Full Judgment Text
1 wp1813.93
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1813 OF 1993
Babasaheb s/o Balwant Bawane,died
through his legal heirs :
1. Shakuntalabai w/o Babasaheb Bawane,
Age: Major, Occ: Household,
2. Rajkumar s/o Babasaheb Bawane,
Age: Major, Occ: Agri.,
Both r/o. Girwali, Tq. Ambajogai,
Dist. Beed.
3. Sheela w/o Prakashrao Deshmukh,
Age: Major, Occ: Household.,
4. Vaijayantimala w/o Rameshrao
Deshmukh, Age: Major,
Occ: Household,
5. Shobha w/o Ashokrao Bhosale,
Age: Major, Occ: Household.,
6. Rekha w/o Shivajirao Deshmukh,
Age: Major, Occ: Household.,
Nos. 3 to 6 R/o ParliVaijinath,
District Beed.
7. Asha w/o Ajitrao Ghatge,
Age: Major, Occ: Household,
R/o. 101, Malkhare Residency,
Vidya Nagar, Aurangabad. ...APPELLANTS
VERSUS
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1. The State of Maharashtra.
2. Addl. Divisional Commissioner,
Aurangabad Division,
Aurangabad.
3. Chairman,
Surplus Land Determination
Tribunal Ambajogai. ...RESPONDENTS
...
Ms. Vanita H. Sangole, Advocate h/f
Smt. M.A. Kulkarni, Advocate for petitioners.
Mr. K.B. Choudhary, A.G.P. for respondents.
...
CORAM: S.S. SHINDE, J.
DATE : 9TH MARCH, 2011
ORAL JUDGMENT :
The writ petition is filed challenging
order dated 25021993 passed by the Additional
Divisional Commissioner, Aurangabad Division,
Aurangabad at ExhibitE to the petition.
2. The petitioner is a resident of Girwali
(Bawani). The petitioner filed his return under
Section 12 of the Maharashtra Agriculture (Ceiling
on Holdings ) Act, 1961 (For short, "Said Act") to
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respondent No.3 Surplus Land Determination
Tribunal (For short, "S.L.D.T."). Respondent
No. 3 by order dated 30011976 assessed holding
of the petitioner as 108 acres and 8 gunthas and
declared the petitioner as surplus to the extent
of 16 Acres 32 Gunthas excluding an area of 5
acres of Potkharaba and benefit of 3 members u/s.6
of the said Act was given to the petitioner. In
pursuance of the said order, the land of the
petitioner was distributed and possession was
handed over to the allottees. To that effect,
panchnama was also prepared.
3. It is the case of the petitioner that
respondent No. 2 Additional Divisional
Commissioner, Aurangabad Division, Aurangabad (For
short, "Additional Commissioner") reopened the
case, by issuing notice for suo moto revision
under Section 45(2) of the said Act and order
dated 08121980 remanded the matter back to
respondent No. 3 for fresh inquiry.
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After remand, respondent No. 3 by order
dated 30031983 maintained the previous order
dated 30011976 maintaining that the petitioner
is surplus holder to the extent of 16 acres 32
gunthas.
4. Thereafter, on 01121992 the petitioner
received notice from the Additional Commissioner
for suo moto inquiry under Section 45(2) of the
said Act. The petitioner herein appeared before
respondent No.2 and submitted his objections
contending therein that suo moto revision is not
maintainable. By order dated 25021993 the
Additional Commissioner set aside order of the
S.L.D.T. passed on 30031983 and remanded the
case to the S.L.D.T. for declaring holder as
additional surplus land holder for 15 acres 30
gunthas after giving holder of opportunity of
being heard. Said order is under challenge in
this petition.
