2011(3) ALL MR 108
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.S. SHINDE, J.

Sudhakar S/O. Vinayakrao Patil Vs. State Of Maharashtra & Ors.

Writ Petition No.2538 of 1992

9th March, 2011

Petitioner Counsel: Mr. A. S. GOLEGAONKAR
Respondent Counsel: Mr. K. B. CHOUDHARY

Maharashtra Agricultural Lands (Ceiling on Holdings) Act (1961), S.45(2) - Revision - Limitation - Suo-Motu revisional jurisdiction exercised beyond statutory period of three years from impugned declaration by surplus Land Determination Tribunal holding petitioner as non-surplus land holder - Order in revision cannot be sustained and liable to be quashed. (Paras 8, 10)

Cases Cited:
1977 Mh.L.J. 443 [Para 6]
Manohar Ramchandra Manapure Vs. State of Maharashtra, 1989 Mh.L.J. 1011 [Para 9]
Bansilal Ramgopal Bhattad Vs. State of Maharashtra, 2001(1) Mh.L.J.68 [Para 9]
1997(6) SCC 71 [Para 9]
Lotan Fakira Patil Vs. State of Maharashtra, 2002(1) ALL MR 585=2002(2) Mh.L.J. 255 [Para 9]
Champabai w/o. Shankarrao Patwari Vs. State of Maharashtra, 2004(1) ALL MR 874=2004(1) Mh.L.J. 148 [Para 9]
Shalikram Dagduba Solunke Vs. State of Maharashtra, 2004(1) Mah.L.R. 310 [Para 9]
Gowardhandas s/o. Laxmandas deceased through his L.R. Vijaykumar s/o. Gowardhandas Vs. State of Maharashtra, 2008(5) ALL MR 95=2008(6) Mh.L.J. 571 [Para 9]


JUDGMENT

JUDGMENT:- This writ petition is filed challenging the judgment and order dated 11-08-1992 in Case No.1989-ICH-R.14 passed by the Additional Divisional Commissioner, Aurangabad Division, Aurangabad.

The petitioner is a resident of Chinchala Taluka Majalgaon District Beed. He has filed this petition in the capacity of L.R. of deceased Vinayak Patil. It is the case of the petitioner that the Surplus Land Determination Tribunal (For short, "S.L.D.T."), Majalgaon, by its order dated 30-04-1996 in Case No.75-ICH-419 assessed the holdings of Vinayak Patil as 59 acres and 33 gunthas and declared him non surplus holder.

2. It is the case of the petitioner that in the year 1978, Additional Commissioner, Aurangabad Division, Aurangabad initiated proceedings under Section 45(2) of the Maharashtra Agricultural Lands (Ceiling and Holdings) Act, 1961 (For short, "Said Act") and same proceedings were finally decided on 30-03-1983 by which the matter was remanded back to the S.L.D.T. Majalgaon with certain directions to pass fresh order by making fresh inquiry.

3. It is further case of the petitioner that as per directions of the Divisional Commissioner, Aurangabad Division, Aurangabad under Section 45(2) of the said Act, the Chairman of S.L.D.T., Majalgaon conducted fresh inquiry and after completing the inquiry, held that Vinayak Patil is non surplus land holder, by its judgment and order dated 31-08-1988.

4. It is the case of the petitioner that after deciding and declaring the petitioner Vinayak non surplus land holder finally after holding reenquiry in the light of observations and directions issued by the Additional Commissioner, Aurangabad by its judgment and order dated 30-03-1983. Surprisingly, in the year 1988, Divisional Commissioner, Aurangabad, again issued notices under Section 45(2) of the said Act and thereby again initiated suo moto inquiry and said case No.1990-ICH-R-14 was decided and father of the petitioner Vinayak was declared as a surplus holder to the extent of 14 acres 33-1/2 gunthas. Said judgment and order is passed on 11-08-1992. Said order is under challenge in this petition.

5. When this petition was heard for admission, this Court issued Rule and interim relief in terms of prayer clause (C). By interim order, this Court stayed operation and execution of the judgment and order dated 11-08-1992 passed by the Additional Divisional Commissioner, Aurangabad.

6. Learned Counsel appearing for the petitioner submits that, Additional Divisional Commissioner, Aurangabad Division, Aurangabad remanded the case for fresh inquiry in the year 1983 and thereafter, again S.L.D.T. Majalgaon maintained its earlier order and held that father of the petitioner Vianayak is non surplus holder. According to the Counsel for the petitioner, notices issued by the Additional Divisional Commissioner, Aurangabad Division, Aurangabad in the year 1988, without application of mind to the documents and facts of the case and also beyond statutory period of three years and therefore, Additional Divisional Commissioner, Aurangabad Division, Aurangabad had no jurisdiction to initiate suo moto inquiry. Learned Counsel further submitted that the Additional Divisional Commissioner has no power to reopen the case, as it was already decided in the year 1983. It is further submitted that, the Additional Divisional Commissioner failed to decide the case in the light of the judgment of this Court reported in 1977 Mh.L.J. 443. Learned Counsel for the petitioner prayed that this writ petition deserves to be allowed.

7. On the other hand, learned A.G.P. appearing for the respondent State submitted that, the Commissioner has acted within statutory powers and therefore, this Court may not interfere in the judgment and order of the Additional Divisional Commissioner, Aurangabad Division, Aurangabad, impugned in this petition.

