Writ Petition No.1746 of 1996

15th March, 2001

Petitioner Counsel: Shri. GIRISH RANE,Shri. P. M. SHAH
Respondent Counsel: Shri. N. B. KHANDARE

Cases Cited:
State of Gujarat Vs. Patel Raghav Natha, AIR 1969 SC 1297 [Para 3,7]
Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim, (1997) 6 SCC 71 [Para 3]
Bansilal Ramgopal Bhattad Vs. State of Maharashtra, 2000(1) Mh.L.J. 68 [Para 3,7]
Manohar Ramchandra Manapure Vs. State of Maharashtra, 1989 Mh.L.J. 1011 [Para 3]

JUDGMENT

JUDGMENT :- Heard the learned Advocates for the parties. Perused the records.

2. The petitioner challenges the order dated 10th November, 1984, passed by the Additional Commissioner, Nasik Division, Nasik in Ceiling Revision Case No.137/82. Pursuant to the necessary declaration filed under the Maharashtra Agriculture Lands (Ceiling on Holdings) Act, 1961, an inquiry was held under section 14 r/w 21 thereof by the Additional Tahsildar in relation to the land owned by the petitioner. By order dated 23.2.1976, the declaration was issued in favour of the petitioner to the effect that the petitioner is not holder of any surplus land. The said order of declaration of no surplus land was reviewed by the Commissioner, Bombay Division by its order dated 28.10.1977 in Revision Case No.181/76 and the matter was remanded for fresh inquiry. The Additional Tahsildar again by order dated 3.7.1978 declared that the petitioner was not having any surplus land. The Collector of Dhule thereafter, on scrutinising the papers, by a letter dated 17.6.1980 forwarded the case to the Commissioner for review of the matter on the ground that the petitioner was holder of surplus land. On receipt of the said letter, the Additional Commissioner of Nasik Division, Nasik, scrutinised the case records and prima facie, having found the petitioner to be holder of surplus land, issued notice on 25.3 1982 to the petitioner in that regard and after hearing the parties, passed the impugned order holding that the petitioner is holder of 57 Acres, 07 Gunthas of land which is in excess of the ceiling limit of 54 Acres of land, therefore, he was holder of surplus land to the tune of 3 acres and 7 gunthas. The order was passed on 10th November, 1984. Hence, the present petition.

3. The impugned order is sought to be challenged on three grounds. Firstly, the revisional jurisdiction under section 45 of the said Act could not have been invoked beyond the period of three years and the order of the Additional Tahsildar, which was sought to be reviewed by the impugned order, was passed on 3.7.1978 whereas, the revisional powers were invoked on 25.3.1982 and, therefore, the entire exercise of revisional authority was without jurisdiction being beyond the time prescribed under section 45 of the said Act. Secondly, it was contended that even assuming that there is no time prescribed for exercise of review powers, the same could have been exercised within reasonable time and the period of four years cannot be considered as the reasonable time for exercising such powers. Thirdly, on merits it was submitted that the records disclose that the petitioner is holder of 47 Acres and 7 gunthas of land and that an area of 10 acres of land is sought to be credited to account of the petitioner, which in fact, belongs to the sister of the petitioner and necessary documentary evidence in that regard was misconstrued by the revisional authorities. Reliance is sought to be placed by the learned Counsel for the petitioner in support of his contention in the decision of the Apex Court in the matter of State of Gujarat v. Patel Raghav Natha and others reported in AIR 1969 SC 1297 and Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim reported in (1997) 6 SCC 71 as also on the decision of the learned Single Judge of this Court in the matter of Bansilal Ramgopal Bhattad v. State of Maharashtra and others reported in 2000(1) Mh.L.J. 68. On the other hand, the learned Assistant Government Pleader for the respondents, placing reliance on the decision of the Full Bench of this Court in the matter of Manohar Ramchandra Manapure and others v. State of Maharashtra and another reported in 1989 Mh.L.J. 1011, submitted that the records apparently disclose the revisional powers having been invoked within the period of limitation prescribed under section 45 of the said Act and, therefore, there is no substance in the contention of the petitioner that the revisional powers were exercised beyond the period of limitation and in the facts and circumstances of the case, question of contending that the review powers ought to have been invoked within reasonable period does not arise at all in view of the fact that section 45 of the said Act does specifically provide the period of limitation. On merits, according to the learned A.G.P. for respondents, the revisional authority correctly appreciated the materials on record and, therefore, it does not warrant interference.

4. The Full Bench of this Court in the matter of Manohar Ramchandra Manapure while interpreting the first proviso to section 45(2) of the said Act, has held that the said proviso 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 and the staring point of limitation as prescribed in the said proviso is the declaration or part thereof under section 21 of the said Act. Referring to the expression "call for the record" in sub-section (2) of section 45, it was held by the Full Bench that it contemplates some action or application of mind on the part of the State Government or its delegate before calling for the record and it cannot be equated with the mechanical, 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. It was further observed that State Government is not appointed as roving commission, but is expected to exercise judicial or quasi-judicial powers and the object behind prescribing of limitation for calling for the record is not to upset the settled position at a very late stage and calling for the record will require some positive act on the part of the authority but it must ultimately depend upon the facts of each case as to when the record was actually called for by the concerned authority. It has been also observed that the proviso cannot be construed so as to include in its import all the proceedings namely right from the initiation of proceedings to the ultimate order and 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 circumstances of each case. In other words, the Full Bench of this Court has clearly held that for the purpose of considering the period of limitation under the first proviso to sub-section (2) of section 45 of the said Act, what is relevant is the date of conscious application of mind to the facts and circumstances of the case by the authorities concerned. It has been specifically observed that for the purpose of considering the period of limitation, the date of initiation of the proceedings or the date of ultimate order passed in that regard is not very material.

