Bombay High Court
Shivram A. Galbe vs The State Of Maharashtra on 7 March, 2011
Author: S. S. Shinde
Bench: S. S. Shinde
1 wp 2563.92
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2563 OF 1992
Shivram A. Galbe,
Age : 65 Years, Occu. : Agril.,
R/o Devegaon, Tq. Pathri,
Dist. Parbhani, at present
Sailu, Dist. Parbhani. .. .. Petitioner
Versus
1. The State of Maharashtra,
Through Government
Pleader High Court Aurangabad
Bench, Aurangabad
2. The Additional Commissioner,
Aurangabad Division,
Aurangabad. .. .. Respondents
Shri E. P. Sawant, Advocate for the Petitioner.
Shri K. B. Choudhari, A.G.P. for the Respondent/State.
CORAM : S. S. SHINDE, J.
DATE : 07TH MARCH, 2011.
ORAL JUDGMENT :
. This petition takes exception to the notice dated 14.07.1992 issued by the Additional Commissioner, Aurangabad Division, ::: Downloaded on - 09/06/2013 17:03:19 ::: 2 wp 2563.92 Aurangabad bearing No. 1978/ICHR/533.
2. The petitioner is resident of village Devegaon, Tq. Pathri and at present residing at Sailu district Parbhani. The petitioner is original land holder in the proceedings under the subject matter. The petitioner filed return U/Sec. 12 of the Ceiling Act in the year 1975. The S. L. D. T. Pathri after going though the relevant record came to the conclusion that the petitioner is surplus land holder to the extent of 19 Hector 92R from Sy. No. 92 to the extent of 09H 09R situated at village Renkali and to the extent of 09H 17R situated at village Simurgavan vide judgment and order dated 13.03.1976. Thus, the S. L. D. T. held the petitioner as surplus land holder to the extent of 19H 09R. The excess land is also given in possession to whom the said land has been allotted by the competent authority.
3. It is the further case of the petitioner that, the Additional Commissioner/respondent No. 2 by exercising powers U/Sec. 45(2) of the Ceiling Act reopened the enquiry i. e. initiated a suo moto proceeding in the matter and reopened the proceedings. The petitioner submitted that, the respondent No. 2 has no jurisdiction or powers to start or reopen the suo moto enquiry under Sec. 45(2) of the Ceiling Act after the period of 3 years ::: Downloaded on - 09/06/2013 17:03:19 ::: 3 wp 2563.92 from the date of judgment and order passed by the S. L. D. T. The Additional Commissioner must apply his mind within a period of 3 years by summoning the land holder and to start the enquiry. The commissioner must complete the enquiry within a period of 3 years from the date of the order passed by the S. L. D. T. It is further submitted that, in the present case, the Additional Commissioner has not called the record of the S. L. D. T. within a period of 3 years. The Additional Commissioner has issued the notice of suo moto enquiry for the first time after 16 years i. e. on 14.07.1992. Therefore, the counsel for the petitioner submitted that, this writ petition may be allowed and notice dated 14.07.1992 may be quashed and set aside.
4. On the other hand the learned Additional Government Pleader vehemently opposed the petition and submitted that, the notices are rightly issued by the Additional Commissioner, Aurangabad U/Sec. 45(2) of the said Act. Therefore, this writ petition is devoid of any merits and same may be dismissed.
5. I have given due consideration to the rival submissions of the learned counsel for the parties. It is admitted position that the S. L. D. T. passed the order initially on 13.03.1976 thereby the petitioner was declared as surplus land holder to the extent ::: Downloaded on - 09/06/2013 17:03:19 ::: 4 wp 2563.92 of 19H 09R, the excess land is also given in possession of the concern persons to whom the same is allotted by the competent authority. It is also admitted position that the suo moto notice was issued by the Additional Commissioner on 14.07.1992.
Therefore, said notice for suo moto enquiry was after the period of about 16 years from the date of order passed by the S. L. D. T. on 13.03.1976. There also appears to be non application of mind on the part of the authority. It further appears that, documents and facts of the case are not properly seen by the Additional Commissioner before issuing notice for suo moto enquiry.
Therefore, in my opinion, since the notice issued by the Additional Commissioner on 14.07.1992 was beyond the statutory period prescribed U/Sec. 45(2) of the Ceiling Act, the said notice deserves to be quashed and set aside.
