Sukhdeo Ramratanji Malani and Others vs The State of Maharashtra and Others

B.P. Dharmadhikari, J—Heard Shri B.N. Mohta, learned Counsel for the appellants, Mrs. Kalyani Deshpande, learned A.G.P. for respondent Nos. 1 and 2 and Shri G.G. Bade, learned Counsel for legal representatives of respondent No. 3.

The only question to be looked into is whether the land to the extent of 2 Acres, 2 Gunthas out of Khasra No. 48 of village Navsal could have been included in holding of the petitioner for the purposes of computing his total holding under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as "the Ceiling Act") (old ceiling limit of 84 Acres). The facts show - in return under the Ceiling Act filed, the appellant did not reduce the area of Khasra No. 48 by 2.02 Acres and declared its original area of 15 Acres, 20 Gunthas. Accordingly, the total area shown was of 105.30 Acres and after permitting him to retain 84 Acres, about 21 Acres and 30 Gunthas land was declared surplus.

The petitioner then filed Retention Statement and in that Retention Statement, he retained 13 Acres 18 Gunthas land out of Khasra No. 48, while giving up 2 Acres, 2 Gunthas land out of that Khasra mentioning that it was already acquired for road widening.

On the basis of this Retention Statement, the Authorities proceeded further and a declaration under Section 21(2) was published in the Government Gazette on 12.06.1969. In it, while declaring surplus area, 2 Acres, 2 Gunthas out of Khasra No. 48 of village Navsal came to be declared as surplus. However, in bracket it has been described as adjoining National highway.

Thus, the petitioner stood to lose 2 Acres, 2 Gunthas more out of 13 Acres, 18 Gunthas land retained by him and which then formed entire Khasra No. 48.

It also appears that, on the basis of this declaration, said 2 Acres, 2 Gunthas portion of land has been allotted to deceased respondent No. 3, under Section 27 of the Ceiling Act.

The petitioner challenged this action in appeal before the Maharashtra Revenue Tribunal. It also appears that distribution of 2 Acres, 2 Gunthas of land to respondent No. 3 was questioned in revision under Section 45-A before the Divisional Commissioner. The MRT, after hearing the parties, noted the words "adjoining National highway" in the Government Gazette, dated 12.06.1969. It also found that the appellant has moved an application under Section 37 for necessary rectification and that application was pending. In view of pendency of said application, the M.R.T. thought it fit to remand the matter back to the S.D.O. (Collector) for taking necessary decision.

This order was questioned by respondent No. 3 by filing Writ Petition No. 4271 of 2011 before the learned Single Judge.

The learned Single Judge, after hearing the respective counsel, found that the question whether the revision under Section 45-A preferred before the Additional Commissioner was maintainable against the order of S.D.O., Murtizapur dated 07.02.1986, particularly when the M.R.T. has dismissed the appeal challenging the said order on 24.10.1990. The learned Single Judge also noted that the question whether the land already acquired is liable to be excluded from the holdings of person concerned and if it is excluded what bearing it has got on the allotment of land admeasuring 2 Acres 2 Gunthas out of Khasra No. 48 to the petitioner was also not gone into. In view of these debatable issues which were not looked into, the learned Single Judge found that the Judgment dated 07.03.2011 delivered by the M.R.T. in Ceiling Appeal No. ALC/A-5/2001 was unsustainable. It was quashed and set aside and the matter was sent back to the M.R.T.

Mr. B.N. Mohta, learned counsel submits that he was not present before the learned Single Judge, though the learned Single Judge was pleased to mark his presence. He further states that as the land was not within holding of the appellant when return was filed, its inclusion within holding or then ignoring acceptance of Retention Statement of the petitioner while preparing and publishing notification under Section 21(2) is erroneous. According to the learned counsel, the appellant stood to lose 2 Acres 2 Gunthas more out of Khasra No. 48 of village Navsal and this is contrary to law.

Mr. G.G. Bade, learned Counsel submits that the Division Bench Judgment of this Court in the case of Hanumant Yeshwant Deshmukh and others Vs. State of Maharashtra and others, (1983) MhLj 38 , is not applicable in the present facts as it considers the events which took place after filing of return till delimitation of surplus land. Here, the land was already acquired. The learned counsel further submits that, in this situation, as the land was declared surplus in his return by the appellant, no fault can be found with the action taken by the Authorities and respondent No. 3/allottee cannot be made to suffer for it.

The learned A.G.P. for respondent Nos. 1 & 2 adopts the arguments of Mr. Badhe, learned counsel for the appellants.

In reply arguments, Shri Mohta, learned counsel has invited attention our attention to the stand in return affidavit filed before the learned Single Judge to urge that futility of remand by Maharashtra Revenue Tribunal to Sub-Divisional Officer was also pleaded therein and a decision of this Court (learned Single Judge) on merits of the controversy was sought. He contends that in the light of facts noted by this Court, the error of inclusion of 2 Acres 2 Gunthas of land as part of holding of the appellants in Khasra No. 48 of Village - Navsal could have been rectified while delivering judgment impugned before this Court. He seeks support from the judgment of this Court in the case of Vithaldas and others Vs. Mansukhlal, (1980) MhLj 612 and from the judgment of the Hon''ble Apex Court in the case of Narmada Bachao Andolan Vs. State of Madhya Pradesh and Another, AIR 2011 SC 1989 : (2011) 6 JT 379 : (2011) 5 SCALE 624 : (2011) 7 SCC 639 : (2011) 3 UJ 1977 : (2011) AIRSCW 4473 .

