Awadhutrao Dattaraj Chavan vs State Of Maharashtra Thru ...
2017 Latest Caselaw 2449 Bom

   (Judgment)                            (1)                      W.P. No. 02605 of 1998




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           AURANGABAD BENCH, AT AURANGABAD.

                        Writ Petition No. 02605 of 1998

                                                         District : Jalna




Awadhutrao Dattaraj Chavan,
Age : 47 years,
Occupation : Agriculture,
R/o. Jalna.                                         .. Petitioner.

                versus

The State of Maharashtra,
Through Deputy Collector (L.R.),
Jalna.                                              .. Respondent.

                                      ...........

      Mr. Ajeet D. Kasliwal, Advocate, for the petitioner.

      Mr. S.P. Tiwari, Assistant Government Pleader, for the respondent.

                                      ...........


                                     CORAM : SUNIL P. DESHMUKH, J.

DATE : 09TH MAY, 2017

ORAL JUDGMENT :

01. Heard learned counsel for the parties at sufficient length.

02. The petitioner is before this court questioning propriety,

legality and validity of orders passed, by Maharashtra Land Revenue

Tribunal, Aurangabad, dated 16-04-1998, order passed by Deputy

Collector (Land Reforms), Jalna, dated 08-01-1997 and and

(Judgment) (2) W.P. No. 02605 of 1998

directions issued to reopen determination by the Additional

Commissioner, Aurangabad, dated 13-03-1991.

03. Exercising suo motu powers pursuant to section 45(2) of

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 [For

short, "Ceiling on Holdings Act"], the Additional commissioner

purported to reopen determination order of Chairman, Surplus Land

Determination Tribunal, Ambad, dated 13-04-1976.

04. The authorities in the process pursuant to the same, held

the petitioner to be surplus land holder of about 29 Acre, 34 Guntha

particularly of lands survey no.40 and 166, situated at Lonar

Bhaigaon in Badnapur taluka.

05. Learned counsel for the petitioner contends that the

order passed on 13-04-1976 by the Chairman, Surplus Land

Determination Tribunal, Ambad, in the then District Aurangabad

(now in Jalna) had been passed properly on merits after taking into

account all the land holdings of petitioner's father on relevant date

and had found that the petitioner's father to be holder of 51 Acre

and 13 Guntha having no surplus land. It was found that lands from

survey no. 37/1, 46, 25 and 117 were not in his possession and the

lands were in possession of tenants for over 15 years.

(Judgment) (3) W.P. No. 02605 of 1998

06. He further points out that the relevant revenue record

has been examined by the Surplus Land Determination Tribunal,

particularly observing that the lands not in possession of father of

the petitioner could not be included and calculated for the purpose of

his holding. It has further been observed by the Tribunal that no

lands were acquired for road, canal and resettlement of Jaikwadi

project. After 26-09-1970, the land owner has not acquired the

transferred the lands. No lands were under irrigation.

07. Learned counsel states that land survey no.25

admeasuring 23 Acres, 2 Guntha had, in fact, gone to Gangadhar

Dattaji in partition under a civil court's decree in suit no. 43 of 1955.

He further submits that land holding in survey no.170 has also been

erroneously considered disregarding the pencil entry in favour of

other person. It is not a case that father of the petitioner has been

found to be in possession of said land. All these facts have not been

properly considered at all upon reopening.

08. He submits that while on the crucial date, the land

holding in survey no.170 has not been specifically found to be

possessed by father of the petitioner by the authorities hitherto, nor

the authorities have observed about the same and the pencil entry

has been discarded without giving finding on facts. He submits that

while the Deputy Collector, Land Reforms, Jalna, under his order

(Judgment) (4) W.P. No. 02605 of 1998

dated 08-01-1997 has refused to exclude land holdings of survey

no.170 assuming that pencil entry cannot be considered, without

going into question of actual possession, which had not been

petitioner's father.

09. Findings recorded by the Surplus Land Determination

Tribunal about land survey no. 170 not being in possession of the

father of the petitioner, has not been effectively dealt with and short

work appears to have been made, observing that pencil entries could

not be considered for exclusion of the land holdings.

10. He submits, Deputy Collector, however, had rightly

excluded land of survey no.25 from computation taking into account

relevant aspects. Deputy Collector had also excluded computation of

survey no.117 as the same could not be related to the petitioner's

predecessor.

11. He submits, although the Deputy Collector did not find

survey no.170 in possession of the petitioner and the revenue record

had been a pencil entry in the name of Narayan Narhar, yet it was

included in the holdings on the relevant date and thus the Deputy

Collector considered holding on the relevant date to be 130 Acre 18

Guntha. While survey no.46 and 37 were excluded as well as

holding of survey no.25 having regard to that it was in the name of

(Judgment) (5) W.P. No. 02605 of 1998

Gangadhar, close cousin of the petitioner being descendant of the

original owner, same was rightly excluded having regard to the

decree passed by the civil court. Under the circumstances, he went

on to consider that the holdings of the petitioner would be 83 Acre

34 Guntha including land survey no.40 admeasuring 25 Acre 15

Guntha and land survey no.166 admeasuring 04 Acre 19 Guntha.

