1 wp 599.93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 599 OF 1993 Uttamrao S/o Shripatrao Ghatge, Age : Major, Occu. : Agril., R/o Salapuri, Tq. & Dist. Parbhani. .. Petitioner Versus 1. The State of Maharashtra Through Government Pleader, High Court, Aurangabad. 2. The Additional Commissioner, Aurangabad Division, Aurangabad. 3. Surplus Land Determination Tribunal, Parbhani, through the Tahsildar, Parbhani. .. Respondents Ms. Vaishali Deshmukh, Advocate h/f Shri V. D. Salunke, Advocate for the Petitioner. Shri P. P. More, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. DATE : 10TH MARCH, 2011. ORAL JUDGMENT : . Heard learned counsel appearing for the petitioner and 2 wp 599.93 learned Additional Government Pleader for the respondent/State. This petition is directed against the judgment and order dated 25th February, 1991 passed by the Additional Commissioner, Aurangabad in file No. 1991/ICH-R/4. 2. The petitioner herein is resident of village Salapuri, Tq. & Dist. Parbhani. He is original land holder who filed returns in Form No. III, as required U/Sec. 12 of the Ceiling Act. The petitioner had shown total 4 members in his family unit. He has shown his total holding to the extent of 98 Acres 30 Gunthas. The holding shown is total dry crop lands. The S. L. D. T. after detailed enquiry and after recording statement of the petitioner and also statement of Talathi and after appreciating the documents by judgment and order dated 08th January, 1976 came to the conclusion that, the holding of the petitioner is 67 Acres 32 Gunthas and after excluding 13 Acres 41 Guntha. The S. L. D. T. directed to delimit the said land from survey No. 130. 03. The counsel for the petitioner submits that, said surplus land has been already dlimited and distributed to the landless persons in the year 1976 and no appeal was preferred by the petitioner challenging the order of S. L. D. T. Therefore, that order attended finality. It is further argued that the 3 wp 599.93 Commissioner by order dated 26.11.1979 remanded the case to the S. L. D. T. and directed the S. L. D. T. to make a fresh enquiry in the matter. Accordingly the S. L. D. T. by judgment and order dated 15.03.1980 maintained its earlier decision. According to the counsel for the petitioner, the Additional Commissioner second time exercised the powers U/Sec. 45(2) of the said Act and initiated suo-moto enquiry by issuing notice to the petitioner in the year 1986. According to the counsel for the petitioner, such notice is beyond the statutory period of 3 years. In fact from the first order of S. L. D. T. in 1976, already the proceedings were initiated by the Commissioner and by his order dated 26.11.1979 the matter was remanded back to the S. L. D. T. Therefore, second time it was not permissible for the Additional Commissioner to re-initiate the suo-moto enquiry. According to the learned counsel for the petitioner, only once such powers can be exercised by the Additional Commissioner. According to the learned counsel for the petitioner, the powers exercised by the Additional Commissioner, second time are beyond the jurisdiction and scope of Sec. 45(2) of the said Act. Therefore, relying on the ground in the petition and oral submissions made across the bar, the counsel for the petitioner would submit that, this petition may be allowed. In support of her contention she placed reliance on various pronouncements of this Court. 4 wp 599.93 04. On the other hand, the learned Government Pleader appearing for the state submitted that, after concsious application of the mind, second time decision was taken to re- initiate the suo-moto enquiry. There is no any express bar under the provisions of the said Act not to initiate the enquiry second time. Therefore, according to the learned A. G. P. the present petition is devoid of any merit and same may be dismissed. 05. Upon hearing the counsel for the respective partis, in my opinion, once the S. L. D. T. has concluded that petitioner was declared surplus and he did not file the appeal assailing the order of S. L. D. T. in first round and same land was distributed to the persons to whom it was allotted by the Government, the Additional Commissioner was not justified even to initiate the first enquiry. However, there was no challenge to the said enquiry/order passed by the Additional Commissioner which was passed as back as in the year 1979. Therefore, said order attended finality. Accordingly the matter was remanded back to the S. L. D. T. Again the S. L. D. T. by order dated 15.03.1989 maintained its earlier decision and held that the order passed by the S. L. D. T. in the year 1976 cannot be interfered and same is in consonance with the material brought on record. 5 wp 599.93 06. Upon perusal of the entire documents placed on record and particularly the impugned order assailed in this petition, there is no mention about the conscious application of mind by the Additional Commissioner to the documents and facts of the case. It is not mentioned in the said order that, the Commissioner felt it necessary to reopen the suo-moti enquiry even on second occasion. Therefore, in my opinion, the Additional Commissioner unconscious of mind has initiated the enquiry second time which was absolutely unwarranted. The Additional Commissioner should have kept in mind the provisions of Section 45(2) of the Ceiling Act before initiating the suo-moti enquiry second time. 07. 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 6 wp 599.93 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 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. 7 wp 599.93 State of Maharashtra and Others, 2002 (2) Mh.L.J.255, this 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 8 wp 599.93 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 by the Additional Commissioner on 30.03.1993 is beyond limitation prescribed under section 45 (2) of the said Act. 9 wp 599.93 08. Therefore, viewed from any angle the order passed by the Additional Commissioner dated 25th, February, 1991 in file No. 1991/ICH-R/4 is quashed and set aside. The petition is allowed in terms of prayer clause "B". The Rule is made absolute in above said terms. The petition stands disposed of. [S. S. SHINDE, J.] bsb/March. 11