HARGOVIND PANNALALJI KASAT v. STATE OF MAHARASHTRA
2006-07-25
R.M.S.KHANDEPARKAR, S.R.DONGAONKAR
body2006
DigiLaw.ai
JUDGMENT R.M. S. KHANDEPARKAR, J. :- The present appeal arises from the 31-1-1995 passed in Writ Petition No. 252 of 1995 whereby the against the order of the Additional Commissioner in exercise of section 45(2) of the Maharashtra Agricultural Lands (Ceiling on ,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-the said Act, the Surplus Land Determination Tribunal (SLDT), its order dated 9-4-1987 had declared 12.03 acres of land of the g surplus with the family unit of the appellant. The appeal against by the appellant was dismissed by the Maharashtra Revenue Tribunal by its order dated 27-11-1987. In the said appeal, the respondent had filed cross-objections but as late as on 14-8-1987, though the respondent were served with the notice of the said appeal on 12-5-1987. In, the SLDT took possession of the surplus area of 12.03 acres of the appellants family in terms of its order dated 9-4-1987. Meanwhile, in 1989 the Additional Commissioner in exercise of powers under section ,d Act issued notices to the appellant in relation to additional area of applicant objected to the said exercise of power under section 45 by the Commissioner by filing his written statement on 10-10-1994. After parties, the Additional Commissioner by its order dated 23-11-1994 Survery No. 18, admeasuring 24 acres and 20 gunthas as surplus land with Family unit of the appellant. The same was sought to be challenged by, way petition which was dismissed by the impugned order. 3. The challenge to the impugned order and the proceedings under section said Act is three-fold, firstly, that the concerned authority was not to exercise the powers under section 45 of the said Act as the issue of s 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 Maharasha Revenue Tribunal on 27-11-1987. Secondly, the respondents had led any appeal within the prescribed period of limitation for filing an or the cross-objections were filed within one month from the date of the notice relating to the filing of the appeal by the appellant.
Secondly, the respondents had led any appeal within the prescribed period of limitation for filing an or the cross-objections were filed within one month from the date of the notice relating to the filing of the appeal by the appellant. Thirdly, session of the surplus land declared under section 21 had already been taken by the competent authorities and, the proviso to section 45(2), as it the relevant time, did not permit the exercise of powers under section 45 circumstances. In short, the exercise of power under section 45(2) of the said is under challenge. 4. While elaborating the grievance of the appellant in the matter, the Advocate appearing for the appellant submitted that once the authorities exercise of powers under section 21 of the said Act decides the issue relating surplus land with the unit of the family and such decision is confirmed in al by the Tribunal, the decision on the issue relating to the surplus land with the family unit stands concluded and attains finality. The revisional power section 45(2) of the said Act can be exercised only in cases of the even enumerated there under. Those eventualities include the necessity of filling 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 SLD the prescribed time. The notice of the said appeal was received respondents on 12-5-1987. However, they chose to file the cross-object late as on 14-8-1987 i.e. beyond the period of limitation for filing the objections. Obviously therefore, the respondents had neither filed the appeal the cross-objections within the period of limitation. It is also a matter 0 that the SLDT took possession of 12.03 acres of surplus land in August Being so, the authorities could not have proceeded to exercise the power section 45 of the said Act thereafter. The learned Advocate for the appeal drawn our attention to the decisions in the matters of Jamunabai Mo another vs. State of Maharashtra and another, reported in 1978 Mh.
The learned Advocate for the appeal drawn our attention to the decisions in the matters of Jamunabai Mo another vs. State of Maharashtra and another, reported in 1978 Mh. Baswantrao Appaji Choudhari vs. Commissioner, Nagpur Division, Nag another, reported in 1977 Mh.L.J. 834, Rambhau Bapuji Jaibhaye vs. Maharashtra and another, reported in 1976 Mh.L.J. 443, Bhagwan Ambhure vs. State of Maharashtra and others, reported in 1979 Mh.L Anandrao Namdeorao Jachak vs. State of Maharashtra and others, rep 1980 Mh.L.J. 661, Shaliabi Asfak Qureshi vs. State of Maharashtra, rep 1986 Mh.L.J. 725, Ganpatrao Gulabrao Pawar and others vs. S Maharashtra, reported in AIR 1992 SC 1183 , Commissioner of Weal Bombay and another vs. Mrs. Kasturbai Watch and others, reported is Supp( 1) SCC 640, Devi Singh vs. Board of Revenue for Rajasthan and reported in (1994)1 SCC 215 and Hindustan Aeronautics Ltd., Bangal Commissioner of Income Tax, Karnataka-I, Bangalore, reported in (2000) 5. The contention on behalf of the respondents, on the other hand, the exercise of power under section 45(2) is in respect of the holdings were required to be ascertained in the proceedings under section 18 in relation the land of the family unit and it does not relate to land which was subject of declaration under section 21 of the said Act, and therefore, the object 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 i whether the exercise of power under section 45(2) of the said Act b concerned authority has been in relation to the proceedings under section the said Act and therefore, not affected by the bar provided for exercise of power consequent to the disposal of appeal against order under section 21 said Act?