5. Learned Counsel for the petitioner
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submitted that, said order impugned in this
petition was passed by respondent No.2 after lapse
of period of nine years from the second order
passed by the S.L.D.T. on 30031983. It is
further submitted that, the mandate of provisions
of sub section 2 of Section 45 of the said Act,
has not been followed by the Additional
Commissioner. According to learned Counsel for
the petitioner, once having been exercised powers
of suo moto revision by respondent No.2, it was
not open for respondent No.2 to reopen the case
again issue notice for suo moto inquiry after
lapse of period of nine years from order dated
30031983 passed by the S.L.D.T. It is further
submitted that, order impugned in this petition is
passed by the Additional Commissioner without
calling record from the S.L.D.T. or without
application of mind, therefore, said order cannot
be sustained. Learned Counsel further submitted
that, point raised in this petition is no more
resintegra and answered by this Court by
authoritative pronouncements in various judgments,
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therefore, Counsel would submit that, this
petition may be allowed.
6. On the other hand, learned A.G.P. for the
State submitted that, order passed by the
Additional Commissioner is with conscious mind and
after perusing the record, therefore, this Court
may not interfere in the impugned order.
7. I have given due consideration to the
rival submissions. Perused the pleadings in the
petition and also annexures thereto and record
made available for perusal. It is not in dispute
that the S.L.D.T. on 30011976 after following
proper procedure has passed order declaring the
petitioner surplus holder to the extent of 16
acres 32 gunthas. It is also not in dispute that
no appeal is preferred by the petitioner
challenging the said order of the S.L.D.T.
Surplus land to the extent of 16 acres 32 gunthas
was distributed and allotted by the Government.
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From the perusal of the record, it
appears that respondent No.2 opened inquiry by way
of provisions under Section 45(2) of the said Act
by order dated 08121980. In fact, this opening
of the inquiry itself was not within period of
three years from the date of order dated
30011976 passed by the S.L.D.T. By the said
order, Additional Commissioner remanded the matter
back to the S.L.D.T. The S.L.D.T. again after
proper inquiry passed order on 30031983, thereby
maintaining its earlier order dated 30011976.
Therefore, I find considerable force in the
argument of the learned Counsel for the petitioner
that there was no occasion for the Additional
Commissioner to invoke provisions of Section 45(2)
of the said Act, second time. In fact, it is
admitted position that once power was exercised
and thereafter also S.L.D.T. did maintain its
earlier as back as in 1983. It is also admitted
position that for the first time notice of suo
moto inquiry in second round was issued by the
Additional Commissioner on 01121992. Even if
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second order of the S.L.D.T. dated 30031983 is
taken into consideration, the issuance of the
notice for suo moto inquiry on 01121992 by the
Additional Commissioner is beyond statutory
period of limitation.
8. From the perusal of the record, it does
not appear that the said order was passed by the
Additional Commissioner with conscious mind by
calling record from the S.L.D.T. and therefore,
notice issued by the Additional Commissioner on
01121992 was after 9 years from the date of
S.L.D.T. and after 16 years from the first order
of the S.L.D.T. dated 30031976. Therefore,
notice issued by the Additional Commissioner for
suo moto inquiry and order impugned in this
petition dated 25021993 passed by the Additional
Commissioner was beyond statutory period, hence
cannot be sustained. Therefore, same deserves to
be set aside.
9. This Court had occasion to interpret
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provisions of Section 45 (2) of the said Act, in
the 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 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 subsection (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
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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
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
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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 under Section 45 (2) of the
Act for suomotu revision was issued on 25.03.1982
and not within the period of three years from the
date of order of the 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 subsection
(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
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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 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.
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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
this
Maharashtra and another, 2008 (6) Mh.L.J.571,
Court held that in suomotu 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 .
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10. Therefore, in the light of discussion
hereinabove and in the light of authoritative
pronouncements of this Court cited supra, in my
opinion, impugned judgment and order cannot be
sustained and hence, cannot be sustained and same
is quashed and set aside.