12. He goes on to submit that the Maharashtra Revenue

Tribunal, however, has absolutely misconceived the factual position.

The Tribunal's order, according to the learned counsel, is

unsustainable on any count and much less on merits. The Tribunal

has botched the factual position. While the Deputy Collector had

excluded survey no.25 from computation of holding of the petitioner,

yet the Tribunal observes, survey no.25 has been rightly computed in

the holding of the petitioner. Despite exclusion of survey no.25, the

Tribunal, however, records the land holding of the petitioner to be 83

Acre 34 Guntha and, as such, purported to endorse the order passed

by the Deputy Collector. Learned counsel submits that the order of

the Maharashtra Revenue Tribunal is a clear depiction of non-

application of mind and a cursory approach to the matter resulting

into serious adverse consequences on the petitioner.

13. Learned counsel submits that apart from merits of the

case, whole proceedings initiated purportedly with reference to

(Judgment) (6) W.P. No. 02605 of 1998

section 45(2) of the Ceiling on Holdings Act are untenable and could

not be maintained. He submits that initiation of proceedings against

the petitioner had been improper and untenable right from the

beginning taking into account decision of full bench in the case of

Manohar Ramchandra Manapure & others Vs. State of Maharashtra &

another (1989 Mh.L.J. 1011) ruling that application of mind by

concerned authority beyond period of three years of order on

determination of holdings would be without power to exercise

revisional jurisdiction.

14. This view has been followed by Hon'ble learned single

judge of this court in the case of Narayan Tatayarao Deshmukh &

others Vs. State of Maharashtra & others (2012 (5) Mh.L.J. 700) wherein

Hon'ble learned single judge has observed that calling of record

unsupported by conscious application of mind is untenable. Further

it has been observed that there had been no notice about calling of

record by the commissioner to the petitioner within three years.

Hon'ble learned single judge has further referred to yet another

reported judgment in the case of Champabai Shankarrao Patwari Vs.

State of Maharashtra (2004(1) Mh.L.J.148) under which it has been

observed, the Ceiling Act lays down two conditions which are

required to be satisfied before exercising powers under section 45(2)

by the State Government or its revisional authority. Hon'ble learned

(Judgment) (7) W.P. No. 02605 of 1998

single judge has observed that the court had held initiation of

proceedings within three years without application of mind is bad in

law. The notice issued after a lapse of about ten years is without

explanation therefor is bad in law.

15. Learned counsel with reference to above contends that

the decisions aforesaid apply on all fours to the present situation. As

such, the notice issued after 1990 to the petitioner after lapse of

three years from the decision in 1976 by the surplus land

determination tribunal and its communication thereafter has no

efficacy and the whole proceedings were untenable. In the

circumstances, he urges to allow the writ petition and set aside the

orders impugned in the present petition.

16. Learned Assistant Government Pleader purports to resist

the request under the writ petition contending that it emerges with

reference to the record in respect of the relevant period, holding of

the petitioner is in excess by 29 Acre 34 Guntha. A pencil entry in

respect of survey no. 170 would not be considered as observed by

the two authorities hitherto.

17. Although it is being so submitted, learned assistant

government pleader is not in a position to assert that during the

relevant period, concerned land had been found to be in possession

(Judgment) (8) W.P. No. 02605 of 1998

of the petitioner or for that matter, pencil revenue entries had no

nexus with the factual position. Aforesaid apart, he is also not in a

position to overcome the observations of the full bench and the

decisions rendered by the Hon'ble learned single judge of this court

in respect of application of mind while invoking the powers under

section 45(2). It further has to be noted in the present case that,

while communication purportedly pursuant to section 45(2) had been

issued in 1979, yet up to 1992-93, there had been no notice with

regard to the same to the petitioner. There is no material produced

to support that calling of record had been with conscious application

of mind and there is no reason coming forth as to why notice to the

petitioner had been delayed thereafter for about 15 years.

18. In the circumstances, the original order passed by the

Surplus Land Determination Tribunal, Ambad, dated is 13-04-1976,

whereas as appearing from the order passed by the Deputy Collector

(Land Reforms), Jalna, dated 08-01-1997, the exercise of powers

pursuant to section 45(2) of the Ceiling on Holdings Act has been

under order dated 13-03-1991, which is far beyond the period

acceptable and referred in aforesaid two decisions.

19. In the circumstances, it does not appear that the

decisions rendered by the two authorities hitherto including the order

dated 13-03-1991 exercising powers under section 45(2) of the

(Judgment) (9) W.P. No. 02605 of 1998

Ceiling on Holdings Act are tenable and, as such, cannot be

sustained.

20. The writ petition stands allowed in terms of prayer clause

(B) and (C). Rule made absolute in the above terms. There shall be

no order as to costs.

( Sunil P. Deshmukh ) JUDGE

...........

puranik / WP2605.98