1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 2375 OF 1991 Dagduba s/o Dajiba Kadam, age 60 years, occ. Agril., r/o Gulkhand, Taluka Partur, District Jalna. ...Petitioner VERSUS 1- The State of Maharashtra 2- The Additional Commissioner, Aurangabad Division, Aurangabad, 3- The Collector, Jalna, District Jalna ...Respondents ..... Shri V.D.Salunke, advocate for the petitioner Shri D.V.Tele, AGP for the respondents. ..... CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 10.12.2009 DATE OF PRONOUNCING THE JUDGMENT : 18.12.2009 2 J U D G M E N T : 1 The petitioner filed present petition under Article 227 r/w Article 14 of the Constitution of India requesting to quash and set aside the judgment and order passed by the Additional Commissioner, Aurangabad Division, Aurangabad dated 9.5.1991 in File No. 1978/ICH/R-405 produced at Exh. 'C'. FACTUAL MATRIX :- 2 The petitioner is resident of village Gulkhand, Taluka Partur, District Jalna and is the land holder in the proceeding under the subject matter. Respondent no.1 is the State of Maharashtra; whereas respondent no.2 is the Additional Commissioner, Aurangabad Division, Aurangabad, who passed the impugned order dated 9.5.1991 under Section 45 (2) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as amended in 1975 (hereinafter referred to as, 'the Ceiling Act'). Respondent no.3 is the Collector, Jalna, who is a Tribunal under the Act since there was no special Surplus Land Determination Tribunal (S.L.D.T.) formed for Partur Taluka. 3 According to the petitioner, he filed the returns under 3 Section 12 of the Ceiling Act on 27.11.1975. His total holding was shown to the extent of 65 acres 4 gunthas and Potkharaba was shown to the extent of 3 acres and 14 gunthas. Hence, total cultivable land was shown to the extent of 61 acres 30 gunthas. The petitioner showed 5 family members including himself I.e. his wife, 2 sons and one daughter. He also showed his mother in Column no.4 in the returns. Accordingly, the then Surplus Land Determination Tribunal, Partur, District Parbhani (herein after referred to as 'the S.L..D.T.' for short) initiated proceedings against the petitioner on 27.11.1975 in File No. 75/PTR/71 and concluded that the holding of the petitioner was to the extent of 60 acres 23 gunthas. Learned S.L.D.T. also excluded 3 acres land acquired for the road and held that holding of the petitioner comes to 57 acres and 23 gunthas. Accordingly the S.L.D.T. considered 54 acres land to the holder and declared 3 acres and 23 gunthas land as surplus. He also directed to delimit 3 acres 23 gunthas land on western side from Survey No. 39, situated at village Mosa, Taluka Partur, vide judgment and order dated 13.1.1976, Exh. 'A' (Page 16). 4 Thereafter respondent no.2 Additional Commissioner, Aurangabad Division, Aurangabad reopened the said case and called for the record and started suo motu inquiry in the matter 4 and issued notice of inquiry to the petitioner on 6.5.1986 exercising powers under Section 45 (2) of the Ceiling Act. Accordingly, pursuant to the said notice, respondent no.2 Additional Commissioner, Aurangabad Division, Aurangabad passed an order on 9.5.1991, and thereby concluded that inquiry was held in defective manner and order under the said Revision was partly set aside and case was remanded back to the S.L.D.T. for fresh inquiry and for passing order afresh, in accordance with law, and the said order is impugned in the present petition. SUBMISSIONS :- 5 Learned counsel Shri V.D.Salunke appearing for the petitioner canvassed that after filing the returns by the petitioner under Section 12 of the Ceiling Act, inquiry was conducted by the learned S.L.D.T. In respect of holding of the petitioner/land owner under Sections 14 to 21 of the said Act and the learned S.L.D.T. Passed an order Exh. 'A' in the matter on 13.1.1976 and decided and declared that the petitioner's holding of land was surplus to the extent of 3 acres 23 gunthas, and accordingly, as per the choice under Section 16 of the Ceiling Act, the land shown at the bottom of the said order dated 13.1.1976 I.e. land to the extent of 3 acres 23 gunthas out of Survey No. 39 (western side), situated 5 at village Mosa, Taluka Partur was directed to be delimited. 6 Accordingly it is the contention of the petitioner that possession of the said land to the extent of 3 acres 23 gunthas out of Survey No. 39 (western side), situated at village Mosa, Taluka Partur was taken from the petitioner in pursuance of the said judgment and order dated 13.1.1976 rendered by the learned S.L.D.T. and the said land even was allotted to the landless person namely, Babu Kisan Kachgawande by the S.L.D.T. 7 It is submitted that pertinently thereafter respondent no.2 issued notice to the petitioner on 6.5.1986 and thereby reopened the proceedings suo motu calling the record for inquiry under Section 45 (2) of the Ceiling Act and the said notice is produced at Exh. 'B' (page 20). 