Judgment:
S.M. Daud, J.
1. This petition under Article 227 of the Constitution is aimed against an order of the Maharashtra Revenue Tribunal in a proceeding under Section 32P of the Bombay Tenancy and Agricultural Lands Act, 1948 - hereinafter referred to as the 'Act' or 'Tenancy Act'.
2. Agricultural land now bearing Block No. 35 at Village Jangamwadi, Taluka Hatkanangale, District Kolhapur previously belonged to landlord Ghorpade. Proceedings under Section 32G of the Act were begun in respect of that land. The purchase was held to be ineffective and the land vested in the State Government on January 29, 1977 to be utilised as part of the pool for distribution amongst various categories of people. Pending the distribution, the Government leased out the land to 22 persons who included the petitioners and 17 others, but not the respondents. The leases were to be for the duration of a year and the lessees passed kabulayats year after year, until the cultivating season 1981-82. On May 13, 1982, a notice was drawn up inviting claims by people for allotment of portions from Block No. 35. The notice inviting such claims was affixed on the notice board of the village chavdi by the Talatt on May 14, 1982. On June 2, 1982, an officer of the Revenue Department accompanied by panchas went to Block No. 35 and drew up a panchanama giving the estimate of the price made by him in consultation with the panchas. On February 17, 1982, the price was fixed at Rs. 12,040/-. Some 49 persons made a bid for being allotted the land, 22 persons were chosen and they were the 17 lessees and the 5 respondents. The petitioners did not figure in this lot of 22 persons. On June 30', 1982, the Additional Tahsildar and A.L.T. settled the priority list comprising the 17 from the original lessees and the respondents, as being entitled to get the land distributed amongst them in different proportions. The portions allotted to the allottees ranged from 5.25 gunthas to 2 acres. The allottees were to pay the price within two months, and failing that, to pay the same along with interest at a particular rate. On full payment of the price, the allottees were to get purchase certificate in accordance with Section 32M of the Act. Aggrieved by the above order, the petitioners preferred an application to the Collector, Kolhapur. That officer held that the allotments made in favour of the respondents and others were not proper inasmuch as the proper procedure had not been followed. The notice issued by the A.L.T. was not in the prescribed form and it had not been published by the beat of drum as required under Rule 21 of the Bombay Tenancy and Agricultural Lands Rules, 1956. The order of the A.L.T. was bad in law, and had therefore, to be set aside. The case was remanded to A.L.T. for a fresh distribution in accordance with the law. Dissatisfied, the respondents went in revision to the M.R.T. The learned Member of the Tribunal who heard the revision, felt that the Collector had taken an unduly technical view vis-a-vis the publication of the notice. In substance, the requirements of the rule had been complied with and the allotments made on June 30, 1982 had to be given effect to.
3. This order of the Tribunal is assailed before me. Having regard to the submissions made by counsel, the points for determination are: -
1. Whether allottees apart from respondents are necessary parties to this petition?
2. Whether service of the notice had been effected upon the petitioners?
3. Whether the order of allotment is substantially just and should not be interfered with?
4. What order?
My findings, for reasons given below, are: -
1. No.
2. No.
3. No. It is not just and has to be set aside.
4. Petition allowed as per order.
REASONS
4. Mr. Gole for the respondents raises a preliminary objection about the tenability of the petition having regard to the fact that the 17 persons allotted Block No. 35 along with the respondents have not been impleaded. The argument is that the order impugned is one which manures to the benefit of the 17 allottees as also the respondents. The non-joinder of the 17 allottees is fatal and it is not open to this Court to pass an order to their detriment without hearing them. Mr. Naik for the petitioners makes it clear that the petitioners have no objection to the allotment made in favour of the 17. Like the petitioners, those 17 persons were lessees under Ek-sali leases taken immediately after the land vested in the Government for distribution amongst different categories of people. What the petitioners object to is the intrusion of the respondents by supplanting them. There is substance in the contention advanced by Mr. Naik. Petitioners, if they have a grievance, it can be only against the respondents. This is because the respondents are the only allottees vide order dated June 30, 1982 who were not amongst the lessees in the Ek-sali leases. The parcels of the land now in possession of the petitioners have been ear-marked for the respondents and it is not as if the 22 allottees have been given a joint title vis-a-vis Block No. 35 as a whole. Significantly, the plea of non-joinder was not raised before the Collector nor was the Collector's order assailed on the ground that the 17 allottees were not parties to the proceeding before the Collector.
