2010(4) ALL MR 824
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
R.C. CHAVAN, J.
Pandharinath S/O. Vithalrao Awari Vs. State Of Maharashtra & Ors.
Writ Petition No.2655 of 1993
9th April, 2009
Petitioner Counsel: Shri. R. R. DESHPANDE
Respondent Counsel: Shri. A. M. DESHPANDE,Shri. S. D. CHOPDE
Maharashtra Agricultural Lands (Ceiling on Holdings) Act (1961), Ss.10, 16 - Maharashtra Agricultural Lands (Lowering Ceiling on Holdings) (Declaration and Taking Possession of Surplus Land) Amendment Rules (1975), R.4 - Surplus land - Some acres of land of respondent no.5 was declared as surplus - Landlord/respondent no.5 can not ask to take over land which is already sold as surplus land and keep land in his possession intact - Authorities to delimit surplus land in possession of respondent no.5 - Land in possession of transferee/petition should be declared surplus to extent of deficiency after using respondent's land - Order of Additional Commissioner to take surplus land from land sold to petitioner is liable to be quashed and set aside. AIR 1976 Bombay 78, 2007(4) ALL MR 156, 2005(1) Bom.C.R. 470 Followed. (Paras 8, 11)
Keshao Govind Begde Vs. State of Maharashtra, AIR 1976 Bom. 78 [Para 8]
Shriram s/o. Jagoji Brahmane Vs. State of Maharashtra, 2007(4) ALL MR 156=2007(2) Mh.L.J. 353 [Para 9]
Shankargir Gulabgir Gosavi Vs. State of Maharashtra, 2005(1) Bom.C.R. 470 [Para 10]
JUDGMENT :- The 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 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 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.
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 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 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 petitioner. The fact has been contested by filling 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 Vs. 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 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 Vs. State of Maharashtra and others, reported at 2007(2) Mh.L.J. 353 : [2007(4) ALL MR 156], 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 transferred is required to be taken over as surplus by the State. The right to select the property to be retained by the land-holder recognised in sub-section (2) of Section 16 is subject to sub-section (1) of the said Section, which is turn makes the provision subject to 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 Vs. 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 possession of transferee, where there is one transfree, then land to the extent of the deficiency shall be deemed to 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. 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.