7.The section 45 (2) of the said Act reads thus : "(2) The State Government may, such motu or on an application ma it by the aggrieved person, at any time, call for the record of any in or proceedings under sections 17 to 21 (both inclusive) for the purpose satisfying itself as to the legality or propriety of any inquiry 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.
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 nor 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 been in force at all material times when such proceeding was initiat order passed, and accordingly all acts and things done in pursuan any order so passed shall be valid and effective and no such procee order, acts or things initiated, passed, done or taken shall be call question in any Court merely on the ground that the State Govern had no power to initiate such proceeding or pass such order." 11. Obviously therefore, the expression "the possession of such land not been taken under sub-section (4), of section 21", should be deemed to never existed on the statute book in the said proviso to sub-section (2) to se 45 of the said Act.
Obviously therefore, the expression "the possession of such land not been taken under sub-section (4), of section 21", should be deemed to never existed on the statute book in the said proviso to sub-section (2) to se 45 of the said Act. The objection sought to be raised for exercise of power section 45(2) of the said Act on the basis of the possession having been tak the area declared as surplus, therefore, falls flat to the ground, and is t rejected as totally devoid of substance. 12. Undoubtedly, the Division Bench in Shaliabi Asfak Qureshis (supra) had held the deletion of the expression "the possession of such land not been taken under sub-section (4) of section 21" to be ultra vires. The deletion was sought to be introduced by the Maharashtra Act No. 26 of which was struck down by the said decision. However, the effect of the decision stood nullified by the Maharashtra Act No. XVI of 1990. 13. The contention that the authorities cannot exercise the power u section 45 unless the respondent had filed appeal against the order of declar under section 21 is totally devoid of substance. The submission is obviousl account of misreading of the relevant provision of law. The requirement is "filing of appeal within time" but just to the Contrary. It is only in cases w the appeal has not been filed in time, that the exercise of pOwer is permiss under the said section. In the case in hand, admittedly, no appeal was filed by respondents and even the cross-objections were filed beyond the peri limitation. In other words, in the eyes of law no appeal was filed by respondent against the declaration under section 21. 14. It is the contention on behalf of the respondents that the exercis powers under section 45(2) is not restricted to the inquiry under section 21(b), also inclUdes proceedings under section 18 of the said Act and the said sectio " refers to consideration of various matters relating to the total holding of the I whereas the section 21 is restricted to the declaration regarding the surplus I and the consequences thereof. 15. If one reads section 21, it apparently refers to the declaration rega~ the total area of the land holding of the family unit as well as the total are land in excess of the ceiling area held by Such family unit.
15. If one reads section 21, it apparently refers to the declaration rega~ the total area of the land holding of the family unit as well as the total are land in excess of the ceiling area held by Such family unit. In fact, Clause (a) 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 entitle 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 affe by the inquiry under section 14, section 18 refers to matters to be considered the Collector in the inquiry under section 14, section 19 empowers the Collegeas land to the I of considering 21 speaks of consequences thereof. 17. The section 18 of the said Act does not speak of any inquiry reunder. It relates to the matters to be considered by the Collector during the uiry 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 mmencement of the said Act. It also requires to consider the land transferred , the landholder between 26-9-1970 till the date of enforcement of the said Act, also to consider the partition carried out of the property, as also the transfer of 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 po consideration by the Collector while holding the inquiry contemplated under tion 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.
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 lamunabai Moti/ais 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.
