2002(3) ALL MR 868
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

D.G. KARNIK, J.

Nagorao S/O Piraji Shrirame (Thru Lrs) Vs. The State Of Maharashtra & Ors.

Writ Petition No.231 of 1986

27th March, 2002

Petitioner Counsel: Shri. A. H. VAISHNAV
Respondent Counsel: Shri. R. P. PHATAKE
Other Counsel: Shri. A. M. DABIR

Maharashtra Agricultural Lands (Ceiling On Holdings) Act (1961) (As amended by Maharashtra Act (1975), Ss.12, 13(2) - Revision - Powers of Commissioner - Order of Surplus Land Determination Tribunal - Errors in order - Commissioner himself can correct errors in order of S.L.D.T.

Under Section 13(2) of the Act where the Collector has a reason to believe that a person, who is required to file return under section 12 has, without reasonable cause, failed to do so, the Collector can require him to submit true and correct return. Thus, where a return has not been filed, the Collector is empowered to give a direction to file a return under section 13(2). The Commissioner, while revising the order of the Collector, can give a direction to file the return and not himself determine the holding. Where the person has voluntarily filed a return under section 12 and an inquiry has been held by the S.L.D.T. it is not necessary that the Commissioner should again give a direction under section 13(2) but the Commissioner himself can correct the errors in the order of the S.L.D.T. In the present case, return was filed by the Petitioner, the S.L.D.T. had excluded 50% of the area of land bearing survey No.42; and the Commissioner only added this 50% of the area of survey No.42 in the holding of the Petitioner in the revision. It cannot be said that the Additional Commissioner was powerless to add this 50% of the area of land bearing Survey No.42. The order of the Additional Commissioner, therefore, does not suffer from any legal infirmity. 1978 Mh.L.J. 93 - Referred to. [Para 8]

Cases Cited:
Jamunabai Motilal Vs. State of Maharashtra, 1978 Mh.L.J 93 [Para 7]


JUDGMENT

JUDGMENT :- Heard Shri. A. H. Vaishnav, learned Advocate for the Petitioner, learned Assistant Government Pleader for the Respondent Nos.1 and 2 and Shri. A. M. Dabir, Advocate for Baliram Vithalrao Shirame who has been allowed to intervene by order of this Court dated 21st January, 1997 passed in Civil Application No.3610 of 1993.

2. The Petitioner filed a return under section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 [for short the said Act] as amended by Maharashtra Act No. XXI of 1975. In pursuance of the said return, the Surplus Land Determination Tribunal [for short, S.L.D.T.] held an inquiry into the holding of the Petitioner and by an order dated 21st January, 1976 held that the Petitioner was a non-surplus holder. The Additional Commissioner, Aurangabad issued a notice of suo-motu revision under section 45 of the Act and after notice to the Petitioner and after hearing him set aside the order dated 24th January, 1976 passed by the S.L.D.T. and remanded the matter back for fresh inquiry in the light of observations made in the Revisional order.

3. After the remand, the S.L.D.T. again held an inquiry and by an order dated 29th December, 1977 declared that the Petitioner was not a surplus holder. The Additional Commissioner, Aurangabad again issued a notice of suo motu revision under section 45 of the Act to the Petitioner. In the said notice of revision the order of the S.L.D.T. was proposed to be revised on the ground mentioned in the notice, which is quoted in paragraph No.3 of the impugned order, as follows :

"The objection was that the land Survey No.42 and 57 could not have been excluded because these lands were actually shared (sic - held) by the holder."

4. After giving an opportunity of hearing to the Petitioner the learned Additional Commissioner by his order dated 20th February, 1986 passed in Case No.78/ICHR/1617 held in favour of the Petitioner so far as land bearing No.57 was concerned and did not add it into the holding of the Petitioner. However, as regards survey No.42 the learned Additional Commissioner held that the Petitioner was lawfully in possession of the entire Survey No.42 during whole of the period between the years 1970-71 and 1975-76; he also held that the Petitioner had sold 12 Acres land out of this on 9th of June, 1975 by registered sale deed No.1479 to one Narayan Newarti. In view of this the Additional Commissioner held that the entire and not half of Survey No.42 should have been included into the holding of the Petitioner and accordingly added the entire area of 32 Acres 38 Gunthas instead of 50% i.e. 16 Acres and 19 Gunthas of Survey No.42 into the holding of the Petitioner. The S.L.D.T. had added only 50% of Survey No.42 i.e. 16 Acres 19 Gunthas of land bearing Survey No.42 into the holding of the Petitioner.

