Full Judgment Text
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PETITIONER:
GANPATRAO GULABRAO PAWAR AND ORS.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT06/04/1992
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
PUNCHHI, M.M.
CITATION:
1992 AIR 1183 1992 SCR (2) 466
1993 SCC Supl. (1) 87 JT 1992 (2) 463
1992 SCALE (1)783
ACT:
Maharashtra Agricultural Lands (Ceiling and Holdings)
Act, 1961-Sections 3,5,9-Legislative intention-Acquisition
of land above ceiling limit-Liable to surrender.
Maharashtra Agricultural Lands (Ceiling and Holdings)
Act, 1961-Sections 14 to 20, 21, 45-Declaration-When to be
made-Determination of land less than ceiling limit-Not
declaration and not appealable-Revisionary power-Exercise
of-Whether any bar operates.
Maharashtra Agricultural Lands (Ceiling and Holdings)
Act, 1961-Sections 3, 14, to 20, 21, 45, read with Section
11, Code of Civil Procedure, 1908-Determination of surplus
land in a subsequent proceedings-Determining holding in
earlier proceedings-Whether operates as res judicata.
Maharashtra Agricultural Lands (Ceiling and Holdings)
Act, 1961-Section 45-Suo motu revision Determination of
holding-Inclusion of the extent of land received by
exchange-Theory of exchange disbelieved-Whether the extent
of land to be excluded.
HEADNOTE:
Appellant No. 1-land holder filed a return of his
holding under the provisions of the Maharashtra Agricultural
Lands (Ceiling and Holdings), Act, 1961. The Collector
after making inquiry held that as his total holding of
agricultural lands was 124 acres 23 guntas (converted into
dry lands) and having regard to the number of his family
members the appellant No. 1 was not a surplus holder.
Through the order of the Collector was in favour of the
appellant No. 1, he filed an appeal before the Revenue
Tribunal, contending that he was not holding 124 acres 23
guntas of land and that his holding was lesser than that.
The appeal was dismissed summarily.
Sometime after the disposal of the appeal, the
Additional Commis-
467
sioner issued a notice u/s.45 of the Act to the appellant
No.1 calling upon him to show cause as to why the
Collector’s order be not revised; his holding be determined
at 231 acres and why the surplus should not be directed to
be surrendered.
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Appellant No. 1 submitted his objection u/s.45(2),
proviso contending that when an appeal was filed against the
order of the Collector, the power of suo motu revision was
not available to the Commissioner u/s.45 of the Act.
The Additional Commissioner rejected the preliminary
objection and passed an order on merits, holding that the
holding of lands of the first appellant was 202 acres and 31
guntas (when converted into dry crop land), that he was
entitled to retain only an extent of 160 acres and that he
was a surplus holder to an extent of 42 acres 31 guntas.
The matter was remitted to the S.D.O. for delimiting the
surplus area.
The appellants questioned the validity of the
Commissioners’ order by way of a writ petition in the High
Court, contending that inasmuch as the order of the
Collector was appealed against, it could no longer be
revised by the Commissioner in view of the express bar
contained in the proviso to Section 45(2) and further and
that the lands he obtained by way of exchange as well his
lands which were given away under the said exchange, were
both included in his holding.
The High Court dismissed the writ petition, against
which the appellants filed this appeal with the leave of
this Court.
The appellants contended that the appeal preferred by
the appellant No. 1 before the Revenue Tribunal was a proper
and competent appeal. Though that appeal was dismissed, it
operated as a bar to the exercise of the revisory power
under Section 45(2), proviso.
The respondent submitted that an appeal was
maintainable against the declaration or a part thereof. The
part which was not appealed against was open to revision
under Section 45(a); that the provision in Section 33
providing for a right of appeal and the provision of Section
45(2) conferring a supervisory power in the
Government/Commissioner must be harmonised so as to give
both the provisions their due play; that mere rejection of
theory of exchange did not necessarily mean that the extent
in gut No. 521 should be excluded from the appellants’
holding when they
468
themselves claim that it was theirs.
Partly allowing the appeal, this Court,
HELD : 1.01. The Maharashtra Agricultural Lands
(Ceiling and Holdings) Act, 1961 was enacted by the
Maharashtra Legislature with a view to impose a maximum
limit (ceiling) on the holding of agricultural land in the
State of Maharashtra and to provide for the acquisition and
distribution of the land held in excess of such ceiling.
