1. Rule. Rule made returnable forthwith with the consent of the parties.

2. All these writ petitions are based on similar set of facts and involve common question of law, to avoid rigmarole are decided by common judgment.

3. The petitioners claim to be the owners of the writ lands. The petitioners are tribals. The said lands were allotted to the ancestors of the petitioners long back by the Government. The lands of the petitioners are Occupancy Class II lands.

4. The lands of the petitioners were acquired under the award dated 25/02/2020. In the award, 10% from the compensation amount payable to the petitioners has been withheld and/or deducted relying upon the Government Resolution dated 15/07/2010. The same is the subject matter of these writ petitions.

5. The learned Advocate for the petitioners strenuously contends that the petitioners are the owners of the lands in question. Their lands are acquired by following due process as provided under the provisions of the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 (hereinafter referred to as “Act 2013”), 10% of the amount payable from the compensation has been withheld only on the ground that the lands of the petitioners are tribal lands and if the petitioners would have sold the lands, the petitioners would have been required to pay nazarana of 50% of the sale amount. However, it being an acquisition, 10% amount is retained relying upon the Government Resolution dated 15/07/2010. The same is erroneous. The petitioners on their own have not sold the properties. It is a case of compulsory acquisition. The respondents did not have any right to withhold and/or deduct 10% of the amount. The learned Counsel relies upon the judgment of the Apex Court in a case of State of Maharashtra Versus Babu Govind Gavate & Ors. 1996 (1) SCC 365 The learned Counsel also relies upon the judgments of the Division Bench of this Court in a case of Kamgar Mahar Nandur & Ors. Versus State of Maharashtra & Ors. 2018 (4) Mh. L. J. 419 and Sadu (Sahadeo) ABA Kamble deceased through Legal Heirs Smt. Salubai Sahadeo (Sadhu) Kamble Versus State of Maharashtra & Ors. 2018 (5) Mh. L. J. 656. The learned Counsel for the petitioners submits that the Government Resolution dated 15/07/2010 is erroneous and cannot be sustained.

6. The learned AGP for the respondents/State submits that as per the Government Resolutions dated 11/09/1968 and 08/09/1983, the permission to sell the agricultural land held on new and restricted tenure (Class II) should be granted invariably on the condition that the alienee/holder shall pay to the Government an amount equal to 50% of the net unearned income. The learned AGP further submits that as the tribals are not willingly selling the lands, the Government took a conscious decision under Government Resolution dated 15/07/2010 to recover only 10% of the net unearned income at the time of acquisition of land. The said decision was taken as scheduled tribes are protected by law and are a weaker section of the society. As such, only 10% of the net unearned income is recovered. The lands of the petitioners are Class II occupancy lands. The original ownership of the lands is with the State Government. The petitioners are occupying the lands in question which are Class II restricted tribal lands and are holding the said lands with certain restrictions.

7. The learned AGP for the respondents/State submits that the decisions relied by the petitioners in State of Maharashtra Versus Babu (Supra) and Salubai Sahadeo (Sadhu) Kamble (supra) are not applicable as those matters were in respect of the persons holding lands pursuant to Bombay Tenancy and Agricultural Lands Act, 1948 (for short, “the BT & AL Act”). In the present matter, the provisions of Maharashtra Land Revenue Code, 1996 (for short, “the MLRC”) are involved.

8. We have considered the submissions canvassed by the learned Counsel for the parties.

9. The factual matrix as narrated above is not disputed. The petitioners are tribals. They were allotted the lands more than 40 to 50 years back. The lands are Occupancy Class II lands. Their lands are acquired resorting to the acquisition proceedings under the provisions of the Act, 2013.

10. The moot question is whether it would be appropriate for the Government to deduct 10% from the compensation amount payable to the petitioners under the award and the validity of the Government Resolution dated 15/07/2010.

11. The lands of the petitioners are restricted lands under Occupancy Class II. There are restrictions on the transfer of the lands. Section 36A of the MLRC mandates that the tribals cannot sell their lands to nontribals without obtaining the permission of the Collector/Competent Authority. Under Section 29 of the MLRC, Occupancy Class II persons hold unalienated land in perpetuity subject to restrictions on right to transfer. Restriction on the right to transfer is placed upon the persons belonging to the Scheduled Tribes under Sub-section 2 of Section 36 of the MLRC. Under the said provision, the occupancy of persons belonging to the Scheduled Tribes shall not be transferred except with the previous sanction of the Collector.

