Hargovind Pannalalji Kasat vs State Of Maharashtra And Ors.
2006 Latest Caselaw 739 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. The present appeal arises from the order dated 31-1-1995 passed in Writ Petition No. 252 of 1995 whereby the petition filed against the order of the Additional Commissioner in exercise of powers under Section 45(2) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, hereinafter referred to as "the said Act" has been dismissed.

2. Few facts relevant for the decision are that in exercise of powers under Section 21 of the said Act, the Surplus Land Determination Tribunal (SLOT), Murtizapur by its order dated 9-4-1987 had declared 12.03 acres of land of the appellant being surplus with the family unit of the appellant. The appeal against the said order by the appellant was dismissed by the Maharashtra Revenue Tribunal, Nagpur by its order dated 27-11-1987. In the said appeal, the respondent-State had filed cross-objections but as late as on 14-8-1987, though the respondents were served with the notice of the said appeal on 12-5-1987. In August, 1989, the SLDT took possession of the surplus area of 12.03 acres of the land of the appellant's family in terms of its order dated 9-4-1987. Meanwhile, in February, 1989 the Additional Commissioner in exercise of powers under Section 45 of the said Act issued notices to the appellant in relation to additional area of land. The appellant objected to the said exercise of power under Section 45 by the Additional Commissioner by filing his written statement on 10-10-1994. After hearing the parties, the Additional Commissioner by its order dated 23-11-1994 declared Survey No. 18, admeasuring 24 acres and 20 gunthas as surplus land with the family unit of the appellant. The same was sought to be challenged by way of writ petition which was dismissed by the impugned order.

3. The challenge to the impugned order and the proceedings under Section 45 of the said Act is three-fold, firstly, that the concerned authority was not empowered to exercise the powers under Section 45 of the said Act as the issue of the surplus land of the family unit of the appellant was concluded by the order under Section 21 of the said Act dated 9-10-1987 and confirmed by the Maharashtra Revenue Tribunal on 27-11-1987. Secondly, the respondents had neither filed any appeal within the prescribed period of limitation for filing an appeal nor the cross-objections were filed within one month from the date of receipt of the notice relating to the filing of the appeal by the appellant. Thirdly, the possession of the surplus land declared under Section 21 had already been taken over by the competent authorities and, the proviso to Section 45(2), as it stood at the relevant time, did not permit the exercise of powers under Section 45 in those circumstances. In short, the exercise of power under Section 45(2) of the said Act is under challenge,

4. While elaborating the grievance of the appellant in the matter, the learned Advocate appearing for the appellant submitted that once the authorities in exercise of powers under Section 21 of the said Act decides the issue relating to the surplus land with the unit of the family and such decision is confirmed in appeal by the Tribunal, the decision on the issue relating to the surplus land with the family unit stands concluded and attains finality. The revisional powers under Section 45(2) of the said Act can be exercised only in cases of the eventualities enumerated thereunder. Those eventualities include the necessity of filing of the appeal within time and the possession of surplus land being not taken. In the case in hand, the appellant had filed the appeal against the order of the SLOT within the prescribed time. The notice of the said appeal was received by the respondents on 12-5-1987. However, they chose to file the cross-objections as late as on 14-8-1987 i.e. beyond the period of limitation for filing the cross-objections. Obviously therefore, the respondents had neither filed the appeal nor the cross-objections within the period of limitation. It is also a matter of record that the SLDT took possession of 12.03 acres of surplus land in August, 1989. Being so, the authorities could not have proceeded to exercise the power under Section 45 of the said Act thereafter. The learned Advocate for the appellant has drawn our attention to the decisions in the matters of Jamunabai Motilal and Anr. v. State of Maharashtra and Anr. reported in 7975 Mh.LJ. 93, Baswantrao Appaji Choudhari v. Commissioner, Nagpur Division, Nagpur and Anr. reported in 7977 Mh.LJ. 834, Rambhau Bapuji Jaibhaye v. State of Maharashtra and Anr. reported in 7976 Mh.LJ. 443, Bhagwan Sonaji Ambhure v. State of Maharashtra and Ors. reported in 1979 Mh.L.J. 476, Anandrao Namdeorao Jachak v. State of Maharashtra and Ors. reported in 1980 Mh.LJ. 661, Shaliabi Asfak Qureshi v. State of Maharashtra, reported in 7956 Mh.LJ. 725, Ganpatrao Gulabrao Pawar and Ors. v. State of Maharashtra, , Commissioner of Wealth Tax, Bombay and Anr. v. Mrs. Kasturbai Walchand and Ors. reported in 1989 Supp(l) SCC 640, Devi Singh v. Board of Revenue for Rajas than and Ors. reported in (1994) 1 SCC 275 and Hindustan Aeronautics Ltd., Bangalore v. Commissioner of Income Tax, Karnataka-I, Bangalore, .

