1 wp2253.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2253 OF 1993 Martandrao @ Maruti Siddheshwar (since deceased through L.Rs.) 1 Siddheshwar Martandrao @ Maruti Hagare 2 Balasaheb Martandrao @ Maruti Hagare 3 Shankaramma Mallikarjun Abbigeri (since deceased through L.Rs.) 3a Basappa Mallikarjun Abbigeri 4 Shantabai Bapugouda Patil 5 Lalita Shrishail Hosmani 6 Pushpa Suresh Honrao Minakshi Mallikarjun Patil ...Petitioners vs. 1 Surplus Land Determination Tribunal, Barshi, Dist.Solapur 2 The Additional Commissioner, Pune Division, Pune 3 The State of Maharashtra ...Respondents Mr.S.D.Thokade for the petitioners Mr.R.M.Patne, A.G.P for the respondents CORAM :A.S.OKA,J. DATE : NOVEMBER 15,2010 ORAL JUDGMENT : 1 This petition arises out of the orders passed by the Authorities under The Maharashtra Agricultural Lands (Ceiling on Holding) Act,1961 (hereinafter referred to as the said Act). 2 The original petitioner filed a return under section 12 of the said Act in respect of the various lands held by him in Villages Korphale, Gulpoli and Barshi, Taluka Barshi, District Solapur. The total 2 wp2253.sxw holding of the petitioner as disclosed in the return was 115 Hectres and 92 Ares 3 In the enquiry before The Surplus Land Determination Tribunal (hereinafter referred to as the `SLDT ) it was contended that the family of the petitioner consists of four members which includes the petitioner, his two sons (one of whom was a minor) and his wife. Reliance was placed on the decree passed in the Special Civil No.59 of 1969 by the Civil Court in a suit for partition filed by the major son of the petitioner. It was contended before the SLDT that under the decree passed under the said suit, 1/4th share has been granted to the minor son of the petitioner. It was pointed out that by the gift deed dated 6th October, 1948, the petitioner bequeathed the land bearing survey nos. 184, 229 and 277 to his wife and the said gift deed dated 6th October 1948 is accepted to be valid by the Civil Court. 4 The SLDT by order dated 2nd May 1985 held that holding of the petitioner s wife of 21 H-18A will have to be excluded as the Gift Deed in her favour was executed in the year 1948. The SLDT held that even 1/4th share of the minor son will have to be considered separately in the light of the decree for partition. Therefore, after excluding the holding of the wife and after taking into consideration the shares of both the sons of the petitioner, the SLDT held that the holding of the petitioner does not exceed the prescribed ceiling limit. 3 wp2253.sxw 5 Suo Motu powers of revision were exercised by the State Government under section 45 of the said Act. By order dated 30th November 1986, the Additional Commissioner held that under the provisions of the said Act, only a major son was entitled to hold a separate share and therefore, the share of the minor son cannot be excluded. It was also held that the area gifted by the petitioner to his wife cannot be excluded from petitioner s holding. The learned Additional Commissioner held that after excluding the fallow area and the area of 1/4th share of the major son, the petitioner was entitled to retain 21H and 85A. Therefore, the Additional Commissioner directed that the order of the SLDT was set aside with a direction to limit the surplus area of 51 H 86-1/2R from the holding of the petitioner by following the procedure laid down under sections 15 and 16 of the amended Act. 6 The petitioner challenged the said decision by preferring Writ Petition no.2276 of 1987 in this Court. On 21st July 1987, an order of remand was passed by this Court to the Additional Commissioner. By the impugned order, the Additional Commissioner held that second son of the petitioner was a minor on 2nd October 1975 and therefore, his holding will have to be clubbed with petitioner. The learned Additional Commissioner held that 1/4th share of the major son will have to be excluded. Therefore, the learned Additional Commissioner came to the conclusion that the petitioner was entitled to hold only are of 21H 85R and therefore, remaining area of 38H and 75A shall be declared as a surplus 4 wp2253.sxw holding. 7 The learned counsel for the petitioner submitted that a suit for partition was filed on 21st August 1969 which was decreed by the Civil Court on 7th January 1972 by which it was held that the minor son of the petitioner by the name Ramliing was entitled to 1/4th share in the lands held by the petitioner. He submitted that the effect of the said decree has not been considered by the learned Additional Commissioner. He submitted that the gift deed of 6th October 1948 is accepted to be legal and valid by the Civil Court while passing the decree for partition and therefore, the lands gifted to the wife of the petitioner will have to be excluded from the total holding of the petitioner. He submitted that though the Judgment and decree in the civil suit is on record, the learned Additional Commissioner has completely brushed aside the same. The learned A.G.P supported the impugned Judgment and Order. 