8. I have given due consideration to the rival submissions and also perused the impugned judgment and order passed by the Additional Divisional Commissioner, Aurangabad Division, Aurangabad and also perused the record of the case. It is not in dispute that the Additional Divisional Commissioner, Aurangabad Division, Aurangabad exercised suo moto revisional power and remanded the matter back to the S.L.D.T. Majalgaon in the year 1983. In second round, the S.L.D.T. Majalgaon maintained its earlier order and thereby father of petitioner Vinayak was declared non surplus holder. From the perusal of the record, it appears that the Additional Divisional Commissioner, Aurangabad Division, Aurangabad again in the year 1988 issued notices to the petitioner for suo moto inquiry. On careful perusal of the facts of the case and material brought on record, it clearly appears that the Additional Divisional Commissioner, Aurangabad Division, Aurangabad has not applied his mind to the documents and to the facts of the case and issued notices to the petitioner for suo moto inquiry in the year 1988. There was no application of mind before issuance of the notices, that too, within statutory period of three years, as prescribed under the provisions of Section 45(2) of the said Act. Therefore, in my opinion, notice issued by the Additional Divisional Commissioner, Aurangabad Division, Aurangabad, for suo moto inquiry in the year 1988 was beyond statutory period and also without proper application of mind to the facts of the case.

9. This Court had occasion to interpret provisions of Section 45(2) of the said Act, in the following decisions:

In the case of Manohar Ramchandra Manapure & Others Vs. State of Maharashtra & Another, 1989 Mh.L.J. 1011, the Full Bench of this Court held that the proviso to section 45(2) of the Maharashtra Agriculture 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. Calling of the record cannot be equated with the mechanical, clerical or ministerial act of calling for the record for all the proceedings irrespective of the fact whether they were required or not for the purpose specified in the section. It is further held that 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 circumstances of each case. Where admittedly the necessary application of mind on the part of the Commissioner 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 will have no power to exercise the revisional jurisdiction.

Yet in another decision in the case of Bansilal Ramgopal Bhattad Vs. State of Maharashtra and Other, 2001(1) Mh.L.J. 68, this Court held that suo motu proceedings for revision having been initiated almost after 9 years from the date of decision of S.L.D.T., could not be permitted in law. Suo motu proceedings in question having been initiated after unreasonable period were without authority of law and void ab initio in view of the decision of the Apex Court in 1997 (6) SCC 71.

Yet in another reported case of Lotan Fakira Patil Vs. State of Maharashtra and Others, 2002(2) Mh.L.J. 255 : [2002(1) ALL MR 585], this Court in the facts of the case held notice under Section 45(2) of the Act for suo-motu revision was issued on 25.03.1982 and not within the period of three years from the date of order of the S.L.D.T. dated 03.07.1978 and therefore the exercise of powers under the said provisions was beyond the period of limitation and therefore was without jurisdiction.

Yet in another case of Champabai w/o. Shankarrao Patwari and Another Vs. State of Maharashtra and Other, 2004(1) Mh.L.J. 148 : [2004(1) ALL MR 874], this Court held that the first proviso to sub-section (2) of section 45 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 lays down two conditions which are required to be satisfied before the State Government or its delegate could invoke the revisional powers. The said two conditions are : (a) that, appeal has not been filed against the order/declaration made by S.L.D.T. within the prescribed period, and (b) that, a period of 3 years has not elapsed from the date of the order or declaration made by S.L.D.T. In the facts of that case the Court held that the decision to initiate the proceedings was taken within three years time. However, same was without application of mind and hence held to be bad in law. It is further held that the actual initiation of proceedings was after a lapse of about 8 to 10 years from the date of decision to initiate the proceedings. This delay was totally unexplained. Therefore, taking overall view of the matter, the Court held that where the notice came to be issued to the petitioner by the Additional Commissioner, after lapse of period of 8-10 years, after passing orders by S.L.D.T., holding that the petitioners did not hold land in excess of ceiling limit are bad in law.

Yet in another case of Shalikram Dagduba Solunke etc. Vs. State of Maharashtra and Another, 2004(1) Mah.L.R. 310, this Court held that exercise of revisional powers by Additional Commissioner after 10 to 15 years from the date of order of S.L.D.T., is beyond the statutory period and also passed in mechanical manner and same is liable to be set aside.

Yet in another judgment in Gowardhandas s/o. Laxmandas deceased through his L.R. Vijaykumar s/o. Gowardhandas Vs. State of Maharashtra and another, 2008(6) Mh.L.J. 571 : [2008(5) ALL MR 95], this Court held that in suo-motu revision by Additional Commissioner, memorandum regarding revision issued on 30.11.1978 after declaration under section 21 on 08.11.1976 but no notice was issued to the petitioner till 1992, the order passed by the Additional Commissioner on 30.03.1993 is beyond limitation prescribed under section 45(2) of the said Act.

10. Therefore, viewed from any angle, the impugned judgment and order dated 11-08-1992 passed by the Additional Commissioner, Aurangabad Division, Aurangabad in Case No.1989-I-CHR.14, cannot be sustained and same stands quashed and set aside.

11. Writ Petition is allowed and disposed of.

12. Rule made absolute on the above terms.

Petition allowed.