Pandharinath vs The State Of Maharashtra on 9 April, 2009

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                          
                      NAGPUR BENCH, NAGPUR




                                                  
                        Writ Petition No.2655 of 1993

    Pandharinath s/o Vithalrao Awari,
    aged about 50 years,




                                                 
    Cultivator,
    r/o Dhamangaon,
    Post : Waigaon (Gond),
    Tahsil : Samudrapur,
    District : Wardha.                        ... Petitioner




                                        
             Versus      
    1. The State of Maharashtra,
       through Secretary,
                        
       Revenue Department,
       Bombay-32.

    2. Additional Commissioner,
      


       Nagpur Division, Nagpur.
   



    3. The Sub-Divisional Officer,
       Hinganghat,
       Tahsil Hinganghat,
       District Wardha.





    4. The Tahsildar,
       Samudrapur,
       Tahsil : Samudrapur,
       District Wardha.





    5. Gangadhar Raghoba Bhoyar,
       aged about 42 years,
       Cultivator,
       r/o Dhamangaon,
       Post : Waigaon (Gond),




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         Tahsil : Samudrapur,




                                                                               
         District Wardha.                        ... Respondents

Shri R.R. Deshpande, Advocate for Petitioner.
Shri A.M. Deshpande, AGP for Respondent Nos.1 to 4.
Shri S.D. Chopde, Advocate for Respondent No.5.

Coram : R.C. Chavan,
Dated : 9th April, 2009

Oral Judgment :

1.

This petition seeks to have the order passed by the

Additional Commissioner, Nagpur Division, Nagpur, on 25-5-1993

in Revision No.6/60-A(6)/89-90 of Dhamangaon quashed and set

aside and a further direction to the authorities to take surplus land

from the holding of respondent No.5 Gangadhar Raghoba Bhoyar

from whom the petitioner had purchased the land.

2. The Maharashtra Agricultural Land (Ceiling on

Holdings) Act, 1961 (for short, “the Ceiling Act”) came into force

on 2-10-1975. The petitioner purchased 11.25 acres of land from

survey No.55 from respondent No.5 on 26-7-1979. Thus the land

had to be included under Section 10 of the Ceiling Act for

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computing the total holding of land holder respondent No.5. On

8-6-1987, the Surplus Land Determination Tribunal determined

that 18.81 acres of land was surplus and also possibly held that

the land was delimited from survey No.55. The landlord had

challenged the computation of total holding and the surplus land

before the Maharashtra Revenue Tribunal by preferring Ceiling

Appeal No.47 of 1989. The State also seems to have raised a

cross-objection and eventually the Maharashtra Revenue Tribunal,

by its order dated 25-9-1987, held that 22.01 acres of land was to

be treated as surplus and directed the Surplus Land Determination

Tribunal to take further action to delimit 22.01 acres of land after

giving the appellant an opportunity to exercise choice of retention.

3. By a Jahirnama or proclamation published on

28-3-1990, the petitioner’s land was sought to be taken up as

surplus land. The petitioner, therefore, filed a revision before the

Additional Commissioner, Nagpur Division, Nagpur, under Section

45(2) of the Ceiling Act, which was rejected by the Commissioner

by his impugned order dated 25-5-1993. This is why the

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petitioner is before this Court.

4. I have heard Shri R.R. Deshpande, learned counsel for

the petitioner, Shri A.M. Deshpande, learned AGP for respondent

Nos.1 to 5, and Shri S.D. Chopde, learned counsel for respondent

No.5, owner of the land.

5. The learned AGP has also made available for my perusal

the record of the proceedings before the Commissioner.

6. The learned Additional Commissioner in his impugned

order has observed that the order of the Surplus Land

Determination Tribunal dated 8-6-1987 mentions that the surplus

land will be from the possession of the landlord. Thus till

8-6-1987, there was no question of the petitioner having any

grievance in respect of the proceedings before the Surplus Land

Determination Tribunal, since his land was not to be touched. In

the light of this, the observations of the learned Additional

Commissioner in his impugned order that the petitioner was

aware of the proceedings before the Surplus Land Determination

Tribunal and reference to the objection raised by the petitioner on

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9-3-1981 as also petitioner’s presence on 18-2-1981 and

16-4-1981 before the Surplus Land Determination Tribunal is

thoroughly irrelevant. The question as to which land was to be

identified as surplus, was not at all required to be decided at that

stage without completing computation of total holding of

respondent No.5 and determining the extent of surplus land. The

presence of the petitioner in the earlier proceedings was irrelevant

and need not have influenced the judgment of the learned

Additional Commissioner.

