( 1 ) wp2979.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2979 OF 1992 Rajabhau s/o. Annasaheb Thavare .. Petitioner Age. Major, Occ. Agriculture, R/o. Anandgaon, Tal. Majalgaon, Dist. Beed. Versus 1. The State of Maharashtra .. Respondents 2. The Additional Commissioner, Aurangabad Division, Aurangabad. 3. The Tahsildar, Majalgaon, Tal. Majalgaon, Dist. Beed. Mr. V.D. Salunke, Advocate for the petitioner. Mr. P.P. More, A.G.P. for respondent/State. CORAM : S.S. SHINDE, J. DATED : 08.03.2011 ORAL JUDGMENT :- 1. This writ petition is directed against order of the Divisional Commissioner dated 24.08.1992, in File No. 199/ICH/R-90. 2. The petitioner herein is a resident of village Anandgaon, Tal. Majalgaon, Dist. Beed. The petitioner is ( 2 ) wp2979.92 original land holder in the proceedings in the subject matter. The petitioner filed return in Form No. III, as required under Section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The petitioner had shown total two members in his family. He had shown his total holding to the extent of 93 acres 91 gunthas. The learned Surplus Lands Determination Tribunal (S.L.D.T.) came to the conclusion that holding of the petitioner on 26.09.1970 was 92 acres 3 ½ gunthas. After exclusion of Survey No. 52 to the extent of 5 acres 22 ½ was not in possession of the petitioner. His holding is 86 acres 26 gunthas and also area of 1 acre and 13 gunthas has been excluded as pot-kharab and it is concluded that the petitioner holds an area of 85 acres and 8 gunthas. The petitioner is entitled to hold 54 acres, which was declared surplus to the extent of 31 acres 8 gunthas. According to the petitioner, said surplus land has been admitted and distributed to the landless persons in the year 1976 and no appeal was preferred against said order by the appellant. 3. It is further case of the petitioner that the ( 3 ) wp2979.92 Additional Commissioner, Aurangabad Division, Aurangabad, has exercised powers under Section 45(2) of the said Act and issued notice of revision dated 09.09.1977 to the petitioner. Pursuant to the notice issued to the petitioner, the Additional Commissioner, after hearing the petitioner, by order dated 30.07.1985 remanded the matter back to the S.L.D.T. The S.L.D.T. once again considered case of the petitioner and by order dated 23.12.1987 declared that the petitioner herein is holder to the extent of 31 acres 8 gunthas. From perusal of the order, it appears that the S.L.D.T., Majalgaon, has maintained its earlier order dated 07.01.1976. 4. The Counsel appearing for the petitioner submitted that in pursuance of notice dated 27.04.1992, the petitioner herein appeared before the Additional Commissioner. However, again the Additional Commissioner remanded the matter back to the S.L.D.T. Hence, this writ petition is filed. 5. The Counsel appearing for the petitioner submits that notice dated 27.04.1992 was beyond period of three ( 4 ) wp2979.92 years. The statutory provision under Section 45 (2) of the said Act provides for issuance of notice within three years from the order of the S.L.D.T. Even if, second order of S.L.D.T. dated 23.12.1987 is taken into consideration, at the most the notice should have been issued within three years from the date of said order. The Counsel for the petitioner further submits that in earlier round of litigation, the Additional Commissioner remanded the matter back to the S.L.D.T. and the S.L.D.T. even in second round maintained its earlier order and again declared that the petitioner is surplus holder to the extent of 31 acres 8 gunthas. Therefore, according to the Counsel for the petitioner, the notice issued by the Additional Commissioner is bad for two reason i.e. (i) it suffers from non-application of mind and (ii) such notice could not have been issued after three years from the second order of S.L.D.T. dated 23.12.1987. Therefore, the Counsel would submit that the writ petition may be allowed. 6. On the other hand, the learned A.G.P. submits that before the Additional Commissioner the petitioner appeared ( 5 ) wp2979.92 and accordingly the Additional Commissioner remanded the matter back to the S.L.D.T. Therefore, it is open for the petitioner to appear before the S.L.D.T. Therefore, this Court cannot interfere in the writ petition. 7. The point raised in this petition is no more res- integra. It is settled position of law that the Additional Commissioner is empowered to issue notice under Section 45 (2) of the Act within three years from the order of the S.L.D.T. Admittedly, in this case even if second order of the S.L.D.T. is taken into consideration, the notice issued by the Additional Commissioner dated 24.08.1992 is beyond the period of three years and that apart from the reading of such notice or from the contents of the notice, it does not appear that the Additional Commissioner has applied his mind to the facts of the case. The Additional Commissioner did exercise powers of revision and once again the matter was remanded back to the S.L.D.T. and the S.L.D.T. has maintained said order and therefore this fact itself indicates that there was total non-application of mind on the part of Additional Commissioner, while issuing notice dated 27.04.1992. ( 6 ) wp2979.92 8. This Court