1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 481 OF 1987 Bhagwanrao @ Desai s/o Bhawanrao Deshpande, age 42 years, occ. Agril. r/o Charthana, Tq. Jintoor, Dist. Parbhani. .. PETITIONER VERSUS 1 The state of Maharashtra 2 The Surplus Land Determination Tribunal, Tq. Jintoor Dist. Parbhani 3 The Additional Commissioner Aurangabad Division, Aurangabad. 4 Smt. Subhadrabai w/o Bhawanrao Deshpande (Deceased through Lrs) 4/a Dajisaheb s/o Bhawanrao Deshpande age 50 years, occ. Agri r/o Charthana, Tq. Jintur Dist. Parbhani 4/b Bhagwanrao s/o Bhawanrao Deshpande ( the petitioner ) 4/c Mahaldas Krishnarao Deshpande age 32 years, 4/d Sitaram s/o Krishnarao Deshpande 2 age 28 years 4/e Laxmanrao s/o Krishnarao Deshpande age 25 years 4/f Gopal s/o Krishnarao age 18 years, minor under guardianship of mother respondent no. 4(j) 4/g Dattatraya s/o Krishnarao minor, under guardianship of mother the respondent no. 4(j) 4/h Anjali d/o Krishnarao minor, under guardianship of mother respondent no. 4(j) 4/i Anuradha w/o Renukadas Rajurkar adult, occ household r/o Hingoli, Dist. Parbhani 4/j Shakuntala w/o Krishnarao age 50 years, r/o Charthana tq. Jintur, Dist. Parbhani (deleted as per court order dt. 19-6-2007) 4/k Sumanbai w/o Gopalrao Pathak adult, occ household r/o Aundhe Nagnath Tq. Hingoli, Dist. Parbhani 4/l Geetabai w/o Narayanrao Deshmukh adult, occ. Household r/o Sewali (Dongar) Tq. & Dist. Jalna 4/m Venutai w/o Digambarrao 3 adult, occ. Household r/o Mao (Patoda), Tq. Partur Dist. Jalna. 5 Bhimrao s/o Vithalrao adult, occ labourer r/o Jintoor, Dist. Parbhani. 6 Dashrathh s/o Ashruba adult, occ labourer r/o Pimpri (Bk) Tq. Jintur, Dist. Parbhani 7 Vardhaman s/o Ganpat Kale (Decesed through Lrs) 7/a Pushpabai w/o Vardhaman Kale occ household 7/b Deepak Vardhaman Kale adult 7/c Gajkumar Vardhaman Kale adult 7/d Sunil Vardhaman Kale minor, u/g of mother respondent no. 7-a. 8 Ganpati s/o Raghoji adult, occ labourer r/o Jintoor, Dist. Parbhani 9 Haribhau s/o Dagdoji Walke adult, occ labourer r/o Jintoor, Dist. Parbhani. .. RESPONDENTS Shri A.G. Godhamgaonkar, Advocate for the petitioner. 4 Shri V.H. Dighe, AGP for the State. ===== CORAM : R. M. BORDE, J. DATE : 29 th April, 2009. ORAL JUDGMENT : 1 Petitioner herein is raising exception to the order passed by the Additional Commissioner, Aurangabad on 29-11-1984 directing remand of the matter to the Surplus Land Determination Tribunal, Jintoor for de novo enquiry thereby setting aside the order of the Surplus Land Determination Tribunal dt. 11-2-1976. 2 The petitioner herein filed return as contemplated under the provisions of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 in respect of land held by him. Total holding shown in the return is to the extent of 101.24 acres whereas the cultivable area is 100 acres and 33 gunthas. The Surplus Land Determination Tribunal after holding due enquiry declared the petitioner surplus holder to the extent of 25 acres and 24 gunthas from survey no. 58 of village Pimpri Bk. The Surplus Land Determination Tribunal pronounced judgment on 11-12-1976. The State Government in exercise of powers under section 45(2) of the Act decided to take up review of the order suo motu and memorandum to that effect came to be issued. In a notice issued under section 45(2) of the Act, ground was raised to the effect 5 that holding in respect of survey no. 5 has not been taken into account while determining the area possessed by return filer. If the total holding of land holder is considered to be 147 acres 32 gunthas and he is entitled to retain 105 acres 5 gunthas, surplus would be to the extent of 42 acres and 26 gunthas. Another objection that was raised is in respect of inclusion of survey no. 60, 42, 224B. The return filer presented reply to the notice and stated that the Surplus Land Determination Tribunal has conducted proper scrutiny and the order passed by the lower authority needs no interference. The Additional Commissioner on scrutiny of record found that the holding of the return filer comes to 114 acres and 27 gunthas on verification of record. The area of land to the extent of 7 acres and 7 gunthas and 33 gunthas has been excluded without showing any reason. The Additional Commissioner, as such remanded the matter back to the Surplus Land Determination Tribunal after quashing the decision rendered on 11-2-1976. 