8 In response, the petitioner filed reply to the said notice on 14.11.1986 and the said reply is produced at Exh.'B' collectively (page 22) and thereby the petitioner raised the objection for the said suo motu inquiry. 9 However, thereafter respondent no.2 passed the impugned order on 9.5.1991 (page 25) and thereby held that the 6 defective inquiry was made in the said case and the order under the said Revision I.e. order dated 13.1.1976, was partly set aside and case was remanded back to the S.L.D.T. for fresh inquiry and for passing order afresh in accordance with law. 10 Learned counsel for the petitioner submits that neither the petitioner nor the Government did challenge the judgment and order passed by the S.L.D.T. on 13.1.1976 and therefore, it is the contention of the petitioner that the said judgment and order dated 13.1.1976 rendered by the learned S.L.D.T. attained the finality. 11 On the aforesaid background, learned counsel for the petitioner canvassed that even the possession of the excess land of 3 acres 23 gunthas was taken from the petitioner and the said piece of land was allotted to landless person namely Babu Kisan Kachgawande by the S.L.D.T. and accordingly even the said order dated 13.1.1976 was acted upon. Hence, issuance of notice by respondent no.2 on 6.5.1986 to the petitioner under Section 45 (2) of the Ceiling Act for reopening the case suo motu and calling for the record for inquiry after the lapse of period of 10 years from passing of the earlier order dated 13.1.1976 and thereafter passing the impugned order dated 9.5.1991, is arbitrary and 7 illegal. 12 Learned counsel for the petitioner pointed out that even as per Section 45 (2) of the Ceiling Act, the limitation prescribed is of three years, but in the instant case, although the judgment and order was passed by the learned S.L.D.T. on 13.1.1976, the notice under Section 45 (2) of the Ceiling Act was given to the petitioner after the lapse of 10 years I.e. On 6.5.1986, and therefore, the order passed by respondent no.2 on 9.5.1991 in pursuance of the notice dated 6.5.1986 is beyond the period of limitation and is per se illegal. 13 Learned counsel for the petitioner relied upon the following observations made by the Full Bench of this Court in the case of Manohar Ramchndra Manapure and others vs. State of Maharashtra, reported at 1989 Mh.L.J. Page 1011. “ The proviso to section 45 (2) of the Maharashtra Agricultural 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. The meaning assigned to word “call” in Oxford English Dictionary, Vol.2 and Chambers Twentieth Century Dictionary is “to summon”. It contemplates some 8 action or application of mind on the part of the State Government or its delegate before calling for the record. It cannot be equated with the mechanical, clerical or ministerial act of calling for the records of all the proceedings irrespective of the fact whether they were required or not for the purpose specified in the section. The State Government is not appointed as roving commission, but is expected to exercise judicial or quasi-judicial powers. The object behind prescribing of limitation for calling for the record is not to upset the settled position at a very late stage. Calling for the record will require some positive act on the part of the authority but it must ultimately depend upon the facts of each case as to when the record was actually called for by the concerned authority. The proviso cannot be construed so as to include in its import all the proceedings namely right from the initiation to the ultimate order. 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 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. “ 14 Learned counsel for the petitioner further relied upon the following observations made by this court in Writ Petition No. 24 of 1986 decided on 13.2.1991 by Hon'ble Shri Justice N.P.Chapalgaonker. “ Shri A.B.Naik, learned counsel appearing on behalf of the petitioner, submitted only one point 9 for my consideration. It is his submission that, since possession of the declared area under the order of the S.L.D.T., Hadgaon, was already taken on 16th April, 1976 and since the land was distributed at the very time, Additional Commissioner, Aurangabad, had no jurisdiction to exercise his powers under Sec. 45(2) of the Ceiling Act of 1961, in view of the fact that, the possession of the land was already taken. Two conditions under the first proviso to Sub-section (2) of Section 45 are required to be fulfilled before the State Government can call for the record and enquire into the proceedings. The first is that an appeal should not have been filed within the period provided for and possession of the land declared should not have been taken. The words, “the possession of such land has not been taken under Sub-section (2) of Section 21” were deleted by the Maharashtra Act No. 26of 1976 read with Section 2. The provisions of this Act No. 26 of 1976 were held to be ultra virus since the assent of the President was not received for the said Act. Shri Naik further placed reliance on a Division Bench judgment of this Honourable