The government did not have the authority to deduct 10% from the compensation amount payable to the tribals on account of compulsory acquisition, as it was found to be violative of article 14 of the Constitution.

JUDGMENT

S. V. Gangapurwala, J. - 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 f