Writ Petition No.211 of 1985

10th June, 1996

Petitioner Counsel: Shri. S.G.DESHMUKH
Respondent Counsel: Shri. S.K.KADAM, Shri. M.V. DESHPANDE

JUDGMENT

JUDGMENT :- By the present petition, the petitioners are challenging the order, dated 22-1-1985, passed by the Member, Maharashtra Revenue Tribunal, Aurangabad, in Revenue Appeal No. 89/A-84-Beed, whereby the learned Member of the Maharashtra Revenue Tribunal, rejected the appeal filed by the petitioners challenging the order dated 22-8-1984, passed by the Deputy Collector, Land Reforms, Beed, in case File No.80/ICH-7-R, whereby the learned Deputy Collector, Land Reforms, Beed, held that the area of surplus land delimited from the holding of the petitioner was proper and that the delimited area of 7 acres 39 gunthas from Field Survey No.209 deserved to be maintained.

2. Aggrieved petitioners, therefore, have come up before this Court through the present writ petition, which definitely has a bit complicated history. The present litigation is standing on chequered platform, which would be clear from the facts, which are in nut shell given as under.

3. One Kishan s/o Dattatraya Deshmukh, resident of Kalamb, since failed to submit his return in accordance with the provisions of Section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as 'the Act'), necessary notice was required to be issued for initiation of an action for not submitting the return. These proceedings were started vide Case No.71/ICH/60, dated 16.2.1976. In this inquiry, the learned Deputy Collector, Land Reforms, Beed, by his order, dated 16.2.1976 reached to the conclusion that Kishanrao Deshmukh, the original landlord, held surplus land over and above the ceiling limit to the extent of 25 acres 4 gunthas. necessary notice under section 16 of the act was issued to the landlord for giving his choice, which he was directed to submit within 15 days of the issue of the notice. However, surprisingly, the then landlord Kishanrao failed to exercise the choice and naturally the Authority concerned was left with no other alternative but to pass the order on 23-5-1976 delimiting the surplus area from Field Survey Nos. 203, 205, 212 and 202, as are referred to in the order passed by the learned Deputy Collector, Land Reforms, Beed, on 23-5-1976.

4. Being aggrieved by the abovesaid order, the landlord preferred an appeal before the Maharashtra Revenue Tribunal, Aurangabad, which was registered as Appeal No.1552/A/76-Beed. Before the Maharashtra Revenue Tribunal, it was challenged in appeal that the order of forfeiture passed by the Deputy Collector, Land Reforms, Beed was bad, as also the declaration as regards the surplus land was bad and, therefore, the appellant sought for the relief of setting aside of the order on both the counts. However, the learned Member of the Maharashtra revenue Tribunal, who dealt with the matter, by his judgment and order, dated 12-8-1976 set aside the portion of the order which related to the forfeiture of the land. However, the other part of the order of the Deputy Collector, which related to declaration of the surplus land was maintained by the learned Member of the Maharashtra Revenue Tribunal, Aurangabad. Naturally, the landlord was not satisfied with the same and hence he approached the High Court of Bombay by filing Special Civil Application No.5169/76, wherein it was challenged that since the landlord was not given chance to give his choice, the order could not be sustained. His Lordship of the High Court, who dealt with the matter, having found the alleged defect in the order, remanded the matter to the Deputy Collector, Land Reforms, Beed, with a direction that the landlords be allowed to give their choice under section 16 of the Act.

