Laxmibai Ramrao Patil Since ... vs State Of Maharashtra And Ors.
2003 Latest Caselaw 664 Bom

JUDGMENT

Naresh H. Patil, J.

1. This petition is directed against the communication-cum-order dated 29-7-1977 issued by the Additional Commissioner, Aurangabad informing the petitioner that as the petitioner had filed an appeal under Section 33 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 before the Maharashtra Revenue Tribunal against the order of the Surplus Land Determination Tribunal which was confirmed in appeal, the revision application was not tenable under Section 45(2) of the said Act.

2. Deceased petitioner - Laxmibai Ramrao had filed a Return under Section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as "the Act of 1961"). She had shown her total acreage of holdings as 78 acres 07 gunthas. As regards land Sy. No. 47 admeasuring 27 acres 17 gunthas, it was stated that respondent No. 4. Trimbakrao Govindrao, was tenant from the year 1969 and was in possession of the said land. The issue was taken up by the Surplus Land Determination Tribunal under Section 21 of the Act of 1961 and by an order dated 21st February, 1976 it was declared that the petitioner was surplus landholder to the extent of 24 acres 7 gunthas. The claim of the petitioner that the respondent No. 4 Trimbakrao was a tenant of the land in Survey No. 47 was rejected by the Tribunal.

3. The deceased petitioner, who is now represented by her legal heirs, filed a revision petition before the Divisional Commissioner, Aurangabad dated 26-7-1976 against an order passed by the Surplus Land Determination Tribunal under Section 21 of the Act of 1961 on 21-2-1976 in Case No. 116/1975. The petitioner preferred an appeal to the Maharashtra Revenue Tribunal, Aurangabad purporting to be under Sections 14 and 21 of the Act of 1961. The record and proceedings was called by this Court and the copy of the appeal memo is part of the said record. I have perused the same. It is filed on 24th September, 1976. The said appeal was preferred after the petitioner approached the Revisional Authority. In the appeal, the petitioner prayed as follows:

"The appeal may kindly be allowed, the order under appeal may kindly be set aside and the appellant may kindly be allowed to exercise the right of option provided under Section 16 of the Act and she may kindly be allowed to retain the land bearing Survey No. 123/A of village Talegaon Bori and give the land bearing Survey No. 47 from eastern side for delimitation purposes as it is free from all encumbrances and oblige."

4. By Judgment and order dated 8th October, 1976 the Maharashtra Revenue Tribunal, Aurangabad partly allowed the appeal filed by the petitioner and the order passed by the Surplus Land Determination Tribunal dated 28th February, 1976 was quashed and set aside and the matter was remanded to the Lower Court with a direction to give opportunity to the appellant to exercise her choice under Section 16 of the Act of 1961 in Form No. VII and then to pass order of delimitation afresh. The deceased petitioner had disclosed her filing of revision petition before the Divisional Commissioner in the appeal memo itself filed before the Maharashtra Revenue Tribunal.

5. The learned Additional Commissioner, Aurangabad, declined to entertain the revision petition filed by the petitioner on the ground that the petitioner had filed an appeal under Section 33 of the Act of 1961 before the Maharashtra Revenue Tribunal, Aurangabad against the declaration order of the Surplus Land Determination Tribunal. The Additional Commissioner was of the opinion that the revision application under Section 45(2) of the Act of 1961 was, therefore, not maintainable.

6. Though the State did not file any reply to the petition, respondent No. 4, who claims himself to be a tenant of the land in Survey No. 47, has filed a reply.

7. Shri Vivek Solshe, learned Counsel appearing for the petitioners, submitted that the appeal, which was filed by the petitioner before the Maharashtra Revenue Tribunal, was not against the declaration under Section 21 of the Act of 1961 but it was against an order passed by the Surplus Land Determination Tribunal dated 28th February, 1976 in the proceedings under Section 16 of the Act of 1961 while the petitioner was asked to exercise her choice of land. He further submitted that the appeal was against part of the declaration under Section 21 of the Act of 1961 as envisaged under Section 33 of the Act of 1961. The relevant provisions of Section 33(1)(1) and (2) are as under :

"33. (1) An appeal against an order or award of the Collector shall lie to the Maharashtra Revenue Tribunal in the following cases:--

(1) an order under Sub-sections (2) and (3) of Section 13 not being an order under which a true and correct return complete in all particulars is required to be furnished;

(2) a declaration or any part thereof under Section 21.

8. In his submission, the provisions of Section 45(2) also refers to appeal filed under Section 21 or part thereof. Based on this analogy, he was of the view that even against part of the order of declaration under Section 21, revision could be filed or the power of State Government to revise the order passed by Surplus Land Determination Tribunal could be put into motion.

