bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 457 OF 1992 PETITION NO. 457 OF 1992 PETITION NO. 457 OF 1992 1. Smt.Yamunabai Krishnaji Sawant 2. Shri Mohan Krishnaji Sawant Both residing at Ambiste Khurd, Tal.Wada, Dist. Thane. ... Petitioners v/s The State of Maharashtra & ors. ... Respondents Mr.G.S.Godbole for the petitioners. Mr.S.K.Chinchalikar, A.G.P. for Resp.Nos.1 and 2. Mr.Jitendra M. Palhade i/by R.V.Govilkar for the respondent No.3. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 12TH NOVEMBER, 2008 12TH NOVEMBER, 2008 12TH NOVEMBER, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. This petition challenges the order dated 27.9.1991 passed by the Additional Commissioner, Konkan Division, in Ceiling Revision No.2021 of 1988. By the impugned order, it has been declared that the petitioners are holders of surplus lands to the extent of 86 acres. 2. The petitioners are holders of lands in Village Ambiste Khurd, Taluka Wada, Dist. Thane. Petitioner No.1’s husband died on 29.11.1959 leaving behind two 2 sons and a daughter. Petitioner No.2 is one of her sons. Petitioner No.1 filed her return under Section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (in short, "the Ceiling Act"). Although petitioner No.2 was a major on the commencement date i.e. 2.10.1975, he was shown as a minor in the return filed by the petitioner No.1. The Surplus Land Determination Tribunal in Ceiling Case No.95 came to the conclusion that the petitioners held 62 acres 17 gunthas and 13 anas. The Tribunal concluded that the petitioners, therefore, were holding excess land of 8 acres 18 gunthas 18 anas after deducting 54 acres which was the ceiling limit for one unit. This order of the Tribunal was passed on 26.3.1976. 3. The petitioners never challenged the order at any point of time. The Additional Commissioner invoked the provision of Section 45(2) of the Ceiling Act and issued a show cause notice to the petitioners. The petitioners filed their written statement. The Additional Commissioner concluded after hearing the petitioners that the total area held by them was 97 acres 32 gunthas and 14 anas and not the area determined by the Surplus Land Determination Tribunal. The Additional Commissioner came to the conclusion that the order of the Tribunal was required to be set aside in view of the 3 fact that certain other lands which the petitioners were holding had not been considered by the Tribunal while deciding what was the surplus land held by the petitioners. While doing so, the Additional Commissioner directed that 8 acres 18 gunthas which had already been declared surplus should not be refused under any circumstances. This order was passed on 30.4.1982. 4. After remand, the matter proceeded with the Tahsildar and Surplus Land Determination Tribunal. The School Leaving Certificate of petitioner No.2 was produced indicating that his date of birth was 1.6.1975. Accordingly, the Tribunal concluded that the petitioner No.2 being a major, was entitled for a separate unit. The Tribunal calculated the total holdings at 66 acres 26 gunthas and 3 anas and held that 12 acres 26 gunthas and 3 anas were surplus, over 54 acres to which the petitioners were entitled under the Act. The surplus land declared by the earlier order dated 26.3.1976 had already been handed over to the State Government. Accordingly, the Tribunal directed that 3 acres 33 gunthas and 3 anas in addition should be handed over to the Government as excess land under the Act. This order was passed on 12.9.1986. 4 5. It appears that the Additional Commissioner conducted an enquiry and found in 1988 that the school records show that there were some interpolation with respect to the date of birth of the 2nd petitioner. Therefore, a show cause notice was issued by the Additional Commissioner to the petitioners on 4.10.1990. A detailed written statement was filed by the petitioners both on the question of the possession in the revision proceedings as well as on merits. 6. The revision was finally decided on 27.9.1991 wherein it was held that the petitioners were not holding excess land over and above the amount calculated by the Tribunal. 7. Various contentions were raised by the petitioners on merits as to why a show cause notice should not be acted upon and that excess land held by them as recorded by the Tribunal. However, I need not advert to these contentions as it appears that the initiation of action under Section 35(2) of the Act is belated and well above three years from the date of the order of the Tribunal. 8. Section 45 of the Act provides that the State Government shall have the same authority and control over the officers authorised under Section 27, the 5 Collectors and the Commissioners acting under this Act, as they do in the general and revenue administration. Sub-section (2) of Section 45 provides that the State Government may, suo motu or on an application made to it by the aggrieved person, at any time, call for the record of any inquiry or proceedings under Sections 17 to 21, the State Government may then, after giving an opportunity to the party effectively to be heard, pass such orders with respect to the validity or propriety of any enquiry or proceedings under those sections. The first proviso to sub-section 45(2) stipulates that no such enquiry may proceed or can be initiated beyond the period of three years from the date of the declaration of surplus land. The learned counsel for the petitioners has reiterated the submissions made on behalf of the petitioners before the Commissioner in Ceiling Case No.2021 of 1988. He however has stressed on the fact that the impugned order could not have been passed since the initiation of the enquiry was beyond the period of three years from the date of the determination of the Tribunal. He has brought to my notice the judgment of this Court in the case of Lotan Lotan Lotan Fakira Fakira Fakira Patil v/s State of Maharashtra & ors., reported Patil v/s State of Maharashtra & ors., reported Patil v/s State of Maharashtra & ors., reported in in in 2002 (1) Mh.L.J. 255. 