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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 2375 OF 1991
Dagduba s/o Dajiba Kadam,
age 60 years, occ. Agril.,
r/o Gulkhand, Taluka Partur,
District Jalna. ...Petitioner
VERSUS
1- The State of Maharashtra
2- The Additional Commissioner,
Aurangabad Division, Aurangabad,
3- The Collector, Jalna,
District Jalna ...Respondents
.....
Shri V.D.Salunke, advocate for the petitioner
Shri D.V.Tele, AGP for the respondents.
.....
CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING
THE JUDGMENT : 10.12.2009
DATE OF PRONOUNCING
THE JUDGMENT : 18.12.2009
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JUDGMENT:
1 The petitioner filed present petition under Article 227
r/w Article 14 of the Constitution of India requesting to quash and
set aside the judgment and order passed by the Additional
Commissioner, Aurangabad Division, Aurangabad dated 9.5.1991
in File No. 1978/ICH/R-405 produced at Exh. ‘C’.
FACTUAL MATRIX :-
2 The petitioner is resident of village Gulkhand,
Taluka Partur, District Jalna and is the land holder in the
proceeding under the subject matter. Respondent no.1 is the
State of Maharashtra; whereas respondent no.2 is the Additional
Commissioner, Aurangabad Division, Aurangabad, who passed the
impugned order dated 9.5.1991 under Section 45 (2) of the
Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as
amended in 1975 (hereinafter referred to as, ‘the Ceiling Act’).
Respondent no.3 is the Collector, Jalna, who is a Tribunal under
the Act since there was no special Surplus Land Determination
Tribunal (S.L.D.T.) formed for Partur Taluka.
3 According to the petitioner, he filed the returns under
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Section 12 of the Ceiling Act on 27.11.1975. His total holding was
shown to the extent of 65 acres 4 gunthas and Potkharaba was
shown to the extent of 3 acres and 14 gunthas. Hence, total
cultivable land was shown to the extent of 61 acres 30 gunthas.
The petitioner showed 5 family members including himself I.e. his
wife, 2 sons and one daughter. He also showed his mother in
Column no.4 in the returns. Accordingly, the then Surplus Land
Determination Tribunal, Partur, District Parbhani (herein after
referred to as ‘the S.L..D.T.’ for short) initiated proceedings
against the petitioner on 27.11.1975 in File No. 75/PTR/71 and
concluded that the holding of the petitioner was to the extent of
60 acres 23 gunthas. Learned S.L.D.T. also excluded 3 acres land
acquired for the road and held that holding of the petitioner
comes to 57 acres and 23 gunthas. Accordingly the S.L.D.T.
considered 54 acres land to the holder and declared 3 acres and
23 gunthas land as surplus. He also directed to delimit 3 acres 23
gunthas land on western side from Survey No. 39, situated at
village Mosa, Taluka Partur, vide judgment and order dated
13.1.1976, Exh. ‘A’ (Page 16).
4 Thereafter respondent no.2 Additional Commissioner,
Aurangabad Division, Aurangabad reopened the said case and
called for the record and started suo motu inquiry in the matter
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and issued notice of inquiry to the petitioner on 6.5.1986
exercising powers under Section 45 (2) of the Ceiling Act.
Accordingly, pursuant to the said notice, respondent no.2
Additional Commissioner, Aurangabad Division, Aurangabad
passed an order on 9.5.1991, and thereby concluded that inquiry
was held in defective manner and order under the said Revision
was partly set aside and case was remanded back to the S.L.D.T.
for fresh inquiry and for passing order afresh, in accordance with
law, and the said order is impugned in the present petition.
SUBMISSIONS :-
5 Learned counsel Shri V.D.Salunke appearing for the
petitioner canvassed that after filing the returns by the petitioner
under Section 12 of the Ceiling Act, inquiry was conducted by the
learned S.L.D.T. In respect of holding of the petitioner/land owner
under Sections 14 to 21 of the said Act and the learned S.L.D.T.