7. After having observed that the order of the Surplus

Land Determination Tribunal mentioned that the surplus land will

be from the possession of the landlord, the observation of the

learned Additional Commissioner that the petitioner had not

availed of any opportunity in appeal after the order was passed by

the Surplus Land Determination Tribunal, is indeed surprising. It

has not been shown that any order indicating that the petitioner’s

land was to be touched had been passed before the Jahirnama or

proclamation dated 28-3-1990 came to be noticed by the

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petitioner. This fact has not been contested by filing any return by

any of the respondents.

8. In any case, it would not be open for a landholder to opt

to keep the lands in his possession intact and ask the ceiling

authorities to take over surplus land, which he had already sold.

The provisions of Sections 10 and 16 of the Ceiling Act have been

considered from time to time by this Court. In Keshao Govind

Begde v. The State of Maharashtra and others, reported at AIR 1976

Bombay 78, a similar attempt of the landholder was repelled by

holding in para 7 as under :

“The policy is, therefore, clear. If it is obligatory on the

holder to retain the cumbered land with him, it is difficult
to see how the petitioner can insist that the lands which

have been sold already should be taken in the first
instance for delimiting the surplus land. It has to be
noted that though under Section 10, the land will be
taken into consideration after calculating the transferred

lands, it does not mean that the transfer is to be entirely
ignored for all purposes. At any rate, it will be extremely
difficult to allow the petitioner to make a choice when he

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has already made alienations. It may also be noted that

in case the transferred lands are taken up to meet the

surplus, the transferees will be entitled to recover the
purchase money from the petitioner and for the refund of
the consideration money which they have paid under the

Transfer of Property Act, the property would be under an
encumbrance. Considered from any point of view, it

seems difficult to accept the submission of Mr. Masodkar.
Such inequitable pleas cannot be accepted in a writ

petition under Article 227 of the Constitution. It,

therefore, follows that the order with regard to the
delimiting of this surplus made by the Tribunal is correct
and will have to be maintained.”

9. In Shriram s/o Jagoji Brahmane v. State of Maharashtra

and others, reported at 2007(2) Mh.L.J. 353, I had an occasion to

consider the same question and had reached the same conclusion.

The provisions of Section 10 of the Ceiling Act clearly indicate that

the landholder is to lose the property in his possession first and

only thereafter the property transferred is required to be taken

over as surplus by the State. The right to select the property to be

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retained by the landholder recognised in sub-section (2) of Section

16 is subject to sub-section (1) of the said Section, which in turn

makes the provision subject to the provisions contained in Section

10 of the Ceiling Act, with the result that the landholder would

have to first give up the property in his possession as surplus

before asking the Ceiling Authorities to touch the property

transferred.

10. The learned counsel for the petitioner also relied on a

judgment in Shankargir Gulabgir Gosavi and another v. State of

Maharashtra and others, reported at 2005 (1) Bom.C.R. 470,

where apart from the provisions of Sections 10 and 16 of the

Ceiling Act, this Court had also referred to the provisions of Rule 4

of the Maharashtra Agricultural Lands (Lowering Ceiling on

Holdings) (Declaration and Taking Possession of Surplus Land)

Amendment Rules, 1975 made under the Ceiling Act, which

provides for the manner and extent to which land of and in

possession of transferees could be deemed surplus land under

Section 10(1). It lays down that out of the land transferred and in

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possession of transferee, where there is one transferee, then land

to the extent of the deficiency shall be deemed to be surplus land.

This deficiency is the deficiency after using up the lands in

possession of a landholder.

11. In view of this, the impugned order cannot be sustained.

It is quashed and set aside. The proclamation dated 28-3-1990 is

also quashed and set aside.

ig The authorities shall initiate the

exercise of delimiting surplus land afresh after first exhausting the

lands, which are in possession of the landholder and then touch

the lands, which are transferred to the petitioner or others.

12. Rule is made absolute in above terms. No order as to

costs.

JUDGE
Lanjewar

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