JUDGMENT - CHAPALGAONKER N.P., J.:—Petitioner herein Dnyanoba had filed a return under section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1960 and a notice was served on him under section 17 of the Act for an enquiry and by his order dated 18-1-1976, the Surplus Lands Determination Tribunal held that Dnyanoba is not a surplus holder. It appears that the case was re-opened by exercise of the powers under section 45(2) of the said Act, 1961 by the Additional Commissioner, Aurangabad, and after giving notice to the petitioner, the learned Additional Commissioner, Aurangabad in File No. 39/ICHR/477 by his judgment dated 22-11-1985 was pleased to set aside the Tribunal's order and declared petitioner to be surplus holder to the extent of 29 acres and 6 gunthas and directed the Tribunal to proceed for delimitation of the same. It is this Judgment and Order of the Additional Commissioner, Aurangabad which has been challenged in this writ petition. 2. Shri Deshmukh, learned Counsel for the petitioner, made a grievance that though the order of Surplus Lands Determination Tribunal was passed on 18-8-1976, in fact, the power under section 45(2) has been exercised by the learned Additional Commissioner on 22-11-1985 which is clearly after a period of 3 years as is provided for in the statute. In support of his contention, Shri Deshmukh relied on a Full Bench judgment of this Court in the case of (Manohar Ramchandra Manapure others v. State of Maharashtra another)1, 1989 Mh.L.J. 1011, and submitted that calling for the record cannot be equated with mechanical or ministerial act. 3. While issuing rule in this writ petition, record and proceedings are called and are available for perusal. The record shows that in the year 1977 itself, on 30-11-1977, Assistant Collector made a recommendation after examining the record to the Additional Commissioner that the case requires reconsideration by exercise of the revisional Powers. It was pointed out to the Additional Commissioner that two questions need to be examined. The first is whether the acquisition of 16 acres in Vincharna tank is duly proved and whether the exclusion of 28 acres and 16 gunthas from Survey No. 49 and 2 acres and 24 gunthas from No. 112E is justified and thereafter, Additional Commissioner seems to have passed an order dated 9-12-1977 calling for record. This clearly shows that the Commissioner has applied his mind. This clearly shows that the Commissioner has applied his mind. Calling of record is in the year 1977 itself i.e. within the stipulated time under section 45 of the Act, 1961 and therefore, Shri Deshmukh's submission in this regard will have to be rejected. 4. Shri Deshmukh further submitted that the agreement of sale in respect of 28 acres and 16 gunthas of land from survey No. 49 was made in the year 1969 and 3 agreements of sale dated 19-4-1969, 19-4-1969 and 21-3-1969 were already filed on record. Shri Deshmukh further pointed out that these agreements show that possession has been given to the purchaser under them and, therefore, relying on definition of the phrase 'to hold land' as given in Clause 14 of section 2 of the Act, 1961, he submits that since land was not in actual possession of the holder, this land should have been excluded from the holding which should have been considered as on the date of the commencement. He further pointed out that the presumption which is raised in first explanation to sub-section (1) of section 10 of the Act is a rebuttable presumption and in the instant case petitioner has pointed out circumstances compelling the sale of agricultural lands. This submission was accepted by the Surplus Lands Determination Tribunal and the land concerned was excluded from the holding of the petitioner but the Commissioner re-examined the case and erroneously arrived at a different conclusion. Learned Additional Commissioner particularly considered that there is no mention of any such Isar Pawati having earlier been excluded and possession having been earlier given to the purchaser in the sale deed executed in the year 1971. He also noted that when the statement of the petitioner was recorded before the Surplus Lands Determination Tribunal, petitioner had not made a grievance that the possession of this land was already given in the year 1969. Though it is alleged that the possession was given in the year 1969 to the purchasers of these three pieces, there is no mention in the revenue record that the petitioner is not in possession but some other person is in possession. The revenue record shows that possession of the petitioner is continued even after agreements. In respect of these three observations, Shri Deshmukh submitted that if the entries are not taken in the 7/12 extract, petitioner cannot be blamed for this. The revenue record shows that possession of the petitioner is continued even after agreements. In respect of these three observations, Shri Deshmukh submitted that if the entries are not taken in the 7/12 extract, petitioner cannot be blamed for this. His further submission is that the Isar Pawatis were filed on record and, therefore, omission to mention them in the oral statement is of no significance. 5. The Additional Commissioner has very rightly observed that all these 3 agreements for sale are on plain papers and two of them are executed on same day and non-mention of such important fact in the sale deed and absence of the said entries in the revenue record leads us to disbelieve these documents. This finding need not be disturbed in this writ petition by exercising powers of superintendence under Article 227 of the Constitution of India as it is supported by the evidence on record. 