Passed an order Exh. ‘A’ in the matter on 13.1.1976 and decided
and declared that the petitioner’s holding of land was surplus to
the extent of 3 acres 23 gunthas, and accordingly, as per the
choice under Section 16 of the Ceiling Act, the land shown at the
bottom of the said order dated 13.1.1976 I.e. land to the extent of
3 acres 23 gunthas out of Survey No. 39 (western side), situated
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at village Mosa, Taluka Partur was directed to be delimited.
6 Accordingly it is the contention of the petitioner that
possession of the said land to the extent of 3 acres 23 gunthas out
of Survey No. 39 (western side), situated at village Mosa, Taluka
Partur was taken from the petitioner in pursuance of the said
judgment and order dated 13.1.1976 rendered by the learned
S.L.D.T. and the said land even was allotted to the landless person
namely, Babu Kisan Kachgawande by the S.L.D.T.
7 It is submitted that pertinently thereafter respondent
no.2 issued notice to the petitioner on 6.5.1986 and thereby
reopened the proceedings suo motu calling the record for inquiry
under Section 45 (2) of the Ceiling Act and the said notice is
produced at Exh. ‘B’ (page 20).
8 In response, the petitioner filed reply to the said notice
on 14.11.1986 and the said reply is produced at Exh.’B’
collectively (page 22) and thereby the petitioner raised the
objection for the said suo motu inquiry.
9 However, thereafter respondent no.2 passed the
impugned order on 9.5.1991 (page 25) and thereby held that the
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defective inquiry was made in the said case and the order under
the said Revision I.e. order dated 13.1.1976, was partly set aside
and case was remanded back to the S.L.D.T. for fresh inquiry and
for passing order afresh in accordance with law.
10 Learned counsel for the petitioner submits that neither
the petitioner nor the Government did challenge the judgment
and order passed by the S.L.D.T. on 13.1.1976 and therefore, it is
the contention of the petitioner that the said judgment and order
dated 13.1.1976 rendered by the learned S.L.D.T. attained the
finality.
11 On the aforesaid background, learned counsel for the
petitioner canvassed that even the possession of the excess land
of 3 acres 23 gunthas was taken from the petitioner and the said
piece of land was allotted to landless person namely Babu Kisan
Kachgawande by the S.L.D.T. and accordingly even the said order
dated 13.1.1976 was acted upon. Hence, issuance of notice by
respondent no.2 on 6.5.1986 to the petitioner under Section 45
(2) of the Ceiling Act for reopening the case suo motu and calling
for the record for inquiry after the lapse of period of 10 years from
passing of the earlier order dated 13.1.1976 and thereafter
passing the impugned order dated 9.5.1991, is arbitrary and
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illegal.
12 Learned counsel for the petitioner pointed out that even
as per Section 45 (2) of the Ceiling Act, the limitation prescribed is
of three years, but in the instant case, although the judgment
and order was passed by the learned S.L.D.T. on 13.1.1976, the
notice under Section 45 (2) of the Ceiling Act was given to the
petitioner after the lapseig of 10 years I.e. On 6.5.1986, and
therefore, the order passed by respondent no.2 on 9.5.1991 in
pursuance of the notice dated 6.5.1986 is beyond the period of
limitation and is per se illegal.
13 Learned counsel for the petitioner relied upon the
following observations made by the Full Bench of this Court in the
case of Manohar Ramchndra Manapure and others vs. State of
Maharashtra, reported at 1989 Mh.L.J. Page 1011.
