Ganpatrao
Gulabrao Pawar & Ors Vs. State of Maharashtra [1992] INSC 103 (6 April 1992)
Jeevan
Reddy, B.P. (J) 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.
HEAD NOTE:
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.
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 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]
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 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, 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
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 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 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 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.
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