5. It would not be out of place to make a reference to the important points at this stage only, that during the abovesaid proceedings the original landlord Kishanrao s/o Dattatraya Deshmukh expired and his legal representatives namely, Thakur Yogiraj, Thakur Laxmanrao, Thakur Vishwambharrao and Thakur Sanjivanrao were brought on record. It is pertinent to note that on remand of the matter by the High Court, the Deputy Collector, Land Reforms, Beed, issued necessary notice to the legal representatives of the original landlord to give necessary choice in accordance with the provisions of the Act. In due compliance of the notice, the abovesaid three persons i.e. legal representatives of Kishanrao Deshmukh namely Thakur Laxmanrao, Thakur Vishwambharrao and Thakur Sanjivanrao did exercise their right of choice on 29-4-1981, as is clear from the records of the case at page no.621, which is before me. However, surprisingly Yogiraj does not appear to have given his choice and more so in view of the fact that even in High Court in Writ Petition No.5169/76 Yogiraj had not challenged the earlier order of the Deputy Collector though he was joined as a party Respondent in those proceedings. In pursuance of the choice entered by the legal representatives of Kishanrao, the learned Deputy Collector, Land Reforms, Beed, on the basis of the choice given, passed an order, dated 30-6-1981, whereby the learned Deputy Collector, in file No.80-104/7-$ held that the area had to be delimited from Field Survey Nos. 209, 202, 203 and 204 to the extent of surplus declared land of 25 acres 4 gunthas. This order of the learned Deputy Collector, dated 30-6-1981 is on the records of the case. However, it appears that there is no paging. From this order, it is clear that Survey No.209 is referred to; from where an area to be declared surplus is to be delimited. It appears that this is at this point of time that the present Yogiraj appears to have developed certain interest in the matter and all of a sudden he started asserting his right as regards his choice. Needless to mention, prior to this, at no point of time, Yogiraj did show any interest in the matter or even tried to exercise his choice in spite of notice.

6. Feeling aggrieved by the abovesaid order of choice, dated 30-6-1981, an appeal bearing No.124-A/1981 was preferred by Smt. Kamalabai w/o Yogiraj, Hanmantrao s/o Yogiraj and Kamalakar s/o Yogiraj, as their names were brought on record because of the death of Yogiraj. Before the Revenue Tribunal, it was the contention of the legal representatives of Yogiraj (who are herein referred to as 'the petitioners') that since they were not given chance of exercising their right of choice, the orders passed by the Authorities below were not correct and it amounted to discrimination. It was the case before the Maharashtra Revenue Tribunal that Yogiraj was entitled to exercise the right under section 16 of the Act and that in view of the death of Kishanrao, it was necessary to give a chance to Yogiraj to exercise his choice. The learned Member of the Maharashtra Revenue Tribunal, Aurangabad, who dealt with the matter, by his judgment and order, dated 22-6-1983 again unnecessarily remanded the case to the Deputy Collector, Land Reforms, Beed, by setting aside the earlier order, dated 30-6-1981 of the Deputy Collector and the remand was with specific direction to give a fresh hearing to the appellants i.e. legal representatives of Yogiraj and then to delimit the land in pursuance of the directions given in the judgment by the Revenue Tribunal. In short, the Revenue Tribunal remanded the matter with a direction to give due opportunity to the legal representatives of Yogiraj to give their choice.

7. In view of the remand of the matter, in pursuance of the order, dated 22-6-1983, passed by the Revenue Tribunal, the learned Deputy Collector, again dealt with the matter strictly in accordance with the provisions of law and on 22-8-1984 passed an order in File No.80/ICH-7-R, again reaching the same conclusion that the delimitation of the land made earlier was just, fair and proper and without any incorrectness in the same. The learned Deputy Collector, Land Reforms, Beed, further observed that the order of delimitation of 7 acres 39 gunthas from Field Survey No.209 did deserve delimitation as per the earlier orders.

8. Aggrieved by the abovesaid order, dated 22-8-1984, the legal representatives of Yogiraj again filed an appeal before the Revenue Tribunal, Aurangabad, which was registered as appeal No.89-A-84-Beed. The learned member of the Maharashtra Revenue Tribunal, Aurangabad, who dealt with the matter, after giving due hearing to the parties and having considered all the relevant facts of the case, reached to the conclusion that the appeal filed against the order of delimitation under section 16 of the Act, was not maintainable before the Revenue Tribunal and the learned Member, therefore, by his judgment and order, dated 22-1-1985 dismissed the appeal of the present petitioners on the ground that it was not maintainable under section 33 of the Act.

