( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 579 OF 1993 The State of Maharashtra PETITIONER VERSUS 1. Vijaykumar s/o Ganeshrao Deshmukh, R/o Limbala (Dau), Tq. Latur. 2. The Member, Maharashtra Revenue Tribunal, Aurangabad RESPONDENTS …. Mr. S.V. Kurundkar, Additional Govt. Pleader for the petitioner/State. …. [CORAM : V.R. KINGAONKAR, J.] [DATE : 13th August, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner – State impugns judgement and order rendered by learned Member of the Maharashtra Revenue Tribunal, Aurangabad (M.R.T.), in appeal No. 1/A/92-L, which was preferred by the respondent No. 2. By that judgement and order, the learned Member of the M.R.T. allowed the appeal and was pleased to set aside the judgement and order rendered by the Surplus Lands Determination Tribunal (S.L.D.T.) in the proceedings under the Maharashtra Agricultural lands (Ceiling on Holdings) Act, 1961 (for short, “the Maharashtra Ceiling on Holdings Act”). ( 2 ) 2. The background facts giving rise to the present petition may be briefly stated as follows : One Ganeshrao Deshmukh, who was father of the respondent No. 1, had filed Return under section 12 of the Maharashtra Ceiling on Holdings Act. He indicated that he was having holding of 215 acres and 34 gunthas land, but was not a surplus land holder because of the fact that he was not in actual possession of a major chunk of the said land and that after execution of the uncultivable i.e. pot kharab land and having regard to the entitlement of the family unit, there was not surplus land with him. The S.L.D.T., Ausa noticed that the area of the uncultivable land was erroneously shown by the land holder. The S.L.D.T. allowed deduction of 5 acres area covered by the portion which allegedly had become uncultivable due to passing of a river through the land found with the land owner. The S.L.D.T. also considered deduction of the land on assumption of notional partition between the land owner i.e. Ganeshrao Deshmukh and his two (2) major sons. Considering the relevant documents and the entries in the 7/12 record, the S.L.D.T. came to the conclusion that the land owner i.e. Ganeshrao Deshmukh was having excess 6 acres 32 gunthas land towards eastern side of land Survey No. 75, situated at Borphal, Taluka Ausa. This finding of the S.L.D.T. was suo ( 3 ) motu revised by the learned Additional Commissioner, Aurangabad in the proceedings of revision under section 45 (2) read alongwith Government Notification dated 03-06-1965 on the subject. The learned Additional Commissioner held that the pot kharab land in Survey Nos. 1 and 9 of village Limbala was not actually uncultivable land. The learned Additional Commissioner held that the S.L.D.T. allowed 5 acres pot kharab land lost for the purpose of cultivation due to passage of the river, only on the basis of a certificate issued by the Talathi was not proper. Therefore, the learned Additional Commissioner was pleased to set aside the findings of the S.L.D.T., Ausa, with direction to remand the matter to the S.L.D.T. For de novo enquiry and decision. Thereafter, the S.L.D.T. Confirmed the same finding. Again, the learned Additional Commissioner suo motu revised the order of the S.L.D.T. and remanded the matter to the Tribunal for afresh enquiry and decision. It was, however, directed that the S.L.D.T. shall keep intact the surplus area so declared to the extent of 6 acres 32 gunthas, as was already confirmed. Consequent upon second remand of the same matter, the S.L.D.T. again conducted the exercise of examining the record, making deductions as may be permissible under the provisions of the Maharashtra Ceiling on Holdings Act and ultimately, reached ( 4 ) conclusion that deceased Ganeshrao Deshmukh was holder of 15 acres 6 gunthas surplus land. That land was to be distributed amongst the eligible landless persons for which option was called from the land owners or land owners' legal representatives as required under the provisions of the said Act. The respondent No.1 – Vijaykumar preferred appeal No. 1/A/92-L before the M.R.T. The M.R.T. allowed the appeal vide the impugned judgement and order. The M.R.T. held that 7 acres land was made uncultivable due to passing of river through land Survey No. 9. The M.R.T. scrutinized the Returns in detail and held that the deceased land owner was not holding any surplus land. Consequently, the judgement and order of the S.L.D.T. was set aside and deceased Ganeshrao Deshmukh was declared as non-surplus holder. Since the petitioner – State was aggrieved by the said order declaring Ganeshrao Deshmukh as non-surplus holder, this petition was filed challenging the M.R.T.'s order. 