” The proviso to section 45 (2) of the Maharashtra
Agricultural Lands (Ceiling on Holdings) Act
restricts the exercise of jurisdiction under section
45 (2) to those cases where the record is called for
within the period of 3 years from the date of
declaration under section 21. The starting point of
limitation as prescribed in the proviso to sub-
section (2) of section 45 is the declaration or part
thereof under section 21 of the Act. The meaning
assigned to word “call” in Oxford English
Dictionary, Vol.2 and Chambers Twentieth Century
Dictionary is “to summon”. It contemplates some::: Downloaded on – 09/06/2013 15:26:57 :::
8action or application of mind on the part of the
State Government or its delegate before calling
for the record. It cannot be equated with themechanical, clerical or ministerial act of calling for
the records of all the proceedings irrespective of
the fact whether they were required or not for the
purpose specified in the section. The StateGovernment is not appointed as roving
commission, but is expected to exercise judicial or
quasi-judicial powers. The object behind
prescribing of limitation for calling for the record
is not to upset the settled position at a very latestage. Calling for the record will require some
positive act on the part of the authority but it
must ultimately depend upon the facts of eachcase as to when the record was actually called for
by the concerned authority. The proviso cannot be
construed so as to include in its import all theproceedings namely right from the initiation to the
ultimate order. It is after applying his mind that the
revisional authority will have to call for the record
of the enquiry or proceedings after conscious
application of mind to the facts and circumstancesof each case. Where admittedly the necessary
application of mind on the part of theCommissioner was much beyond the period of 3
years of the order impugned, it will have to be held
that the records were not called within the period
of 3 years. In such a case the Commissioner willhave no power to exercise the revisional
jurisdiction. ”
14 Learned counsel for the petitioner further relied upon
the following observations made by this court in Writ Petition No.
24 of 1986 decided on 13.2.1991 by Hon’ble Shri Justice
N.P.Chapalgaonker.
” Shri A.B.Naik, learned counsel appearing on
behalf of the petitioner, submitted only one point
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for my consideration. It is his submission that,
since possession of the declared area under the
order of the S.L.D.T., Hadgaon, was already taken
on 16th April, 1976 and since the land was
distributed at the very time, Additional
Commissioner, Aurangabad, had no jurisdiction to
exercise his powers under Sec. 45(2) of the Ceiling
Act of 1961, in view of the fact that, the possession
of the land was already taken. Two conditions
under the first proviso to Sub-section (2) of Section
45 are required to be fulfilled before the State
Government can call for the record and enquire
into the proceedings. The first is that an appeal
should not have been filed within the period
provided for and possession of the land declared
should not have been taken. The words, “the
possession of such land has not been taken under
Sub-section (2) of Section 21” were deleted by the
Maharashtra Act No. 26of 1976 read with Section
2. The provisions of this Act No. 26 of 1976 were
held to be ultra virus since the assent of the
President was not received for the said Act. Shri
Naik further placed reliance on a Division Bench
judgment of this Honourable Court in the case of
Shaliabai Astak Qureshi vs State of Maharashtra
(1986 Mah.L.J. 725). The Division Bench held that,
the deletion of the above referred words by
Maharashtra Act No. 26 of 1976 cannot become
operative since the Act deleting these words was
not a law relating to acquisition as contemplated
under Article 31 in view of the fact that, the
President’s assent was not there. Mrs. A.S.Rasal,
learned Assistant Government Pleader appearing
for respondents, was fair enough to admit that, in
view of the record submitted by the petitioner in
this court, the possession of the declared portion
was taken in the year 1976 and one Jungloo s/o
Sambha, resident of Talni was put in possession of
this land in the year 1976 and the Commissioner
has exercised his powers to call for the record
thereafter.
In view of these facts, writ petition will
have to be allowed. The order of the Additional
Commissioner, Aurangabad dated 10th November,
1985 in Case No. 78/ICH-R-422 is hereby quashed.