5. The contention on behalf of the respondents, on the other hand, is that the exercise of power under Section 45(2) is in respect of the holdings which were required to be ascertained in the proceedings under Section 18 in relation to the land of the family unit and it does not relate to land which was subject-matter of declaration under Section 21 of the said Act, and therefore, the objections sought to be raised on behalf of the appellant are devoid of substance.

6. Only point which arises for consideration in the matter in hand is that whether the exercise of power under Section 45(2) of the said Act by the concerned authority has been in relation to the proceedings under Section 18 of the said Act and therefore, not affected by the bar provided for exercise of such power consequent to the disposal of appeal against order under Section 21 of the said Act?

7. The Section 45(2) of the said Act reads thus :

(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) for the purpose of satisfying itself as to the legality or propriety of any inquiry or proceedings or any part thereof under those sections and may pass such order thereon as it deem 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 and a period of three years from the date of such declaration or part thereof has not elapsed.

8. Plain reading of Section 45(2) would disclose that the powers under the said section can be exercised in relation to any inquiry or proceedings under Sections 17 to 21 of the said Act in order to satisfy itself as to the legality or propriety of such inquiry and thereafter to pass an appropriate order. Of course, the same should be after giving reasonable opportunity of being heard to the concerned parties.

9. The proviso to the said Sub-section prescribes certain restrictions on exercise of such power. Same relate to the inquiry under Section 21 and the order passed thereafter in such inquiry. The proviso specifically states that only in a case where no appeal against the order or declaration under Section 21 has been filed and the period of three years has not elapsed, that the power under Section 45(2) can be exercised, in relation to such inquiry under Section 21 and not otherwise. However, a futile controversy is sought to be raised on behalf of the appellant as to whether at the relevant time the provision also provided for the clause "the possession of such land has not been taken under Sub-section (4), of Section 21 or not. In fact, under the Maharashtra Act No. XVI of 1990 the said clause is deemed to have been deleted from the date the said Act has been on the statute book.

10. The Section 2 of the Maharashtra Act No. XVI of 1990 clearly provides that :

In Section 45 of the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 (hereinafter referred to as "the principal Act"), in the proviso to Sub-section (2), the words, brackets and figures "the possession of such land has not been taken under Sub-section (4), of Section 21" shall be deleted and shall be deemed always to have been deleted.

Further, under Section 3 of the Maharashtra Act No. XVI of 1990, the earlier orders passed on the assumption of deletion of the said expression were validated by providing that :

Notwithstanding anything contained in the principal Act or in any judgment, decree or order of any Court or Tribunal, any proceeding initiated or any order passed by the State Government in any such proceeding under Sub-section (2) of Section 45 of the principal Act, as amended by the Maharashtra Agricultural Lands (Ceiling on Holdings) (Amendment) Act, 1976, during the period commencing on the date of coming into force of the said amendment Act and ending on the date of commencement of this Act shall not be deemed to be invalid and shall be deemed to have been validly initiated or passed under Sub-section (2) of Section 45 of the principal Act, as amended by this Act, as if the provisions of Sub-section (2) of Section 45 as so amended by this Act had been in force at all material times when such proceeding was initiated or order passed, and accordingly all acts and things done in pursuance of any order so passed shall be valid and effective and no such proceeding, order, acts or things initiated, passed, done or taken shall be called in question in any Court merely on the ground that the State Government had no power to initiate such proceeding or pass such order.

11. Obviously therefore, the expression "the possession of such land has not been taken under Sub-section (4), of Section 21", should be deemed to have never existed on the statute book in the said proviso to Sub-section (2) to Section 45 of the said Act. The objection sought to be raised for exercise of power under Section 45(2) of the said Act on the basis of the possession having been taken of the area declared as surplus, therefore, falls flat to the ground, and is to be rejected as totally devoid of substance.

12. Undoubtedly, the Division Bench in Shaliabi Asfak Qureshi's case (supra) had held the deletion of the expression "the possession of such land has not been taken under Sub-section (4) of Section 21" to be ultra vires. The said deletion was sought to be introduced by the Maharashtra Act No. 26 of 1976 which was struck down by the said decision. However, the effect of the said decision stood nullified by the Maharashtra Act No. XVI of 1990.

