Ramesh Bapurao Chiddarwar vs State Of Maharashtra And Ors.
2005 Latest Caselaw 375 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. By this petition under Article 226 of the Constitution of India, the petitioner-landowner questions the order dated 17-1-1992, passed by the respondent No. 3 Commissioner in suo motu revision proceeding under Section 45 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The grievance made in nut shell is that though, show cause notice was only in relation to survey No. 9, during hearing the Commissioner also included the survey Nos. 70 and 123, in the scope of revision and has passed adverse orders. The learned Counsel appearing for the petitioner at the outset stated that insofar as the challenge to land survey No. 15/2 is concerned, the same is not being pressed as the land is already declared surplus and possession is also handed over by the petitioner.

2. Advocate R. R. Deshpande, appearing for the petitioner states, that in relation to survey No. 9, there was an agreement for sale on 31-12-1969, and accordingly possession was also handed over to the prospective purchaser. He further states that the said agreement was registered on 28-3-1970 and as such the said survey was excluded from the holding of the petitioner by the Surplus Land Determination Tribunal (SLDT). He further states that necessary evidence in this respect is adduced before the SLDT. He states that thereafter, the petitioner received a notice of suo motu revision from the office of the respondent No. 3 and the said notice was in relation to survey No. 9 and survey No. 15/2. He states that, the petitioner accordingly appeared before the respondent No. 3 and participated in the hearing and pointed out as to how survey No. 9 could not have been included in his holding. He further states that the proceedings appear to be at the instance of one objector by name Sambha Palikondwar.

3. He states that just on say of said Sambha, 1/9th share of field survey Nos. 70 and 123 was also considered by the Commissioner, and order has been passed for holding fresh enquiry in relation to the survey No. 9 and also 1/9th share from survey Nos. 70 and 123. He states that insofar as survey Nos. 70 and 123 are concerned, the MRT has already decided the said issue finally and in view of the second proviso to Section 45, the Commissioner could not have undertaken the said exercise in revision. He further states that as no opportunity to show cause or of hearing was given to the petitioner before hand in relation to these two survey Nos. the mandate of Section 45(2) is violated. He relies on the judgment passed by the Apex Court , C.B. Gautam v. Union of India, particularly paragraph Nos. 29 and 30 to contend that, if even it is presumed that such opportunity is not expressly provided in the statute, and the steps taken are likely to deprive the petitioner of his property it is required to be read into provision. He also relies upon the judgment of the Apex Court reported in 1995 (1) Mh.L.J. Pg. 708, State of Maharashtra v. Gulab Rao, to contend that as the agreement is registered on 28-3-1970, survey No. 9 was correctly excluded by the SLDT and could not have been included in the holding of the petitioner. He therefore, contends that the revisional order shows total non-application of mind and needs to be quashed and set aside.

4. The learned AGP Mrs. Khade, appearing for respondents, contend that a proper show cause notice was given to the petitioner and opportunity of hearing was also given to him. She points out that the petitioner has participated in the hearing and thereafter only the order has been delivered. She states that the Commissioner has given valid reasons for holding fresh enquiry in relation to holding of the petitioner in respect of field survey Nos. 9 and 1/9th share in field survey Nos. 70 and 123, she contends that what is ordered is only fresh enquiry, therefore, the petitions will have opportunity to demonstrate every thing again before the SLDT. She therefore contends that no prejudice is caused to the petitioner. Hence no case is made out for interference in writ jurisdiction.

5. Perusal of the provisions of Section 45 proviso 2, reveals that the said Sub-section (2), does not entitle the State Government to call for recover of any enquiry or proceedings of a declaration or part thereof under Section 21, in relation to any land if appeal against such declaration or proceedings is filed. Here as has been pointed out by the learned Counsel appearing for the petitioner, the matter went to MRT in Appeal and the MRT has considered the issue. This aspect is reflected in the order of the SLDT dated 8-11-1988, and the SLDT has found that there is no document on record to show that survey Nos. 70 and 123 are in possession of the petitioner. The SLDT has thereafter, made reference to its earlier adjudication dated 29-11-1985, and has observed that according to survey No. 70 was in possession of Shriram Nilawar, while survey No. 123 was in possession of Gunwant Damodhar Podurwar and Avinash Bandewar. It is also mentioned that, these field were in possession of the respective persons from the agricultural year 1970-71 to 1980-81. In such circumstances, it is apparent that by not mentioning these survey numbers in the show cause notice which is served by the respondent No. 3 upon the petitioner, serious prejudice has been caused to the petitioner. The petitioner therefore could not invite the attention of the respondent No. 3 to all this material. The provisions of Section 45(2), clearly demonstrates that a reasonable opportunity of being heard is required to be given by the respondent No. 3 to the petitioner. With that aim in view, the show cause notice was issued by the respondent No. 3, but the show cause notice in relation to survey Nos. 9 and 15/2, but does not contain the reference of survey Nos. 70 and 123. Thus, there is express requirement of observing principles of natural justice in Section 45(2). The ruling reported (supra), particularly paragraph No. 30, reveals that the Hon'ble Apex Court has observed that, even if in such circumstances, opportunity of hearing is not expressly provided it will have to be read into the provisions of law. The Hon'ble Apex Court has observed that before an order of compulsory purchase is made under Section 269-UD, the intending purchaser and the intending seller must be given reasonable opportunity to show cause against the order of compulsory purchaser. It is further noticed that though presumption of an attempt to evade tax may be raised by the appropriate authority concerned, presumption is rebuttable and this would necessarily imply that the parties concerned must have an opportunity to show cause as to why such a presumption should not be drawn. Little later in the same paragraph, the Apex Court has observed that though Chapter XX-C does not contain an express provision for affected parties being given opportunity to be heard before an order for purchase is made under Section 269-UD, not to read the requirement of such an opportunity would be to give too literal and strict an interpretation to the provisions of Chapter XX-C. Thus it is clear that failure to observe the principles of natural justice in this case has vitiated, the enquiry conducted by the respondent No. 3 Commissioner insofar as the survey Nos. 70 and 123, is concerned.