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 Besides, it will result in virtually negating the revisional powers Government which are statutorily assured. 20. In Ganpatrao Gulabrao Pawars case (supra), the Apex referring to section 45(2) of the said Act had clearly held that the same con suo motu power of revision upon the State Government for the purp satisfying itself as to the legality or propriety of any inquiry or proceeding sections 17 to 21 of the said Act which means the inquiry by and proceedi the Collector. The proviso, however, provides that the power to call ti record or any inquiry or proceedings of a declaration or part thereof under 21 in relation to any land would not be available if an appeal has been against such declaration or part thereof. It was further held that when the is filed, which is not as provided under the statute, there would be no ap the eye of law and such incompetent appeal would not operate as a exercise the revisionary power under section 45(2). It was also reminded t said Act is not intended to determine or declare titles and the finding as extent of a holding of a person under the Act is only a step towards its objec intermediate stage. 21. So also, in Rambhau Bapuji laibhayes case (supra), while d with the scope of the proviso to section 45(2) of the said Act, held the was appeal was filed beyond the prescribed time, the bar under the said pro would not apply to the powers of the Commissioner as such an appeal wo no appeal in the eyes of law. 22. Likewise, in Baswantrao Appaji Choudharis case (supra), the Di Bench has held that mere filing of the appeal could not be a bar under the for exercise of the revisional power. It was held that the purpose of fored the scrutiny in the matter subjected to the process of appeal is clearly to a conflict of decisions by the authorities having jurisdiction to revise or revie declaration or any part thereof made under the provisions of section 21(1) achieve unanimity in the matters of judicial adjudication.
It was held that the purpose of fored the scrutiny in the matter subjected to the process of appeal is clearly to a conflict of decisions by the authorities having jurisdiction to revise or revie declaration or any part thereof made under the provisions of section 21(1) achieve unanimity in the matters of judicial adjudication. With this obj view, the terms of the proviso with regard to the appeal are to be underst particularly in the context of the declaration or any part thereof. Once s declaration or any part thereof had been the subject-matter of appellate sc it behoves judicial propriety that the said matter should not be subjec further scrutiny in more or less co-ordinate jurisdiction. Dismissal of appea arise for several reasons including the one that the appeal was not pr constituted or was not competent or was not prosecuted. Such dismissal not partake of the character of appellate scrutiny by the higher authority so operate as a bar for exercise of revisional power. The ruling clearly spe appeal against the declaration under section 21. In fact, there is no provisi appeal against the proceedings under sections 17 to 20. The appeal pr under section 33 refers only to order under section 21. 23. However, in Anandrao Namdeorao lachaks case (supra), the Di Bench of this Court had held that the appeal contemplated by the provi section 45(2) of the said Act is the one which must have the effect of dep 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 provision of law, I Powers to the and examination of the points involved in the appeal by the Appellate and not an incompetent appeal which is dismissed summarily as not able. The proviso to section 45(2) cannot be construed de hors the other ns of the said Act. The intention of the Legislature is to arm the State Goverment with the power of scrutiny in respect of proceedings of a declaration thereof if the same have not been subjected to the scrutiny by the te Authority under the Act. 24.
The proviso to section 45(2) cannot be construed de hors the other ns of the said Act. The intention of the Legislature is to arm the State Goverment with the power of scrutiny in respect of proceedings of a declaration thereof if the same have not been subjected to the scrutiny by the te Authority under the Act. 24. Besides, in Bhagwan Sonaji Ambhures case (supra), while referring to ers under section 45(2), it was held that the Legislature has made a provision authorising the Government to call for the records of any or proceeding under sections 17 to 21 (both inclusive) for the purpose of ing itself as to the legality or propriety of an inquiry or proceeding or any there of under those sections and the State Government is further authorised such order thereon as it deems fit after giving the party a reasonable. Oppurunity nity of being heard if the order is going to adversely affect that party. As 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 Maharastha 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 bution for its full and efficient use for agriculture.