2002 (1) Mh.L.J. 255. 2002 (1) Mh.L.J. 255. A Single Judge of this Court has held that unless there is a justification for issuance of notice beyond the period of three years, 6 assuming the application of mind to the matter by the authority was within the period of three years, the authority could not initiate any proceedings under Section 45(2) of the Act. The facts involved in Lotan Lotan Lotan Fakira’s Fakira’s Fakira’s case (supra), were similar to the facts in the present case. The learned Judge has held thus - "6. Bare reading of the above observations in the impugned order discloses that the request for scrutiny of the record and exercise of powers under Section 45(2) of the said Act by the competent authority under the said section was received by the said authority on 17.6.1980. Thereafter, records were scrutinized by the concerned authority, and prima facie, disclosed that the petitioner was the holder of surplus land. Therefore, notice was issued on 25.3.1982 to the petitioner in exercise of the powers under section 45(2) of the said Act. In other words, the scrutiny of the records on application of mind by the concerned authority to exercise powers under section 45(2) was done during the period from 18.6.1980 to 24.3.1982. Nowhere in the impugned order it is disclosed that as to on what particular date or during which days, during the said period between 18.6.1980 to 24.3.1982 the scrutiny of the records was made and the authority had applied its mind to arrive at prima facie finding about the petitioner being the holder of surplus land. Undisputedly, the petition in hand was filed initially before the Bombay High Court at Bombay on 5th December, 1984. It was circulated for hearing on 7th December, 1984 and accordingly, it came up for hearing on the said day and after hearing the parties, Rule was issued and by way of interim order, further proceedings in the matter were stayed. The matter was subsequently, transmitted to this Bench at Aurangabad some times in the year, 1996. The matter, when originally filed in the Bombay High Court at Bombay and was registered as Writ Petition No.4960 of 1984 and on transfer to this Bench, it was 7 registered as Writ Petition No.1746 of 1996. Yet the respondents have not filed any affidavit in reply disclosing the exact date on which the authority had applied its mind to invoke the powers under section 45(2) of the said Act. The respondent has also not made available any record in the matter to this Court so as to ascertain as to when the authority had applied its mind. There is nothing placed on record to show that there was any justification for issuance of notice beyond the period of three years, if the application of mind was within the period of three years. In case, the authority had applied its mind within three years, then there is nothing on record to show as to what prevented the authority from issuing notice within the period of three years. In the circumstnces, there is absolutely no material on record to show that the authority had in fact, applied its mind within the period of three years prescribed under the first proviso to section 45(2) of the said Act. Merely saying in the impugned order that the authority had scrutinized the records and had arrived prima facie finding that the petitioner was holder of surplus land consequent to receipt of letter dated 17.6.1980 would not disclose the fact that the authority had in fact, applied its mind within the period of three years and more so, when the notice in question on application of mind was issued on 25.3.1982. The records apparently do not disclose a specific date of application of mind while at the same time, it disclose that the notice on application of mind was issued on 25.3.1982 and, therefore, what can be presumed is that the application of mind was within reasonable period prior to issuance of notice and considering the same, it cannot be construed that the authorities had applied mind much prior to the date of issuance of notice. Apparently, therefore, there was no application of mind to exercise powers under section 45(2) of the said Act within the period of three years from the date of order dated 7.3.1978 and hence, as rightly submitted by the learned Advocate for the petitioner, exercise of powers under the said provision was beyond the period of limitation and, therefore, without jurisdiction." 8 9. Mr.Chinchalikar, A.G.P. has sought an adjournment to file an affidavit after the completion of the submissions of the learned advocate for the petitioners. In my opinion, such an adjournment cannot be granted as the respondents were aware of the matter being listed. This is a matter of 1992 and, therefore, there is no need to grant any adjournment to the respondents. 10. Mr.Chinchalikar submits that the three years’ period must be calculated from the year 1988 as that was the time when the Assistant Collector brought to the notice of the Commissioner the fact that there was an interpolation in the birth date of the petitioner No.1 as recorded by the school. He submits that the relevant date would be 1988 and not 1986 when the Tribunal passed the order. According to me, the show cause notice has been issued within the period required under Section 45(2) as it was issued in 1990 and the report of the Assistant Collector was submitted to the Commissioner in 1988. 11. This submission of the learned A.G.P. cannot be accepted. The period contemplated under Section 45(2) is the period from the date of the order of the Tribunal 9 or from the date of the application of mind by the Commissioner. The Tribunal passed this order in 1986 and the Assistant Collector had informed about the so-called interpolation in 1988. It was incumbent on the respondents to issue a show cause notice by 1989. Not having done so, the entire action is vitiated. 12. In view of this, the order impugned is set aside. The order of the Tribunal which has not been challenged by the petitioners stands confirmed. 13. Writ petition allowed. Rule made absolute. No order as to costs.