11. Writ Petition is allowed and disposed of.
12. Rule made absolute, in above terms.
sd/
[ S.S. SHINDE, J.]
sut/Mar11/wp1813.93
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1813 OF 1993
Babasaheb s/o Balwant Bawane,died
through his legal heirs :
1. Shakuntalabai w/o Babasaheb Bawane,
Age: Major, Occ: Household,
2. Rajkumar s/o Babasaheb Bawane,
Age: Major, Occ: Agri.,
Both r/o. Girwali, Tq. Ambajogai,
Dist. Beed.
3. Sheela w/o Prakashrao Deshmukh,
Age: Major, Occ: Household.,
4. Vaijayantimala w/o Rameshrao
Deshmukh, Age: Major,
Occ: Household,
5. Shobha w/o Ashokrao Bhosale,
Age: Major, Occ: Household.,
6. Rekha w/o Shivajirao Deshmukh,
Age: Major, Occ: Household.,
Nos. 3 to 6 R/o ParliVaijinath,
District Beed.
7. Asha w/o Ajitrao Ghatge,
Age: Major, Occ: Household,
R/o. 101, Malkhare Residency,
Vidya Nagar, Aurangabad. ...APPELLANTS
VERSUS
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1. The State of Maharashtra.
2. Addl. Divisional Commissioner,
Aurangabad Division,
Aurangabad.
3. Chairman,
Surplus Land Determination
Tribunal Ambajogai. ...RESPONDENTS
...
Ms. Vanita H. Sangole, Advocate h/f
Smt. M.A. Kulkarni, Advocate for petitioners.
Mr. K.B. Choudhary, A.G.P. for respondents.
...
CORAM: S.S. SHINDE, J.
DATE : 9TH MARCH, 2011
ORAL JUDGMENT :
The writ petition is filed challenging
order dated 25021993 passed by the Additional
Divisional Commissioner, Aurangabad Division,
Aurangabad at ExhibitE to the petition.
2. The petitioner is a resident of Girwali
(Bawani). The petitioner filed his return under
Section 12 of the Maharashtra Agriculture (Ceiling
on Holdings ) Act, 1961 (For short, "Said Act") to
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respondent No.3 Surplus Land Determination
Tribunal (For short, "S.L.D.T."). Respondent
No. 3 by order dated 30011976 assessed holding
of the petitioner as 108 acres and 8 gunthas and
declared the petitioner as surplus to the extent
of 16 Acres 32 Gunthas excluding an area of 5
acres of Potkharaba and benefit of 3 members u/s.6
of the said Act was given to the petitioner. In
pursuance of the said order, the land of the
petitioner was distributed and possession was
handed over to the allottees. To that effect,
panchnama was also prepared.
3. It is the case of the petitioner that
respondent No. 2 Additional Divisional
Commissioner, Aurangabad Division, Aurangabad (For
short, "Additional Commissioner") reopened the
case, by issuing notice for suo moto revision
under Section 45(2) of the said Act and order
dated 08121980 remanded the matter back to
respondent No. 3 for fresh inquiry.
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After remand, respondent No. 3 by order
dated 30031983 maintained the previous order
dated 30011976 maintaining that the petitioner
is surplus holder to the extent of 16 acres 32
gunthas.
4. Thereafter, on 01121992 the petitioner
received notice from the Additional Commissioner
for suo moto inquiry under Section 45(2) of the
said Act. The petitioner herein appeared before
respondent No.2 and submitted his objections
contending therein that suo moto revision is not
maintainable. By order dated 25021993 the
Additional Commissioner set aside order of the
S.L.D.T. passed on 30031983 and remanded the
case to the S.L.D.T. for declaring holder as
additional surplus land holder for 15 acres 30
gunthas after giving holder of opportunity of
being heard. Said order is under challenge in
this petition.
