2011(5) ALL MR 161
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.S. SHINDE, J.

Munjaji Manaji Shere Vs. State Of Maharashtra & Ors.

Writ Petition No. 2383 of 1992

7th March, 2011

Petitioner Counsel: Shri M.M. PATIL (BEEDKAR)
Respondent Counsel: Shri K.B. CHOUDHARI

Maharashtra Agricultural Lands (Ceiling on Holdings) Act (1961) S.45(2) - Suo moto enquiry - Notice issued by Additional Commissioner beyond statutory period prescribed under S.45(2) of ceiling Act - Non application of mind on part of authority - Held, the said notice deserves to be quashed and set aside. 1989 Mh. L. J. 1011 And 2008 (6) Mh. L. J. 571 - Ref. to. (Para 4)

Cases Cited:
Manohar Ramchandra Manapure & Others Vs. State of Maharashtra & Another, 1989 Mh.L.J. 1011 [Para 5]
Bansilal Ramgopal Bhattad Vs. State of Maharashtra and Other, 2001(1) Mh.L.J. 68 [Para 5]
Lotan Fakira Patil Vs. State of Maharashtra and Others, 2002(2) Mh.L.J. 255 [Para 5]
Champabai w/o. Shankarrao Patwari and Another Vs. State of Maharashtra and Other, 2004(1) Mh.L.J. 148 [Para 5]
Shalikram Dagduba Solunke etc. Vs. State of Maharashtra and Another, 2004(1) Mah.L.R. 310 [Para 5]
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 [Para 5]


JUDGMENT

JUDGMENT :- This petition takes exception to the notice issued by the Additional Divisional Commissioner, Aurangabad Division, Aurangabad in File No. 1987/ICHR/ 63 dated 13th July, 1992.

2. The petitioner is resident of Tadlimbala, Dist. Parbhani. He is the legal representatives of land holder Munjaji S/o Manaji.

The petitioner has filed this petition in the capacity of legal representative of deceased Munjaji S/o Manaji challenging the notice dated 13.07.1992 issued by the respondent No. 4 U/Sec. 45(2) of the Maharashtra Agricultural Land (Ceiling on Holdings) Act 1961.

It is the case of the petitioner that, the deceased Munjaji S/o Manaji filed return under Section 12 of the Maharashtra Agricultural Land (Ceiling on Holdings) Act 1961. In the return filed before the respondent No. 2 the father of the petitioner has recorded the names of himself and other five family members i. e. the wife, two sons and two daughters as well as the name of the mother of the return filer. The holding of the family was disclosed as 71 Acres and 5 gunthas. There are six survey numbers belonging to the family and out of this 71 Acres and 5 Gunthas. It was further disclosed in the return that land to the extent of 2 Acres and 10 Gunthas is not useful for cultivation as the same is acquired for the government road. The S. L. D. T. after going though the relevant record and after conducting the enquiry came to the conclusion that the return filer is not holding ant surplus land and, therefore, he was declared as non surplus holder by judgment and order dated 29.03.1976. The S. L. D. T. while declaring the father of the petitioner as non surplus holder a notional share to the mother was excluded. Therefore, it was held that, the father of the petitioner and his family is holding land as 72 Acres and 03 Guntha.

3. It is further case of the petitioner that, thereafter the respondent No. 4 decided to reopen the proceedings suo motu under the provisions of Sec. 45(2) of the Ceiling Act. The preliminary enquiry was made and the respondent No. 4 came to the conclusion that there is a prima facie case for revising the findings of the S. L. D. T., Parbhani. Therefore, the notices were issued to the petitioner to file say on 19.12.1981 and petitioner filed his say on behalf of Munjaji S/o Manaji. The enquiry was held by the respondent No. 4. In the reply filed by the present petitioner on behalf of Munjaji S/o Manaji it was stated that, there are 7 members in his family including his mother. It was also stated that his father expired 23 years ago and the share allotted to the mother by the lower Court i. e. S. L. D. T. is correct. The petitioner lastly prayed for dropping of the proceedings.

