1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2831 OF 1994 Ashruba s/o. Nanabhau Munde, Age Major, Occu. Agril., R/o. Pathrud, Tq. Majalgaon, Dist. Beed. ....Petitioner. Versus 1. The State of Maharashtra 2. The Additional Commissioner, Aurangabad Division, Aurangabad. 2. The Tahsildar and Member Surplus Land determination Tribunal, at Majalgaon. ....Respondents. Shri. H.K. Mundhel, Advocate for petitioner. Shri. K.M. Suryawanshi, A.G.P. for respondent Nos. 1 to 3. CORAM : R.K. DESHPANDE, J. DATE : 9th July, 2010. ORAL JUDGMENT: 1. This writ petition challenges the order dated 20.4.1992 passed by the Additional Commissioner, Aurangabad in case No. 1979/ICH/R/333. By this order the Additional Commissioner has reopened the proceedings under the Maharashtra Agricultural Lands (Ceiling of 2 Holdings) Act 1961, (hereinafter referred to as "the said Act") by setting aside the order dated 30.4.1976 passed in case No. 1975/ICH/316. 2. The challenge in the writ petition is that the competent authority, under the inquiry made under section 14 of the said Act, has passed an order dated 30th April 1976, declaring that the petitioner is not surplus land holder. However, on 5.4.1991 for the first time without any notice to the petitioner, suo-moto proceedings are initiated by the Additional Commissioner under section 45 (2) of the said Act. Thereafter, notices were issued to the petitioner, to which the petitioner filed reply and on 20.4.1992, the impugned order was passed remanding the matter back to the competent authority for conducting de-novo inquiry. 3. The learned counsel for the petitioner submits that the order under section 14 was passed on 30th April 1976 and the notice under section 45 (2) was issued on 5.4.1991. Hence, the exercise of reopening the matter by the authorities concerned, after lapse of 15 years was not permissible. He relies upon the decision of the Full Bench of this Court reported in 1989, Mh.L.J. 1011 in the case of Manohar Ramchandra Manapure and others Vs. State of Maharashtra and another. He also relies upon the decision of the learned Single Judge of this Court rendered in Writ Petition N o. 2476/1990 decided on 8th of September 2008 in the case of Sakharam Pandurang Waise and others Vs. The State of Maharashtra. 3 4. The learned A.G.P. appears for respondent Nos. 1 to 3 and fairly concedes that the matter is concluded by these two judgments cited by the learned counsel for the petitioner. It has been clearly held that the Commissioner was not competent beyond the period of 3 years to reopen the proceedings. The relevant portion of the judgment of the Full Bench cited supra, which is contained in paragraph Nos. 6 and 9, are reproduced below :- "6. Having considered the rival contentions raised before us, in our view section 45 (2) will have to be reasonably construed to achieve the object of the legislation. 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. It also lays down certain conditions. The meaning assigned to the word "call" in Oxford Dictionary, Vol. 2 and Chambers Twentieth Century Dictionary is "to summon". If this is the meaning of the word "call", then it contemplates some 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 a mechanical, clerical or ministerial act of calling for the records of all the proceedings irrespective of the fact whether they are required or not for the purpose specified in the section. We are informed that general instructions have been issued to all the Collectors and Sub-Divisional Officers to send all the records of the proceedings to the Commissioner. Thus, in substance all the records relating to the proceedings resulting in the declaration under section 21 of the Act are practically stored in the office of the Commissioner. Such a storing of the records or sending of the records by the respective Collectors or Sub-Divisional Officers cannot be equated with the summoning of the records or calling for the records for the purposes specified in 4 section 45(2) of the Act. It requires a conscious application of mind on the part of the competent authority qua particular proceedings. The word "any" as used in sub-section (2) of section 45 is indicative of this intention. Section 45(2) contemplates different stages, namely, calling for the records, giving opportunity of being heard to the parties concerned and ultimate decision. However, record is not to be called for merely satisfying the curiosity of for storing. It has a purpose behind it. The State Government is not appointed as roving Commission; but is expected to exercise judicial or quasi-judicial powers. The object behind prescribing the limitation for calling for the record is not to upset settled position at very late stage. The proviso to section 45 (2) will have to be construed in this background. In a given case it may not be possible to dispose of a revision itself within the period of 3 years from the date of declaration for more than one reason. The ultimate decision of the revision will depend upon the various circumstances. Issuing of notices to the parties concerned for giving them a reasonable opportunity of being heard is a must. In a given case in view of the several uncertainties including the death of the parties and the time taken for bringing their legal representatives on record, it may not be possible to dispose of the whole revision within the period of 3 years. Therefore, the Legislature in its wisdom has restricted the limitation prescribed under the proviso only to calling for the record. Though this calling for the record, will require some positive act on the part of the authority, it must ultimately depend upon the facts of each case; as to when record was actually called by the concerned authority. We do not find any compelling reason to construe proviso so as to include in its import all the proceedings, namely, right from the initiation to the ultimate order. If that was the intention of the Legislature, then the proviso would have been differently worded. Therefore, we agree with the view taken by the Division Bench of this Court in Kisan v. Additional Commissioner's case (cited supra). 7........ 8........ 5 9. In the case before us, admittedly the necessary application of mind on the part of the Commissioner was much beyond the period of three years of the impugned order. In the view we have taken, therefore, it will have to be held that the records were not called within period of three years. In view of this admitted position, it is clear that the Commissioner had no powers to exercise the revisional jurisdiction. On this short ground, therefore, the rule will have to be made absolute." 5. In view of the aforesaid position, the order dated 20.4.1992 passed by the Additional Commissioner, Aurangabad Division, Aurangabad in case No. 1979/ICH/R/333 cannot be sustained. The same is, therefore, quashed and set aside. Rule is made absolute in terms of prayer clause "A". No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp2831.94