3 Learned counsel for the petitioner has vehemently contended that the order passed by the Additional Commissioner suffers from non- application of mind to the record of the case. It is pointed out that an area to the extent of 13 acres has already been declared as surplus and the same is also distributed to the allottees. Area to the extent of 13 acres and 33 6 gunthas which is already taken in possession and distributed in the proceedings initiated under the act cannot be taken into consideration once again. The Surplus Land Determination Tribunal had rightly computed the area of survey no. 60 to the extent of 7 acres and 33 gunthas. The Additional Commissioner has committed a mistake in considering the are of survey no. 60 to be 21 acres and 30 gunthas. Objection raised appears to be sustainable and from perusal of the record it does appear that 13 acre land has already been taken in possession in the proceedings initiated under the Ceiling Act. There appears to be an error committed by the Additional Commissioner while taking into account the area comprising of survey no. 60. However, it has been contended that infact the Surplus Land Determination Tribunal has adopted a wrong approach and has declared the petitioner surplus to the extent of 25 acres and 24 gunthas. Infact the order passed by the Surplus Land Determination Tribunal itself is liable to be reviewed. It is contended that one of the survey numbers allotted in favour of his mother Subhadrabai being survey no. 43 cannot be considered and included in the holding of return filer. The return filer is entitled to retain an area to the extent of 75 acres and 24 gunthas as per the provisions of section 6 of the Act and on deletion of survey no. 43, he is not liable to be declared as surplus holder. According to the learned counsel for the petitioner, this 7 aspect ought to have been considered by the revisional authority. Although, in the say presented to the Additional Commissioner, no specific prayer is made for reviewing the order passed by the Surplus Land determination Tribunal on that ground. However, the fact remains that the grievance is made before the revisional authority. The petitioner can be permitted to agitate said grievance before appropriate authority. It is also to be taken note of that the proceedings under the Ceiling Act are required to be conducted by the party and assistance of the advocate is not permissible. Duriing the conduct of the proceedings, advocate is not permitted to represent the return filer. In this view of the matter, although specific prayer has not been made by the return filer in respect of his grievance relating inclusion of survey no. 43, taking into consideration the fact that in the say presented before the revisional authority specific contention has been raised to the effect that said survey number ought to be considered as the holding of his mother Subhadrabai and cannot be computed in the total holding of return filer, needs to be taken into account. 4 As the matter is already remanded back to the Surplus Land determination Tribunal, the petitioner will have an opportunity to raise his grievance before the Surplus Land Determination Tribunal. The Surplus Land 8 Determination Tribunal would consider the objection in respect of survey no. 43 or any other objection that may be raised by the petitioner and would re- determine the issue. Although the observations made in respect of computing area comprising of survey no. 60 made by the Additional Commissioner prima facie does not appear to be sustainable, still in view of the circumstances enumerated above, I do not deem it appropriate to interfere in the final order passed by the Additional Commissioner. Final order in respect of remittance of the matter back to the Surplus Land Determination Tribunal therefore is maintained. The Surplus Land Development Tribunal however, shall consider the grievance that may be raised by the petitioner in respect of inclusion of area comprising of survey no. 43 or any other objection that may be raised by him. The Surplus Land Determination Tribunal after considering all the relevant aspects shall render decision afresh. In this view of the matter, writ petition fails. Rule is discharged. 5 Pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/wp481.87.odt