1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 62 OF 1989. Gangadhar S/o Baburao, Age major, Occ.Agriculture, R/o Village Chandgaon, Tq. Vaijapur, Dist. Aurangabad. ... Petitioner. Versus 1. The State of Maharashtra. 2. The Hon'ble Additional Commissioner, Aurangabad, Divisional Commissioner's Office, Aurangabad. 3. The Tahsildar, Vaijapur Tahsil Office, Taluka Vaijapur, Dist. Aurangabad. ... Respondents. ... Mr.N.D.Sonawane, advocate for the petitioner. Mr.N.N.Jadhav, A.G.P. for the Respondent No.1. ... CORAM : V.R.KINGAONKAR,J. Date : 15.02.2010. 2 ORAL JUDGMENT 1. Challenge in this petition is to order rendered by learned Additional Divisional Commissioner, Aurangabad in Suo-motu Case No. 1978-ICH-R-2899. By the impugned order, learned Additional Commissioner, held that the petitioner was holder of land to the extent of 78 Acres 21 gunthas and, therefore, considering the number of family members and legal position, 13 acres 29 gunthas could be declared as surplus land. 2. The petitioner's father, namely Baburao Rahane, was in possession of lands bearing Gat No.53 admeasuring 46 acres 25 gunthas and Gat No. 128, admeasuring 3l acres 32 gunthas situated at village Chandgaon. The total land in his possession was 78 acres 21 gunthas. Indisputably, the petitioner was his only son. The learned Additional Commissioner assumed, however, that the family consisted of six (6) units including the petitioner, wife of Baburao, Baburao himself etc. It is for such reasons that, considering the units in the family of deceased Baburao and entries in the 7/12 record, 3 which prima facie indicated the possession of 78 acres 28 gunthas land, the learned Additional Commissioner was pleased to hold that he was surplus landholder. 3. Indisputably, deceased Baburao, had filed returns under the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. It was his case that though land Gat No.128, which was originally S.No.19, was shown in his possession yet, it was a mortgaged land. He asserted that Ramza S/o Suka Jadhav and Pandu S/o Punja Jadhav, were the holders of the said land and had filed proceedings for redemption of the land S.No.19 (Gat No.128) vide Case No.66/Red./10/15 filed in the Collectorate. He had come out with a case that there was compromise between the parties in the said proceedings and, therefore, said land S.No.19 (G.No.128) was restored to the possession of the mortgagors i.e. Ramza and another. He contended that land Gat No.128 could not be, therefore, treated as his holding and as such he was not a surplus land holder. The Surplus Land 4 Determination Tribunal, Vaijapur accepted the contentions of the petitioner and held that land Gat No.128 ought to be excluded from his holding. Resultantly, he was not found surplus land holder as such. This order rendered by the Chairman, SLDT on 3l.12.1975 was subjected to suo-motu Revision by the learned Additional Commissioner. The learned Additional Commissioner held that the exclusion of land Gat No.128 from the holding of the petitioner was erroneous because during crucial period between 26.9.1970 till 2.10.1975 the said land was shown in his possession in the relevant revenue record. The learned Additional Commissioner held that the petitioner had not produced satisfactory evidence to prove handing over of possession of Gat No.128 to Ramza and Pandu. The learned Additional Commissioner was, therefore, pleased to reverse the findings of the SLDT and hold that the petitioner was having excess holding to the extent of 13 acres 29 gunthas which was liable to be distributed amongst the eligible persons. 4. Heard Mr.N.D.Sonawane, learned advocate 5 for the petitioner and Mr.N.N.Jadhav, learned A.G.P. for the State. 5. It is important to notice that the petitioner has placed on record copy of the plaint filed in the proceedings of Case No. 66/Red./10/15 in the office of the Collector. It appears that said Ramza Suka Jadhav and Pandu S/o Punja Jadhav, who claimed to be successors of deceased Laxman Jadhav, had alleged that said Laxman was the Shikmidar of S.No.19 (Gat No.128). They had alleged that the said land was their ancestral property. They categorically stated that during period of famine in 1342 Fasli (1931 A.D.) said Laxman had mortgaged the land in question with father of the petitioner. It is important to note that the petitioner was added as defendant No.2 in the said proceedings. The details of the mortgage transaction were stated in the plaint. The said proceedings were initiated on 22.12.1966. At the relevant time there was no indication about amendment to the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (For short, Ceiling Act). 6 Needless to say the concerned parties could not have contemplated that the act will be modified in future and, therefore, some planning was required to be made in order to save land S.No.19 (Gat No.128) from clutches of the Ceiling Act. It appears that the parties entered into a compromise on 30.7.1974. The case of the petitioner was that the mortgaged land was released in favour of original plaintiffs Ramza and Pandu. The SLDT had found that such contention was well founded. It appears that during course of inquiry, the SLDT had issued notice to Ramza and Pandu. They had submitted their written statement. They were heard by the learned Chairman of the SLDT. In fact, they could be the affected persons if land Gat No.128 was to be included in the holding of the petitioner. 