had occasion to interpret provisions of Section 45 (2) of the said Act, in the following decisions: . In the case of Manohar Ramchandra Manapure & Others V/s. State of Maharashtra & Another, 1989 Mh.L.J.1011, the Full Bench of this Court held that the proviso to section 45 (2) of the Maharashtra Agriculture Lands (Ceiling on Holdings) Act, restricts the exercise of jurisdiction under section 45(2) to those cases where the record is called for within the period of 3 years from the date of declaration under section 21. The starting point of limitation as prescribed in the proviso to sub-section (2) of Section 45 is the declaration or part thereof under section 21 of the Act. Calling of the record cannot be equated with the mechanical, clerical or ministerial act of calling for the record for all the proceedings irrespective of the fact whether they were required or not for the purpose specified in the section. It is further held that it is after applying his mind that the revisional authority will have to call for the record of the enquiry or proceedings after conscious application of mind to ( 7 ) wp2979.92 the facts and circumstances of each case. Where admittedly the necessary application of mind on the part of the Commissioner was much beyond the period of 3 years of the order impugned, it will have to be held that the records were not called within the period of 3 years. In such a case the Commissioner will have no power to exercise the revisional jurisdiction. . Yet in another decision in the case of Bansilal Ramgopal Bhattad V/s. State of Maharashtra and Other, 2001 (1) Mh.L.J.68, this Court held that suo motu proceedings for revision having been initiated almost after 9 years from the date of decision of S.L.D.T., could not be permitted in law. Suo motu proceedings in question having been initiated after unreasonable period were without authority of law and void ab initio in view of the decision of the Apex Court in 1997 (6) SCC 71. . Yet in another reported case of Lotan Fakira Patil V/s. State of Maharashtra and Others, 2002 (2) Mh.L.J.255, this Court in the facts of the case held notice under Section ( 8 ) wp2979.92 45 (2) of the Act for suo-motu revision was issued on 25.03.1982 and not within the period of three years from the date of order of the S.L.D.T. dated 03.07.1978 and therefore the exercise of powers under the said provisions was beyond the period of limitation and therefore was without jurisdiction. . Yet in another case of Champabai w/o. Shankarrao Patwari and Another V/s. State of Maharashtra and Other, 2004 (1) Mh.L.J.148, this Court held that the first proviso to sub-section (2) of section 45 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 lays down two conditions which are required to be satisfied before the State Government or its delegate could invoke the revisional powers. The said two conditions are : (a) that, appeal has not been filed against the order/declaration made by S.L.D.T. within the prescribed period, and (b) that, a period of 3 years has not elapsed from the date of the order or declaration made by S.L.D.T. In the facts of that case the Court held that the decision to initiate the proceedings was taken within three years time. However, same was without ( 9 ) wp2979.92 application of mind and hence held to be bad in law. It is further held that the actual initiation of proceedings was after a lapse of about 8 to 10 years from the date of decision to initiate the proceedings. This delay was totally unexplained. Therefore, taking overall view of the matter, the Court held that where the notice came to be issued to the petitioner by the Additional Commissioner, after lapse of period of 8–10 years, after passing orders by S.L.D.T., holding that the petitioners did not hold land in excess of ceiling limit are bad in law. . Yet in another case of Shalikram Dagduba Solunke etc. V/s. State of Maharashtra and Another, 2004 (1) Mah.L.R. 310, this Court held that exercise of revisional powers by Additional Commissioner after 10 to 15 years from the date of order of S.L.D.T., is beyond the statutory period and also passed in mechanical manner and same is liable to be set aside. . Yet in another judgment in Gowardhandas s/o. Laxmandas deceased through his L.R. Vijaykumar s/o. ( 10 ) wp2979.92 Gowardhandas V/s. State of Maharashtra and another, 2008 (6) Mh.L.J.571, this Court held that in suo-motu revision by Additional Commissioner, memorandum regarding revision issued on 30.11.1978 after declaration under section 21 on 08.11.1976 but no notice was issued to the petitioner till 1992, the order passed by the Additional Commissioner on 30.03.1993 is beyond limitation prescribed under section 45 (2) of the said Act. 9. Therefore, in my opinion, viewed from any angle the notice dated 27.04.1992 issued by the Additional Commissioner is beyond the period of three years and secondly it was issued without applying his mind the the facts of the case. Therefore, the petition is allowed. The impugned notice dated 27.04.1992 and the impugned judgment and order dated 24.08.1992 in File No. 1990/ICH/R-10 are quashed and set aside. Rule is made absolute to the above extent. The petition stands disposed of. [S.S. SHINDE,J.] snk/2011/MAR11/wp2979.92