Kamlabai Purushottam Dhut And ... vs State Of Maharashtra And Ors.
2005 Latest Caselaw 1125 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. Heard Shri Gilda, learned counsel for the petitioners and Shri Loney, learned Assistant Government Pleader for the respondents.

2. Present petitioners who are legal representatives of original petitioner Purushottam challenged the order dated 16-4-1993 passed by respondent No. 2 declaring 4.22 acres of land as surplus. The said order is passed in revisional jurisdiction under Section 45 of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961; (hereinafter referred to as the Ceiling Act for short).

3. As the facts are not in dispute and question raised is only of tenability of revision, it would be appropriate to state the facts in brief. Purushottam filed return under Section 12 of the Ceiling Act and after due inquiry, respondent No. 3 declared 9.09 acres of land as surplus under Section 21 of Ceiling Act. The issue regarding the validity of sale dated 2-5-1972 by which he sold survey No. 26/2 of mouza Belkhed, area 4.22 acres was also considered by respondent No. 3 and it was held to be a genuine sale transaction. Aggrieved by declaration of 9.09 acres of land as surplus, Purushottam filed an Appeal under Section 33 of Ceiling Act before Maharashtra Revenue Tribunal. Present respondent No. 1 was also respondent therein and it filed belatedly a Cross Objection in that Appeal through its Officer on Special Duty questioning the finding in relation to sale and sought inclusion of survey No. 26/2, area 4.22 acres within holding of Purushottam. That Cross Objection was opposed by appellant Purushottam who pointed out that it was filed beyond limitation and there was no request for condonation of delay. He also pointed out that purchaser Viswanath Raut was necessary party and he was not joined in the proceedings. Maharashtra Revenue Tribunal dismissed the Appeal on merits on 30-9-1987 while it also dismissed the Cross Objection but that was on the ground of bar of limitation. Petitioner contends that accordingly respondent No. 3 took possession of 9.09 acres of land. Thereafter, deceased petitioner received notice from respondent No. 2 under Section 45 of Ceiling Act and it was mentioned therein that prima facie there was mistake committed by respondent No. 3 by excluding field survey No. 26/2 from holding of Purushottam. He objected to the proceedings pointing out that Appeal was already preferred and land was already taken into possession and hence suo-motu revision was not permissible. In spite of this objection, on 16-4-1993, respondent No. 2 reopened the proceedings and declared survey No. 26/2 area 4.22 acres as surplus. Purushottam thereafter filed present petition. He expired during pendency petition and his widow, sons and daughters are now on record as his legal heirs.

4. Advocate Gilda for legal heirs of Purushottam contended that Section 45 of Ceiling Act bars revision if Appeal was filed under Section 33 before Maharashtra Revenue Tribunal and also if, land already declared surplus is taken into possession by respondents. He states that surplus land 9.09 acres was taken into possession by respondents on 4-3-1989 and hence there was no scope to take recourse to the revisional jurisdiction. He further states that these objections are not properly considered by respondent No. 2 while deciding the revision. He further invites attention to the note dated 18-9-1988 by which respondent No. 2 invoked suo motu its revisional powers. According to him, said jurisdiction has been invoked because challenging order of M.R.T. in writ petition would take long time. He states that this is not sufficient to invoke the revisional jurisdiction. He has relied upon some authorities in support of his contention and reference to those authorities will be made at appropriate place in this judgment.

5. Advocate Loney, learned AGP on the other hand has contended that taking over of possession is no bar to the exercise of revisional jurisdiction. He further argues that possession was taken after notice of revision was issued and was served upon Purushottam. He further contends that survey No. 26/2 area 4.22 acres or the sale deed dated 2-5-1972 was not the subject-matter of Appeal before M.R.T. Cross Objection filed in relation thereto by respondents has not been adjudicated upon on merits by M.R.T. but it has been dismissed as time barred. According to him, therefore, there was no Appeal insofar as its this part of declaration is concerned. He, therefore, states that action of respondent No. 2 in invoking Revisional jurisdiction is justified. He also relies upon the judgment of this Court between Nagorao Shrirame v. State of Maharashtra reported at 2002(3) Mh.L.J. 524 and reference to it will be made at appropriate place.