9. In the alternative, he submitted that it could also be inferred that the appeal which was filed before the Maharashtra Revenue Tribunal, after filing of appeal before the Divisional Commissioner, was not maintainable in the eyes of law, as the appeal under Section 21 could be filed only against declaration made under Section 21 and not against orders or findings passed by the authorities prior to reaching of the stage of issuance of such a declaration under Section 21 of the Act of 1961. He places reliances on the decisions of this Court in Brajvallabh Shankarlal v. Maharashtra Revenue Tribunal, Nagpur, , and Baswantrao Appaji Choudhari v. Commissioner, Nagpur Division, Nagpur, 1977 Mh.L.J. 834

10. Shri S.V. Chillarge, learned Assistant Government Pleader, submitted that while considering the issue of delimitation under Section 16 of the Act of 1961, in the appeal filed by the petitioner, the Maharashtra Revenue Tribunal had observed and considered the issue of declaration of surplus land under Section 21 and hence the appeal could be termed to be an appeal filed under Section 21. In substance, the petitioner had filed an appeal against the declaration under Section 21 and hence in view of Section 45(2) proviso, the revision was barred and the State had no authority to revise the order of declaration passed by the Surplus Land Determination Tribunal under Section 21 of the Act of 1961.

11. The crucial issue is as to what constitutes an appeal under Section 33 of the Act of 1961 arising out of a declaration (or any part thereof). The issue was considered and addressed in the case of Baswantrao Appaji Choudhari (supra) wherein the Division Bench of this Court had observed that, the entire scheme right from the stage of Section 14 to Section 21 has one end in view and that is to find out the entitlement of the holder of the land to the ceiling area and further to find the surplus land which, because of law, requires to be taken possession of by the State. The declaration thus has formal statutory existence and Sub-section (1) of Section 21 merely states all that it shall be composed of. The declaration under Sub-section (1) of Section 21 is the king-pin upon which the new entitlement in favour of the State or the landholder has to be found out. In the view of the Division Bench, there was no scope for reading in the scheme of Section 21(1) any possibility of rendering separate decisions having any statutory validity. Though separate decisions might be reached, unless they take a composite form of the declaration contemplated by Section 21(1), legal effect is not attached to it. Once such statutory declaration is made, that alone has a finality and conclusiveness as is evident from Section 21(3) of the Act. The Division Bench further distinguished the word "declaration" and "decision" occurring in the provisions of the Act of 1961.

12. In Brajvallabh Shankarlal (supra) this Court, while discussing the scheme of provisions of Section 33 of the Act of 1961 observed that, necessarily, the declaration must be preceded by an antecedent enquiry in which all the objections and contentions raised by various persons have to be decided and findings thereon have to be given. After these findings are given on matters mentioned in Sections 18, 19 and 20, the Collector is in a position to find out the matters specified in Section 21 and that is the final declaration which is made appealable under Section 33. It is further observed that, in an appeal under Section 33, the person aggrieved may challenge all the matters given under Section 21 if he is aggrieved by all of them or only some of these matters by which he feels aggrieved. The result of the enquiry made under Section 18 is merely a finding and not the final decision. The final decision is the declaration made under Section 21. No appeal has been provided against the findings in an enquiry under Section 18 of the Ceiling Act.

13. In Ganpatrao Gulabrao Pawar and Ors. v. State of Maharashtra, , while dealing with the aspect of appeal under Section 33 and revision under Section 45 of the Act of 1961, the Supreme Court had observed :

"10. A review of the above provisions clearly discloses the scheme of the Act. In particular, it shows that an appeal is provided only against a "declaration" made under Section 21 and not against any of the orders made under Sections 14 to 20. A mere determination or a finding or order that a person/family unit holds land less than the ceiling limit is not a "declaration" and, therefore, not appealable. The Bombay High Court was, therefore, right in holding that the order of the Collector dated January 2, 1969 in the case of the first appellant was not appealable. The appeal filed by him was one not provided by law and, hence, no appeal in the eye of law. Such an incompetent appeal could not operate as a bar to the exercise of revisory power under Section 45(2). After all, it should not be forgotten, the Act is not intended to determine or declare titles. The finding as to the extent of a holding of a person under the Act is only a step towards its object - an intermediate stage."

14. The consistent view on the provisions contained in Section 33, more particularly relating to appeal under Section 21, is that the law does not recognise an appeal filed against an order passed or findings recorded by the authorities prior to reaching the stage of declaration under Section 21 of the Act of 1961. An appeal against the declaration under Section 21 has to be of a composite nature. The order has to be challenged as a whole.

15. The petitioner in this case had filed a revision petition under Section 45(2) before the Commissioner against a declaration made under Section 21 by the Surplus Land Determination Tribunal by its order dated 21-2-1976. An appeal preferred before the Maharashtra Revenue Tribunal against the order passed under Section 16 in Form VII could not be considered to be a composite appeal under Section 21 of the Act of 1961.

16. The learned Additional Commissioner considered the appeal, filed by the petitioner before the Maharashtra Revenue Tribunal to be an appeal against the declaration under Section 21 of the Act of 1961 and refused to entertain the revision petition of the petitioner as not maintainable. The order passed by the Additional Commissioner is not legal and proper.

17. In this view of the matter, the petition deserves to be allowed. The order/communication issued and signed by the Assistant Commissioner dated 29-7-1977 (Exhibit "D" to the petition) communicating the petitioner that her revision petition is not maintainable is quashed and set aside.

18. The Additional Commissioner is directed to consider the revision petition filed by the petitioner under Section 45(2) of the Act of 1961 on its own merits and dispose of the same within a period of six months from the date of receipt of writ of this Court, after giving opportunity of hearing to the legal representatives of the original petitioner, who undertake to co-operate with the revisional authorities in getting the matter disposed of finally.

19. Rule made absolute in the above terms with no order as to costs.