1 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 1931 OF 1991 1. Subhash Sakharam Jadhav Age : 40 Yrs., Occ. Service, R/o : Deshpande Galli At & Post Vaijapur, Dist. Aurangabad, through G.P.A. Sakharam S/o Asaram Jadhav Age : 50 Yrs., Occ. Service, R/o : Vaijapur, Dist. Aurangabad. 2. Shaikh Biban S/o Mohammad Age : Major, Occ. R/o : Vaijapur, Dist. Aurangabad. .... PETITIONERS VERSUS 1. The State of Maharashtra Through the Govt. Pleader High Court of Bombay, Bench at Aurangabad. 2. Maharashtra Revenue Tribunal Aurangabad. 3. Surplus Land Determination Tribunal, Vaijapur. 4. Jainuddin S/o Hirabhai Died – his L.Rs. : 2 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) 1. Shaikhlal Jainuddin Age : 30 Yrs., Occ. Agriculture, R/o Vaijapur, Tq. Vaijapur, Dist. Aurangabad. 2. Shaikh Ismail Jainuddin Age : 35 Yrs., Occ. Agriculture, R/o Vaijapur, Tq. Vaijapur, Dist. Aurangabad. .... RESPONDENTS Mr. P.V. Mandlik, Advocate for petitioner. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. Mr. Mujtaba G.Musfata, Advocate for respondent no. 4 (1) & (2). WITH WRIT PETITION NO. 3316 OF 1990 Subhash S/o Sakharam Jadhav Age : 35 Yrs., Occ. Service in Air Force, R/o : Vaijapur, Through G.P.A. Sakharam S/o Asaram Jadhav Age : 55 Yrs., Occ. Service, R/o : Vaijapur, Dist. .... PETITIONERS VERSUS 1. The State of Maharashtra 2. The Collector Aurangabad. 3. The Tahsildar, 3 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) Vaijapur. 4. Ski. Lala S/o Jainuddin Age : 40 Yrs., Occ. Agriculture, R/o Near Sunder Ganpati, Vaijapur, Dist. Aurangabad. .... RESPONDENTS Mr. P.V. Mandlik, Advocate for petitioner. Mrs. R.K.Ladda, Assistant Govt. Pleader for State. Mr. Mujtaba G.Musfata, Advocate for respondent no. 4 . CORAM : S.V. GANGAPURWALA, J. DATE : 09/07/2010 JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. The petitioner in Writ Petition No. 1931 of 1991 assails the order passed by the Maharashtra Revenue Tribunal, Aurangabad ( For short, ‘ M.R.T ’. ) dated 30/3/1991, by virtue of which the M.R.T. has set aside the Judgment of the Chairman of Surplus Land Determination Tribunal, Vaijapur ( For short ‘ S.L.D.T. ’ ) dated 30/7/1990. 2. The Chairman, S.L.D.T. in an enquiry U/s 14 of the Maharashtra Agricultural Lands ( Ceiling on Holdings ) Act, 1961 ( For short, ‘ Act of 1961 ’ ) had held that the legal representatives of Jainuddin Hirabhai i.e. present respondent no. 4 (1) & (2) are holding surplus land to the extent of 6 Acres and 1 Guntha. The Tribunal set aside the said Judgment of the Chairman, S.L.D.T. on 4 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) the count that 2 members of S.L.D.T. were of the opinion that the land holder had no surplus land with him and it was not correct on the part of the Chairman to bye—pass the opinion of the Members. The M.R.T. also observed that 6 Acres land of the holder may have been acquired in scarcity road. 3. The petitioners herein were allotted 3 Acres of land i.e. petitioner no. 1 was allotted 3 Acres from the S.No. 193/2 from the northern side and petitioner no. 2 was allotted 3 Acres from the southern side of S.No. 193/1. The said land was allotted to the petitioners vide Order dated 5/9/1990 passed by the Tahsildar, Vaijapur and the possession was delivered to them on 15/9/1990. On 9/10/1990, present respondent no. 4 filed an application for change of choice. Thereafter, on 12/10/1990, the amended order for allotment was passed. The said order changing the allotment is challenged by the present petitioner vide Writ Petition No. 3316 of 1990. 4. Mr. Mandlik, the learned Senior counsel for the petitioner submitted that the M.R.T. has dealt with the matter in a very casual manner. There is no evidence on record nor any document to come to the conclusion that 6 Acres of land held by the original land holder was acquired in scarcity road. As such, the Tribunal could not have set aside the Judgment of the Chairman, S.L.D.T., Vaijapur. 5. Mr. Mustafa, the learned counsel for respondent no. 4 submitted that no error has been committed by the M.R.T. in coming to the conclusion that 5 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) the original land holder did not possess any surplus land. Six Acres land has been acquired for scarcity road and as such the said area is rightly deleted from the holding of the land holders. Mr. Mustafa contended that the original petitioner no. 2 has died in the year 2005 and the legal representatives are not brought on record. As such, the petition stands abated. 6. I have perused the orders impugned and heard the learned counsel at length. 