6. In the above circumstances, it will be appropriate to scrutinise provisions of Section 45(2) of Ceiling Act. Said provision is as under:-

Section 45(2) :- The State Government may, suo motu or on an application made to it by the aggrieved person, at any time, call for the record of any inquiry or proceedings under Sections 17 to 21(both inclusive) or under Section 27 for the purpose of satisfying itself as to the legality or propriety of any inquiry or proceedings (or part thereof) under those sections or of any order passed under Section 27 and may pass such order thereon as it deems fit, after giving the party a reasonable opportunity of being heard;

Provided that, nothing in this sub-section shall entitle the State Government, to call for the record of any inquiry or proceedings of a declaration or part thereof under Section 21 in relation to any land, unless an appeal against any such declaration or part thereof has not been filed within the period provided for it, the possession of such land has not been taken under Sub-section (4) of Section 21 and a period of three years from the date of such declaration or part thereof has not elapsed.

This provision has been subject matter of various judgments pointed out by Advocate Gilda and the first in the line is 1976 Mh.L.J. 443 between Rambhau v. State of Maharashtra. Perusal of paragraph 5 of the judgment shows that one of the arguments urged before Hon'ble Division Bench was that revision before Commissioner was not maintainable as the Appeal was filed. It was submitted that once Appeal was filed, within or after the time in terms of proviso to Section 45(2), revision was not tenable. The Division Bench found the submission to be unsustainable. It was found that though Appeal was filed, it was not filed within the period provided for it and was therefore dismissed on the ground of limitation. Such Appeal was therefore held no bar to exercise of revisional jurisdiction. The Division Bench has stated that the situation might have been different had the delay in filing Appeal been condoned by Tribunal. This ruling therefore, shows that mere filing of Appeal is not sufficient and the Appeal should be competent and maintainable. In the facts of present case,Cross Objection filed by State Government was not within time and has been rejected only on account of limitation. Thus M.R.T. has not applied its mind to the merits of controversy pertaining to survey No. 26/2 sought to be raised through it. This ruling therefore does not save the situation for present petitioners.

7. Next ruling on which reliance is placed is 1977 Mh.L.J. 834, Baswantrao v. Commissioner, Nagpur Division. In this ruling, the above mentioned 1976 Mh.L.J. 443 has been relied upon. In paragraph 12, the Hon'ble Division Bench found that the right to file Appeal was not available and Appeal itself would be incompetent. It has been mentioned that mere filing of Appeal would not be a bar under the proviso for exercise of revisional power. The purpose of foreclosing the scrutiny in the matter subjected to process of Appeal has been stated to be to avoid a conflict of decision by the authorities having jurisdiction to revise or review the declaration or any part thereof and to achieve unanimity in the matters of judicial adjudication. When the once such declaration or part thereof has been the subject-matter of appellate scrutiny, it behoves judicial propriety that said matter should not be subjected to further scrutiny in more or less co-ordinate jurisdiction. Division Bench observes that dismissal of Appeal may be for several reasons including the one that Appeal was not properly constituted or was not competent or was not prosecuted. It is mentioned that such dismissal would not partake of the character of appellate scrutiny by the higher authority so as to operate as a bar for exercise of revisional power. Thus the judgment shows that Appeal under Section 33 of Ceiling Act can be against the entire declaration or any part thereof by which the appellant is aggrieved. Further, there has to be judicial application of mind by appellate authority to issues raised in such Appeal. It also shows that rejection of Cross Objection of State Government by M.R.T. in present case cannot operate as bar to the exercise of revisional jurisdiction.