As the new contention has been raised in reply arguments, Shri Bade, learned counsel, with leave of Court submits that the learned Single Judge has looked into said aspect and found omission on the part of Maharashtra Revenue Tribunal to look into it. He further submits that according to appellants request made by them for rectification under Section 37 is already pending. He, therefore, adds that the order of remand passed by the learned Single Judge is well reasoned order which protects the interest of the deceased Respondent No. 3 and, therefore, should not be interfered with.

The admitted facts show that return in terms of above mentioned Ceiling Act has been filed in 1962. Before that i.e. 1961 only, 2 Acres and 2 Gunthas of land out of Khasra No. 48 of Village - Navsal was acquired for Highway. Thus, on the date of filing of return, correct area of Survey No. 48 was not 15 Acres 20 Gunthas but may have been 13 Acres 18 Gunthas only. This being the admitted position, it is clear that ratio laid down by the Division Bench of this Court in the case of Hanumant Yeshwant Deshmukh and Others v. State of Maharashtra & Ors. (supra) will not be applicable here. However, the Division Bench there has given the liberty to the land owner to seek deletion of that land which he held on the date of filing of return under Section 12 of the Ceiling Act and which was acquired thereafter till the said return was processed and surplus land was worked out. Thus, when the law protects the possession of landlord to the extent of admissible limit even after the date of filing of return till actual determination of surplus land and retainable land, it follows that the land of which title is lost before filing of return, need not be and could not have been included within the holding of the petitioner. The question before this Court is whether it has been so done in present facts. The appellant was very much aware of the acquisition of 2 Acres and 2 Gunthas of land of Khasra No. 48 while filing return under Section 12. In the face of this knowledge, he has declared his total holding of Khasra No. 48 to be 15 Acres, 20 Gunthas. Had he then omitted 2 Acres and 2 Gunthas therefrom and mentioned correct area to be 13 Acres and 18 Gunthas, the question which we are considering today would not have cropped up. The award in land acquisition proceedings in relation to 2 Acres, 2 Gunthas of land of Khasra No. 48 is dated 24.07.1961 and admittedly return under Section 12 has been filed in the next year i.e. in the year 1962.

The appellants after their retainable area and surplus land was worked out, submitted a retention statement and in it they surrendered 2 Acres and 2 Gunthas of land out of Khasra No. 48. In that retention statement, they have mentioned that it was already acquired for National Highway. This situation is lost sight of while processing that statement further and as already pointed out to us, on 12.06.1969, when Notification under Section 21(2) of the Ceiling Act came to be published, 2 Acres, 2 Gunthas portion from Khasra No. 48 is declared as surplus. This portion is described as "adjoining National Highway". Thus, declaration by the appellants that it was already acquired has been totally ignored. With the result, the appellants have to lose 2 Acres, 2 Gunthas of land more out of remaining 13 Acres, 18 Gunthas of land out of Khasra No. 48.

In the light of these developments, the appellants have moved an application under Section 37 of the Ceiling Act, seeking rectification of declaration under Section 21(2).

A perusal of Division Bench judgment of this Court in the case of Vithaldas & Ors. v. Mansukhlal, (supra) shows that there the proceedings were between the landlord and tenant under C.P. and Berar Letting of Houses and Rent Control Order, 1949. There learned counsel for the appellants urged that the respondent cannot invoke the provisions of Order 41, Rule 22 of the Code of Civil Procedure in those proceedings. The Division Bench negated this contention and observed that there was nothing which prohibited the respondent before it from raising such contention. The earlier judgment of the Hon''ble Apex Court in the case of Management of Northern Railway Co-operative Society Ltd. Vs. Industrial Tribunal, Rajasthan, Jaipur and Another, AIR 1967 SC 1182 : (1967) 15 FLR 71 : (1967) 2 LLJ 46 : (1967) 2 SCR 476 , was then relied upon.

The Hon''ble Apex Court in the case of State of Madhya Pradesh v. Narmada Bachao Andolan & Anr., (supra) in paragraphs 69 and 70 has pointed out that perpetuating an error is not an act of heroism and its rectification is the compulsion of judicial conscience. There cannot be any debate in this respect. However, in the facts before us, on the strength of return under Section 12 filed by the appellants, surplus land was worked out and perhaps an erroneous declaration under Section 21(2) was published. Acting upon it, distribution of 2 Acres, 2 Gunthas of land out of Khasra No. 48 has also been made. That land has been distributed to the deceased Respondent No. 3 whose legal heirs are now defending that allotment.

In this situation, some questions arise. We do not and cannot go into those questions in this appeal. The learned Single Judge also found that those questions were not raised before the Maharashtra Revenue Tribunal and, therefore, could not be looked into by it. The appeal before the Maharashtra Revenue Tribunal being statutory remedy, its findings at least on facts deserve some credence. In this view of the matter, use of discretion by the learned Single Judge to place the matter back before the Maharashtra Revenue Tribunal cannot be said to be erroneous. The present appellants can point out that factual aspects to Maharashtra Revenue Tribunal and attempt to obliviate need of remand to Sub-Divisional Officer. In proceedings before the Maharashtra Revenue Tribunal, legal heirs of Respondent No. 3 can also attempt to assist the authorities in finding out correct position. Hence, with these observations, we do not find anything wrong with the ultimate result of the petition by the learned Single Judge.

For the reasons recorded by us supra, we place the matter back before the Maharashtra Revenue Tribunal for taking fresh decision in accordance with law. The parties are directed to appear before the Maharashtra Revenue Tribunal on 15.04.2015. The Maharashtra Revenue Tribunal shall attempt to take suitable decision on the controversy involved within next three months. Letters Patent Appeal is thus partly allowed and disposed of. However, there shall be no order as to costs.