5. Bearing in mind the law laid down by the Full Bench of this Court and reverting to the facts in the case in hand, it is apparent that the necessary order in terms of conclusion of inquiry by the Tahsildar was passed on 3.7.1978. The impugned order, on the face of it, discloses that the Collector of Dhule, on scrutinising the records, addressed a letter dated 17.6.1980 to the Commissioner for taking action in terms of the provisions contained in section 45(2) of the said Act. In this regards relevant observations in the impugned order reads thus :-

"The Collector of Dhule through his Special Land Acquisition Officer, Medium Irrigation Project, Dhule scrutinised the case papers and submitted the case to the Commissioner for taking in revision under Section 45(2) of the Ceiling Act, vide his letter No.1980 Desk 6-CLN-912 dated 17.6.1980. I have scrutinised the case record and prima facie, I find that the surplus land in the holding of the land holder.

A notice was issued on 25.3.82 to the land holder and in response to the said notice, the land holder submitted his written say by post which was received in this office on 3.4.82."

6. Bare reading of the above observations in the impugned order discloses that the request for scrutiny of the record and exercise of powers under section 45(2) of the said Act by the competent authority under the said section was received by the said authority on 17.6.1980. Thereafter, records were scrutinised by the concerned authority, and prima facie, disclosed that the petitioner was the holder of surplus land. Therefore, notice was issued on 25.3.1982 to the petitioner in exercise of the powers under section 45(2) of the said Act. In other words, the scrutiny of the records on application of mind by the concerned authority to exercise powers under section 45(2) was done during the period from 18.6.1980 to 24.3.1982. Nowhere in the impugned order it is disclosed that as to on what particular date or during which days, during the said period between 18.6.1980 to 24.3.1982 the scrutiny of the records was made and the authority had applied its mind to arrive at prima facie finding about the petitioner being the holder of surplus land. Undisputedly, the petition in hand was filed initially before the Bombay High Court at Bombay on 5th December, 1984. It was circulated for hearing on 7th December, 1984 and accordingly, it came up for hearing on the said day and after hearing the parties, Rule was issued and by way of interim order, further proceedings in the matter were stayed. The matter was subsequently, transmitted to this Bench at Aurangabad some times in the year, 1996. The matter, when originally filed in the Bombay High Court at Bombay and was registered as Writ Petition No.4960 of 1984 and on transfer to this Bench, it was registered as Writ Petition No.1746 of 1996. Yet the respondents have not filed any affidavit in reply disclosing the exact date on which the authority had applied its mind to invoke the powers under section 45(2) of the said Act. The respondent has also not made available any records in the matter to this Court so as to ascertain as to when the authority had applied its mind. There is nothing placed on record to show that there was any justification for issuance of notice beyond the period of three years, if the application of mind was within the period of three years. In case, the authority had applied its mind within three years, then there is nothing on record to show as to what prevented the authority from issuing notice within the period of three years. In the circumstances, there is absolutely no material on record to show that the authority had in fact, applied its mind within the period of three years prescribed under the first proviso to section 45(2) of the said Act. Merely saying in the impugned order that the authority had scrutinised the records and had arrived prima facie finding that the petitioner was holder of surplus land consequent to receipt of letter dated 17.6.1980 would not disclose the fact that the authority had in fact, applied its mind within the period of three years and more so, when the notice in question on application of mind was issued on 25.3.1982. The records apparently do no disclose a specific date of application of mind while at the same time, it discloses that the notice on application of mind was issued on 25.3.1982 and, therefore, what can be presumed is that the application of mind was within reasonable period prior to issuance of notice and considering the same, it cannot be construed that the authorities had applied mind much prior to the date of issuance of notice. Apparently, therefore, there was no application of mind to exercise powers under section 45(2) of the said Act within the period of three years from the date of order dated 7.3.1978 and hence, as rightly submitted by the learned Advocate for the petitioner, exercise of powers under the said provision was beyond the period of limitation and, therefore, without jurisdiction.

7. However, there is no substance in contention on behalf of the petitioner that the exercise of powers under section 45(2) ought to have been within a reasonable period. As rightly submitted by the learned A.G.P. for the respondents, when the provision of law provides specific period of limitation for exercising powers thereunder, the question of exercising such powers within reasonable period does not arise. Undisputedly, the decisions in the matter of State of Gujarat v. Patel Raghav Natha and others, Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim and Bansilal Ramgopal vs. State of Maharashtra (supra) are all on the point of exercise of powers within a reasonable period when no period is prescribed and, therefore, are not relevant for the decision in the matter.

8. Once, it is held that the revisional Court had no jurisdiction to invoke the powers under section 45 of the said Act on account of lapse of time, the question of going into merits of the case does not arise. The impugned order being bad in law, is liable to be set aside. Even otherwise, as rightly contended on behalf of the petitioner, the area in ownership of the petitioner does not appear to be exceeding the ceiling limit of 54 acres. Considering the records placed before this Court and as is apparent from the orders passed by the Additional Tahsildar, undisputedly, the sister of the petitioner does not constitute the member of the family of the petitioner. The conclusion is sought to be drawn that the Will is not registered by mere perusal of the photostat copy of the will. Otherwise, the Will discloses bequeathal of 10 acres of land in favour of the sister of the petitioner and if the said area is excluded from the total area of 57 acres, certainly the area in possession of the petitioner falls far below the ceiling limit of 54 acres. Being so, even on merits there is no much substance in the contention of the respondents about the petitioner being holder of surplus land.

9. In the result, the petition succeeds. The impugned order is hereby quashed and set aside. The declaration of the Tahsildar dated 3.7.1978 is hereby confirmed. Rule is made absolute in the above terms with no order as to costs.

Petition allowed.