8. Third case on which reliance is placed by Advocate Gilda is between Anandrao Jachak v. State of Maharashtra, reported at 1980 Mh,L.J. 661. This ruling considers the above two reported judgments and also the ruling at 1979 Mh.L.J. 476, which is being considered later on here. In this 1980 judgment, argument considered was that mere filing of Appeal before Maharashtra Revenue Tribunal deprived Commissioner of his powers under Section 45 of Ceiling Act. In paragraph 17 of the judgment, Hon'ble Division Bench states that intention of Legislature in enacting a proviso to Section 45(2) needs to be looked into. Said proviso cannot be read and interpreted independent of other provisions of Ceiling Act, particularly Section 21(1) and Section 33. The intention of Legislature, according to Division Bench, is to vest in State Government the power of scrutiny in respect of proceedings of a declaration or part thereof if the same have not been subjected to the scrutiny of the appellate authority under the Ceiling Act. The appellate jurisdiction can be exercised by M.R.T. only when an appeal is filed by aggrieved party against a declaration or a part thereof. The provisions of Section 45(2) or proviso thereto clearly show that Legislature wanted to vest in State Government revisional jurisdiction only to a limited category of cases. This limitation is provided for in the proviso itself. These three limitations/restrictions are - (1) there is no power of scrutiny by State Government in case where appellate authority has subjected the declaration under Section 21 or any part thereof to scrutiny by an appeal preferred within the period provided for it; (2) the land must not have been taken possession of under Section 21(4) by collector; and (3) the period of three years from date of declaration has not elapsed. It is further observed by Division Bench that there is no substance in contention that merely because something in the nature of Appeal is filed which is also dismissed summarily as not maintainable, the Commissioner did not have jurisdiction to make an order under Section 45. Thus, this ruling also does not support the contentions of present petitioner.

9. The last ruling in the chain is again by Division Bench in case between Bhagwan Ambhure v. State of Maharashtra, reported at 1979 Mh.L.J. 476. As already stated above, the Division Bench in 1980 Mh.L.J. 661(supra) has also considered the judgment. The Division Bench finds that Section 33(3) of Ceiling Act does not confer powers upon M.R.T. which is similar in nature to those under Order 41 Rule 33 of Code of Civil Procedure in an appeal by landholder challenging the order of Surplus Land Determination Tribunal. It is thus clear that in Appeal filed by present petitioner, respondents could not have got any relief about survey No. 26/2 or sale deed dated 2-5-1972 without having a valid/legal Cross-Objection on record. Thus this ruling also does not help petitioner in any way. Observations of Hon'ble Division Bench at the end of paragraph 13 of this judgment are sought to be used to contend that invocation of powers of revision is not proper here. However, that aspect will be dealt with at appropriate time. The earlier to Division Bench judgments are also considered here and the conclusion is that when there is no Appeal at all before M.R.T. or the appellate decision is confined to a portion of the declaration/controversy, the whole of dispute in the first case and the uncovered portion in later case would always be open for the state scrutiny under Sub-section (2) of Section 45.

10. Before adverting of the arguments of learned AGP Advocate Loney, it would be appropriate to consider two more judgments relied upon by Advocate Gilda. In , Ganpatrao v. State of Maharashtra, in paragraph 10 Hon'ble Apex Court has reiterated the view that Appeal under Section 33 must he a competent Appeal so as to bar the exercise of revisory powers under Section 45(2) of Ceiling Act. In another ruling between State of Maharashtra v. Rattanlal, it has been held that the fraud is discovered and the revisional authority finds that land was liable to be included in ceiling area, limitation of three years upon revisional power in view of Section 45(2) will not prevent revisional authority from exercising powers under Section 45. Hon'ble Apex Court further observes that if the appeal is pending and fraud comes to the knowledge of authority, those facts should be placed before appellate authority. However, the Hon'ble Apex Court does not prohibit revisional authority from exercising powers of revision in case such fraud is not brought to the knowledge of appellate authority when Appeal was pending. Here, it is admitted position that such an effort was made by filing Cross Objection but that effort failed as said Cross Objection was found barred by limitation. Again in view of 1979 Mh.L.J. 476(supra), in the absence of Cross Objection M.R.T., would not have powers to grant relief against appellant and in favour of authority only because such fraud and facts are placed before it. I, therefore, find that this ruling also does not save the situation for petitioner. Said cross objection was also not competent as purchaser Vishwanath Raut was not party in M.R.T.