5. The finding of fact upon which the crucial point has to be considered is that there was no publication of the notice by beat of drum. Rule 21 of the rules afore-mentioned, to the extent relevant, requires thus: -
When the Tribunal directs the sale of any land under Clause (c) of Sub-section (2) of Section 32P, it shall publish or cause to be published in the village in which the land is situated a public notice. The notice shall be published in the village by beat of drum and also by affixing a copy of it in the chavdi
Mr. Naik submits that publication by beat of drum was mandatory and inasmuch as that had not been done, the condition precedent to the making of an order for distribution had not been followed. Therefore, the order of distribution was invalid. Mr. Gole's answer to this submission is that the endorsement on the reverse of the copy of the notice made by the Talati indicates that all persons affected by the distribution had been personally informed of the intended allotment. Such an inference can be drawn from the endorsement made on the reverse of the copy of the notice. But if this had been true, the Talati would have obtained the signatures of the concerned persons in token of their having been made cognisant of the contents of the notice. Next, the rule prescribes publication by beat of drum and not by personal information conveyed to the persons likely to be affected by the action proposed to be taken. Mr. Gole then falls back upon the argument which commended itself to the Tribunal viz. that there had been substantial compliance with Rule 21 by affixation of the notice upon the notice board of the chavdi. Rule 21 (supra) requires publication of the notice by beat of drum and also by affixation of a copy of the notice in the chavdi. Significantly, publication by beat of drum comes first and affixation is treated as an incidental way of publication. This is, as it should be, because rural India is full of illiterates and semi-literates. In the instant case, the prescription of publication by beat of drum has to be treated as mandatory and not directory. This one can deduce from those entitled to figure in the priority list mentioned in Section 32P of the Act. The list includes agricultural labourers, landless persons and small land-holders. These are the weakest of the weaker section in villages. The standard of literacy amongst them is very low. It is for that reason that the rule makers prescribed publication primarily by beat of drum and incidentally by affixation of a copy of the notice upon the board of the chavdi. I cannot agree with the Tribunal when it says that the Collector was being unduly technical in holding that there had been a significant failure rendering the entire process of distribution illegal. Mr. Gole argued that in the very nature of things the petitioners must be deemed to have been noticed of the proposed allotment. On June 2, 1982, a visit had been made by the A.L.T. accompanied by panchas to make a valuation of the land. The final determination of the price was made in the village on June 17, 1982. As many as 49 persons had submitted claims to being considered for allotment of portions of Block No. 35. In the face of all this, it was inconceivable that the petitioners, who were in possession of the land and, had a vital interest therein did not know of the intended distribution. This is a hypothetical submission. It is quite possible that 49 persons applied. There may have been many more who could not or did not do so because The intended distribution had not been made known in the manner prescribed by Rule 21. That petitioners were in possession or vitally interested in the land would not mean that they were aware of the visit made by the A.L.T. on June 2, 1982 or the determination of the price on June 17, 1982. If the petitioners really knew of the intended distribution, they would have surely applied for being considered. The argument that they refrained from submitting their claims because of the belief that the land was to be allotted free unto them does not carry conviction. Moreover, this is a mere suggestion thrown out without the slightest evidence to back it up.
6. Lastly, Mr. Gole submits that even if the order of the A.L.T. be illegal, it should not be interfered with. This is because the scope of a proceeding under Article 227 is limited and the equities of the situation demand that respondents who also are landless should get the fruits of the order made in their favour. I cannot comprehend this argument. If accepted, it would amount to setting the imprimatur of the Writ Court upon illegal orders because the beneficiaries of those orders belong to certain sections of the public. If respondents are landless, so are the petitioners. It is not as if the petitioners were shut out from being considered for distribution of land vide Section 32P of the Act. They had a right to be considered, and, for that purpose, to have a notice as prescribed by Rule 21 of the rules.
7. The result of the foregoing discussion is that the petition has to be allowed and hence the order.
ORDER
8. Order passed by the M.R.T. in revision is hereby quashed. The Collector's order is restored. Costs in this Court as incurred. Rule in the above terms made absolute.