9. Dissatisfied with the abovesaid order, dated 22-1-1985, the petitioners have approached this Court by way of present writ petition. Before referring to the contentions raised on behalf of the parties before this Court, it would be necessary to state that the learned Member of the Maharashtra Revenue Tribunal, Aurangabad, who dealt with the matter, though has dismissed the appeal on the ground of non-maintainability, but in the judgment, it appears that the learned Member has applied his mind towards the merit and also has made a passing reference to various points in the case, which would be of some relevance while concluding the judgment in this petition.

10. Shri S.G.Deshmukh, learned Counsel on behalf of the petitioners, in the present matter, vehemently contended that since some portion from Field Survey No.209 has already been acquired by the Government and has also merged in Manjara Project and a small portion of 1 acre has already been declared for public purposes from the same field, only that much area of the surplus land should have been delimited and not from the remaining area of the Field Survey No.209. The learned Counsel Shri Deshmukh further contended that there was no chance given to the petitioner (Yogiraj s/o Kishanrao) to exercise his right of choice as regards delimitation and as regards the retention of the land with him. Shri Deshmukh further contended that, as in the case of Respondent nos. 2, 3 and 4, they were given chance to give their choice to delimit the land, which had gone under Manjara project, and the same type of treatment should have been give to his client also. Shri Deshmukh also has further contended that having over all view of the matter, it appears that no fair and proper chance is given to the petitioners and the matter should be remanded back to the Deputy Collector, with a direction to give a chance to the petitioners to exercise their right of choice.

11. I have also heard Shri Kadam, learned Assistant Government Pleader for State - Respondent no.1 and Shri Murar Deshpande, learned Counsel for rest of the respondents, both of whom strongly contended that since the appeal was rejected by the Maharashtra Revenue Tribunal, solely on the ground of non-maintainability, the writ petition against the same would be of no use. It is also the contention of Shri Kadam, the learned A.G.P. and the learned Counsel for rest of the respondents that the observation made by the learned Member, Maharashtra Revenue Tribunal, was just and proper as regards the maintainability of the appeal. As also they have pointed out on merits that since Yogiraj, right from the beginning, did not show any interest in the matter and since he even, in spite of the chance being at his disposal, after remand of the matter, did not exercise his right of choice, now it does not lie in the mouth of Yogiraj to say that he is not given fair and proper treatment.

12. After having given due consideration to the points argued by the learned Counsel, it is clear that it is only after the order, dated 30-6-1981 that Yogiraj started taking interest in the matter and appeal came to be filed at his instance for the first time by his legal representatives. The learned Counsel Shri Deshpande and Shri Kadam, learned A.G.P. took me through the record of the case and pin pointed that the choice once having been exercised by the legal representatives of Kishanrao, there was no further question of giving fresh choice to Yogiraj or his legal representatives, particularly when Yogiraj failed to avail of the opportunities, which were at his disposal earlier, It is seen from the order of the learned Member, Maharashtra Revenue Tribunal, that the contention of Yogiraj that the land should be taken from Field Survey No.208 and 204, could not be accepted, particularly because there is an observation in the earlier order that the said Field Survey Numbers appeared to have been encumbered. the learned Member has further observed that some of the area from Field Survey Nos. 204 and 208 was also submerged in Manjara project and naturally there was no question of accepting the choice given by Yogiraj as regards Survey Nos. 208 and 204. The learned member has also further referred to the contention which was raised before it as regards discrimination and the learned Member has rightly held that it was not open for the Maharashtra Revenue Tribunal to go into the same. The learned member of the Maharashtra Revenue Tribunal has further rightly restrained itself from making any comments on the issue as regards the dispute of the heirs, which was tried to be raised before it. The learned Member of the Maharashtra revenue Tribunal has, therefore, rightly observed that there was no necessity to interfere with the findings given by the learned Deputy Collector as regards delimitation of an area of 7 acres 39 gunthas from Survey No.209. The learned Member of the Revenue Tribunal has rightly held that appeal itself was not maintainable under section 33 of the Act.

In view of the observations above, the present writ petition fails. Rule discharged and the interim orders, if any, stand vacated. However, in the circumstances of the case, no order as to costs.

Petition dismissed.