1 wp 1299.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1299 OF 1992 Uttamrao S/o Sampatrao Thakur (Tour), Age : Major, Occu. : Agril., R/o Hivara (Bk), Tq. Majalgaon, Dist. Beed. .. 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, Majalgaon, Tq. Majalgaon,Dist. Beed. .. Respondents Mrs. Suvarna Zaware, 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 : . This petition is directed against the judgment and order 2 wp 1299.92 dated 18th December, 1991 passed by the Additional Commissioner, Aurangabad in case No. 1979/ICH-R/720. 2. The petitioner herein is resident of village Hivara Bk., Tq. Majalgaon, Dist. Beed. He had filed returns U/Sec. 12 of the Ceiling Act in form No. III in the year 1975. He had shown his total holding to the extent of 56 Acres and 30 Guntha total dry crop land. The petitioner has shown total 6 members in the family. The S. L. D. T. initiated enquiry proceeding against the petitioner in File No. 75/ICH/740. After full fledge enquiry and after recording statement of the petitioner and after obtaining the report of the talathi and after going through the entire documents, the S. L. D. T. came to the conclusion that the petitioner's holding is only 56 Acres and 30 Guntha. There are 6 members in his family. Therefore, he is entitled to hold total 64 Acres and 34 Gunthas of land. Therefore, the S. L. D. T. concluded that the area acquired or held by the petitioner is less than entitlement. Therefore, he is not surplus holder. The said judgment and order passed by the S. L. D. T., Majalgaon on 06.05.1976. It is the case of the petitioner that, the respondent No. 2/Additional Commissioner, Aurangabad exercising powers U/Sec. 45(2) of the Ceiling Act reopened suo-moto enquiry in the 3 wp 1299.92 year 1991. The Commissioner first time issued notice of suo- moto enquiry on 04.04.1991 in File No. 79/ICH-R/720 and first time communicated the grounds of revision in the said notice. Therefore, according to the counsel for the petitioner, though the notice reveals that the memorandum of revision was opened in 1979, but the notice of revision is issued and served on the petitioner first time in the year 1991 i. e. after 15 years from the order passed by the S. L. D. T. It is the case of the petitioner that, the Commissioner has not called for record and scrutinized the same and then taken the conscious decision. The record shows that dates are manipulated to show that the enquiry is reopened in the year 1979. Therefore, according to the petitioner, such enquiry which is beyond the statutory period as prescribed U/Sec. 45(2) of the said Act is not permissible. 03. The learned counsel for the petitioner submitted that, though the notice reveals that the memorandum of revision opened in the year 1979, however, the petitioner has received the notice only in the year 1991 first time. It is further submitted that, mere opening of memorandum of revision is not sufficient. The requirement of the Sec. 45(2) of the Ceiling Act mandates that, there should be shown application of the mind by the authority to the facts of the case by calling the record from the S. 4 wp 1299.92 L. D. T. The learned counsel in support of her contention placed reliance on various judgments of this Court and submitted that, mere opening of memorandum of revision within 3 years cannot be said to be shown application of mind and further the notice issued by the Additional Commissioner to the petitioner after laps of 15 years is beyond the statutory period prescribed U/Sec. 45(2) of the said Act. Therefore, according to the learned counsel for the petitioner impugned order cannot be sustained. 04. On the other hand, the learned Government Pleader appearing for the state submitted that, within 3 years memorandum of revision was opened in that sence, there was initiation of the enquiry within three years from the date of the order of the S. L. D. T. Therefore, it cannot be said that the proceedings are initiated beyond the period of three years from the order of S. L. D. T. Therefore, the learned A. G. P. would pray that this petition may be dismissed. 05. Upon perusal of the grounds taken in the petition and upon perusal of the impugned order and also other documents placed on record, I am of the opinion that, in the facts of this case, there is no conscious application of mind by the Additional Commissioner by calling record from the S. L. D. T. within three years from the date of the judgment and order passed by the S. L. 5 wp 1299.92 D. T. From the perusal of the impugned order there is no mention when the records were summoned by the Additional Commissioner and whether there is conscious application of mind by the Additional Commissioner to the documents and facts of the case and thereafter the Additional Commissioner has reached to the decision to initiate the suo-moti enquiry. Therefore, it is to be held that, the notice issued by the Additional Commissioner in the year 1991 is beyond the statutory period prescribed under the Act. It was incumbent upon the Additional Commissioner to call for record from the S. L. D. T. and after conscious application of mind to the facts of the case, then to take the decision to initiate the enquiry by giving notice to the petitioner within reasonable time. It is not in dispute that first time the notice is issued to the petitioner in the year 1991. By any stretch of imagination it cannot be said that the notice issued in the year 1991 i. e. after period of 15 years is within reasonable period. For all these reasons I am of the considered opinion that, the notice impugned in this petition cannot be sustained. 06. 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 6 wp 1299.92 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 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 7 wp 1299.92 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 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 8 wp 1299.92 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 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 9 wp 1299.92 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. 07. Therefore, this petition is allowed in terms of prayer clause "C". The impugned notice dated 18th December, 1991 in File No. 1979/ICH-R/720 issued by the Additional Commissioner, Aurangabad is quashed and set aside. The Rule is made absolute in above said terms. The petition stands disposed of. 09. This Court appreciates the sincere efforts taken by the learned counsel for the petitioner in effectively arguing the matter and assisting this Court to come to the correct conclusion. [S. S. SHINDE, J.] bsb/March. 11