applied for allotment of alternate land, which allotment was meant for the entire family and not solely for him. He took disadvantage of father’s death and applied alone for allotment of alternate land. The allotment of alternate land is in lieu of acquired land. The net effect of the actions of Respondent No. 5 is that he has succeeded alone to the acquired land in the form of allotment of alternate land to the exclusion of his brother. Thus procurement of alternate land in his sole URS 8 of 13 name was an act of misrepresentation and fraud on the part of Respondent No. 5. It is well settled law that an order obtained by misrepresentation is nullity. This judgment need not be burdened by discussing various judgments repeatedly expounding the law that an order or decree obtained by fraud or misrepresentation is a nullity. Since such order or decree does not have any existence in the eyes of law, mere limitation cannot be the reason for saving the effect of nullity of such order. It would be apposite to refer to the following observations of the Apex Court in recent judgment in Raj Kumar Vs. State of UP[2]. “21. This Court, in the case of S.P. Chengalvaraya Naidu (Dead) By LRs. Vs. Jagannath (Dead) by LRs and others has held that non-disclosure of the relevant and material documents with a view to obtain an undue advantage would amount to fraud. It has been held that the judgment or decree obtained by fraud is to be treated as a nullity. We find that respondent No.9 has not only suppressed a material fact but has also tried to mislead the High Court. On this ground also, the present appeal deserves to be allowed.”