Bhauji Bhagwan Awari And Ors. vs State Of Maharashtra And Anr.
2004 Latest Caselaw 1113 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. By this petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 23.1.1992 delivered by Maharashtra Revenue Tribunal, Nagpur in Ceiling Appeal Nos. 87/1990 to 91/1990. These ceiling appeals were filed by the present petitioners separately and in it the order impugned was one passed by Sub-Divisional Officer, Rajura dated 8.10.1990. By this order dated 8.10.1990 learned Sub-Divisional Officer declared the transfer of disputed land purchased by the petitioners from surplus holder as invalid and also cancelled the mutations which were effected due to these transfers. Necessary facts in this respect briefly stated are:

The present respondent No. 2 Bhalchandrarao owned vast land at various places including the village of petitioners by name Charli. Petitioner No. 1 purchased the land admeasuring 1.80 hectare out of Survey Nos. 228/1 and 228/2 situated at Charli in Gat No. 400 from respondent No. 2 by registered sale deed dated 8.9.1976. The petitioner No. 2 had purchased 1.26 hectare from Survey No. 35 Gat No. 159. Petitioner Nos. 3 and 4 purchased 1.70 hectare of land from respondent No. 2 from out of Survey No. 35 Gat No. 158, also by registered sale deed dated 27.8.1980. Petitioner No. 5 purchased 1.80 hectares of land from Survey Nos. 228/1 and 228/2 from respondent No. 2 by registered sale deed dated 8.8.1976. Petitioners state that they are in possession of the respective lands purchased by them, since then.

2. It is alleged that petitioners received a notice from Revenue Inspector that possession of these lands is to be taken by State Government on 31.10.1990. Petitioners thereafter made inquiries and from the office of the Sub-Divisional Officer, Rajura they learnt that there was a Ceiling Case No. 11/60-A(5)/63-64. They learnt that the lands purchased by them has been delimited as surplus by the Sub-Divisional Officer and mutation entries in their name and sale deeds executed in their favour by respondent No. 2 had been cancelled by Sub-Divisional Officer, Rajura by order dated 8.10.1990. Petitioners contend that their names were mutated in revenue records immediately after sale deed in their favour and they were not given any notice by the Sub-Divisional Officer before passing this order.

3. Aggrieved by this order of Sub-Divisional Officer, Rajura, the petitioners filed appeals before the Maharashtra Revenue Tribunal, Nagpur vide Appeal No. 87/1990 to Appeal No. 91/1990. All these appeals were heard together by learned Member and were dismissed by common order dated 23.1.1992. Maharashtra Revenue Tribunal has found that their appeals were not tenable as there were previous proceedings in ceiling case of respondent No. 2 and the land was delimited as surplus by order of Sub-Divisional Officer, Rajura dated 24.9.1987 and 28.9.1987. The Revenue Tribunal found that these orders were challenged in appeal before the Maharashtra Revenue Tribunal by respondent No. 2 that appeal was dismissed on 16.12.1988. The Revenue Tribunal has held that its order of dismissal has become final and it cannot review that order. Petitioners contend that their names were appearing in 7-12 extract and the learned Maharashtra Revenue Tribunal ought to have seen that they were not given any notice before taking any decision to delimit their land or before invalidating the sale deed in their favour.

4.1 have heard Advocate M.D. Zoting for petitioners purchasers, A.G.P. Smt. Jog for respondent No. 1 and Advocate M.B. Badiye, for respondent No. 2 original owner.

5. The Counsel for petitioners contend that in the facts and circumstances of the case the Sub-Divisional Officer has delimited surplus land on 28.9.1987 and in said order the lands of petitioners are mentioned at serial No. 1. It is further pointed out that in this order the learned Sub-Divisional Officer has found that these lands stand in the name of Shrikant Bhalchandra Deshpande and Yeshwant Bhalchandra Deshpande who are the sons of land holder. The Sub-Divisional Officer has found that these lands were in the name of Bhalchandra Deshpande (respondent No. 2) and on 25.11.1969 he executed a partition deed in favour of two minor sons and thereafter got entered their names in Patwari Record in the year 1975. The Sub-Divisional Officer has held that this partition is against the provisions of Section 10 of the Ceiling Act and therefore, it is to be ignored. Sub-Divisional Officer has further held that there is no other land with the land holder, therefore, the partition is to be overlooked. The Sub-Divisional Officer has ordered necessary notification under Section 21(2) of the Ceiling Act to be issued immediately in supersession of previous notification.