Needless to say that, the order of the Surplus Land
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Determination Tribunal at Hadgaon dated 23rd
March, 1976 in Case No. 75/Ceiling/307/75, stands
undisturbed. Rule is made absolute in the above
terms. ”
15 Learned counsel for the petitioner also placed reliance
on the observations made by this court in the case of Shaligram
Dagdoba Salunke, etc. vs. State of Maharashtra, reported at 2004
(1) Mh.L.. Page 310 as follows :-
” S.L.D.T. undertaking enquiries under Sections 17
and 21 of the Ceiling Act and completing the said
proceedings, however, Additional Commissioner
calling records of inquiries completed by S.L.D.T.
after lapse of 10-15 years and passing order
thereon on mechanical manner and withoutapplication of mind in exercise of revisional powers
under Section 45 (2) of the Ceiling Act, is liable tobe set aside. ”
16 Another leg of submission of the learned counsel for the
petitioner is that petitioner’s mother was alive and she was
entitled for equal share to the petitioner and respondent no.2
ignored petitioner’s mother’s share and should have considered
the said aspect and should not have remanded the matter back in
mechanical manner without application of mind, since mother of
the petitioner was entitled for notional share in the said land, as it
was the ancestral land.
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17 To substantiate the above said contention, learned
counsel for the petitioner relied upon the following observations
made in the case of Kamalabai w/o Govindrao and others vs State
of Maharashtra and others , reported at 1977 Mh.L.J. Page 450.
” For the purposes of section 3 (3)(ii), Maharashtra
Agricultural Lands (Ceiling on Holdings) Act it is notnecessary that the person whose share is to be
excluded should make a claim before the Tribunal.
The shares have to be determined in accordancewith the Hindu Succession Act where it applies and
not on the basis of claims made by members.
Whether more or less or no claim is made by themit is the duty of the authorities to calculate the
shares according to provisions of the Hindu
Succession act as the words to be emphasised in
section 3 (3)(ii) are “the share of the person shall
be taken to be the extent of land such personwould hold in proportion of his share in the joint
holding.
Petitioner filed a return under section 12
claiming that her husband died on 27.8.1975
leaving behind him, herself, two minor daughters,
father and mother. The Tribunal however ignored
the mother’s share on the ground that she did not
come forward to make a claim for her share. ”
18 Learned A.G.P. Countered the argument of learned
counsel for the petitioner and submitted that the S.L.D.T. has not
conducted the proper inquiry in respect of holding of the
petitioner, and therefore, respondent no.2 rightly initiated the
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suo motu inquiry under Section 45 (2) of the said Act and called
the record therefor and concluded that the inquiry conducted by
S.L.D.T. was defective, and therefore, set aside the judgment and
order dated 13.1.1976 delivered by S.L.D.T. partly allowing the
said Revision under Case No. 1978/ICH/R-405 and remanded back
the matter to the S.L.D.T. for fresh inquiry in accordance with law,
and submitted that no interference therein is warranted.
19
Learned A.G.P. further submitted that land Survey No.
38/1 was sold after 26.9.1970 which is unlawful and exclusion of
the said land from the holding was not proper, since the said
transaction of sale dated 26.9.1970 was hit by Sections 8 and 10
of the Ceiling Act. It is also submitted that the Tribunal has not
brought on record any evidence to believe that the said
transaction was genuine and not made with a view to defeat the
provisions of the Ceiling Act. Hence, according to the learned
A.G.P. the said land was liable to be included in the holding of the
petitioner.
20 Learned A.G.P. also canvassed that the S.L.D.T. has
given share in favour of mother with observation that his father
died in the year 1957, but the exact date of death of father has
not been brought on record. In fact, according to the learned
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A.G.P., S.L.D.T. should have ascertained the date of death of the
father with reference to records of Birth and Death registers.
Moreover, the nature of holding has not been ascertained with
reference to the revenue record and hence it is submitted that
unless and until it is proved that property is ancestral and father
died after 1956 the widowed mother would not be eligible for the
separate share. Hence, in view of the said position, according to
the learned A.G.P., the present petition bears no substance and
same is devoid of any merits, and therefore, it is submitted that
interference under Article 226 of the Constitution of India is not
required.
