1 wp 1293.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1293 OF 1992 Anurat S/o Ginaji Jadhav, Age : Major, Occu. : Agril., R/o Salimba, Tq. Majalgaon, Dist. Beed. .. Petitioner Versus 1. The State of Maharashtra Through Government Pleader, High Court, Aurangabad. 2. The Additional Commissioner, Aurangabad Division, Aurangabad. 3. Surplus Land Determination Tribunal, Majalgaon, Tq. Majalgaon,Dist. Beed. .. Respondents Shri SMI Shaikh, Advocate h/f Shri V. D. Salunke, Advocate for the Petitioner. Shri D. R. Kale, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. DATE : 10TH MARCH, 2011. ORAL JUDGMENT : . This petition is directed against the judgment and order 2 wp 1293.92 dated 13th May, 1991 passed by the Additional Commissioner, Aurangabad in case No. 1978/ICH-R/2772. 2. It is case of the petitioner that, he is resident of village Salimba, Tq. Majalgaon, Dist. Beed. The petitioner filed return in form III as required U/Sec. 12 of the Ceiling Act on 01.12.1975. He has shown his total holding to the extent of 85 Acres 13 Guntha including 7 survey numbers were shown in the said return. It is further case of the petitioner that, S. L. D. T., Majalgaon had instituted enquiry proceeding on 02nd December, 1975. The S. L. D. T. made full enquiry in the matter. The statement of the petitioner was recorded. The village record was scrutinized. The petitioner had filed certificate of Special Land Acquisition Officer, birth date extract and other documents. The S. L. D. T. after going through the record came to the conclusion that the area to the extent of 9 Acres 07 Guntha from Sy. No. 8-A is not in possession of the petitioner and i. e. in possession of Parubai W/o Bhujangrao Shinde. The said area is calculated in the name of Parubai Shinde in her file No. 75/ICH-R/513 and same was not included in the holding of the petitioner. The S. L. D. T. also found that land admeasuring 24 Acres and 36 Guntha 3 wp 1293.92 from Survey No. 55 has been acquired by the Government for tank. Therefore, the holding of the petitioner comes to 55 Acres 10 Guntha which is less than the ceiling area. Consequently, the petitioner was declared as non surplus holder by judgment and order dated 13.01.1974 by the S. L. D. T., Majalgaon. It is the case of the petitioner that, the Additional Commissioner, Aurangabad/respondent No. 2 herein by exercising powers U/Sec. 45(2) of the Ceiling Act reopened the suo moto enquiry in the year 1991. The commissioner first time issued notice on 04.04.1991 in file No. 78/ICH-R/2722 and first time communicated the grounds of revision in the said notice. It is the case of the petitioner that, though the notice reveal that the memorandum of revision was reopened in the year 1978, but the notice of revision is issued and served on the petitioner first time in the year 1991 i. e. after 15 years from the judgment and order of the S. L. D. T. It is further case of the petitioner that, the Additional Commissioner did not call for the record from the S. L. T. D. within three years from the order of the S. L. D. T. However, subsequently, the dates are manipulated showing that the enquiry is reopened in the year 1978. It is specific case of the petitioner that the Additional Commissioner has no 4 wp 1293.92 jurisdiction or power to reopen suo moto enquiry after lapse of 15 years from the date of order of the S. L. D. T. It is further case of the petitioner that the Additional Commissioner did not call for the record from the S. L. D. T. within three years from the date of order of the S. L. D. T. However, subsequently the dates are manipulated showing that the enquiry is reopened in the year 1978. It is specific case of the petitioner that the Additional Commissioner has no jurisdiction or power to reopen suo-moto enquiry after lapse of 15 years from the date of order of the S. L. D. T. As per provisions of Sec. 45(2) of the said Act period of 3 years is prescribed for initiating or taking steps towards enquiry. Therefore, the petitioner in this petition has prayed that the impugned judgment and order passed by Additional Commissioner, Aurangabad dated 13.05.1991 deserves to be set aside. 03. The learned counsel invited my attention to the authoritative pronouncement of this Court in case of Champabai and another vs. State of Maharashtra and others reported in 2004(1) Mh. L. J. 148 and submitted that, the points which are raised in this petition is no more res-intigra and is covered by the decision of this Court cited supra. Therefore, this petition may be allowed. According to the counsel 5 wp 1293.92 for the petitioner, though the memorandum of revision is shown to be opened in the year 1978, first time the petitioner was communicated by way of notice in the year 1981 about initiation of suo-moto enquiry. Therefore, the said notice is beyond the statutory period and suo-moti enquiry on the basis of such notice cannot be sustained. 04. On the other hand, the learned Government Pleader appearing for the state submitted that, when the memorandum of revision was opened in the year 1978 that was within the period of 3 years from the date of order of S. L. D. T. Therefore, in the facts and circumstances the judgment cited by the learned counsel for the petitioner has no application. Therefore, the learned A. G. P. would submit that, this petition may be dismissed. 05. Upon hearing the counsel for the petitioner and learned Additional Government Pleader for the respondent/state and upon perusal of the impugned judgment and order and also facts brought on record, it appears that, the petitioner was first time communicated about initiation of such enquiry in the year 1991. Mere, opening of memorandum of revision within three years cannot be said to be conscious application of mind. Unless record 6 wp 1293.92 is called by the Additional Commissioner, from the S. L. D. T. and mind is applied to the facts of the case, the initiation of suo-moto enquiry is of no consequences. Therefore, upon perusal of record and documents placed on record, it does not reflect that, there was conscious application of mind by teh Additional Commissioner to the facts of the case. 06. This Court had occasion to interprete provisions of Section 45(2) of the Said Act in 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 7 wp 1293.92 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 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 U/Sec. 45(2) of the Act 8 wp 1293.92 for suo moto revision was issued on 25.03.1982 and not within the period of three years from the date of order of 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 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, 9 wp 1293.92 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. 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. 10 wp 1293.92 07. Therefore, in my opinion, though the technical memorandum of the revision was opened in the year 1978, no conscious decision was taken by the Additional Commissioner by applying his mind to the record and facts of the case, as it is evident that no record was summoned from the S. L. D. T. Therefore, viewed from any angle, the impugned order cannot be sustained, hence same is quashed and set aside. 08. The petition is allowed in terms of prayer clause "C". The Rule is made absolute in above said terms. The petition stands disposed of. 09. This Court appreciates the sincere efforts taken by the learned counsel for the petitioner when arguing and assisting this Court in the matter. [S. S. SHINDE, J.] bsb/March. 11