5. It was contended by Shri. Vaishnav, learned advocate appearing for the Petitioner, that the partition had taken place in the family in the year 1955 and in the said partition only 50% of land bearing Survey No.42 was given to the share of the Petitioner. It was stated that this partition was by means of a partition decree passed in the suit filed in the year 1955 which is much prior to the coming into the force of the Act. Although a copy of the partition decree was not annexed to the Petition, a copy purporting to be the copy of the decree passed in the year 1955 was shown during the course of the arguments. The said decree appears to have been passed in a suit filed by Petitioner alongwith his two brothers against their father Piraji. The decree was passed on admission by the Petitioner's father. The contents of admission extracted in the decree says that the property mentioned in List Nos.1,2 and 3 of Para No.1 of the plaint have come to the share of the Plaintiffs and the property described in List No.4 shall remain with the defendant (Petitioner's father). The plaint is not extracted in the decree and it is, therefore, not possible to ascertain what was property mentioned in Paragraph No.1, 2 and 3 of the plaint. On the basis of the copy of the decree it cannot be said that only 50% of the land bearing Survey No.42 had gone to the share of the Petitioner. As against this, the learned Commissioner has observed in his order that between the years 1970-71 and 1975-76 entire land Survey No.42, admeasuring 32 Acres 38 Gunthas was in possession of the Petitioner. 7/12 extracts for the year 1970-71 to 1975-76 are not annexed to the Petition nor shown to me during the course of the arguments. Therefore, there is nothing on record to show that this statement in the judgment of the Commissioner that the entire land bearing Survey No.42, admeasuring 32 Acres 38 Gunthas, was in possession of the Petitioner, to be incorrect. The Petitioner was lawfully in possession of the entire land bearing Survey No.42 and was thus, a holder of the land within the meaning of clause 14 of Section 2 of the Act. The learned Additional Commissioner was, therefore, right in including the whole of the land in Survey No.42 in the holding of the Petitioner.

6. Shri. Vaishnav, learned Advocate for the Petitioner, contended that Survey No.59 was wrongly included into the holding of the Petitioner. Survey No.59 was not included into the holding of the Petitioner by the Additional Commissioner in revision. It was included by the S.L.D.T. itself. The order of the Additional Commissioner does not show that before him this contention was raised. In writ jurisdiction this contention cannot be considered for the first time.

7. Shri. Vaishnav, lastly relied upon a judgment of the Division Bench of this Court rendered in the case of "Jamunabai Motilal and another Vs. State of Maharashtra and another" reported in 1978 Mh.L.J.93. Relying upon the observations made in paragraph No.31 of the said Judgment, it was contended that the Commissioner cannot himself calculate the surplus land and he must remand the matter back to the S.L.D.T. for recalculating the holding. In paragraph No.31 the Division Bench observed:

"... ... ... Having set aside the order of the Special Deputy Collector Land Reforms, Yavatmal, the only order that could have been made by the Commissioner was to direct a fresh inquiry by that authority under Section 13(2) and not proceed to determine the surplus itself. As we indicated above briefly, section 13(2) contemplates an inquiry that results in an order. The purpose of that inquiry is to find out as to whether the person who was liable to file a return had, without reasonable cause, failed to do so and whether he should be subjected to the penalty as provided for by sub-section (1). ... ..."

8. Under section 13(2) of the Act where the Collector has a reason to believe that a person, who is required to file return under section 12 has, without reasonable cause, failed to do so, the Collector can require him to submit true and correct return. Thus, where a return has not been filed, the Collector is empowered to give a direction to file a return under section 13(2). The Commissioner, while revising the order of the Collector, can give a direction to file the return and not himself determine the holding. Where the person has voluntarily filed a return under section 12 and an inquiry has been held by the S.L.D.T. it is not necessary that the Commissioner should again give a direction under section 13(2) but the Commissioner himself can correct the errors in the order of the S.L.D.T. In the present case, return was filed by the Petitioner, the S.L.D.T. had excluded 50% of the area of land bearing survey No.42; and the Commissioner only added this 50% of the area of survey No.42 in the holding of the Petitioner in the revision. It cannot be said that the Additional Commissioner was powerless to add this 50% of the area of land bearing Survey No.42. The order of the Additional Commissioner, therefore, does not suffer from any legal infirmity. The Petition is, therefore, dismissed. Rule discharged with no order as to costs.

Petition dismissed.