1 wp3249.93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3249 OF 1993 SIDHLING RANGNATH GHONGADE, Age: major Occ: Agril., R/o. Ainapurwadi, Ta.Paranda, District Osmanabad. ...APPELLANT VERSUS 1. Addl. Divisional Commissioner, Aurangabad Division, Aurangabad. 2. State of Maharashtra. ...RESPONDENTS ... Mr. S.C. Bora, Advocate for petitioner. Mr. K.B. Choudhary, A.G.P. for respondents. ... CORAM: S.S. SHINDE, J. DATE : 9TH MARCH, 2011 ORAL JUDGMENT : The writ petition takes exception to the judgment and order dated 30-03-1993 passed by the 2 wp3249.93 Additional Divisional Commissioner, Aurangabad Division, Aurangabad in Case No.1978-ICH/R/1796. 2. The petitioner herein is a resident of Ainapurwadi, Taluka Paranda District Osmanabad. On 25-07-1977 deceased land holder Rangnath Gyanba Ghongade i.e. father of petitioner, had submitted return under the provisions of Amended Ceiling Act whereby he had shown that his total holding is 76 acres 29 gunthas. The Surplus Land Determination Tribunal, (For short, "S.L.D.T.") Paranda, by judgment and order dated 07-07-1978 in Ceiling Case No.75- Ceiling-VIII-651 was pleased to observe that holding of the deceased land-holder Rangnath was 90 acres 34 gunthas. However, surplus area was not determined by the Tribunal on the ground that the Tribunal had no jurisdiction to modify the order passed by the said Tribunal on 11-11-1976 in File No. 76-VIII-Ceiling-505 in case of Malappa Changasappa Warad where the land S.Nos.36, 54 and 3 wp3249.93 58 were included and considered for the purpose of inquiry into the holding of said land holder. 3. It is the case of the petitioner that the Additional Divisional Commissioner, Aurangabad Division, Aurangabad, without calling record within statutory period of 3 years as provided under Section 45(2) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (For short, "Said Act"), for revising order passed by S.L.D.T. Paranda and without issuing notice within period of three years or within reasonable period from the date of order passed by the S.L.D.T. Paranda, issued notice on 20-01-1992, thereby initiating suo moto inquiry. Therefore, according to the petitioner, said suo moto inquiry was initiated after lapse of period of 14 years from the date of order of S.L.D.T. and therefore, said notice was beyond statutory period and without calling record and applied mind to the facts of the case within three years from the date of order of the S.L.D.T. and as such, said notice 4 wp3249.93 cannot be acted upon. According to learned Counsel for the petitioner, entire proceedings are vitiated in as much as the Commissioner has no power or authority under the said Act for initiating proceedings of suo moto inquiry beyond statutory period of three years. It is the case of the petitioner that, in the instant case, the judgment and order passed by the S.L.D.T. is dated 07-07-1978 and the proceedings for suo moto revision have been initiated for the first time in the month of January 1992 i.e. after 13-1/2 years and as such, the said proceedings were hopelessly time barred and the Commissioner had no jurisdiction or authority to revise order passed by the S.L.D.T. in the year 1978. It is further case of the petitioner that, as the petitioner original land holder has expired on 09-08-1982 and the proceedings for suo moto revision were initiated after ten years of the demise of the original land holder, that too, without bringing on record the 5 wp3249.93 legal heirs of the original land holder and as such, considering from any angle and at any rate, the entire proceedings of suo moto revision initiated by respondent No. 1 have been vitiated, firstly for the reason that the powers of suo moto revision are not to be exercised beyond the period of limitation prescribed under Section 45(2) of the said Act and secondly proceedings were initiated against a dead person, that too, after ten years of the date of original land holder. Therefore, according to the petitioner, the petition deserves to be allowed. 4. On the other hand, learned A.G.P. submitted that the Additional Commissioner, Aurangabad Division, Aurangabad within its power, initiated proceedings and therefore, this Court may not interfere in the impugned judgment and order passed by the Additional Commissioner. 5. I have heard Counsel appearing for the parties at length. 6 wp3249.93 6. Admitted facts in the case are that, the S.L.D.T. has passed order on 07-07-1978. It is further admitted position that, the Additional Commissioner did not call for record from the S.L.D.T. within three years from the date of judgment and order passed by the S.L.D.T. Paranda. It is further admitted position that, the Additional Commissioner though issued memorandum on 23-10-1978, however, did not apply his mind to the case in hand and after lapse of 14 years issued notice initiating suo moto inquiry. Therefore, upon careful perusal of the pleadings in the petition and documents brought on record, it clearly appears that the Additional Commissioner has not applied his mind to the facts of the case and did not act within statutory period provided under Section 45(2) of the said Act. The Additional Commissioner should have called for record from the S.L.D.T. and further after proper application of mind, should have issued notice to the petitioner. However, from 7 wp3249.93 the perusal of the documents brought on record, it clearly appears that the Additional Commissioner issued notice to the petitioner for suo moto inquiry first time in the year 1993. By impugned order dated 30-03-1993, the Additional Commissioner has set aside order of the S.L.D.T. and remanded the matter back to it for fresh inquiry. In my opinion, such notice/order impugned in this petition was hit by the statutory provisions and cannot be sustained. 7. This Court had occasion to interpret provisions of Section 45 (2) of the said Act, in the 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 8 wp3249.93 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 9 wp3249.93 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. State of Maharashtra and Others, 2002 (2) Mh.L.J.255, this Court in the facts of the case held notice under Section 45 (2) of the Act for suo-motu revision was issued on 25.03.1982 and not within the period of three years from the date of order of the S.L.D.T. dated 03.07.1978 and 10 wp3249.93 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 11 wp3249.93 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 12 wp3249.93 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. 8. Therefore, in the light of discussion hereinabove and in the light of authoritative pronouncements of this Court cited supra, in my opinion, impugned judgment and order cannot be sustained and hence, cannot be sustained and same is quashed and set aside. 9. Writ Petition is allowed in terms of prayer clause (C) and disposed of. 13 wp3249.93 10. Rule made absolute, in above terms. sd/- [ S.S. SHINDE, J.] sut/Mar11/wp3249.93