Court in the case of Shaliabai Astak Qureshi vs State of Maharashtra (1986 Mah.L.J. 725). The Division Bench held that, the deletion of the above referred words by Maharashtra Act No. 26 of 1976 cannot become operative since the Act deleting these words was not a law relating to acquisition as contemplated under Article 31 in view of the fact that, the President's assent was not there. Mrs. A.S.Rasal, learned Assistant Government Pleader appearing for respondents, was fair enough to admit that, in view of the record submitted by the petitioner in this court, the possession of the declared portion was taken in the year 1976 and one Jungloo s/o Sambha, resident of Talni was put in possession of this land in the year 1976 and the Commissioner has exercised his powers to call for the record thereafter. In view of these facts, writ petition will have to be allowed. The order of the Additional Commissioner, Aurangabad dated 10th November, 1985 in Case No. 78/ICH-R-422 is hereby quashed. Needless to say that, the order of the Surplus Land 10 Determination Tribunal at Hadgaon dated 23rd March, 1976 in Case No. 75/Ceiling/307/75, stands undisturbed. Rule is made absolute in the above terms. “ 15 Learned counsel for the petitioner also placed reliance on the observations made by this court in the case of Shaligram Dagdoba Salunke, etc. vs. State of Maharashtra, reported at 2004 (1) Mh.L.. Page 310 as follows :- “ S.L.D.T. undertaking enquiries under Sections 17 and 21 of the Ceiling Act and completing the said proceedings, however, Additional Commissioner calling records of inquiries completed by S.L.D.T. after lapse of 10-15 years and passing order thereon on mechanical manner and without application of mind in exercise of revisional powers under Section 45 (2) of the Ceiling Act, is liable to be set aside. “ 16 Another leg of submission of the learned counsel for the petitioner is that petitioner's mother was alive and she was entitled for equal share to the petitioner and respondent no.2 ignored petitioner's mother's share and should have considered the said aspect and should not have remanded the matter back in mechanical manner without application of mind, since mother of the petitioner was entitled for notional share in the said land, as it was the ancestral land. 11 17 To substantiate the above said contention, learned counsel for the petitioner relied upon the following observations made in the case of Kamalabai w/o Govindrao and others vs State of Maharashtra and others , reported at 1977 Mh.L.J. Page 450. “ For the purposes of section 3 (3)(ii), Maharashtra Agricultural Lands (Ceiling on Holdings) Act it is not necessary that the person whose share is to be excluded should make a claim before the Tribunal. The shares have to be determined in accordance with the Hindu Succession Act where it applies and not on the basis of claims made by members. Whether more or less or no claim is made by them it is the duty of the authorities to calculate the shares according to provisions of the Hindu Succession act as the words to be emphasised in section 3 (3)(ii) are “the share of the person shall be taken to be the extent of land such person would hold in proportion of his share in the joint holding. Petitioner filed a return under section 12 claiming that her husband died on 27.8.1975 leaving behind him, herself, two minor daughters, father and mother. The Tribunal however ignored the mother’s share on the ground that she did not come forward to make a claim for her share. ” 18 Learned A.G.P. Countered the argument of learned counsel for the petitioner and submitted that the S.L.D.T. has not conducted the proper inquiry in respect of holding of the petitioner, and therefore, respondent no.2 rightly initiated the 12 suo motu inquiry under Section 45 (2) of the said Act and called the record therefor and concluded that the inquiry conducted by S.L.D.T. was defective, and therefore, set aside the judgment and order dated 13.1.1976 delivered by S.L.D.T. partly allowing the said Revision under Case No. 1978/ICH/R-405 and remanded back the matter to the S.L.D.T. for fresh inquiry in accordance with law, and submitted that no interference therein is warranted. 19 Learned A.G.P. further submitted that land Survey No. 38/1 was sold after 26.9.1970 which is unlawful and exclusion of the said land from the holding was not proper, since the said transaction of sale dated 26.9.1970 was hit by Sections 8 and 10 of the Ceiling Act. It is also submitted that the Tribunal has not brought on record any evidence to believe that the said transaction was genuine and not made with a view to defeat the provisions of the Ceiling Act. Hence, according to the learned A.G.P. the said land was liable to be included in the holding of the petitioner. 