5. Learned Counsel for the petitioner
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submitted that, said order impugned in this
petition was passed by respondent No.2 after lapse
of period of nine years from the second order
passed by the S.L.D.T. on 30031983. It is
further submitted that, the mandate of provisions
of sub section 2 of Section 45 of the said Act,
has not been followed by the Additional
Commissioner. According to learned Counsel for
the petitioner, once having been exercised powers
of suo moto revision by respondent No.2, it was
not open for respondent No.2 to reopen the case
again issue notice for suo moto inquiry after
lapse of period of nine years from order dated
30031983 passed by the S.L.D.T. It is further
submitted that, order impugned in this petition is
passed by the Additional Commissioner without
calling record from the S.L.D.T. or without
application of mind, therefore, said order cannot
be sustained. Learned Counsel further submitted
that, point raised in this petition is no more
resintegra and answered by this Court by
authoritative pronouncements in various judgments,
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therefore, Counsel would submit that, this
petition may be allowed.
6. On the other hand, learned A.G.P. for the
State submitted that, order passed by the
Additional Commissioner is with conscious mind and
after perusing the record, therefore, this Court
may not interfere in the impugned order.
7. I have given due consideration to the
rival submissions. Perused the pleadings in the
petition and also annexures thereto and record
made available for perusal. It is not in dispute
that the S.L.D.T. on 30011976 after following
proper procedure has passed order declaring the
petitioner surplus holder to the extent of 16
acres 32 gunthas. It is also not in dispute that
no appeal is preferred by the petitioner
challenging the said order of the S.L.D.T.
Surplus land to the extent of 16 acres 32 gunthas
was distributed and allotted by the Government.
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From the perusal of the record, it
appears that respondent No.2 opened inquiry by way
of provisions under Section 45(2) of the said Act
by order dated 08121980. In fact, this opening
of the inquiry itself was not within period of
three years from the date of order dated
30011976 passed by the S.L.D.T. By the said
order, Additional Commissioner remanded the matter
back to the S.L.D.T. The S.L.D.T. again after
proper inquiry passed order on 30031983, thereby
maintaining its earlier order dated 30011976.
Therefore, I find considerable force in the
argument of the learned Counsel for the petitioner
that there was no occasion for the Additional
Commissioner to invoke provisions of Section 45(2)
of the said Act, second time. In fact, it is
admitted position that once power was exercised
and thereafter also S.L.D.T. did maintain its
earlier as back as in 1983. It is also admitted
position that for the first time notice of suo
moto inquiry in second round was issued by the
Additional Commissioner on 01121992. Even if
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second order of the S.L.D.T. dated 30031983 is
taken into consideration, the issuance of the
notice for suo moto inquiry on 01121992 by the
Additional Commissioner is beyond statutory
period of limitation.
8. From the perusal of the record, it does
not appear that the said order was passed by the
Additional Commissioner with conscious mind by
calling record from the S.L.D.T. and therefore,
notice issued by the Additional Commissioner on
01121992 was after 9 years from the date of
S.L.D.T. and after 16 years from the first order
of the S.L.D.T. dated 30031976. Therefore,
notice issued by the Additional Commissioner for
suo moto inquiry and order impugned in this
petition dated 25021993 passed by the Additional
Commissioner was beyond statutory period, hence
cannot be sustained. Therefore, same deserves to
be set aside.
9. This Court had occasion to interpret
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provisions of Section 45 (2) of the said Act, in
the 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 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 subsection (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
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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
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
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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 under Section 45 (2) of the
Act for suomotu revision was issued on 25.03.1982
and not within the period of three years from the
date of order of the 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 subsection
(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
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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 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.
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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
this
Maharashtra and another, 2008 (6) Mh.L.J.571,
Court held that in suomotu 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 .
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10. Therefore, in the light of discussion
hereinabove and in the light of authoritative
pronouncements of this Court cited supra, in my
opinion, impugned judgment and order cannot be
sustained and hence, cannot be sustained and same
is quashed and set aside.
11. Writ Petition is allowed and disposed of.
12. Rule made absolute, in above terms.
sd/
[ S.S. SHINDE, J.]
sut/Mar11/wp1813.93
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