1 wp 2600.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2600 OF 1992 Ghanshyam S/o Tukaram Solunke, Age : 92 Years, Occu. : Agril., R/o Gangamasla, Tq. Majalgaon, Dist. Beed. .. .. Petitioner Versus 1. The State of Maharashtra, Through Government Pleader High Court, Aurangabad Bench Aurangabad. 2. The Additional Commissioner, Aurangabad Division, Aurangabad. 3. The Surplus Land Determination Tribunal Majalgaon, through Tahsildar Majalgaon, Tq. Majalgaon, Dist. Beed. .. .. Respondents Shri V. D. Salunke, Advocate for the Petitioner. Shri P. P. More, A.G.P. for the Respondent/State. CORAM : S. S. SHINDE, J. DATE : 07TH MARCH, 2011. 2 wp 2600.92 ORAL JUDGMENT : . This petition takes exception to the judgment and order passed by the Additional Commissioner, Aurangabad Division, Aurangabad dated 11.08.1992 in file No. 1990/ICH-R-1. 2. The petitioner is resident of Gangamasla, Tq. Majalgaon, Dist. Beed. The petitioner is original land holder in the proceedings started by the respondent No. 2 in the subject matter. It is the case of the petitioner that, the petitioner filed return under Section 12 of the Maharashtra Agricultural Land (Ceiling on Holdings) Act 1961 showing his holding 64 Acres and 10 Gunthas. The petitioner had shown total two members in his family unit. The S. L. D. T., Majalgaon made detailed enquiry. The S. L. D. T. considered all aspects of the matter and after going though the relevant record came to the conclusion that the holding of the petitioner on 26.09.1970 comes to 63 Acres and 6 gunthas. The S. L. D. T. has held that, the petitioner was holding less than ceiling area on 26.09.1970 and the petitioner was declared non surplus holder. 2. The Additional Commissioner/respondent No. 2 initiated a suo moto proceeding U/Sec. 45(2) of the Ceiling Act and issued 3 wp 2600.92 notice of revision after period of limitation i. e. 3 years from the judgment and order passed by the S. L. D. T. The petitioner filed his reply to the notice by giving all the detail facts and record of the case. It is the contention of the petitioner that, notice issued by the respondent No. 2 was exfacio illegal and contrary to the powers vested in hims U/Sec. 45(2) of the Ceiling Act. The respondent No. 2 has not considered the reply given by the petitioner in detail and the legal grounds raised in it. The respondent No. 2 without applying his mind decided the matter on 21st January, 1986. The respondent No. 2 set aside the order passed by the S. L. D. T. and directed to hold fresh enquiry regarding gift deeds in favour of the sisters. The respondent No. 2 remanded the matter for fresh enquiry to the S. L. D. T. It is the case of the petitioner that, after remand of the matter to the S. L. D. T., Majalgaon, the learned S. L. D. T. Majalgaon started fresh enquiry in the matter. The S. L. D. T. has considered all the aspects involved in the matter as per direction given by the respondent No. 2 and as per the remand order. The learned S. L. D. T. after considering the legal and factual aspects in the matter and declared that, the land holder is non surplus holder by its judgment and order dated 27.04.1987. 4 wp 2600.92 It is also held that the total holding is less than Ceiling limit, after deducting the land gifted to the daughter. It is the case of the petitioner that, the Additional Commissioner Aurangabad again exercised powers U/Sec. 45(2) of the Ceiling Act and re-opened enquiry in the year 1992. The Additional Commissioner has no jurisdiction or power to start or re-open the enquiry after the period of three years of the judgment and order passed by the S. L. D. T. The respondent No. 2 must apply his mind within a period of 3 years and he must re- open the file to get notices served on the petitioner by communicating the grounds of revision within three years from the date of order of S. L. D. T. He has also no jurisdiction to take suo moto revision more than once. The powers U/Sec. 45(2) can not be used repeatedly. It is the case of the petitioner that, after receipt of the notice dated 27.04.1992 he has submitted detailed say to the notice on 01.07.1992 and pointed out all the legal and factual aspects in the matter. It is also mentioned in the say that, he was twicely declared as non surplus holder and notice issued by the respondent No. 2 is illegal. The Additional Commissioner has 5 wp 2600.92 totally failed to appreciate written statement and documentary evidence produced before him and by observing irrelevant things by giving the perverse findings, he has decided the matter by judgment and order dated 11th August, 1992. The respondent No. 2 himself declared the petitioner as surplus holder to the extent of 8 Acres and 15 Gunthas. The Commissioner has no power or jurisdiction to declare the land holder as surplus. It is also submitted that, if the Commissioner finds that, the judgment of the S. L. D. T. is wrong then he has to remand the matter for fresh enquiry to the S. L. D. T. and only the S. L. D. T. is competent to make the declaration after enquiry U/Sec. 14 to 21 of the Ceiling Act. The counsel for the petitioner would submit that, the judgment and order passed by the learned Additional Commissioner is liable to be quashed and set aside. 3. On the other hand the learned Additional Government Pleader vehemently opposed the petition and submitted that, the notice is rightly issued by the Additional Commissioner, Aurangabad U/Sec. 45(2) of the said Act. Therefore, this writ petition is devoid of any merits and same may be dismissed. 4. I have given due consideration to the rival submissions of 6 wp 2600.92 the learned counsel for the parties. It is admitted position that initially the S. L. D. T. passed the order on 15.05.1976 thereby the petitioner was declared non surplus holder. The respondent No. 2 suo moto initiated the proceedings U/Sec. 45(2) of the Ceiling Act and directed the petitioner to remain present and file his say. The Additional Commissioner without appreciating the evidence and pleadings pleased to remand the matter to the S. L. D. T. Majalgaon. The Additional Commissioner directed to hold fresh enquiry regarding gift deeds in favour of the sisters. Thereafter on remand order by the Additional Commissioner, he S. L. D. T. after remand and conducting fresh enquiry and considering total legal and factual aspects in the matter declared that the land holder as non surplus holder. It is admitted position that the notice was issued by the Additional Commissioner on 27.04.1992. Therefore, said notice for suo moto revision was after the period of about 5 years from the date of second order of competent authority on 27.04.1987. There also appears to be non application of mind on the part of the authority. It further appears that, documents and facts of the case are not properly seen by the Additional Commissioner before issuing notice for suo moto revision. Therefore, in my opinion, 7 wp 2600.92 since the notice issued by the Additional Commissioner on 27.04.1992 was beyond the statutory period prescribed U/Sec. 45(2) of the Ceiling Act. Therefore, the judgment and order delivered by the Additional Commissioner dated 11.08.1992 is erroneous and perverse. Therefore, the judgment and order dated 11.08.1992 deserves to be quashed and set aside. 4. 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 8 wp 2600.92 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 9 wp 2600.92 Court in the facts of the case held, notice U/Sec. 45(2) of the Act 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 10 wp 2600.92 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. 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 11 wp 2600.92 by the Additional Commissioner on 30.03.1993 is beyond limitation prescribed under section 45 (2) of the said Act. 5. Therefore, in the light of aforesaid discussion the judgment and order dated 11.08.1992 passed by the Additional Commissioner, Aurangabad Division, Aurangabad in File No. 1990/ICH-R/71 is quashed and set aside. The petition is allowed in terms of prayer clause "B". Rule is made absolute in above terms. The writ petition stands disposed of. [ S. S. SHINDE, J.] bsb/March 11