8 Perusal of the order passed by the SLDT shows that a copy of the Judgment and Decree passed in Special civil Suit No.59 of 1969 was on record. The decree was passed on 7th January 1972 under which even the minor son of the petitioner by the name Ramling was granted undivided 1/4th share. Moreover, the learned trial Judge while deciding the partition suit had framed an issue on the validity of the gift deed and the said issue was answered by holding that the gift deed in favour of the petitioner s wife was legal and valid and that the lands gifted to the 5 wp2253.sxw wife under the gift deed were not available for partition. 9 The relevant part of the order of this Court in Writ Petition no.2276 of 1987 reads thus : Perusal of the order of the Additional Commissioner dated 30-11-86 in Suo Moto revision shows patent error on the face of the record in as much as the calculations done on the basis of the total holding is wrong and moreover the contention of the petitioner regarding exclusion of about 17 Hectares as fallow land based on the certificate of the Agricultural Officer, Panchayat Samiti, Barshi has been lightly brushed aside. Hence, it is desirable that the impugned order is set aside and the matter sent back to the Additional Commissioner with directions that he should hold enquiry afresh through the Surplus Land Determination Tribunal and reassess the total holding of the petitioner after excluding the area which was already declared surplus under the unamended Act and take possession for distribution and also excluding the area of the share of the major son. Secondly, he should also conduct spot enquiry into the veracity of the certificate relied upon by the petitioner regarding fallow land and exclude such area as may be determined to be actually fallow and unusuable. 6 wp2253.sxw (emphasis added) 10 The said order holds that the area of the share of the major son will have to be excluded. However, the Additional Commissioner was directed to hold a fresh enquiry through SLDT and re-assess the total holding of the petitioner after excluding the area which was already declared as surplus under the unamended Act and to take possession for distribution. Perusal of the impugned order shows that the effect of the decree passed in Special Civil Suit no.59 of 1969 has not been considered at all. Moreover, the effect of the gift deed executed on 6 th October 1948 by the original petitioner to his wife has not been considered. I find that in paragraph 9 of its Judgment, the Civil Court has found the gift deed to be legal and valid and in fact, it was held that the lands gifted under the said deed were not available for partition. As stated earlier, the said suit for partition was filed by the major son of the petitioner. Perusal of the order of the Additional Commissioner shows that the effect of the decree and the effect of the gift deed has not been considered. Hence, only option left for this Court is to set aside the order of the Additional Commissioner with a direction to re-consider the matter after taking into consideration the decree passed in Special Civil Suit no.59 of 1969 as well as the gift deed. The learned Additional Commissioner will have to consider whether the decree passed in Special Civil Suit no.59 of 1969 has attained finality. 11 In the circumstances, I pass the following order : i) Impugned order dated 9th February 1990 is quashed and set aside and the revision application bearing 7 wp2253.sxw no.865 of Solapur is restored. The same shall be heard and decided afresh by the Additional Commissioner within a period of four months from the date on which an authenticated copy of this order is produced before the learned Additional Commissioner. ii)The learned Additional Commissioner will take into consideration the effect of the decree passed in Special Civil Suit no.59 of 1969 and the gift deed dated 6th October 1948. iii)It is obvious that while deciding the revision application afresh, the lands which are excluded from the holding of the petitioner under the impugned order will remain unaffected by the order of remand and that the remand is confined to are of of 38H 75R which is declared as surplus under the impugned order. iv)Rule is partly made absolute with no order as to costs. JUDGE