21 I have perused the contents of the petition and the
annexures annexed therewith and also considered the
submissions advanced by learned counsel for the parties
anxiously and at the out set undisputably the learned S.L.D.T.
held inquiry in respect of holding of the petitioner and passed the
order on 13.1.1976 in File No. 75/PTR-71 and concluded that the
petitioner’s holding was surplus to the extent of 3 acres 23
gunthas and as per his choice under Section 16 of the Ceiling Act
the land to the extent of 3 acres 23 gunthas out of Survey No. 39
western side, situated at village Mosa, Taluka Partur was
delimited and in pursuance of the said order, possession of the
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land to the extent of 3 acres 23 gunthas was taken from the
petitioner and even the said piece of land was already distributed
to the landless person, namely Babu Kisan Kachgawande by the
Tribunal and hence the respondent no.2 had no jurisdiction to
exercise the powers under Section 45 (2) of the Ceiling Act, 1961,
in view of the fact that possession was already taken.
22 Besides, on the afore said background, issuance of
notice by respondent no.2 on 6.5.1986 Exh. ‘B’ (page 20) to the
petitioner for reopening the case suo motu for the purpose of
inquiry and calling the record therefor under Section 45 (2) of the
Ceiling Act, that too, after the lapse of period of about more than
10 years and passing the impugned order in pursuance of the said
notice on 9.5.1991 by respondent no.2 in Case No.
1978/ICH/R-405 is beyond the period of 3 years, which is
contemplated under the proviso of Section 45 (2) of the Ceiling
Act, and hence, the impugned order dated 9.5.1991 is hit by the
said proviso of Section 45 (2) of the Ceiling Act, 1961.
23 Apart from that, there is substance in the argument
advanced by Shri V.D.Salunke, learned counsel for the petitioner
that after passing the order by the S.L.D.T. on 13.1.1976
concluding that the petitioner’s holding was surplus to the extent
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of 3 acres 23 gunthas, which was delimited as afore said under
Section 16 of the said Act and even possession of the said piece of
land was taken from the petitioner and thereafter the said piece
of land was distributed to landless person, namely Babu Kisan
Kachgawande by the Tribunal, and pertinently neither the
petitioner nor the Government assailed the said order, and
therefore, it attained finality. Moreover, since the possession of
the said land to the extent of 3 acres 23 gunthas was taken from
the petitioner by the Tribunal and since the said land was already
distributed to the landless person namely Babu Kisan
Kachgawande, the said order dated 13.1.1976 was acted upon,
and hence, interference in the said order dated 13.1.1976 by
passing the impugned order by respondent no.2 on 9.5.1991 on
the afore said scenario, is unwarranted and is against cannons of
law, and hence the impugned order dated 9.5.1991 is required to
be quashed and set aside, by allowing the present petition.
24 Since the present petition succeeds on the first leg of
argument canvassed by learned counsel for petitioner, the
another leg of argument of the learned counsel for petitioner
need not be adverted on merits.
25 Having the comprehensive view of the matter and also
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relying upon the observations made in the afore said Rulings
(supra), I am in agreement with the argument canvassed by the
learned counsel for the petitioner, and I have no hesitation to
conclude that the reopening of the case suo motu and “calling
for the record” for the initiation of enquiry by respondent no.2
and passing of the impugned order dated 9.5.1991 in exercise of
powers under Section 45 (2) of the Ceiling Act, after the lapse of
more than ten years from passing the order dated 13.1.1976 by
learned S.L.D.T., which, in fact, was acted upon by taking
possession of excess land which even was distributed to landless
person, is bad in law, besides being unfair and unjust, and
therefore, the impugned order dated 9.5.1991 deserves to be
quashed and set aside.
25 In the result, present Writ Petition is allowed in terms of
prayer clause ‘C’ thereof and the impugned judgment and order
rendered by the Additional Commissioner, Auangabad Division,
Aurangabad dated 9.5.1991 in File No. 1978/ICH/R-405, Exh.’C’,
stands quashed and set aside. In the facts and circumstances of
the case, there shall be no order as to costs.
Rule is made absolute in above terms.
(SHRIHARI P. DAVARE, J.)
dbm/wp2375.91
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