13. The contention that the authorities cannot exercise the power under Section 45 unless the respondent had filed appeal against the order of declaration under Section 21 is totally devoid of substance. The submission is obviously on account of misreading of the relevant provision of law. The requirement is not "filing of appeal within time" but just to the contrary. It is only in cases where the appeal has not been filed in time, that the exercise of power is permissible under the said section. In the case in hand, admittedly, no appeal was filed by the respondents and even the cross-objections were filed beyond the period of limitation. In other words, in the eyes of law no appeal was filed by the respondent against the declaration under Section 21.

14. It is the contention on behalf of the respondents that the exercise of powers under Section 45(2) is not restricted to the inquiry under Section 21 but it also includes proceedings under Section 18 of the said Act and the said Section 18 refers to consideration of various matters relating to the total holding of the land whereas the Section 21 is restricted to the declaration regarding the surplus land and the consequences thereof.

15. If one reads Section 21, it apparently refers to the declaration regarding the total area of the land holding of the family unit as well as the total area of land in excess of the ceiling area held by such family unit. In fact, Clause (a) and Clause (b) of Section 21(1) of the said Act read thus :

(a) the total area of land which the person (or family unit) is entitled to hold as the ceiling area;

(b) the total area of land which is in excess of the ceiling area;

(c), (d) and (e)...

16. It is to be noted that Section 17 refers to notice to the persons affected by the inquiry under Section 14, Section 18 refers to matters to be considered by the Collector in the inquiry under Section 14, Section 19 empowers the Collector to restore land to the landlord in certain circumstances, Section 20 refers to the manner of considering the claim of the landlord to the land under Section 19 and Section 21 speaks of declaration regarding surplus land, etc. and the consequences thereof.

17. The Section 18 of the said Act does not speak of any inquiry thereunder. It relates to the matters to be considered by the Collector during the inquiry under Section 14 of the said Act. It requires the authorities to take into consideration the total area of the land held by the holder on the date of commencement of the said Act. It also requires to consider the land transferred by the landholder between 26-9-1970 till the date of enforcement of the said Act, as also to consider the partition carried out of the property, as also the transfer of the land effected in contravention of the provisions of the said Act. All these things along with the other requirements enumerated thereunder are to be taken into consideration by the Collector while holding the inquiry contemplated under Section 14.

18. The Section 45(2) which speaks of the revisional powers of the Government is not restricted to the orders passed under Section 21 of the said Act but it can be exercised in respect of any proceeding or inquiry under Sections 17 to 21 of the said Act. Besides, the power to call records can be exercised to satisfy about the legality or propriety of not only of any 'inquiry' but also regarding 'the proceedings or any part thereof under any of those sections. If the revisional power is restricted only to the "orders" passed under the said sections or any of those sections, then the Legislature would not have used the expression 'proceedings or any part thereof in relation to the said sections. In Jamunabai Motilal's case (supra), it was held that the use of the disjunction "or" between "any inquiry" and "proceedings" in Section 45(2) of the said Act shows that the "inquiry" and "proceedings" are separate and distinct in scope and contemplation.

19. It is then sought to be contended that though no appeal was filed by the respondents, such appeal was filed by the appellant and the order under Section 21 had been subjected to appellate review. It cannot be disputed that once the order is subjected to appellate review, the question of exercise of revisional powers in respect of the order which has merged in the appellate order cannot arise; however, the said rule is not attracted in the matter in hand as in the matter in hand the exercise of power under Section 45(2) had not been in relation to the declaration under Section 21 of the said Act. The action under Section 45(2) relates to the proceedings in terms of Section 18 of the said Act. The bar contemplated under the proviso in relation to the appeal refers to any inquiry or proceedings of declaration or part thereof under Section 21 and not in relation to the proceedings under any of the sections preceding to Section 21. When the bar under the proviso is specifically restricted to the inquiry or proceedings of declaration under Section 21, while the main section refers to the revisional powers in relation to any proceedings under Sections 17 to 21, it obviously discloses the intention of the Legislature to restrict the bar under the proviso to the declaration proceedings under Section 21, while excluding therefrom the proceedings under the preceding sections. To hold the bar under the proviso to apply to all such proceedings will amount to do violence to the statutory provision. It would virtually amount to legislate upon the said provision of law. Besides, it will result in virtually negating the revisional powers to the Government which are statutorily assured.