6-7. Shri Deshmukh further submitted that in the statement before the Surplus Lands Determination Tribunal, petitioner had submitted that he is forced to sell this land and has also listed some circumstances compelling him to sell all the lands. Shri Deshmukh invited my attention to the portion of the statement of the petitioner Dnyanoba which is at exhibit 9. The statement is as follows :— ^;k O;frjhDr l- u- 49 e/khy 28 ,dj 16 xqaBs tfeu 14 5 1971 jksth fodzh dsyh vkgs- gh tehu ek>s vktkjkeqGs eh fodzh dsyh vkgs- eh lrr rhu oÔsZ vktkjh gksrks- vkSÔ/k mipkjklkBh [kpkZ lkBh eh fodzh dsyh- eh dk;|krwu lksMo.kwd gks.;klkBh fodzh dsyh ukgh- ek>s loZ eqya vtku vkgsr- ek>s pqyrhps ikyuiksÔuklkBh dksVkZps fMdzhizek.ks eh /kkU; oxSjs nsrks- iqjkok Eg.kwu eh dksVkZph fMdzh nk[ky djhr vkgs-^ In the statement quoted above, the petitioner has made two contentions. Firstly, he has submitted that though the transfer has been effected after the 26th day of September, 1970, in fact, this is not a transfer to defeat the purpose of the Amending Act and he has said that since he was not keeping good health for 3 years and was not having any other source for meeting the expenditure of his medical treatment and since he has minor children, he was compelled to sell this land. He has further submitted that Sunderabai — wife of his uncle — is awarded maintenance by a Court decree in Regular Civil Suit No. 16 of 1963, a copy of which was also presented before the Surplus Lands Determination Tribunal. Shri Deshmukh submitted that non-consideration of these contentions raised in the statement of petitioner by the Additional Commissioner has resulted in gross injustice to the petitioner. 8. Presumption which is raised by first Explanation to sub-section (1) of section 10 of the Act of 1961 is a rebuttable presumption. Legislature has not prevented these vendors to allege that they had sufficient and compelling reasons to sell the agricultural lands and if they are able to prove this, then presumption would not be applicable to such a transfer and it shall not be taken that it was made in anticipation or in order to avoid or defeat object of the Amending Act, 1972. This being the legal position, whenever any evidence is brought before the Surplus Lands Determination Tribunal, then the Tribunal holding an inquiry under section 18 and the Additional Commissioner exercising powers under section 45(2) are statutorily bound to consider that evidence. Non-consideration of such evidence would be failure to exercise jurisdiction vested by law. 9. The same principle would apply when the Additional Commissioner exercising powers under section 45(2) of the Act is faced with a situation wherein the Surplus Lands Determination Tribunal had declared the holder to be a non-surplus on grounds other than applicability of presumption but wants to consider the question whether he can be declared surplus holder. If a holder pleads in his deposition and/or submits some evidence that the transfer effected by him though after 26th day of September, 1970 was not actually effected in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, the Additional Commissioner is duty bound to consider that contention and the evidence. Though the burden to rebut the presumption raised statutorily rests on the surplus holder but the authorities have a duty to examine whether the burden is discharged. In the instant case, both the authorities did not even touch the contentions raised by holder that the transfers are not effected to defeat the provisions of the Amending Act. Though the burden to rebut the presumption raised statutorily rests on the surplus holder but the authorities have a duty to examine whether the burden is discharged. In the instant case, both the authorities did not even touch the contentions raised by holder that the transfers are not effected to defeat the provisions of the Amending Act. Had it been the intention of the Legislature to hold all transfers after 26th day of September, 1970 illegal, then such a provision would have been made. But the presumption raised in the explanation is qualified by specific words “unless the contrary is proved”. Therefore, it will have to be concluded that the Legislature wants to give opportunity to the holders to prove that the transfer effected after 26th day of September, 1970 but before the day of commencement was not effected in anticipation or in order to avoid or defeat the object of the Amending Act of 1972. Since this aspect was not at all considered by the Surplus Lands Determination Tribunal or by the Additional Commissioner, the matter will have to be remanded back to the Surplus Lands Determination Tribunal with a direction that it should consider whether contention of the petitioner that a transfer of 28-A and 16-G. of land from Survey No. 49 is not in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972 in view of the statement of the petitioner and the reasons given by him. 10. In the result, petition is allowed. The judgment and order of the Additional Commissioner, Aurangabad dated 22-11-1985 in Case No. 77/ICHR/477 is quashed. The matter is remanded back to the Surplus Lands Determination Tribunal, Patoda for holding fresh inquiry to determine whether the petitioner is a surplus holder and if yes, to what extent. The Surplus Lands Determination Tribunal shall also record finding in respect of the following point :— Whether the petitioner proves that the transfer of 28-A. and 16-G. portion, from survey No. 49 made by him after the 26th day of September, 1970 were not in anticipation or in order to avoid or defeat the object of the Amending Act, 1972? The Surplus Lands Determination Tribunal shall dispose of this case as expeditiously as possible after giving due opportunity including that of adducing evidence to the petitioner. Rule made absolute to the above extent. The Surplus Lands Determination Tribunal shall dispose of this case as expeditiously as possible after giving due opportunity including that of adducing evidence to the petitioner. Rule made absolute to the above extent. There will be no order as to the costs. Rule made absolute accordingly. -----