" (Emphasis supplied) 25. The said Act has been brought into force with the object of imposing, maximum Maharastha 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 bution for its full and efficient use for agriculture. This has been done in uance of the national policy evolved consequent to the recommendations of Central Committee on land reforms and with a view to make available tionalland for distribution to landless persons in the State and thereby to try sure more equitable distribution which in turn will help to eradicate the omic disparities in the State 26. Unless the context otherwise requires, harmonious construction is the of interpretation with the object of making the provision workable and tive. Considering the provision of law comprised under section 45, the same at be construed in such a manner which will defeat the very purpose for the said Act has been brought into force. Effective implementation of the relating to ceiling of agricultural holding and the consequential distribution excess land to the landless people cannot be attained unless the provision aw like section 45 is given meaningful interpretation. Under the guise of rpretation, rather than restricting the revisional powers assured under the said ision, it is to be seen that such powers are allowed to be exercised in every he Apex Court, case same confers a the purpose of. Proceeding under is proceedings of to call for the of under section has been filed then the appeal no appeal in te as a bar to linded that the ding as to the its object - an “While dealing hat when the id Provisionsnal would be the Division. the proviso foreclosing I to avoid a review the 1(1) and to; object in rstood and ce Such a scrutiny, uected to peal may properly al Would so as to leaks of sion for rovided division voso to aiving must be is a case where there appears to be either fraudulent attempt to conceal the holding of land or where the authorities, either in connivance wi landholders or even negligently avoid to conduct the proper inquiry in reI the total holding of the land of any family unit.
Any interpretation whi impose unwarranted restrictions on such revisional power may result in n defeating the very purpose behind the said provision but even may de main aim of ascertaining the excess land available for distribution to the I people. 27. The decision in Hindustan Aeronauticss case is of no helps to the appellant as that was in relation to the Income Tax Act. A statutory pro one Act cannot be understood or interpreted by referring to a statutory in another Act. The decision in Devi Singhs case is also of no help appellant. Therein it was held that in view of the provisions of sections 229 of the Rajasthan Tenancy Act, the Board could not exercise power of superintendence under section 221 of the Act for it had beforehand in ex its appellate powers confirmed the decree of the trial Court i.e. of the Collectors Court and by the doctrine of merger, the judgment and decr first Court got merged in that of the first Appellate Court and sequelly on appeal with that of the Board of Revenue. Undoubtedly, the H Aeronauticss case (supra) and Devi Singhs case (supra) are also on the doctrine of merger of order. In Mrs. Kasturbai Walchands case (supra)" matter under the Wealth Tax Act, 1957. It was held therein that the subjected to appeal merges in the order of the appellate authority when is disposed of on merits. If meanwhile a revision application is filed another authority against the same order of the lower authority, it woul open to the revisional authority to pass any order in revision against t sought to be revised as the latter would stand merged with the ord appellate authority. This principle has no application to the matter in iss interference in revisional powers is not against the order under section was subjected to appellate review but it is against the proceedings relati matter under section 18 of the said Act. 28. Reverting to the facts of the case, it is seen that the A Commissioner, Amravati had found the land comprising of Survey admeasuring 24 acres and 20 gunthas in the year 1969-1970 in possess landholder and the latter had effected partition of his land on 2 between himself.
28. Reverting to the facts of the case, it is seen that the A Commissioner, Amravati had found the land comprising of Survey admeasuring 24 acres and 20 gunthas in the year 1969-1970 in possess landholder and the latter had effected partition of his land on 2 between himself. his wife and son who was only one-year old and after the appellants wife, without cultivating the same, had given half of it, basis in the year 1970-1971 to one Mahadeo Baliram Wadalkar and ye papers were filed on record either by the appellant or his wife. The Commissioner had found that the so-called tenant had asked for sale but the landholder had not taken any step in that regard. The Commissioner had further found that though the adjoining land cultivated by tbe landholder, the land comprised under the Survey N given on batai basis only to circumvent the provisions of the said Act., circumstances, the Additional Commissioner, Amravati did not find agreement with the reasons given by the concerned party for exclusi 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 nal Commissioner. In the facts and circumstances of the case, by no of imagination it can be said that the exercise of powers under section f the said Act was in relation to the declaration under section 21 of the t. The above facts apparently disclose that the exercise of power was in to the proceedings wherein there was total arbitrariness on the part of the ed authority in applying the provision of section 18 of the said Act which ulted in allowing the appellant to suppress the excess land available with was a clear case of non-consideration of the things which were required to sidered in terms of the provisions of section 18. Being so, the interference be said to be in the declaration under section 21 but it is essentially in to the matters under section 18 of the said Act. 29. The fall out of the above discussion is that the point for determination. as above is to be answered in affirmative in favour of the respondents and the appellant.
Being so, the interference be said to be in the declaration under section 21 but it is essentially in to the matters under section 18 of the said Act. 29. The fall out of the above discussion is that the point for determination. as above is to be answered in affirmative in favour of the respondents and the appellant. In the circumstances, no interference is called for in the impuunged judgment passed by the learned single Judge. The appeal, therefore, and is dismissed with costs. Appeal dismissed.