20. In Ganpatrao Gulabrao Pawar's case (supra), the Apex Court, referring to Section 45(2) of the said Act had clearly held that the same confers a suo motu power of revision upon the State Government for the purpose of satisfying itself as to the legality or propriety of any inquiry or proceeding under Sections 17 to 21 of the said Act which means the inquiry by and proceedings of the Collector. The proviso, however, provides that the power to call for the record or any inquiry or proceedings of a declaration or part thereof under Section 21 in relation to any land would not be available if an appeal has been filed against such declaration or part thereof. It was further held that when the appeal is filed, which is not as provided under the statute, there would be no appeal in the eye of law and such incompetent appeal would not operate as a bar to exercise the revisionary power under Section 45(2). It was also reminded that the said Act is not intended to determine or declare titles and 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.

21. So also, in Rambhau Bapuji Jaibhaye's case (supra), while dealing with the scope of the proviso to Section 45(2) of the said Act, held that when the appeal was filed beyond the prescribed time, the bar under the said provisions would not apply to the powers of the Commissioner as such an appeal would be no appeal in the eyes of law.

22. Likewise, in Baswantrao Appaji Choudhari's case (supra), the Division Bench has held that mere filing of the appeal could not be a bar under the proviso for exercise of the revisional power. It was held that the purpose of foreclosing the scrutiny in the matter subjected to the process of appeal is clearly to avoid a conflict of decisions by the authorities having jurisdiction to revise or review the declaration or any part thereof made under the provisions of Section 21(1) and to achieve unanimity in the matters of judicial adjudication. With this object in view, the terms of the proviso with regard to the appeal are to be understood and particularly in the context of the declaration or any part thereof. Once such a declaration or any part thereof had been the subject-matter of appellate scrutiny, it behoves judicial propriety that the said matter should not be subjected to further scrutiny in more or less co-ordinate jurisdiction. Dismissal of appeal may arise for several reasons including the one that the appeal was not properly constituted or was not competent or was not prosecuted. 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. The ruling clearly speaks of appeal against the declaration under Section 21. In fact, there is no provision for appeal against the proceedings under Sections 17 to 20. The appeal provided under Section 33 refers only to order under Section 21.

23. However, in Anandrao Namdeorao Jachak's case (supra), the Division Bench of this Court had held that the appeal contemplated by the proviso to Section 45(2) of the said Act is the one which must have the effect of depriving the Commissioner of his revisional jurisdiction under Section 45(2) and it must be an appeal provided by Section 33 which is effective and in which there is a scrutiny and examination of the points involved in the appeal by the Appellate Authority and not an incompetent appeal which is dismissed summarily as not maintainable. The proviso to Section 45(2) cannot be construed de hors the other provisions of the said Act. The intention of the Legislature is to arm the State Government with the power of scrutiny in respect of proceedings of a declaration or part thereof if the same have not been subjected to the scrutiny by the Appellate Authority under the Act.

24. Besides, in Bhagwan Sonaji Ambhure's case (supra), while referring to the powers under Section 45(2), it was held that the Legislature has made a special provision authorising the Government to call for the records of any inquiry or proceeding under Sections 17 to 21 (both inclusive) for the purpose of satisfying itself as to the legality or propriety of an inquiry or proceeding or any part thereof under those sections and the State Government is further authorised to pass such order thereon as it deems fit after giving the party a reasonable opportunity of being heard if the order is going to adversely affect that party. As regards the proviso to the said Sub-section, it was held that:

So far as the declaration under Section 21 or a part thereof is concerned, the first limitation upon the right of the State is to see whether an appeal has been filed. If an appeal has been filed, the State Government has no right of exercising the revisional power. The first requirement, therefore, in other words, is that there has not been filed an appeal regarding the declaration or part thereof under Section 21 in relation to any land. The second requirement is that three years ought to have elapsed between the declaration and the calling of the record for the purpose of revision. With these two limitations the State Government has been vested with the revisional powers for the purpose of rectifying any of the decisions in relation to proceedings under Sections 17 to 21 of the Ceiling Act.

(Emphasis supplied)

25. The said Act has been brought into force with the object of imposing maximum limit i.e. ceiling on holding of agricultural land in the State of Maharashtra so that the land in excess of ceiling limit is made available for distribution for its full and efficient use for agriculture. This has been done in pursuance of the national policy evolved consequent to the recommendations of the Central Committee on land reforms and with a view to make available additional land for distribution to landless persons in the State and thereby to try to secure more equitable distribution which in turn will help to eradicate the economic disparities in the State.

