1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 890 OF 1991 Ganeshlal Radhakishan Rathi } Age : 48 Years, Occ. : Agriculture, } R/o : Nilanga, Dist. : Latur. } .... PETITIONER V E R S U S The State of Maharashtra } Through the Additional Commissioner Aurangabad Division, Aurangabad. } .... RESPONDENT Mr. B.A.Darak, Advocate for petitioner. Mr. D.R.Kale, A.G.P. for Respondent [ CORAM : K.K.TATED, J. ] DATE : 14/10/2009. ORAL JUDGMENT : 1. Heard learned counsel for petitioner and learned A.G.P. for State. 2. By this petition under Article 227 of the Constitution of India, petitioner challenges the order dated 27/11/1990 passed by the Additional Commissioner, Aurangabad in Case No. 1978/ICH/R/520 2 i.e. suo motu Revision under Section 45 (2) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 ( for short ‘ the Act ’). 3. It is to be noted that the present Writ Petition is admitted on 19/3/1991. Thereafter, the present Writ Petition remained part heard before this Court on 15/9/2009 as well as 22/9/2009. But, till today, there is no affidavit in reply on the part of the respondents. 4. By Order dated 27/11/1990, the Additional Commissioner initiated suo motu proceedings under Section 45 (2) of the Act, by which the proceedings under Sections 17 of 21 of the Act are re-opened to examine the legality and propriety of the order passed by the Surplus Land Determination Tribunal (for short ‘ the Tribunal ’ ). The petitioner filed his return under Section 12 of the Act and after enquiry the Tribunal on 21/1/1976 has unanimously declared that the petitioner is holding excess/surplus land to the extent of 79 Acres 35 Gunthas. Thereafter, office of the Divisional Commissioner, Aurangabad issued notice dated 4/3/1989 to the petitioner stating that on sue motu, order dated 25/5/1978 passed under section 45 (2) of the Act, is re-opened. The learned counsel appearing on behalf of petitioner submitted that the respondents issued notice for re-opening the order dated 25/5/1978 after 11 years without disclosing any reason. He further submitted that in that impugned order, nowhere it is reflected as to why and on what basis, the decision to exercise the revisional jurisdiction was taken by 3 the Divisional Commissioner as required under section 45 (2) of the Act and that too within the period of limitation of 3 years from the passing of the said order by the Tribunal. He further submitted that it is not the policy and/or scope of Section 45 (2) of the Act that the matter which has already concluded finally long back, should be and to be permitted to be re-opened under the grab of exercise of revisional jurisdiction at any time, which may be felt convenient to the revisionary authority. 5. In support of his contention, learned counsel for petitioner relied on the Judgment in the matter of Champabai W/o Shankarrao Patwari and another V/s State of Maharashtra and others reported in 2004 (1) Mh.L.J. 148. In that case, order passed by the revisional authority is set aside. Head note (a) and (b) of this authority reads as under : “ (a) Maharashtra Agricultural Lands (Ceiling on Holdings) Act (27 of 1961), S. 45 (2) - Exercise of revisional jurisdiction under section 45 (2) – Requirement in the matter of such exercise. Where notices came to be issued to petitioners by the Additional Commissioner, after lapse of a period of about 8 to 10 years, after the passing of orders by S.L.D.T. Holding that the petitioners did not hold land in excess of ceiling 4 limit. 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. Though, the decision to initiate the proceedings was taken within 3 years time, the same was without application of mind and hence bad in law. 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. No purpose is served whatsoever, by only taking a decision to initiate the proceedings if the proceedings are not initiated within a reasonable time. In the absence of any justification for the delay, much less satisfactory, the proceedings were not initiated by the Additional Commissioner within a reasonable time. Proceedings quashed. 1989 Mh. L.J. 1011, Ref. (Paras 3 and 10). (b) Maharashtra Agricultural Lands (Ceiling on Holdings) Act (27 of 1961), S. 45 5 (2) – Order calling for record of cases in enquiry held by S.L.D.T. Under section 14 read with section 21 – Use of cyclostyled format of order by Additional Commissioner – Orders to call for record of cases revealed a mechanical approach and no conscious application of mind – Order calling for record illegal and bad in law ”. 6. Learned counsel for petitioner also relied on the judgment in the matter of Bansilal Ramgopal Bhattad V/s State of Maharashtra and others reported in 2001 (1) Mh.L.J. 68. In that case also, this Court held that suo motu proceeding for Revision having been initiated almost after 9 years, the same were without authority and void. Paragraph 5 of this Judgment reads as under : “ 5. It is next contended by the learned counsel for the petitioner that even assuming that it was competent to invoke suo motu action of revision on any permissible ground, even then the said action ought to have been taken in a reasonable time. It is contended that the first order passed by the Surplus Land Determination Tribunal was on 21/2/1976, however, the impugned suo motu action was commenced almost after a lapse of about 9 years therefrom which can not be considered as a reasonable period at all. In support of this submission, reliance has been placed on the Judgment of the Apex Court reported in 1997 (6) SCC 71, Mohamed Kavi Mohamed Amin V/s 6 Fatmabai Ibrahim which has taken the view that even if authority is vested with the power to take an action, without providing for any limitation, even in such a case it is the duty of the authority to take an action within a reasonable time. It is held that if the action is taken after unreasonable time or belatedly, the same is vitiated in law. Accordingly, I find force in the said submission advanced on behalf of the petitioners. In the present case the first order was passed by the Surplus Land Determination Tribunal on 21/2/1976, which which is the subject matter of the suo motu proceedings which have been initiated almost after 9 years therefrom, this can not be permitted in law. In my view, the suo motu proceedings in question having been initiated after unreasonable period were without authority of law and void ab initio, in view of the above referred decision of the Apex Court ”. 7. In the present case also, the Divisional Commissioner, Aurangabad without disclosing any reason in the Order dated 27/11/1990, passed order on the basis of notices issued to the petitioner dated 4/3/1989 for re-opening the order dated 25/5/1978 passed under section 45 (2) of the Act. In the order also, the Additional Commissioner, Aurangabad nowhere has given any reason for delay of more than 11 years. Not only that, the respondents also failed to file their affidavit in reply for last more than 18 years. 7 8. It is clear from both the authorities referred to herein above that revisional power can not be exercised suo motu after lapse of sufficient period from the date of order. In the present case, the respondents re-opened the matter after about 11 years without disclosing any reason. Considering these facts, the present Writ Petition is allowed in terms of prayer clause ‘ B ’, which reads as under : “ (B) This Writ Petition be kindly allowed and the impugned Judgment and Order passed by the Additional Commissioner, Aurangabad Division, Aurangabad at Exhibit “ E ” dated 27/11/1990 be kindly ordered to be quashed and set aside by declaring the same as incompetent and without jurisdiction ”. 9. Rule made absolute accordingly. No order as to costs. [ K.K.TATED ] JUDGE knp/WP890.91 8 9 10 11 12