7. Section 2-A of the Act of 1961 deals with the consideration of the S.L.D.T. The relevant part of Section 2-A is reproduced as under : “ 2 ( A ) (1) The State Government may, by notification in the Official Gazette, from time to time, constitute as many Tribunals as may be necessary for such area or areas and for such purpose or purposes of this Act or for such provision or provisions thereof as may be specified in the notification. (2) Where a Tribunal is constituted or reconstituted for the purpose of determining surplus land under the provisions of this Act, the Tribunal shall be called the Surplus Lands Determination Tribunal. Where a Tribunal is constituted or reconstituted for the purpose of distributing surplus land under this Act, it shall be called the Lands Distribution Tribunal. (3) Each Tribunal shall consist of not less than three members of whom one shall be a person who holds or has held a civil post under the State not below the rank of a Tahsildar, and such person shall be the Chairman of the Tribunal. (4) The State Government may, from time to time, likewise reconstitute any Tribunal constituted under sub- 6 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) section (1), or may at any time abolish such Tribunal. The State Government may also at any time by order in writing discontinue or remove any member from the Tribunal without assigning any reason. (5) The quorum to constitute a meeting of the Tribunal and the procedure to be followed by it shall be such as may be prescribed; [ Provided that, where within half an hour of the time fixed for the meeting of the Tribunal there is no quorum as may be so prescribed, and if the Chairman alone is present, he shall be deemed to be the necessary quorum to constitute the meeting or the Tribunal. He shall proceed further with the meeting and record his decision in the proceedings as a decision of the Tribunal. ] (6) “ [ Save as otherwise provided in sub-section (5), all decision of a Tribunal ] shall be by a majority opinion of the members present; and where the opinion is equally divided, the decision of the Chairman shall be the decision of the Tribunal; Provided that, where the Chairman differs from the majority opinion on the ground that the decision is inconsistent with the provisions of this Act or any rules made thereunder or with evidence recorded in the proceedings, he shall make a reference to the Collector pointing out the inconsistencies for which he differs from the majority opinion. He shall also forward proceedings of the case to the Collector. On receipt of the reference, the Collector shall himself hear and dispose of the proceedings as expeditiously as possible ”. (7) xxxxxxxxxxxxxxxxxxx (8) xxxxxxxxxxxxxxxxxxx (9) xxxxxxxxxxxxxxxxxxx 8. On perusal of the said provision, it is clear that the S.L.D.T. shall consist of not less than 3 members, out of which one shall be the Chairman. Sub section (5) of Section 2-A and the proviso therein lays down that if within half 7 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) an hour of the time fixed for the meeting of the Tribunal, there is no quorum and if the Chairman alone is present, he shall be deemed to be the necessary quorum to constitute a meeting of the Tribunal and he can proceed further and record his decision and the same shall be decision of the Tribunal. Sub Section ( 6 ) lays down that all the decisions of the Tribunal shall be by majority opinion of the members present and when the opinion is equally divided, the decision of the Chairman shall be the decision of the Tribunal and if the Chairman differs from the majority opinion, then he shall make a reference to the Collector pointing out the inconsistencies for which he differs from the majority opinion and thereafter the Collector has to hear and dispose of the proceedings. From the perusal of the order of the Chairman, S.L.D.T., it is manifest that the S.L.D.T. was constituted of 3 members. 2 members had differed with the opinion of the Chairman. It is observed by the Chairman that the other 2 Members of the S.L.D.T., Vaijapur have given oral direction to declare the holder as non surplus. 9. If the majority of the Members had differed, then the Chairman was duty bound to refer the proceedings to the Collector. In such circumstances, provisions of Sub Section ( 6 ) of Section 2-A are not followed. So also, there is no provision of any oral directions. So, the observation of the Chairman that other 2 Members have given oral directions to declare the holder as non surplus, may not be sufficient to invoke sub Section (5) of Section 2 – A so as to say that the other 2 Members have not attended the meeting and he alone would give the Judgment. In light of the above, there is no Judgment of S.L.D.T. in the eyes of law as the provisions of sub section 5 and 6 of Section 2- A are not satisfied. 8 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) 10. The M.R.T. also without any evidence on record merely on hypothesis has held that, “ it appears to be the fact that an area of 6 Acres is under the scarcity road and it can not come under the definition of agricultural land. There is no documentary proof to that effect. On this count also, there is no clear evidence. 