[472B]
1.02. The Act is not intended to determine or declare
titles. The finding as to the extend of a holding of a
person under the Act is only a step towards its object an
intermediate stage. [476B]
1.03. A person holding agricultural lands below the
ceiling limit can acquire land only upto the ceiling limit
but not above such limit. Evidently, acquisition of any
land in excess of such limit is liable to be surrendered
under the Act. [472D-E]
2.01. Section 21 makes it clear that the "declaration"
contemplated by it is to be made only in the case of a
surplus holder. The declaration has to contain the various
particulars mentioned in clauses (a) to (e) of sub-section
(1). This should be followed by a statement containing
particulars of the land delimited as surplus. This statement
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has to be published in the village and other specified
places. Sub-section (3) provides that the Collector shall
take possession of the surplus land soon after "the
announcement of the declaration", whereupon it shall vest in
the State. All this shows that no "declaration" is to be
made under Section 21 in the case of a person/family unit
whose holding does not exceed the ceiling limit. [474B-C]
2.02. An appeal is provided only against a
"declaration" made under Section 21 and not against any of
the orders made under Section 14 to 20. A mere
determination or a finding or order that a person/family
unit holds land less than the ceiling limit is not a
"declaration" and, therefore, not appealable. [476F]
2.03. Section 45 vests in the State Government the
power of control and supervision over the officers under the
Act, which power can be delegated by the Government to the
Commissioner. [475E]
2.04. The High Court was right in holding that the
order of the
469
Collector in the case of the first appellant was not
appealable. The appeal filed by him was one not provided by
law and, hence, no appeal in the eye of law. Such an
incompetent appeal could not operate as a bar to the
exercise of revisory power under Section 45(2). [476F-G]
3. In the subsequent proceedings for determining the
surplus land, the order in the earlier proceedings
determining one’s holding at a particular figure, may not
operate as res judicata. [477A]
4. It is no one’s case that the appellant acquired the
extent of 12 acres 24 guntas in gut No. 521 in some manner
other than the exchange put forward by him. That area ought
to be excluded from his holding once the theory of exchange
is disbelieved and when the extent in gut Nos. 462 and 463
is also included in his holding. [478B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 660 of
1981.
From the Judgment and Order dated 26.7.1979 of the
Bombay High Court in Special Civil Application No. 439 of
1975.
P.H. Parekh for the Appellants.
V.B. Joshi and A.S. Bhasme for the Respondent.
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J. First appellant-land holder filed
a return of his holding under as required by the Maharashtra
Agricultural Lands (Ceiling and Holdings) Act, 1961 (Act).
After making the necessary inquiry, the Collector, Pune by
his order dated 2nd January, 1969 held that the first
appellant’s total holding of agricultural lands as on the
relevant date was 124 acres 23 guntas (converted into dry
lands) whereas according to the Act and having regard to the
number of members in his family he was entitled to hold 128
acres. Accordingly, he held that the first appellant was
not a surplus holder. Notwithstanding the fact that the
said order was in his favour, the first appellant filed an
appeal before the Maharashtra Revenue Tribunal. His
contention was that the finding of the Collector that he was
holding 124 acres 23 guntas of land is not correct and that
he must be held to be holding a far lesser extent. This
appeal was dismissed summarily on 16.12.1971. The Tribunal
did not think it fit to issue a notice
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470
even to the respondent in the said appeal. Sometime after
the dismissal of the appeal, the Additional Commissioner,
Puna Division issued a notice to the first appellant under
Section 45 calling upon him to show cause as to why the
order of the Collector, Poona dated 2nd January, 1969 be not
revised and his holding be determined at 231 acres and why
are surplus should not be directed to be surrendered. The
first appellant submitted his objections wherein he inter
alia raised an objection with respect to the validity of the
said notice. The said objection was based upon the proviso
to Sub-section (2) of Section 45 viz., inasmuch as an appeal
has been filed against the order of the Collector, the power
of suo motu revision is no longer available to the
Commissioner. This preliminary objection was overruled by
the Additional Commissioner by his order dated 6.12.1971.
He then went into the merits of the case and passed an order
on 23.9.1974 holding that the total holding of the first
appellant as on the relevant date is 202 acres 31 guntas
(when converted into dry crop land) and since he is entitled
to retain only an extent of 160 acres, he is a surplus
holder to an extent of 42 acres 31 guntas. He remitted the
matter of the S.D.O. for delimiting the surplus area. It may
be mentioned that before passing the said final order, the
Commissioner had issued notices to and heard appellants 2 to
4, inasmuch as their right were sought to be affected by
him.