20 Learned A.G.P. also canvassed that the S.L.D.T. has given share in favour of mother with observation that his father died in the year 1957, but the exact date of death of father has not been brought on record. In fact, according to the learned 13 A.G.P., S.L.D.T. should have ascertained the date of death of the father with reference to records of Birth and Death registers. Moreover, the nature of holding has not been ascertained with reference to the revenue record and hence it is submitted that unless and until it is proved that property is ancestral and father died after 1956 the widowed mother would not be eligible for the separate share. Hence, in view of the said position, according to the learned A.G.P., the present petition bears no substance and same is devoid of any merits, and therefore, it is submitted that interference under Article 226 of the Constitution of India is not required. 21 I have perused the contents of the petition and the annexures annexed therewith and also considered the submissions advanced by learned counsel for the parties anxiously and at the out set undisputably the learned S.L.D.T. held inquiry in respect of holding of the petitioner and passed the order on 13.1.1976 in File No. 75/PTR-71 and concluded that the petitioner’s holding was surplus to the extent of 3 acres 23 gunthas and as per his choice under Section 16 of the Ceiling Act the land to the extent of 3 acres 23 gunthas out of Survey No. 39 western side, situated at village Mosa, Taluka Partur was delimited and in pursuance of the said order, possession of the 14 land to the extent of 3 acres 23 gunthas was taken from the petitioner and even the said piece of land was already distributed to the landless person, namely Babu Kisan Kachgawande by the Tribunal and hence the respondent no.2 had no jurisdiction to exercise the powers under Section 45 (2) of the Ceiling Act, 1961, in view of the fact that possession was already taken. 22 Besides, on the afore said background, issuance of notice by respondent no.2 on 6.5.1986 Exh. ‘B’ (page 20) to the petitioner for reopening the case suo motu for the purpose of inquiry and calling the record therefor under Section 45 (2) of the Ceiling Act, that too, after the lapse of period of about more than 10 years and passing the impugned order in pursuance of the said notice on 9.5.1991 by respondent no.2 in Case No. 1978/ICH/R-405 is beyond the period of 3 years, which is contemplated under the proviso of Section 45 (2) of the Ceiling Act, and hence, the impugned order dated 9.5.1991 is hit by the said proviso of Section 45 (2) of the Ceiling Act, 1961. 23 Apart from that, there is substance in the argument advanced by Shri V.D.Salunke, learned counsel for the petitioner that after passing the order by the S.L.D.T. on 13.1.1976 concluding that the petitioner’s holding was surplus to the extent 15 of 3 acres 23 gunthas, which was delimited as afore said under Section 16 of the said Act and even possession of the said piece of land was taken from the petitioner and thereafter the said piece of land was distributed to landless person, namely Babu Kisan Kachgawande by the Tribunal, and pertinently neither the petitioner nor the Government assailed the said order, and therefore, it attained finality. Moreover, since the possession of the said land to the extent of 3 acres 23 gunthas was taken from the petitioner by the Tribunal and since the said land was already distributed to the landless person namely Babu Kisan Kachgawande, the said order dated 13.1.1976 was acted upon, and hence, interference in the said order dated 13.1.1976 by passing the impugned order by respondent no.2 on 9.5.1991 on the afore said scenario, is unwarranted and is against cannons of law, and hence the impugned order dated 9.5.1991 is required to be quashed and set aside, by allowing the present petition. 24 Since the present petition succeeds on the first leg of argument canvassed by learned counsel for petitioner, the another leg of argument of the learned counsel for petitioner need not be adverted on merits. 25 Having the comprehensive view of the matter and also 16 relying upon the observations made in the afore said Rulings (supra), I am in agreement with the argument canvassed by the learned counsel for the petitioner, and I have no hesitation to conclude that the reopening of the case suo motu and “calling for the record” for the initiation of enquiry by respondent no.2 and passing of the impugned order dated 9.5.1991 in exercise of powers under Section 45 (2) of the Ceiling Act, after the lapse of more than ten years from passing the order dated 13.1.1976 by learned S.L.D.T., which, in fact, was acted upon by taking possession of excess land which even was distributed to landless person, is bad in law, besides being unfair and unjust, and therefore, the impugned order dated 9.5.1991 deserves to be quashed and set aside. 25 In the result, present Writ Petition is allowed in terms of prayer clause ‘C’ thereof and the impugned judgment and order rendered by the Additional Commissioner, Auangabad Division, Aurangabad dated 9.5.1991 in File No. 1978/ICH/R-405, Exh.’C’, stands quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs. Rule is made absolute in above terms. (SHRIHARI P. DAVARE, J.) dbm/wp2375.91