vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3561 OF 1992 WRIT PETITION NO.3561 OF 1992 WRIT PETITION NO.3561 OF 1992 Smt.Sayyada Kamarunnisa Kutub Alam Bukhari ... Petitioner V/s. The State of Maharashtra & Ors. ... Respondents Mr.T.S. Ingale for Petitioner Mr.P.S. Cardozo, AGP, for Respondent Nos.1, 2 & 3 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: DECEMBER 8, 2008 DECEMBER 8, 2008 DECEMBER 8, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: . The petitioner challenges the order passed on 5.3.1992 by the Additional Commissioner, Pune Division in Ceiling Revision Case No.KOP-73A. This judgment sets aside the order passed on 13.3.1976 by the Slum Land Determination Tribunal, Karveer, Kolhapur in Case No.85 of 1975. 2. The facts involved in the present petition are as follows: The Petitioner filed her returns under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961. She mentioned her total land holding as 66 acres 13 gunthas out of which she claimed an exemption of 32 acres 19 gunthas. The lands consisted of Devasthan Inam Lands, : 2 : lands in possession of tenants, lands transferred pursuant to orders of this Court, fallow lands and grass lands. The Surplus Land Determination Tribunal (for short, ‘SLDT’) held an enquiry with respect to the petitioner’s holding. It was found that the petitioner’s holding consists of 66 acres and 13 gunthas on 26.9.1970. The Tribunal came to the conclusion that since the petitioner was not holding any irrigated lands, the petitioner’s lands should be treated as class E under section 2(5)(c) of the Maharashtra Agricultural Lands (Ceilings on holdings) Act 1961, as amended. The Tribunal accepted the petitioner’s contention that 17 acres 7 gunthas of land were transferred during the period from 27.9.1970 to 2.10.1975 to the tenants. The Tribunal therefore, excluded these lands and found that the holding of the petitioner was limited to 49 acres 16 gunthas and therefore was well within the ceiling limit. This order of the Tribunal was passed on 13.3.1976. 3. A suo moto enquiry was initiated by the Additional Commissioner, Pune Division, Pune u/s 45(2) of the Ceiling Act being Ceiling Revision Case No.73A. The petitioner contended before the Additional Commissioner that the surplus land held by her was 23 acres 1 guntha. In 1981, a writ petition was filed by the petitioner challenging the order passed by the Additional Commissioner on 12.9.1980. This order was : 3 : set aside by this Court on 16.11.1991. The matter was remanded to the Additional Commissioner to decide the same afresh. 4. The Additional Commissioner after affording a fresh hearing to the petitioner, reiterated his earlier decision passed prior to remand. Hence the present petition. 5. The petitioner contends that the Additional Commissioner has, while deciding the surplus holding taken into consideration the Devasthan Inam lands of which the petitioner was a Wahiwatdar, as well as the lands in possession of the tenants. According to the petitioner, these lands cannot be included and therefore, the Additional Commissioner has committed an error of law by including the lands. Section 2(14) defines the expression "to hold land" as follows: "to hold land" with its grammatical variations and cognate expressions, means to be lawfully in actual possession of land as owner or as tenant; and "holding" shall be construed accordingly;" 6. Thus, only such land which is in actual possession of a person, either as landlord owner or as a tenant can be construed as the holding of a person. In the present case, admittedly, the petitioner had tenants : 4 : on her lands which were in their possession as detailed in the petition. These lands thus could not have been included in the petitioner’s holding. Apart from this, the Devasthan Inam lands of which the petitioner was the Wahiwatdar also cannot be included in the petitioner’s holding as she was not an owner of those lands nor was she a tenant of those lands. Unless it is established that the petitioner was either a tenant or the owner of such lands and she was actually in possession of those lands, they cannot be included in the petitioner’s landholding under the aforesaid Ceiling Act. 7. No affidavit has been filed by the State in reply to the Petition despite the petition having been admitted on 19.8.1999. An adjournment was sought on Friday, the 5th December, 2008 by the learned AGP, contending that she requires time to file an affidavit. This adjournment was refused as the State ought to have been more vigilant and filed an affidavit in the past 16 years while this petition has been pending. I therefore did not think it necessary or appropriate to adjourn the petition for this reason. 8. In this view of the matter, the petition succeeds. The order of the Additional Commissioner is set aside. The order of the Surplus Land Determination Tribunal, Karveer, Kolhapur Division is confirmed. : 5 : 9. Rule made absolute with costs.