After considering the evidence on record, the learned Additional Commissioner, Aurangabad by its judgment and order dated 18th March, 1982 was pleased to set aside the order of S. L. D. T. Parbhani dated 02.12.1975 and the matter was remanded to the S. L. D. T. for fresh enquiry. It was observed that, there is no proper evidence regarding total number of family members on record.

It is the case of the petitioner that, after remand of the matter to the S. L. D. T., Parbhani, further enquiry was taken up by the respondent No. 3. At that time there was no S. L. D. T. The matter was heard and decided by the Deputy Collector Land Reforms, Parbhani. The Deputy Collector, after going through the relevant record as well as evidence produced by the petitioner, came to the conclusion that, widow mother of the return filer is entitled to notional share on partition and declared that the petitioner cannot be held as surplus holder under the ceiling Act by its judgment and order dated 29.04.1983. Thereby earlier order of S. L. D. T. came to be confirmed.

It is the case of the petitioner that, he was surprised and shocked when notice dated 13.07.1992 issued by the Additional Commissioner, Aurangabad was served upon him U/Sec. 45(2) of the Maharashtra Agricultural Land (Ceiling on Holdings) Act 1961., and therefore, he was called upon by the authority to remain present in the office of District Collector, Parbhani.

It is the case of the petitioner in challenging the notice dated 13th July, 1992 before this Court that suo moto proceeding U/Sec. 45(2) of the Ceiling Act were initiated in the year 1992 and the Additional Commissioner was pleased to set aside the order of S. L. D. T. dated 29.03.1976 and the matter was remanded to the S. L. D. T. for fresh enquiry. After the fresh enquiry the competent authority again held that the petitioner is not surplus holder. Therefore, according to the petitioner again for the same reason notice dated 13th July, 1992 came to be issued which is totally illegal, without application of mind and also not within the statutory period prescribed U/Sec. 45(2) of the said Act. Therefore, the counsel for the petitioner submitted that, this writ petition may be allowed and notice dated 13.07.1992 may be quashed and set aside.

4. On the other hand the learned Additional Government Pleader vehemently opposed the petition and submitted that, the notice is rightly issued by the Additional Commissioner, Aurangabad U/Sec. 45(2) of the said Act. Therefore, this writ petition is devoid of any merits and same may be dismissed.

5. I have given due consideration to the rival submissions of the learned counsel for the parties. It is admitted position that initially the S. L. D. T. passed the order on 29.03.1976 thereby the father of the petitioner deceased Munjaji S/o Manaji was declared non surplus holder. Thereafter on remand order by the Additional Commissioner, again the competent authority declared that the deceased land holder Munjaji S/o Manaji and his legal representatives are not surplus land holders. Said part of the order has attended finality. It is admitted position that the notice was issued by the Additional Commissioner on 13.07.1992. Therefore, said notice for suo moto revision was after the period of about 9 years from the date of second order of competent authority on 18th March, 1982. There also appears to be non application of mind on the part of the authority. It further appears that, documents and facts of the case are not properly seen by the Additional Commissioner before issuing notice for suo moto revision. Therefore, in my opinion, since the notice issued by the Additional Commissioner on 13.07.1992 was beyond the statutory period prescribed U/Sec. 45(2) of the Ceiling Act, the said notice deserves to be quashed and set aside.

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

In the case of Manohar Ramchandra Manapure & Others V/s. 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 subsection (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 V/s. 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 V/s. State of Maharashtra and Others, 2002 (2) Mh.L.J.255, this Court in the facts of the case held, notice U/Sec. 45(2) of the Act for suo moto revision was issued on 25.03.1982 and not within the period of three years from the date of order of 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 V/s. State of Maharashtra and Other, 2004 (1) Mh.L.J. 148, this Court held that the first proviso to subsection (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. V/s. 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 V/s. State of Maharashtra and another, 2008 (6) Mh.L.J.571, this Court held that in suomotu 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.

6. Therefore, in the light of aforesaid discussion the notice dated 13.07.1992 bearing No. 1987/ICHR 63 initiating suo moto proceedings U/Sec. 45(2) of Ceiling Act is quashed and set aside. The petition is allowed in terms of prayer clause "C". Rule is made absolute in above terms. The writ petition stands disposed of.

Petition allowed.