bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 3131 OF 1994 PETITION NO. 3131 OF 1994 PETITION NO. 3131 OF 1994 1. Shankar Shivram Patil 2. Haribhau Shivram Patil ... Petitioners v/s 1. The Additional Commissioner, 2. The Chairman, Surplus Land Determination Tribunal Panvel, Dist. Raigad 3. The Tahsildar, Pen 4. Spl. Land Acquisition Officer, 5. The State of Maharashtra ... Respondents Mr.Rajiv Patil for the petitioners. Mr.V.S.Gokhale, A.G.P. for the respondents. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 25TH NOVEMBER, 2008 25TH NOVEMBER, 2008 25TH NOVEMBER, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. The petitioners challenge the order passed on 31.1.1992 declaring their lands surplus, which order has been passed by the Additional Commissioner. 2. Brief facts which are necessary for deciding the petitioners’ involvement in the writ petition are as follows:- . The Surplus Land Determination Tribunal, by an order 2 dated 13.2.1976 declared certain lands of the petitioners as surplus lands under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (in short, the Ceiling Act"). Being aggrieved by that order the petitioners preferred an appeal before the Maharashtra Revenue Tribunal. The Tribunal accepted the contentions raised by the petitioners and remanded the matter to the Surplus Land Determination Tribunal for a fresh hearing. 3. Thereafter the petitioners appeared before the Surplus Land Determination Tribunal. The Tribunal declared that the petitioners held excess land and, therefore, by an order dated 16.11.1976 declared certain lands as surplus. It was found thereafter that certain other lands owned by the petitioners were not taken into consideration for computing the excess lands. Therefore the Tribunal on 30.11.1976 re-determined the surplus land. 4. An award was passed under Section 25 of the Ceiling Act on 22.2.1977. This award was not challenged by the petitioners and, therefore, it attained finality in 1977 itself. 5. It appears that the record and proceedings was sent 3 to the Additional Commissioner under Section 45(2) of the Ceiling Act. The Additional Commissioner re-determined the excess amount and held that the order passed by the Surplus Land Determination Tribunal was misconceived. This order was passed by the Additional Commissioner on 31.1.1992. The petitioners then approached the Minister of Revenue and Forest, Government of Maharashtra. However, that appeal filed by the petitioners was not decided and hence the present petition. 6. Mr.Patil appearing for the petitioners submits that the only issue involved in the present petition is, whether the Additional Commissioner could have decided to re-determine the surplus land and pass an order, 14 years after the award was passed on the basis of the determination made by the Surplus Land Determination Tribunal. He further submits that the Additional Commissioner could not have exercised such power when the possession of the surplus lands was taken from the petitioners and was distributed in accordance with law. 7. No affidavit has been filed by the Government despite the fact that the petition is pending in this Court for 14 years. Mr.Gokhale, the learned A.G.P. tried to justify the order passed by pointing out that 4 the impugned order indicates that the records were received under Section 45(2) of the Act on 5.1.1979 i.e. within two years from the determination by the Surplus Land Determination Tribunal. He submits that since the record was received within the time stipulated in the proviso to Section 45(2), the order passed by the Additional Commissioner need not be interfered with by this Court in its writ jurisdiction. 8. Section 45(2) reads as under:- "45(2). "45(2). "45(2). The State Government, suo motu or on an application made to it by the aggrieved person, at any time, call for the record of any inquiry or proceedings under sections 17 to 21 (both inclusive) for the purpose of satisfying itself as to the legality or propriety of any inquiry or proceedings (or any part thereof) under those sections and may pass such order thereon as it deems fit, after giving the party a reasonable opportunity of being heard: Provided that, nothing in this sub-section shall entitle the State Government to call for the record of any inquiry or proceedings of a declaration or part thereof under section 21 in relation to any land, unless an appeal against any such declaration or part thereof has not been filed within the period provided for it and a period of three years from the date of such declaration or part thereof has not elapsed. Provided further that, no order shall be passed under this section so as to affect any land which is already declared surplus and distributed according to the provisions of this Act: Provided also that the revisional jurisdiction 5 under this section shall be exercised only where it is alleged that the land declared surplus is less than the actual land which could be declared surplus." 9. A perusal of the aforesaid section indicates that the State Government may call for the record of any enquiry and proceedings under Sections 17 to 21, suo-motu or on an application made by the aggrieved person. In the present case, the "aggrieved persons" i.e. the petitioners herein, had not made any application before the Additional Commissioner under Section 45(2) of the Act. It is the Collector who sent the record to the Additional Commissioner in the routine course on 5.1.1979. Thereafter the State Government did not take any action in the matter. The impugned order records that notices were issued to the petitioners, and that the matter was adjourned from time to time from 14.12.1982 till it was finally decided. The petitioners have contended in the petition that they were not afforded a reasonable opportunity to be heard. This pleading has not been controverted by the respondents either by filing an affidavit or placing on record the proceedings in the matter. 10. The provisions of sub-section (2) of Section 45 indicate that the State Government must apply its mind as to whether there is any need to reopen the matter or 6 call for an enquiry in respect of the proceedings under Sections 17 to 21. In the present case, there is no indication in the order impugned in this petition that the Additional Commissioner had applied his mind to the proceedings sent to him in 1979 and had thereafter found it necessary to reopen the issue. 11. The learned A.G.P. has submitted that the record was called for within three years as required under the 1st proviso of Section 45(2) and therefore the action taken by the respondent No.1 was within the stipulated period. The impugned order does not reflect the date on which the respondent No.1 was satisfied that the matter was required to be re-opened. This date is material as it must be within three years of the declaration of surplus land. Therefore the submission of the learned A.G.P. is unsustainable. 12. Apart from this, it must be pointed out that there is no denial of the fact that the lands which were declared surplus had been distributed according to the provisions of the Act before the order was passed by the Additional Commissioner. The learned A.G.P. points out that the second proviso to sub-section (2) of Section 45 was inserted in 1990 and was not on the statute book in 1979 when an enquiry was conducted by the Additional 7 Commissioner under Section 45. He, therefore, submits that there would be no bar for re-determination of the surplus lands under sub-section (2) of Section 45 even if there was a distribution of the lands which were already been declared surplus. 13. This submission of the learned A.G.P. cannot be accepted. This is because when the impugned order was passed in 1992, the second proviso was already on the statute book which the Additional Commissioner was bound to take it into consideration before passing the impugned order. 14. In these circumstances, the petition must succeed. Rule made absolute. No order as to costs.