11. In view of the above, I feel it appropriate to relegate the parties back to the S.L.D.T. , Vaijapur to decide the proceedings afresh by giving opportunity to the respective parties to produce the evidence and decide the matter afresh as per law. 12. The objection of Mr. Mustafa that as the petitioner no. 2 has died, the whole petition abates, is not sustainable in view of the fact that the rights of both the petitioners are independent. In such circumstances, there is no question of the whole petition being abated. 13. As far as Writ Petition No. 3316 of 1990 is concerned, the same is limited to the extent of the change of choice and re-allotment of the lands. The same would be dependent on the out-come of the decision of the S.L.D.T., which he would take afresh. The question of allotment and re-allotment would arise only if the S.L.D.T. holds present respondent no. 4 as the surplus land holder. If at all the S.L.D.T. confirms that respondent no. 4 is surplus land holder, then only the question of choice would arise and the same can be also given afresh depending upon the decision of the S.L.D.T. As such, at present I also set aside 9 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) the impugned order of allotment with the above observation. 14. In the result, both the Writ Petitions are allowed. In Writ Petition No. 3316 of 1990, Rule is made absolute in terms of Prayer clause ‘ B ’ with a rider that depending upon the Judgment of the S.L.D.T., Vaijapur, who would determine the proceedings afresh and if the S.L.D.T., Vaijapur comes to the conclusion that respondent no. 4 in Writ Petition No. 1931 of 1991 is a surplus land holder, then he will get a fresh opportunity to give his choice. 15. As far as Writ Petition No. 1931 of 1991 is concerned, the same is partly allowed. Both the impugned orders passed by the M.R.T., Aurangabad dated 30/3/1991 and the order passed by the Chairman, S.L.D.T., Vaijapur dated 30/7/1990 are quashed and set aside. The parties are relegated back to the S.L.D.T., Vaijapur, who shall decide the proceedings between the parties afresh by giving opportunity of hearing to both the parties within a period of one year from the date of the receipt of the writ of this Court. 16. The interim order passed by this Court in Writ Petition No. 1931 of 1991 to remain in force till the disposal of the proceedings before the S.L.D.T. 17. In the event, any order is passed adverse to the interest of the petitioner, the same would not be effective for period of four weeks from the date of receipt of communication by the petitioner of the order of the S.L.D.T. The S.L.D.T., Vaijapur shall decide the proceedings in accordance with law 10 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) uninfluenced by any observation made in this Judgment. [ S.V. GANGAPURWALA ] JUDGE knp/WP 1931.91,3316.90 11 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) WRIT PETITION NO. 1931 OF 1991 WITH WRIT PETITION NO. 3316 OF 1990 CORAM : S.V. GANGAPURWALA, J. DATE : 09/07/2010 OPERATIVE ORDER For the reasons to be recorded separately, I pass the following order. ORDER 14. In the result, both the Writ Petitions are allowed. In Writ Petition No. 3316 of 1990, Rule is made absolute in terms of Prayer clause ‘ B ’ with a rider that depending upon the Judgment of the S.L.D.T., Vaijapur, who would determine the proceedings afresh and if the S.L.D.T., Vaijapur comes to the conclusion that respondent no. 4 in Writ Petition No. 1931 of 1991 is a surplus land holder, then he will get a fresh opportunity to give his choice. 15. As far as Writ Petition No. 1931 of 1991 is concerned, the same is partly allowed. Both the impugned orders passed by the M.R.T., Aurangabad dated 30/3/1991 and the order passed by the Chairman, S.L.D.T., Vaijapur dated 30/7/1990 are quashed and set aside. The parties are relegated back to the S.L.D.T., Vaijapur, who shall decide the proceedings between the parties afresh by giving opportunity of hearing to both the parties within a period of one year from the date of the receipt of the writ of this Court. 16. The interim order passed by this Court in Writ Petition No. 1931 of 1991 to remain in force till the disposal of the proceedings before the S.L.D.T. 17. In the event, any order is passed adverse to the interest of the 12 W.P. Nos. 1931/1991 & 3316/1990 - ( J ) petitioner, the same would not be effective for period of four weeks from the date of receipt of communication by the petitioner of the order of the S.L.D.T. The S.L.D.T., Vaijapur shall decide the proceedings in accordance with law uninfluenced by any observation made in this Judgment. [ S.V. GANGAPURWALA ] JUDGE