6. This Court had occasion to interprete provisions of Section 45(2) of the Said Act in following decisions :
. In the case of Manohar Ramchandra Manapure & Others V/s. State of Maharashtra & Another, 1989 Mh.L.J.1011, the Full Bench of this Court held that the proviso to section 45 (2) of the Maharashtra Agriculture Lands (Ceiling on Holdings) Act, restricts the exercise of jurisdiction under section 45(2) to those ::: Downloaded on - 09/06/2013 17:03:19 ::: 5 wp 2563.92 cases where the record is called for within the period of 3 years from the date of declaration under section 21. The starting point of limitation as prescribed in the proviso to sub-section (2) of Section 45 is the declaration or part thereof under section 21 of the Act. Calling of the record cannot be equated with the mechanical, clerical or ministerial act of calling for the record for all the proceedings irrespective of the fact whether they were required or not for the purpose specified in the section. It is further held that it is after applying his mind that the revisional authority will have to call for the record of the enquiry or proceedings after conscious application of mind to the facts and circumstances of each case. Where admittedly the necessary application of mind on the part of the Commissioner was much beyond the period of 3 years of the order impugned, it will have to be held that the records were not called within the period of 3 years. In such a case the Commissioner will have no power to exercise the revisional jurisdiction.
. Yet in another decision in the case of Bansilal Ramgopal Bhattad V/s. State of Maharashtra and Other, 2001 (1) Mh.L.J. 68, this Court held that suo motu proceedings for revision having been initiated almost after 9 years from the date of decision of S.L.D.T., could not be permitted in law. Suo motu proceedings in ::: Downloaded on - 09/06/2013 17:03:19 ::: 6 wp 2563.92 question having been initiated after unreasonable period were without authority of law and void ab initio in view of the decision of the Apex Court in 1997 (6) SCC 71.
. Yet in another reported case of Lotan Fakira Patil V/s.
State of Maharashtra and Others, 2002 (2) Mh.L.J.255, this Court in the facts of the case held, notice U/Sec. 45(2) of the Act for suo moto revision was issued on 25.03.1982 and not within the period of three years from the date of order of S. L. D. T. dated 03.07.1978 and therefore the exercise of powers under the said provisions was beyond the period of limitation and therefore was without jurisdiction.
. Yet in another case of Champabai w/o. Shankarrao Patwari and Another V/s. State of Maharashtra and Other, 2004 (1) Mh.L.J.148, this Court held that the first proviso to sub-section (2) of section 45 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 lays down two conditions which are required to be satisfied before the State Government or its delegate could invoke the revisional powers. The said two conditions are : (a) that, appeal has not been filed against the order/declaration made by S.L.D.T. within the prescribed period, and (b) that, a period of 3 years has not elapsed from the date of ::: Downloaded on - 09/06/2013 17:03:19 ::: 7 wp 2563.92 the order or declaration made by S.L.D.T. In the facts of that case the Court held that the decision to initiate the proceedings was taken within three years time. However, same was without application of mind and hence held to be bad in law. It is further held that the actual initiation of proceedings was after a lapse of about 8 to 10 years from the date of decision to initiate the proceedings. This delay was totally unexplained. Therefore, taking overall view of the matter, the Court held that where the notice came to be issued to the petitioner by the Additional Commissioner, after lapse of period of 8-10 years, after passing orders by S.L.D.T., holding that the petitioners did not hold land in excess of ceiling limit are bad in law.
. Yet in another case of Shalikram Dagduba Solunke etc. V/s.
State of Maharashtra and Another, 2004 (1) Mah.L.R. 310, this Court held that exercise of revisional powers by Additional Commissioner after 10 to 15 years from the date of order of S.L.D.T., is beyond the statutory period and also passed in mechanical manner and same is liable to be set aside.
. Yet in another judgment in Gowardhandas s/o. Laxmandas deceased through his L.R. Vijaykumar s/o. Gowardhandas V/s.
State of Maharashtra and another, 2008 (6) Mh.L.J.571, this ::: Downloaded on - 09/06/2013 17:03:19 ::: 8 wp 2563.92 Court held that in suo-motu revision by Additional Commissioner, memorandum regarding revision issued on 30.11.1978 after declaration under section 21 on 08.11.1976 but no notice was issued to the petitioner till 1992, the order passed by the Additional Commissioner on 30.03.1993 is beyond limitation prescribed under section 45 (2) of the said Act.
7. Therefore, in the light of aforesaid discussion the notice dated 14.07.1992 bearing No. 1978/ICHR/533 issued by the Additional Commissioner, Aurangabad Division, Aurangabad is quashed and set aside. The petition is allowed in terms of prayer clause "C". Rule is made absolute in above terms. The writ petition stands disposed of.
[ S. S. SHINDE, J.] bsb/March 11 ::: Downloaded on - 09/06/2013 17:03:19 :::