The appellants questioned the validity of the
Commissioner’s order by way of a writ petition being
Special Civil Application No. 439 of 1975 in the Bombay High
Court. The main contention urged in the said writ petition
was based upon the proviso to Section 45(2). It was that
inasmuch as the order of the Collector was appealed against,
it could not longer be revised by the Commissioner in view
of the express bar contained in the said proviso. On
merits, the only contention urged pertained to the inclusion
of the lands transferred by him by way to exchange. Besides
the lands he obtained by way of exchange, his lands given
away under exchange were also included in his holding.
This, according to the appellants, was unjust and illegal.
Both the contention were negatived by a Division Bench of
the Bombay High Court whereupon the appellants have filed
this appeal with the leave of this court. The main
contention urged before us by Sri P.H. Parekh, learned
counsel for the appellants is again based upon the proviso
to Section 45(2). His contention, properly elaborated, runs
thus: for the purpose of determining whether a person/family
unit holds land in excess of the ceiling area, it is
necessary for the Collector to determine the holding of such
person/family unit. Even where the Collector holds that
471
the holding of a person/family unit is below the ceiling
limit, he has to and does determine the extent of holding of
such person/family unit. If one looks to Section 9, the
relevance of such a finding (even where the finding is that
the land held by such person/family is below the ceiling)
would become evident. A person/family unit holding land
less than the ceiling area is entitled to acquire, after the
’commencement date’, land upto the ceiling limit but not
beyond. If so, a land holder whose holding has been
determined at a particular figure (though below the ceiling
limit) may yet be aggrieved if his case is that his holding
is actually lesser than what has been determined by the
Collector. For, his right to acquire further land after the
commencement date depends upon such a finding. It,
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therefore, follows - says the counsel - that the appeal
preferred by the first appellant before the Maharashtra
Revenue Tribunal was a proper and competent appeal. May be
that appeal has been dismissed, yet it operates as a bar to
the exercise of the revisory power under Section 45(2), says
the counsel.
The Division Bench of the Bombay High Court, it may be
notices rejected the contention in the following words :
"Now it is no doubt that the petitioner in this
case had filed an appeal , even through the
petitioner could not be said to have been aggrieved
by another order made by the Collector. The appeal
provided by Section 33 of the Act is an appeal
against the declaration or any part thereof made
under section 21 of the Act, it refers to the
declaration in respect of the surplus land in
respect of which right, title and interest of the
person of family unit holding it is to be forfeited
to the State Government. It is no doubt true that
even if an appeal against part of the declaration
under section 21(1) is contemplated, the order made
by the Collector in the instant proceeding, when he
held that the petitioner did not have any surplus
land, was not a declaration under section 21 and
the appeal was, therefore, be taken into account
for holding that it created a bar against the
exercise of revisional jurisdiction. The
Commissioner was, therefore, in our view, quite
justified in ignoring the appeal which was filed by
the Petitioner which was clearly not maintainable
and he was entitled to exercise his revisional
jurisdiction in the matter."
472
The learned counsel for the appellant disputes the
correctness of the above reasoning. For a proper
appreciation of the contention urged by Sri Parekh, it is
necessary to refer to the relevant provisions of the Act.
The Act was enacted by the Maharashtra Legislature with
a view to impose a maximum limit (ceiling) on the holding of
agricultural land in the State of Maharashtra and to provide
for the acquisition and distribution of the land held in
excess of such ceiling. Section 3 declares that after the
’commencement date’, no person or family unit shall hold
land in excess of ceiling area as determined in the manner
provided in the Act. Section 12 obliges every person
holding land in excess of the ceiling area to submit a
return of his holding within the time and in the manner
prescribed. Section 5 prescribes the ceiling area. Section
9 declares further that "no person or a member of the family
unit shall at any time, on or after the commencement date,
acquire by transfer of the land if he, or as the case may
be, that family unit already holds land in excess of the
ceiling area or land which together with any other land
holding by such person, or as the case may be, the family
unit, will exceed in the total the ceiling area." In other
words, a person holding agricultural lands below the ceiling
limit can acquire land only upto the ceiling limit but not
above such limit. Evidently, acquisition of any land in
excess of such limit is liable to the surrendered under the
Act. Section 14 provides for an enquiry by the Collector on
the basis of the return filed or suo motu to "determine the
surplus land held by such person or family." Section 16
provides for giving a choice to the surplus land holder to
select the land which he wishes to retain upto the ceiling
area. Section 18 specifies several matters which the
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Collector shall consider. These matters include "whether
any land held by the holder.......should be deemed to be
surplus land under any of the provisions of this Act" and
"Which particular lands out of the total land held by the
holder should be delimited as surplus land?" Section 19 and
20 provide for restoration of surplus land held by a tenant
to the landholder, in accordance with the relevant tenancy
law, to facilitate it being surrendered. Section 21 then
provides for making a ’declaration’ on the basis of the
determination already made under Section 14 and 19. Sub-
section (1) of Section 21 and Sub-section (2) thereof read
as follow:
"21.(1) As soon as may be after the Collector has
considered the matters referred to in section 18
and the questions, if any, under sub-section (3) of
Section 20, he shall make a declaration
473
stating therein his decision on----
(a) the total area of land which the person (or
family unit) is entitled to hold as the ceiling
area;
(b) the total area of land which is in excess of
the ceiling area;
(c) the name of the (landlord) to whom possession of land
is to be restored under section 19, and area and particulars
of such land;
(d) the area, description and full particulars of
the land which is delimited as surplus land;
(e) the area and (particulars of land out of
surplus land, in respect of which the right, title
and interest of the person (or family unit) holding
it) is to be forfeited to the State Government.