26. Unless the context otherwise requires, harmonious construction is the rule of interpretation with the object of making the provision workable and effective. Considering the provision of law comprised under Section 45, the same cannot be construed in such a manner which will defeat the very purpose for which the said Act has been brought into force. Effective implementation of the law relating to ceiling of agricultural holding and the consequential distribution of the excess land to the landless people cannot be attained unless the provision of law like Section 45 is given meaningful interpretation. Under the guise of interpretation, rather than restricting the revisional powers assured under the said provision, it is to be seen that such powers are allowed to be exercised in every case where there appears to be either fraudulent attempt to conceal the excess holding of land or where the authorities, either in connivance with the landholders or even negligently avoid to conduct the proper inquiry in relation to the total holding of the land of any family unit. Any interpretation which will impose unwarranted restrictions on such revisional power may result in not only defeating the very purpose behind the said provision but even may defeat the main aim of ascertaining the excess land available for distribution to the landless people.

27. The decision in Hindustan Aeronautics's case is of no help to the appellant as that was in relation to the Income Tax Act. A statutory provision in one Act cannot be understood or interpreted by referring to a statutory provision in another Act. The decision in Devi Singh's case is also of no help to the appellant. Therein it was held that in view of the provisions of Sections 221 to 229 of the Rajasthan Tenancy Act, the Board could not exercise power of general superintendence under Section 221 of the Act for it had beforehand in exercise of its appellate powers confirmed the decree of the trial Court i.e. of the Assistant Collector's Court and by the doctrine of merger, the judgment and decree of the first Court got merged in that of the first Appellate Court and sequelly on second appeal with that of the Board of Revenue. Undoubtedly, the Hindustan Aeronautics's case (supra) and Devi Singh's case (supra) are also on the point of doctrine of merger of order. In Mrs. Kasturbai Walchand's case (supra), it was a matter under the Wealth Tax Act, 1957. It was held therein that the order subjected to appeal merges in the order of the appellate authority when the appeal is disposed of on merits. If meanwhile a revision application is filed before the another authority against the same order of the lower authority, it would not be open to the revisional authority to pass any order in revision against the order sought to be revised as the latter would stand merged with the order of the appellate authority. This principle has no application to the matter in issue as the interference in revisional powers is not against the order under Section 21 which was subjected to appellate review but it is against the proceedings relating to the matter under Section 18 of the said Act.

28. Reverting to the facts of the case, it is seen that the Additional Commissioner, Amravati had found the land comprising of Survey No. 18, admeasuring 24 acres and 20 gunthas in the year 1969-1970 in possession of the landholder and the latter had effected partition of his land on 20-12-1969 between himself, his wife and son who was only one-year old and after partition, the appellant's wife, without cultivating the same, had given half of it on batai basis in the year 1970-1971 to one Mahadeo Baliram Wadalkar and yet no batai papers were filed on record either by the appellant or his wife. The Additional Commissioner had found that the so-called tenant had asked for sale of the land but the landholder had not taken any step in that regard. The Additional Commissioner had further found that though the adjoining land had been cultivated by the landholder, the land comprised under the Survey No. 18 was given on batai basis only to circumvent the provisions of the said Act. In those circumstances, the Additional Commissioner, Amravati did not find himself in agreement with the reasons given by the concerned party for exclusion of the land comprising under Survey No. 18, admeasuring 24 acres and 20 gunthas. The Additional Commissioner had considered the crop statement and had concluded that the transaction of batai was effected to circumvent the provisions of the said Act. Nothing has been pointed out to find fault with the said finding of the Additional Commissioner. In the facts and circumstances of the case, by no stretch of imagination it can be said that the exercise of powers under Section 45(2) of the said Act was in relation to the declaration under Section 21 of the said Act. The above facts apparently disclose that the exercise of power was in relation to the proceedings wherein there was total arbitrariness on the part of the concerned authority in applying the provision of Section 18 of the said Act which had resulted in allowing the appellant to suppress the excess land available with him. It was a clear case of non-consideration of the things which were required to be considered in terms of the provisions of Section 18. Being so, the interference cannot be said to be in the declaration under Section 21 but it is essentially in relation to the matters under Section 18 of the said Act.

29. The fall out of the above discussion is that the point for determination framed as above is to be answered in affirmative in favour of the respondents and against the appellant. In the circumstances, no interference is called for in the impugned judgment passed by the learned single Judge. The appeal, therefore, fails and is dismissed with costs.