3. Heard learned Additional Government Pleader Mr. Kurundkar for the petitioner-State. Mr. P.K. Joshi, appearing for the respondent No. 1 is not present. An adjournment was sought on his behalf by Mr. S.D. Karkare, advocate, on the ground that Mr. P.K. Joshi has filed leave note. The request ( 5 ) has been rejected, in view of the fact that the writ petition is pending since 1993 and is very old. It further appears that Mr. Kapadia A.H. And Mr. H.G. Kale, advocates had also appeared for the respondent No.1, but neither of them is present today. Nor either of them has been rec-used and discharged by this Court under any specific order. 4. With the able assistance of Mr. Kurundkar, learned Additional Government Pleader, I have gone through the impugned judgement and order. Mr. Kurundkar points out that the M.R.T. Assumed that 7 acres cultivable land was lost due to passage of river through land Survey No. 9 and, therefore, it was decided that it shall be excluded from the holding of deceased Ganeshrao Deshmukh. But this exercise is faulty for the reason that 7/12 record does not corroborate such finding. He would further submit that there was no special survey report or any authentic evidence to grant such excessive exclusion from the holding of deceased Ganeshrao Deshmukh. He submits that the very purpose of remanding the matter to the S.L.D.T. by the Additional Commissioner was to reconsider the issue regarding the land available for exclusion from the holding of deceased Ganeshrao Deshmukh, because the S.L.D.T. had granted excessive exclusion in the past. Mr. Kurundkar, ( 6 ) therefore, submits that the M.R.T., in the exercise of appellate jurisdiction, erroneously allowed more exclusion of the land without any substantial reason and without there being authentic record pertaining to unavailability of the land for cultivation. 5. Perusal of the impugned judgement reveals that the calculations so done by the learned Member of the M.R.T. are on faulty basis. The learned Member of the M.R.T. allowed exclusion of 7 acres land out of Survey No. 9 on basis of certificate issued by the Revenue Inspector. It is difficult to countenance such reasoning. The M.R.T. further held that the respondent No. 1 and his brother Rajpal became owners of land to the extent of 16 acres 26 gunthas each and those lands were to be treated as their self-acquired property on basis of such will-deed dated 04-05-1969. It was for such reason that a total area of 33 acres 12 gunthas was permitted to be deducted from the holding of Ganeshrao Deshmukh. The M.R.T. Held that Anusayabai Rajesaheb Deshmukh was the holder of 66 acres 26 gunthas land out of which she had bequeathed 33 acres 12 gunthas land in favour of respondent No. 1 Vijaykumar and his brother Rajpal and, therefore, the said land out of Survey No. 1A, Survey No.1B and Survey No. 9B, situated at village ( 7 ) Limbala Dev cold be excluded from the holding of deceased Ganeshrao Deshmukh. There is no dispute about the fact that deceased Ganeshrao Deshmukh and his sons were members of the joint family when deceased Ganeshrao Deshmukh had filed the Return under section 12 of the Maharashtra Ceiling on Holdings Act. The S.L.D.T. was required to consider the juxtaposition as on the date of implementation of the Maharashtra Ceiling on Holdings Act. The learned Member of the M.R.T. seems to have re-appreciated the entire record while coming to the conclusion that deceased Ganeshrao Deshmukh was not the surplus land holder. The S.L.D.T. gave reasoning while considering the total holding of deceased Ganeshrao Deshmukh. The learned Member of the M.R.T. did not go into close quarter of such reasons assigned by the S.L.D.T. It appears from the judgement of the S.L.D.T. That there was no ground raised by the respondent No.1 in respect of the deduction permissible on account of self-acquisition due to execution of will-deed by deceased Anusayabai Rajesaheb Deshmukh. It is difficult to comprehend as to how the plea of separate ownership of the respondent No. 1 – Vijaykumar and his brother Rajpal was allowed to be raised by the M.R.T. Considering the fact that the reasons assigned by the M.R.T. are unacceptable and for the first time, the concession was granted in respect of 7 ( 8 ) acres land due to passage of river through the lands Survey No. 9A, held by deceased Ganeshrao Deshmukh, the impugned judgement and order is found to be patently erroneous and illegal. 6. In the result, the petition is allowed. The impugned judgement and order rendered by the M.R.T. is set aside. The matter is remanded to the M.R.T. with direction to restore the appeal and to decide the same afresh after hearing both the sides and on due consideration of the record as well as the earlier grounds taken by the respondent No.1 - Vijaykumar in his appeal memo as well as the claim which was put forth by the deceased land holder, namely, Ganeshrao Deshmukh in the Returns filed by him under section 12 of the Maharashtra Ceiling on Holdings Act, the M.R.T. shall decide the matter afresh within period of six (6) months. The parties are directed to appear before the M.R.T. on 6th September, 2010. Petition is accordingly disposed of. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp579-93 ( 9 )