6. What appears from the record is that after determination of surplus land by the learned Additional Commissioner, in the suo-motu Revision Petition, option was given to the petitioner to identify the land which could be 7 distributed amongst the eligible persons. He pointed out land Gat No.128 which was included in his holding. The Tahsildar visited the land and found that it was in possession of the third parties i.e. Ramza and Pandu. The Additional Tahsildar, therefore, issued notice dated 30.6.1988 to the petitioner for attending inquiry. The inquiry was conducted U/s 14 of the Ceiling Act. The Additional Tahsildar by order 12.12.1988, held that choice given by the petitioner was not acceptable and, therefore, the declared surplus land to the extent of 13 acres 29 gunthas shall be carved out from another land i.e. Gat No.53 which was in possession of the petitioner. It is after this kind of set back received by the petitioner, he has challenged the order of the learned Additional Commissioner as well as that of the Additional Tahsildar. 7. Basically, it is amply clear that the learned Additional Commissioner did not issue any notice to Ramza and Pandu, in whose favour, land Gat No.128 was allegedly released by the petitioner. In fact, they were parties to the 8 proceedings before the SLDT. They were heard by the learned Member of the SLDT. Obviously, there was material on record, which could be considered by the learned Additional Commissioner in order to examine whether the mortgage transaction existed prior to the stipulated date envisaged U/s 8 of the Ceiling Act. On plain reading of Section 8, it is amply clear that if the transfer was effected prior to 26th day of September 1970 by decree or order of Court then it could be considered. In the present case, mortgage transaction was allegedly entered into by deceased Laxman Jadhav in or about September 1931. The record shows, no doubt, that the petitioner and said Ramza and Pandu had entered into compromise in 1974. Even so, it was necessary to ascertain whether the possession of the petitioner was as a mortgagee and, therefore, he could not have been held as a owner of the said land. It was necessary to examine whether the socalled mortgage transaction was merely a device brought about in order to get exemption of land Gat No.128 from provisions of the Ceiling Act. The learned Additional Commissioner did not 9 enquire into the relevant aspects. It appears that the petitioner was ill-advised to indicate part of land Gat No.128 as surplus land for the purpose of distribution to the eligible persons. 8. Considering the relevant aspects of the matter, I am of the opinion that the learned Additional Commissioner committed patent error while entertaining suo-motu Revision without issuing any notice to Ramza and Pandu. For, they were the affected persons. The petitioner was not found in possession of the said land when the learned Tahsildar visited the land for the purpose of distribution of the excess area. The inquiry U/s 5 of the Ceiling Act, ought to have been held in order to determine whether the petitioner was holding the land under the mortgage transaction. The inquiry was also necessary to examine whether the rights of third parties i.e. Ramza and Pandu had been extinguished. In "Popat Ramchandra Jadhav Vs. State of Maharashtra and others" AIR 1990 Supreme Court 751, the Apex Court held that the land held on temporary lease on the relevant date could not 10 have been taken into account for determining the ceiling area under the Ceiling Act. It is true that there is considerable delay in filing of the petition. Still, however, it can not be over- looked that the petitioner was advised by the counsel to give up a part of the land bearing Gat No.128 and,therefore, time was spent in the proceedings before the Tahsildar, so as to identify such land which could be given for distribution. 9. Considering the above legal aspects of the matter, I am inclined to hold that the impugned orders of the learned Additional Commissioner and that of Additional Tahsildar are liable to be set aside. Hence, the petition is allowed. The impugned orders rendered by the learned Additional Commissioner and learned Additional Tahsildar are set aside. The learned Additional Commissioner is directed to decide the Revision Petitions afresh after giving due notices to the legal representatives of deceased Laxman who was found in actual possession as per observations of the learned Additional Tahsildar 11 in his order dated 12.12.1988. The learned Additional Commissioner may decide the Revision Petition afresh after due inquiry and after hearing those persons who were found in actual possession of land Gat No.128 and also the present petitioner. The suo-motu proceedings are restored to its original position. The same shall be expeditiously decided and as far as possible within a period of eight (8) months. Rule made absolute accordingly. No costs. (V.R.KINGAONKAR,J.) asp/office/wp6289