6. On the basis of these facts the learned Counsel for petitioners contends that even while passing this order in the year 1987, the Sub-Divisional Officer has looked into the records of year 1975 and records as existing on the date of passing of the order i.e. the date on which the lands were delimited as surplus was not looked into. He contends that if said record would have been looked into the Sub-Divisional Officer would have noticed the names of these petitioners as owners and in that event they would have got notices and opportunity of hearing. He relies upon the provisions of Section 17. For this purpose the relevant provisions contained in Section 17(1) and Section 17(2). These sub-sections read as under:

17(1). For holding an inquiry under Section 14, Collector shall cause public notice, in the prescribed form, to be given at convenient places in the village or villages in which the land comprised in the holding is situate, specifying in the notice the land in respect of which inquiry is to be held to ascertain the surplus land (if any) held by the person (or family unit), and calling upon all persons interested in the land to submit to the Collector their objection within a period of (fifteen days) from the date of publication of the notice. (Where a public notice has been given as provided in this sub-section, then the holder and all persons who are interested in the land shall be deemed to have been duly informed of the contents of such notice, if in the course of any proceedings a question arises whether a person was duly informed of the contents of the notice given in pursuance of this sub-section, the publication of the notice in the manner provided in this sub-section shall, notwithstanding anything contained in Sub-section (2), be conclusive proof that he was so informed of the contents of such notice.)

17(2). The Collector shall serve notice to the same effect on the holder and all other persons who are known or believed to be interested in the land, calling upon them to appear before him personally or through an agent on a date and at a time and place (such date not being earlier than fifteen days after the issue of notice), to be stated in the notice.

7. The learned Counsel relies upon the ruling reported in 1975 Mh. L.J. N.O.C. 16 and contends that as held in this ruling, personal notice under Section 17(2) is must and as said notice was not given the impugned orders are liable to be quashed and set aside. The learned Advocate contends that as the petitioners got knowledge of the ceiling proceedings after receipt of the notice of possession, they could not have filed any appeal with Maharashtra Revenue Tribunal, earlier. It is contended that earlier the appeals filed by present respondent No. 2 challenging the said order were of no consequence insofar as they are concerned. It is contended that learned Member of Maharashtra Revenue Tribunal could not have dismissed their appeal on the ground that against said order of Sub-Divisional Officer landlord (respondent No. 2) had filed appeal and it cannot review its own order. He contends that learned Maharashtra Revenue Tribunal ought to have considered in the interest of justice cause of the petitioners and should have passed appropriate orders of remand to Sub-Divisional Officer, so that lands purchased by them could have been excluded from delimitation proceedings and other lands of same land holder could have been included and acquired by the State Government as surplus lands.

