1 WP 2029.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2029 OF 1992 1. Munjaji S/o Marotrao Khupse, Age : 30 Years, Occu. : Agril., R/o Borwand (Kh), Tq. Parbhani, Dist. Parbhani. 2. Rajeshwar S/o Marotrao Khupse, Age : 28 Years, Occu. : Agril., R/o As above. 3. Datta S/o Marotrao Khupse, Age : 16 Years, Occu. : Nil, U/g of real mother Smt. Bhartibai w/o Marotrao Khupse, R/o As above. 4. Bhartibai W/o Marotrao Khupse, Age : Major, Occu. : Household, R/o As above. 5. Subhadrabai W/o Marotrao Aged about 45 Years, R/o as above. .. .. Petitioners Versus 1. The State of Maharashtra, Through Government Pleader High Court, Aurangabad Bench Aurangabad. 2 WP 2029.92 2. The Additional Commissioner, Aurangabad Division, Aurangabad. 3. The Chairman, Surplus Land Determination Tribunal, Parbhani, Dist. Parbhani. .. .. Respondents Shri B. N. Patil, Advocate for the Petitioner. Shri D. R. Kale, A.G.P. for the Respondent/State. CORAM : S. S. SHINDE, J. DATE : 07TH MARCH, 2011. ORAL JUDGMENT : . This petition takes exception to the notice issued by the Officer of the Divisional Commissioner, Aurangabad Division, Aurangabad in File No. 1987/ICH-R/61 dated 13th July, 1992. 2. The petitioners are resident of Borwand (Kh), Tq. Parbhani. They are the legal representatives of land holder Marotrao Khupse, who died on 29.12.1981. The petitioners have filed this petition in the capacity of legal representatives of deceased Marotrao Khupse challenging the notice dated 13.07.1992 issued by the respondent No. 2 U/Sec. 3 WP 2029.92 45(2) of the Maharashtra Agricultural Land (Ceiling on Holdings) Act 1961. It is the case of the petitioners that, the deceased Marotrao Khupse filed return under Section 12 of the Maharashtra Agricultural Land (Ceiling on Holdings) Act 1961 showing his holding 76 Acres and 26 Gunthas during the period 26.09.1970 to 02.10.1975. The S. L. D. T. after going though the relevant record came to the conclusion that the deceased Marotrao is not holding surplus land and, therefore, he was declared as non surplus holder by judgment and order dated 30.03.1976. The S. L. D. T. while declaring the Marotrao as non surplus holder have given benefit of Section 6 of the Ceiling Act and as the family of deceased Marotrao having 8 members on the date of returns and, therefore, it was held that, the deceased Marotrao is entitled to retain 86 Acres and 16 Guntha land as per the provisions of Ceiling Act. 3. After the decision of S. L. D. T., Parbhani, no appeal was filed by the petitioners against the said order and order attended finality. The Additional Commissioner/respondent No. 2 initiated a suo moto proceeding U/Sec. 45(2) of the Ceiling Act in the year 1992. The notice was issued to the petitioners calling 4 WP 2029.92 upon the petitioners to file their say to the above notice. The petitioners appeared through their cousin Manikrao and stated that, they have already filed their say which would suit. After considering the evidence on record, the learned Additional Commissioner, Aurangabad by its judgment and order dated 07th December, 1982 was pleased to set aside the order of S. L. D. T. Parbhani dated 30.03.1976 and the matter was remanded to the S. L. D. T. for fresh enquiry. It is the case of the petitioners that, after remand of the matter to the S. L. D. T., Parbhani, the matter was heard and decided by the Deputy Collector Land Reforms, Parbhani. The Deputy Collector, after going through the relevant record as well as evidence produced by the petitioners, declared that the deceased land holder Marotrao Khupse and his legal representatives are not surplus land holders under the ceiling Act by its judgment and order dated 28.03.1983. Thereby earlier order of S. L. D. T. came to be confirmed. It is the case of the petitioners that, they were surprised when notice dated 13.07.1992 issued by the Additional Commissioner, Aurangabad was served upon them being legal representatives of deceased Marotrao U/Sec. 45(2) of the 5 WP 2029.92 Maharashtra Agricultural Land (Ceiling on Holdings) Act 1961., and therefore, they were called upon by the authority to remain present on 31.07.1992 in the office of District Collector, Parbhani for making their submissions on the point mentioned in the said notice. The petitioners appeared on 31st July, 1992 and sought the adjournment for filing their say to the said notice and the case was adjourned to 29th August, 1992. However, the petitioners have challenged the notice dated 13th July, 1992 before this Court on the ground that suo moto proceeding U/Sec. 45(2) of the Ceiling Act were initiated in the year 1992 and the Additional Commissioner was pleased to set aside the order of S. L. D. T. dated 30.03.1976 and the matter was remanded to the S. L. D. T. for fresh enquiry. After the fresh enquiry the competent authority again held that the petitioners are not surplus holders. Therefore, according to the petitioners again for the same reason notice dated 13th July, 1992 came to be issued which is totally illegal, without application of mind and also not within the statutory period prescribed U/Sec. 45(2) of the said Act. Therefore, the counsel for the petitioner submitted that, this writ petition may be allowed and notice dated 13.07.1992 may be quashed and set aside. 6 WP 2029.92 4. On the other hand the learned Additional Government Pleader vehemently opposed the petition and submitted that, the notice is rightly issued by the Additional Commissioner, Aurangabad U/Sec. 45(2) of the said Act. Therefore, this writ petition is devoid of any merits and same may be dismissed. 5. I have given due consideration to the rival submissions of the learned counsel for the parties. It is admitted position that initially the S. L. D. T. passed the order on 30.03.1976 thereby the father of the petitioners deceased Marotrao was declared non surplus holder. Thereafter on remand order by the Additional Commissioner, again the competent authority declared that the deceased land holder Marotrao and his legal representatives are not surplus land holders. Said part of the order has attended finality. It is admitted position that the notice was issued by the Additional Commissioner on 13.07.1992. Therefore, said notice for suo moto revision was after the period of about 9 years from the date of second order of competent authority on 28th March, 1983. There also appears to be non application of mind on the part of the authority. It further appears that, documents and facts of the case are not properly seen by the Additional Commissioner before issuing notice for suo moto revision. Therefore, in my opinion, since the notice issued by the 7 WP 2029.92 Additional Commissioner on 13.07.1992 was beyond the statutory period prescribed U/Sec. 45(2) of the Ceiling Act, the said notice deserves to be quashed and set aside. 5. 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 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 8 WP 2029.92 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. 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 9 WP 2029.92 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 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 10 WP 2029.92 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. 6. Therefore, in the light of aforesaid discussion the notice dated 13.07.1992 issued by the office of Divisional Commissioner, Aurangabad Division, Aurangabad in File No. 11 WP 2029.92 1987/ICH-R 61 initiating suo moto proceedings U/Sec. 45(2) of Ceiling Act is quashed and set aside. The petition is allowed in terms of prayer clause "B". Rule is made absolute in above terms. The writ petition stands disposed of. [ S. S. SHINDE, J.] bsb/March 11