(The Collector shall announce his declaration in
the presence of his holder and other persons
interested who are presented at the time of such
declaration.)
(2) After a declaration under sub-section (1) is
made (the Collector shall prepare a statement in
the prescribed form giving details of the area),
description and full particulars of the land which
is delimited as surplus land, (and also of the land
therefrom, the right, title and interest in which
is) to be forfeited to the State Government. (The
Collector shall affix a copy of the statement at
the village Chawdi or any other prominent place at
the village and shall also despatch a copy of the
statement to the person or to the member of the
family unit interested in the land delimited as
surplus. On the date of the announcement of the
declaration mentioned in the preceding sub-
section), (the right, title and interest in the
land which) is liable to forfeiture shall stand
forfeited to and vest in the State Government. (on
and after the date of announcement of the
declaration) no sale, gift, mortgage, exchange,
lease of any other disposition (including any
transfer in execution of a decree or order of a
court, tribunal or authority) shall be made
474
of the land which is delimited as surplus land.
If any such disposition or transfer is made, it
shall be invalid, and of no effect."
A reading of Section 21 makes it clear that the
"declaration" contemplated by it is to be made only in the
case of a surplus holder. The declaration has to contain
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the various particulars mentioned in clauses (a) to (e) Sub-
section (1). This should be followed by a statement
containing particulars of the land delimited as surplus.
This statement has to be published in the village and other
specified places. Sub-section (3) provides that the
Collector shall take possession of the surplus land soon
after " the announcement of the declaration", whereupon it
shall vest in the State. All this shows that no
"declaration" is to be made under Section 21 in the case of
a person/family unit whose holding does not exceed the
ceiling limit.
Section 33 makes certain specified order and
declaration made under Section 21 appealable. Sub-sections
(1) and (1A) of Section 33 read as follow:
"33.(1) An appeal against an order or award of the
Collector shall lie to the Maharashtra Revenue
Tribunal in the following cases :
(1) and order under sub-sections (2) and (3) of
section 13 (not being an order under which a true
and correct return complete in all particulars is
required to be furnished);
(2) a declaration or any part thereof under
section 21;
(2A) an order under section 21-A;
(3) an award under section 25;
(4) an order refusing sanction to transfer or
divide land under section 29;
(5) an order of forfeiture under sub-section (3)
of section 29;
(6) an amendment of declaration or award under
section
475
37; and
(7) an order of summary eviction under section
40.
(1A) Any respondent, though he may not have
appealed from any part of the decision, order,
declaration or award, may not only support the
decision, order declaration or award, as the case
may be, on any of the grounds decided against him,
but take cross-objection to the decision, order,
declaration or award which he could have taken by
way of an appeal:
Provided that, he has filed the objection in the
Maharashtra Revenue Tribunal within thirty days
from the date of service on him of notice of the
day fixed for hearing the appeal, or such further
time as the Tribunal may see fit to allow; and
thereupon, the provisions or order 41, rule 22 of
the First Schedule to the Code of Civil Procedure,
1908, shall apply in relation to the cross-
objection as they apply in relation to the cross-
objection under that rule."
Section 45 vests in the State Government the power of
control and supervision over the officers under the Act,
which power can be delegated by the Government to the
Commissioner. It would be appropriate to read section 45 in
its entirety at this stage:
"45.(1) In all matters connected with this Act,
the State Government shall have the same authority
and control over the officers authorised under
section 27, the Collectors and the Commissioners
acting under this Act, as they do in the general
and revenue administration.
(2) The State Government may, suo motu or on an
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application made to it by the aggrieved person, at
any time, call for the record of any inquiry or
proceedings under section 17 to 21 (both inclusive)
for the purpose of satisfying itself as to the
legality or propriety of any inquiry or proceedings
(or any part thereof) under those sections and may
pass such order thereon as it deems fit, after
giving the party a reasonable opportunity of being
heard.