12. The petitioners in the present proceedings are not alienating their lands, but the lands are subject to compulsory acquisition. In case of compulsory acquisition of the lands for public purpose, the occupier/owner of the land does not have any voice. He has to yield to the acquisition. The restrictions contemplated under Section 36A are applicable only if the tribal on his own volition enters into the transaction of sale and/or alienation with the non-tribal. The same does not apply to the compulsory acquisition. The acquisition of the lands is not at the behest of the petitioners nor at the will and wish of the petitioners. The State exercises its power of eminent domain in compulsorily acquiring the property. Sections 29, 36 and 36A of the MLRC do not take within its fold the exigency wherein the land is acquired compulsorily. These provisions do not prohibit compulsory acquisition of lands by the Government. In case of compulsory acquisition, the petitioners even if they are reluctant to part with the properties have no option but to divest their rights over the properties which are source of their livelihood. It would be inequitable for the Government to retain 10% amount from the amount of compensation payable to the tribal. Moreover, no source of power exists with the Government to retain 10% of the compensation payable to tribals.

13. The provision of Section 36A of the MLRC would not apply in this matter. For compulsory acquisition by the Government, the permission of the Collector is not required as in the case of voluntary alienation/sale of the land. The provision in the MLRC viz. Section 36A is enacted with the avowed object of protecting the property of the tribals. Law considers “tribals” to be the vulnerable section of the society and the provision of Section 36A of the MLRC acts as a protective umbrella to them. The tribals are entitled to the lands allotted in perpetuity subject to the adherence to the terms and conditions of allotment. The tribals have not violated any of the terms and conditions of the allotment nor the same is remotely suggested to by the respondents.

14. Though the impugned Circular states that endeavour is to be made to give maximum compensation to the tribals, the said object would not be fructified if 10% from the compensation amount is deducted by the Government. Only because the land given to the tribals is Occupancy Class II land, that itself would not empower and/or authorize the State to deduct 10% from the compensation amount payable to the petitioners on account of compulsory acquisition. The same does not stand to any reason and erodes upon the occupancy rights of the petitioners.

15. The state has the authority to take policy decisions under Article 162 of the Constitution. The Government Resolution dated 15/07/2010 is an executive instruction issued by the Government. The decision should not be unreasonable and arbitrary. The arbitrariness is antithesis to the rule of law, justice, equity, fair play and good conscious. The MLRC, the Act, 2013 nor any Statute authorizes the State to deduct and/or retain part of the compensation amount. The provisions of the Act, 2013 do not authorize the State to deduct 10% amount from the amount of compensation payable to tribals. If 10% amount is deducted by the Government, then the tribals will not get the true market value of the lands.

16. The Apex Court in the case of State of Maharashtra Versus Babu (supra) had an occasion to consider the similar issue of deducting 10% from the compensation amount payable on account of compulsory acquisition of restricted land held by tenant under the provisions of B.T. & A.L. Act. In the said case, the Government Circular dated 26/04/1972 mandated deduction of 1/3rd of the market value of the land towards the interest of the Government. The Court held that the said Circular is invalid. The requirement of prior sanction of Collector for transfer of land does not apply to the compulsory acquisition of land by the Government.

17. The Division Bench of this Court in the case of Salubai Sahadeo (Sadhu) Kamble (supra) also considered the similar issue wherein as per the Government Resolution dated 11/01/2017, 10% of the amount towards royalty was directed to be deducted. The lands acquired therein were also restricted lands. Similar view was taken by the Division Bench of this Court in the case of Kamgar Mahar Nadur (supra).

18. In view of the aforesaid discussion, the impugned Government Resolution dated 15/07/2010 being violative of Article 14 of the Constitution is set aside. It is held that the respondents do not have authority to deduct 10% from the amount of compensation payable to the petitioners on account of compulsory acquisition.

19. Rule is accordingly made absolute. The writ petitions are accordingly disposed of. No order as to costs.