8. As against this the learned A.G.P. Smt. Jog points out that the proceedings for determination of surplus land started from submission of returns as required by Section 12 of the Ceiling Act, 1961. She contends that under Section 15 the surplus land is determined and under Section 16, the landlord has to retain the lands and for the purpose he is required to select the lands. She points out that notice under Section 17 is required for the purpose of holding inquiry under Section 14. Under Section 14 the Collector has to hold an inquiry in respect of every person holding the land in excess of ceiling area and shall subject to the provision of Chap. IV determine the surplus land held by such person. She contends that sale deeds in favour of the petitioners are of the year 1976 or 1980. She points out that here surplus lands were determined way back in the year 1966 itself and for the purpose necessary notice was issued on 4.8.1966. She contends that there was no fresh enquiry made as required by Section 14 of Ceiling Act at any time thereafter and hence there was no need to issue any fresh notice under Section 17(1) or Section 17(2) by referring to the order of Sub-Divisional Officer dated 24.9.1987. She points out that the matter was earlier before this Court in Writ Petition Nos. 537/1983 and 1333/1983. She points out that the High Court at that time quashed the order of Sub-Divisional Officer about delimiting of surplus land passed on 30.3.1982 and matter was remanded back to Sub-Divisional Officer for giving notice and opportunity to petitioners in Writ Petition No. 537/1983 and further to delimit unencumbered lands as per the choice of land holders. She points out by reading pages 2 and 3 of this order as to how the landlord has acted fraudulently when Sub-Divisional Officer conducted hearing after remand. The landlord had stated that the sale deeds executed after 4.8.1959 are invalid and that the order of Sub-Divisional Officer dated 30.3.1982 should be accepted. It is pointed out by learned A.G.P, that this order dated 30.3.1982 was in fact challenged by land owner (present respondent No. 2) before the High Court and prayer was made to quash and set it aside. The learned Sub-Divisional Officer has found the idea of landlord in doing all this was to give to government the lands which had already transferred to others fraudulently. She further points out that on 24.9.1987 the Sub-Divisional Officer has held that petitioner is surplus holder to the extent of 74 acres and 20 gunthas and further directed him to give choice of land to be retained in Form VI. She points out that the order dated 28.9.1987 is passed by the Sub-Divisional Officer delimiting the lands as surplus in pursuance of this order. She also points out that this order was challenged before the Maharashtra Revenue Tribunal by respondent No. 2 landlord and the Maharashtra Revenue Tribunal dismissed that appeal on 16.12.1988. Learned A.G.P. points out that thereafter on 8,10.1990, the Sub-Divisional Officer passed further order of cancellation of the sale deeds and has directed the office to take possession of land declared surplus. The Sub-Divisional Officer found that mutation has been obtained by the petitioners in view of subsequent purchases and those sale deeds are required to be cancelled.

9. Having heard the parties I find that the notice under Sections 17(1) and 17(2) is contemplated only when Collector holds inquiry under Section 14 of the Ceiling Act, 1961. Here it is not a case of the petitioners that any inquiry under Section 14 was held specifically, after they got the sale deeds in their name.

Their case is that in 1987 the lands were standing in their name and therefore, notice ought to have been issued to them by Sub-Divisional Officer before delimiting the lands as surplus. However, there is no such requirement in law. The provisions of Section 8 of Ceiling Act put a restriction on transfer and a person like respondent No. 2 who holds land in excess of ceiling area is prohibited from transferring any land in excess of ceiling area. Provisions of Section 10 provide for consequences of certain transfers and these provisions clearly reveal that such transfer cannot affect the interest of the Government in the matter.

10. Here it is noteworthy that Section 21(2) proclamation was issued earlier on 27.2.1987 and before that on 27.11.1972 this Section 21(2) proclamation dated 27.11.1972 was challenged in Writ Petition No. 1333/1983 and as already stated above this writ petition alongwith Writ Petition No. 537/1983 was partly allowed and the matter was remanded back only for limited purpose. While so doing when the order of delimitation dated 30.3.1982 was also set aside. After completing further inquiry next Section 21(2) Proclamation was issued on 27,2.1981. The petitioners appear to have purchased lands from respondent No. 2 between these two notifications. It is thus clear that respondent No. 2 has sold the land declared as surplus to the petitioners fraudulently. These fraudulent transfers do not confer any right upon petitioners and the order of the Sub-Divisional Officer dated 8.10.1990 invalidating these transfers is perfectly legal and valid. Hence on merits there is no substance in the contentions advanced by Advocate M.D. Zoting for the petitioners.

11. Insofar as observations of Maharashtra Revenue Tribunal in the impugned order about non-maintainability of the appeal are concerned, in paragraph 7 of its order the Maharashtra Revenue Tribunal has observed that the order of delimitation has become final and cannot be challenged. The reasons given by the learned Maharashtra Revenue Tribunal appears to be correct. The petitioners have not made proper inquiries before purchasing lands and have ended up in purchasing the lands which were determined as surplus. In this background the approach of the Maharashtra Revenue Tribunal is perfectly just and proper. Petition is without any substance and stands dismissed with no order as to cost. Rule discharged. Interim order dated 19.2.1992 hereby stands vacated.