( 1 ) wp3258.93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3258 OF 1993 Vithal s/o. Venkatrao alias Yenkaji Sejul .. Petitioner Age. Major, Occ. Agri., R/o. Abegaon, Tal. Majalgaon, Dist. Beed. Versus 1. The State of Maharashtra .. Respondents 2. The Chairman, S.L.D.T., Majalgaon, Tal. Majalgaon, Dist. Beed. 3. The Maharashtra Revenue Tribunal, At Aurangabad. Miss Vanita Sangole h/f. Mrs. M.A. Kulkarni, Advocate for the petitioner. Mr. P.P. More, A.P.P. for respondent/State. CORAM : S.S. SHINDE, J. DATED : 11.03.2011 ORAL JUDGMENT :- 1. This writ petition is filed challenging the order dated 26.08.1993, passed by the Chairman, Surplus Lands Determination Tribunal (S.L.D.T.), Majalgaon, in File No. ( 2 ) wp3258.93 75/ICH/141 Tahsil Office, Majalgaon. 2. The petitioner is resident of Abegaon, Tal. Majalgaon, Dist. Beed. The petitioner filed reference under Section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act,1961, in the year 1975. The S.L.D.T., Majalgaon, on the basis of written statement of the petitioner’s father, declared that the petitioner is not surplus holder, on 05.07.1976. 3. It is further petitioner’s case that in the year 1991 the Divisional Commissioner, Aurangabad, under Section 45(2) of the said Act, re-opened the case and issued notice to the present petitioner’s father on 19.07.1991. The petitioner filed necessary documents. The Divisional Commissioner, Aurangabad, has not communicated the date of hearing to the petitioner and also did not give proper opportunity of being heard and remanded case for fresh enquiry to the S.L.D.T., Majalgaon. 4. It is further case of the petitioner that without ( 3 ) wp3258.93 issuing notice to the petitioner and without giving proper opportunity of being heard, the Additional Commissioner has passed order behind back of the petitioner. It is further stated that, on remand the S.L.D.T., Majalgaon, has passed the following order :- “As regards U/s. 21(1) of the Act, we declare that the land holder is entitled to hold 54-00 acres of land as ceiling area and 7 A. 12 G of each towards the share of major sons and we further declare that the land holder is surplus holder to the extent of 8 A and 24 G. which should be delimited from land sy. No.Gat No. 27 and 38 to the extent of 3-A-00 and 5 A. 32 G village Abegaon respectively. An area of 0.8 G. is also directed as surplus to avoid fragment as required U/s 15 (2) of the Act. Issue form No. VIII accordingly inform the parties. Close the file and consign to record.” 5. Aggrieved by the judgment and order of the S.L.D.T. dated 26.08.1993 at Exh. “F” of this petition, the petitioner herein filed appeal before the Member, Maharashtra Revenue Tribunal, at Aurangabad, on 7th October, 1993, challenging the judgment and order of the S.L.D.T., Majalgaon, dated 26.08.1993, in Case No. 75/ICH/141. Along with the appeal, application for stay was also filed by the petitioner herein. However, on perusal of the averments in para 11 of the ( 4 ) wp3258.93 petition, it appears that at the relevant time when the appeal was filed, from one year before the date of filing of the appeal, no Member was available in the M.R.T. to decide the appeal and therefore the petitioner was told to approach the Divisional Commissioner, Aurangabad, but the Divisional Commissioner, Aurangabad, was busy in some other work. Therefore, the appeal of the petitioner or stay application was not heard either by the M.R.T. or the Divisional Commissioner. It is case of the petitioner that the Tahsildar, Majalgaon, issued proclamation for allotment of land of the petitioner and invited applications from the interested persons for allotment of surplus land of the present petitioner. Therefore, the petition was filed to obtain urgent interim orders, so as to protect possession of land in question. The petitioner has taken as many as seven grounds in the petition and it is prayed that the petition may be quashed by setting side order dated 26.08.1992, passed by respondent No.2. 6. The learned Counsel appearing for the petitioner invited my attention to the fact that in the first round the ( 5 ) wp3258.93 S.L.D.T. after proper and thorough enquiry and after recording statement of the petitioner has taken a conscious decision and passed the order declaring the petitioner herein as non-surplus holder. According to learned Counsel for the petitioner the notice/order passed by the additional Commissioner on 19.07.1991 was beyond the statutory period. The Additional Commissioner, before issuing said notice has not applied his mind to the facts of the case. No record was summoned from the S.L.D.T. or the State. The order was passed without application of mind and no notice was given to the petitioner and without giving proper opportunity of hearing, the matter was remanded back to the S.L.D.T. The S.L.D.T. In second round passed order on 26.08.1993, declaring the petitioner as surplus holder. The learned Counsel further invited my attention to paras 11 and 12 of the petition and submitted that at the relevant time when the appeal was filed before the M.R.T., Aurangabad, no Member of the M.R.T. was available to pass any orders in the appeal and the stay application, was filed along with the appeal. The petitioner was told to approach the Divisional Commissioner, Aurangabad. However, the Divisional Commissioner was busy in ( 6 ) wp3258.93 his other work and therefore the appeal of the petitioner and stay application of the petitioner were not heard. The Tahsildar, Majalgaon, issued proclamation of allotment of land of the petitioner and there was no any efficacious remedy. Therefore, this petition was was filed for obtaining urgent orders of protecting possession. Therefore, the learned Counsel for the petitioner submits that this petition may be allowed. 7. On the other hand, the learned A.G.P. appearing for the State submitted that the appeal of the petitioner is pending before the M.R.T. and therefore this Court may not set aside order dated 26.08.1993, passed by the S.L.D.T., since this subject matter is in the appeal before the M.R.T. 8. Upon hearing the Counsel for the petitioner and learned A.G.P. for the State, I am of the opinion that the ends of justice would meet if the M.R.T. is directed to dispose of the pending appeal of the petitioner expeditiously and till the appeal is disposed of finally, the interim order passed by this court on 15th October, 1993, can be continued. ( 7 ) wp3258.93 Though, it is prayed by the petitioner that this petition may be allowed by setting aside order dated 26.08.1993, passed by the S.L.D.T., Majalgaon, however, since the appeal is pending before the M.R.T., said prayer of the petitioner cannot be accepted. However, in the facts and circumstances of the case, the M.R.T., Aurangabad is directed to dispose of pending appeal of the petitioner expeditiously. Till the appeal is decided by the M.R.T., Aurangabad, ad-interim stay granted by this Court in terms of prayer clause (E) will continue to operate. The prayer clause (E) of the petition reads thus :- “(E) Pending hearing and final disposal of this Writ Petition, the impugned order dated 26.8.93, passed by the respondent No.2 in his File No. 75/ICH/141, may kindly be stayed.” 9. Therefore, till the appeal is heard and finally decided by the M.R.T., the impugned order dated 26.08.1993 passed by the S.L.D.T., Majalgaon shall remain stayed and will be given effect. The petition is allowed to above extent. Rule is made absolute in above terms. The petition stands disposed of. ( 8 ) wp3258.93 10. The Registry to communicate this order to the M.R.T., Aurangabad. 11. This Court appreciates the sincere efforts of Adv. Miss Vandana Sangole in arguing the matter effectively and assisting this Court to come to the proper conclusion. [S.S. SHINDE,J.] snk/2011/MAR11/wp3258.93