Provided that, nothing in this sub-section shall
entitle the State
476
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 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.
(3) The State Government may, subject to such
restrictions and conditions as it may impose by
notification in the Official Gazette, delegate to
the Commissioner the power conferred on it by sub-
section (2) of this section or under any other
provisions of this Act except the power to make
rules under section 46 or to make an order under
section 49."
Sub-section (2) confers a suo motu power of revision
upon the State Government for the purpose of satisfying
itself as to the legality or propriety of any inquiry or
proceedings under sections 17 to 21 - which means the
inquiry by and proceedings of the Collector. The proviso,
however, says that his power "to call for the record of any
enquiry or proceedings of a declaration or part thereof
under Section 21 in relation to any land" shall not be
available if an appeal has been filed against such
declaration or part thereof. (We are not concerned with the
other restriction prescribed by the proviso).
A review of the above provisions clearly discloses the
scheme of the Act. In particular, it shows that an appeal
is provided only against a "declaration" made under section
21 and not against any of the orders made under Sections 14
to 20. A mere determination or a finding or order that a
person/family unit holds land less than the ceiling limit is
not a "declaration" and, therefore, not appealable. The
Bombay High Court was, therefore, right in holding that the
order of the Collector dated 2nd January, 1969 in the case
of the first appellant was not appealable. The appeal filed
by him was one not provided by law and, hence, no appeal in
the eye of law. Such an incompetent appeal could not
operate as a bar to the exercise to revisory power under
section 45(2). After all, it should not be forgotten, the
Act is not intended to determine or declare titles. The
finding as to the extent of a holding of a person under the
Act is only a step towards its object - an intermediate
stage.
So far as the argument of Sri Parekh with reference to
Section 9 is
477
concerned it is really not necessary to deal with it in view
of our view aforesaid. Perhaps, in the subsequent
proceedings (taken for determining the surplus land held by
him in view of acquisition of fresh land after the
’commencement date’), the order in earlier proceedings
determining his holding at a particular figure may not
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operate as res judicata, though it would be certainly
relevant.
The learned counsel for the respondents has put forward
another submission to support the Commissioner’s order. His
submission runs thus: an appeal lies against the declaration
or a part thereof. The part which is not appealed against
is open to revision under section 45(a). In the case of a
given person it may be held that he holds only an extent of
2 acres in excess of the permissible ceiling area. He may
be aggrieved with that finding and may have appealed against
it. He says that a particular extend of land should not be
included in his holding. But the Commissioner thinks that
the person really holds 20 acres in excess of the
permissible ceiling area and not merely 2 acres. In other
words, he wants to include some extent of land in the
holding of such person which has not been so included by the
Collector in his holding. Since the said aspect is not the
subject matter of appeal preferred by the person, it is open
to revision under Section 45(2) by the
Government/Commissioner. He submits that the provision in
Selection 33 providing for a right of appeal and the
provision of Section 45(2) conferring a supervisory power in
the Government/Commissioner must be harmonised so as to give
both the provisions their due play. He submits that his
interpretation is consistent with the scheme and object of
the Act and goes to effectuate and advance the purposes of
the Act. We do not, however, think it necessary to express
any opinion on this submission for the purposes of this
appeal.
There remains the other submission of Sri Parekh with
respect to the exchange of 10 acres 20 guntas out of gut
Nos. 462 and 463 (belonging to him) with 12 acres 24 guntas
out of gut No.521 (belonging to his stepbrother, Sadashiv).
His grievance is that both the extents are included in the
appellants holding while disbelieving the theory of exchange
put forward by him. Sri Parekh submits that if the theory
of exchange is rejected than the extent of 12 acres 24
guntas in gut No.521 cannot be included in the appellant’s
holding. To this the counsel for respondents submits that
mere rejection of theory of exchange does not necessarily
mean that the
478
extent in gut No.521 should be excluded from the appellants’
holding when they themselves claim that it is theirs. He
suggests that the appellants may have acquired the said
extent in some other manner than the alleged exchange. We,
however, do not see any justification in the facts and
circumstance of this case, for including both the said
extents in the appellant’s holding. It is no one’s case
that the appellant acquired extent in gut No. 521 in some
manner other than the exchange put forward by him. If so,
we are of the opinion that the said extent in gut No.521
ought to be excluded from his holding once the theory of
exchange is disbelieved and when the extend in gut Nos. 462
and 463 is also included in his holding. The Collector shall
take action accordingly.
Subject to the above modification, the appeal is
diposed of. No costs.
V.P.R. Partly allowed.
479