11. Coming to the arguments of AGP Shri Loney, it is apparent that the Appeal filed by deceased petitioner was only challenging that part of declaration which was against him. Issue raised in Revision in relation to survey No. 26/2 did not form part of Appeal before M.R.T. The Cross Objection of respondents in relation to survey No. 26/2 has not been decided on merits but it has been dismissed as it was found beyond limitation. In absence of purchaser, M.R.T. could not have adjudicated it. In such circumstances, in view of case law mentioned above, it is apparent that there was no bar to exercise of revisional jurisdiction in the matter. Learned AGP has placed reliance upon the judgment reported at 2002(3) Mh.L.J. 524 : 2002 Bom. Law Reporter 227 between Nagorao v. State of Maharashtra. The said judgment considers entirely different issue regarding powers of Commissioner under Section 45 of Ceiling Act to undertake exercise of determining surplus land. Such issue does not arise here at all. Moreover, in view of the position which is clear from various judgments mentioned above. It is not necessary to multiply the authorities. The objection raised by petitioner is misconceived and is accordingly rejected.

12. Advocate Gilda has read out the note prepared in September, 1988 on the basis of which decision to take recourse to Section 45 of Ceiling Act was reached. He states that merely because filing of writ petition in High Court would delay the process, it would not be expeditious to take the matter in revisional jurisdiction. He argues that this is erroneous application of mind and also an arbitrary decision. He relied upon Bhagwan Ambhure v. State of Maharashtra, reported at 1979 Mh.L.J. 476, particularly paragraph 13 to show that the State Government has right to challenge appellate judgment before High Court under Articles 226 and 227 of Constitution of India like private citizen and it cannot take recourse to powers under Section 45(2) of Ceiling Act. The argument cannot be accepted. When State Government validly takes recourse to filing Cross Objection which is within limitation and competent one, these observations in paragraph 13 will come into play. Similarly if the government is aggrieved by appellate decision of M.R.T. it has to file writ petition and it cannot take recourse to Section 45(2) remedy to defeat such appellate judgment. Here, in Revision government is not attempting to annul or modify the appellate judgment of M.R.T. Its Cross Objection was incompetent and has not been considered on merits. Therefore, remedy of filing writ petition was not available to it. It has correctly decided to invoke revisional powers. Notings in the file on which petitioner relies only show application of mind by responsible government officer who feels that filing of writ petition in High Court would not be expeditious remedy because of long time required for its decision and therefore he has suggested that powers of Commissioner under Section 45(2) should be invoked instead. Such a decision can be reached by any citizen and also by government after deliberation. It shows that decision to invoke that jurisdiction has been taken with adequate application of mind and petitioner cannot make any grievance about it. There is nothing arbitrary or illegal in it.

13. Petitioner has further stated that powers of revision are exercised after the possession of surplus land was handed over. However, factually this is not correct. The decision to revise was reached in September, 1988 and notice of revision was received by petitioner on 12-1-1989 as mentioned by deceased petitioner in paragraph 8 of his petition on affidavit. The possession of surplus land of 9.09 acres was taken on 4-3-1989 as mentioned in said paragraph. Thus said bar is also not applicable and attracted.

14. I, therefore, find no substance in the petition. The respondents have properly and validly invoked jurisdiction under Section 45(2) of Ceiling Act. There is no merit in any of the challenges. Petition is, therefore, dismissed. Rule is discharged. There shall be no order as to costs.