6. It is to be noted that one Sambha appears to have raised an objection before the Commissioner that 1/9th share of field survey No. 70 and 123 are also to be counted in the holding of the petitioner, as these fields were in cultivating possession of his father Shri Baburao. The Commissioner has thereafter, observed that it was therefore, necessary to have appropriate enquiry made in relation to 1/9th share from survey Nos. 70 and 123. How the commissioner has found that the petitioner had 1/9th share in field survey Nos. 70 and 123, is not clear and how the Commissioner has decided at least prima facie that field survey Nos. 70 and 123 needs to be counted in holding of the petitioner is also not discussed. Thus non-application of mind is apparent and even for this reason the said order deserves to be quashed and set aside.

7. In relation to survey No. 9, the learned Counsel appearing for the petitioner has invited attention of the Court to the discussions as contained in the order of SLDT. The SLDT has found that the petitioner has agreed to sale the survey No. 9 to one Namdeo Padmwar, and that field was even placed in possession of the said Namdeo on that date itself. It also noticed that the agreement is registered on 28-3-1970 and thus, it is prior to 26-9-1970. That the SLDT has considered the crop statement and 7/12 extract for the agricultural year 1970-71 to 1979-80 as also the oral evidence of Shri Revanwar, Shri Ahale and Scriber of the agreement Shri Vyawahare, that the Namdeo is in possession of survey No. 9 since 31-12-1969. It has also recorded that Namdeo has produced the receipt of payment of land revenue to the State Government. Namdeo has also produced before the SLDT, documents like electricity bills, receipt for sale of agricultural produced, certificate of the agriculture officer, pass book of cooperative Bank to demonstrate the possession on survey No. 9. In view of this material, if the Commissioner wanted to hold fresh enquiry into the matter, it was necessary for the commissioner to assign any reason for that. However, perusal of the order of Commissioner reveals that there is again no proper application of mind in this respect. Perusal of paragraph No. 7, of the order of Commissioner reveals that the Commissioner has found that in the year 1970-71 to 1972-73, name of the petitioner is shown in column No. 3, while name of Namdeo is shown in column No. 4. Thereafter, in subsequent crop statement the name of Namdeo is shown in both the columns. It is to be noted that column No. 4 contains name of person who is in cultivating possession of the suit fields. Thus this observations does not show that Namdeo was not in cultivating possession of survey No. 9. The Commissioner has stated that name of Namdeo is mentioned in column Nos. 3 and 4, though sale deed was not executed in his favour. Thereafter, again reference is made to the objection of Shri Sambha, that Namdeo is nearest and close relative of petitioner, and has managed agreement of sale with a view to save the land from Ceiling Act. In paragraph No. 9, again conclusion is mentioned that the agreement is manipulated however, the entire evidence which is taken note of by the SLDT is totally lost sight of with the fact, that agreement was registered on 28-3-1970. Perusal of the judgment of Apex Court in 1995 (1) Mh.L.J. 708, reveals that the Hon'ble Apex Court there did not accept the view expressed by this Court, in judgment reported at 1976 Mh.L.J. 727, as good law, in view of the fact that the agreement of sale was not registered. The Hon'ble Apex Court has mentioned that ex-facie the transfers had taken place much prior to 26-9-1970, and therefore, they would not be covered by the sweep of the first explanation of Section 10, still the second explanation which states that for the purpose of Sub-section (1) of Section 10, a transfer shall not be regarded as made on or before 26-9-1970, if the document evidencing the transfer is not registered on or before that date is to be looked into. In view of this finding the Apex Court held that protection under Section 53A of Transfer of Property Act is not relevant. However, in the facts of the present case, it is accepted by the SLDT, that the agreement has taken place on 31-12-1969 and Namdeo was placed in possession immediately and the agreement was also registered on 28-3-1970. Thus it is clear that the said transfer is saved and land survey No. 9, therefore cannot be included in the holding of the petitioner. Under the circumstances, I find that the order passed by the Commissioner on 17-1-1992, suffers from error apparent and needs to be interfered with in writ jurisdiction. The order is therefore, quashed and set aside.

8. Rule is made absolute in the aforesaid terms. No order as to costs.