High Court
Legal Reasoning
1-WP-1415-2002.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1415 OF 2002 WITHCIVIL APPLICATION NO. 9018 OF 2024 IN WP/1415/2002Zelabai w/o Bhanudas Shejul, Died his L.Rs.1)Tarabai w/o Balasaheb Thombre,Age: 40 yrs. Occ.: Agri., R/o: Dinwada, Tq.Gangapur, Dist. Aurangabad.2)Vimalbai w/o Raosaheb Shelke,Age: 37 yrs. Occ.: Agri.. R/o: Bhagathan, Tq. Gangapur, Dist. Aurangabad.3)Kamalbai w/o Kadu Dhotare,Age: 35 yrs. occ.: Agri.. R/o: Kate Pimpalgaon, Tq.Gangapur, Dist. Aurangabad.4)Shobha w/o Ramnath Nage,Age: 32 yrs. Occ.: Agri.. R/o: Bhokargaon, Tq. Vaijapur,Dist. Aurangabad.5)Santosh s/o Bhanudas Shejul,Age: 30 yrs. Occ.: Agri., R/o: Rajure, Tq. Vaijapur, Dist. Aurangabad.6)Manisha d/o Bhanudas Shejul,Age: 27 yrs., Occ.: Nil, R/o: Rajure, Tq. Vaijapur, Dist. Aurangabad.7)Gaiyatri w/o Sainath Jagtap,Age: 25 yrs., Occ.: Agri.,R/o: Bhagathan, Tq. Gangapur,Dist. Aurangabad....PetitionersUmeshPAGE 1 OF 21
Legal Reasoning
1-WP-1415-2002.odtVERSUS1. The State of Maharashtra2. Hiralal Balchand Jain died, L.Rs.i)Jawaharlal s/o Hiralal Jain,Age.58 yrs. occ. Agril. R/o Lasur Tq. Vaijapur, Dist. A'bad at present R/o Saubhagya Provision Stores, Parijatnagar, Nashik 5, Dist. Nashik.ii)Sumatilal Hiralal Jain,Age. 56 yrs. Occ. Agril. R/o Lasur Tq. Vaijapur, Dist. A'bad at present R/o Saubhagya Provision Stores, Parijatnagar, Nashik 5, Dist. Nashik.iii)Suwalal Hiralal Jain,Age. 54 yrs. occ. Lasur, Tq. Vaijapur, Dist. Aurangabad.8.Pandharinath S/o Rajaram Jagdale,Age : 60 years, Occ: Retd. Ex Military,R/o Lasurgaon, Tq. Vaijapur,Dist. Aurangabad...Respondents...Mr. C. V. Thorat, Advocate for the PetitionerMs. R. R. Tandale, AGP for Respondent No. 1Mr. A. S. Hire h/f Mr. P. V. Barde, Advocate forRespondent No. 2Mr. Y. D. Kale, Advocate for Respondent No. 8 WITHCIVIL APPLICATION NO. 7366 OF 2020 IN RAST/33792/2017Dada Dhondiba AaddhaneAge 66 years, Occu: AgriculturistR/o. Viramgaon, Tq. Paithan,Dist. AurangabadthroughGeneral Power of Attorney holderUmeshPAGE 2 OF 21 1-WP-1415-2002.odtRamesh Suryabhan ShejulAge: 39 years, Occu: AgriculturistR/o Rajura, Taluka Vaijapur,District Aurangabad...ApplicantVERSUS1.The State Of Maharashtra2.Hiralal Balchand JainSince deceased through legal heirs2A.Jawaharlal hiralal JainAge: Major Occu: Agriculturist2B.Sumantilal Hiralal JainAge: Major Occu: Agriculturist2C.Suwalal Hirala JainAge: Major Occu: Agriculturist2A to 2C R/o Lasur, Taluka Vaijapur,Dist. Aurangabad...Respondents…Mr. D. P. Palodkar, Advocate for ApplicantMs. R. R. Tandale, AGP for Respondents***CORAM:R. M. JOSHI, JRESERVED ON:AUGUST 13, 2025PRONOUNCED ON:AUGUST 20, 2025JUDGMENT : 1.Writ Petition No. 1415/2022 takes exception tothe order passed by the Maharashtra Revenue Tribunal(for short ‘Tribunal’) dated 27.12.2001 in Appeal No.43/A/97/A under Section 33 of the MaharashtraAgricultural Lands (Ceiling on Holdings) Act, 1961 (forshort ‘Ceiling Act’) dismissing the Appeal filed by theUmeshPAGE 3 OF 21 1-WP-1415-2002.odtPetitioner herein. Whereas the Review Application StampNo. 33792/2017, which is filed along with delaycondonation Application, seeks review of order dated22.04.2002 dismissing the Petition at threshold and bysetting aside the said order of dismissal, on meritinterference is sought in the order passed by Tribunalin that case.2.Since the facts involved in both theseproceedings are identical and as the decision of WritPetition has bearing on the outcome of ReviewApplication, same are decided with consent of bothsides by this common judgment. 3.The facts, as they appear from the record, canbe narrated in brief as under:Petitioner claims to be the owner of the landadmeasuring 4A and 20R from Gut No. 4 situated atvillage Rajura, Tq. Vaijapur, Dist. Aurangabad videregistered sale deeds dated 15.04.1969. Similar is theclaim of the Applicant in Review Application. It is notin dispute that transaction of sale in both cases havetaken place after commencement of the Ceiling Act butbefore 26th September, 1970. The subject properties wereUmeshPAGE 4 OF 21 1-WP-1415-2002.odtowned by Hiralal Jain, who has executed the sale deedsin their favour. Both claim that since time ofexecution of the sale deeds, they are in possession oftheir respective subject lands. It is claimed by thePetitioner that on receipt of notice dated 06.08.1997from the Circle Officer, Vaijapur, it has come to thenotice of the Petitioner about the proceedings underthe Ceiling Act and notice dated 07.08.1997 when thepossession of the subject land was sought to be takenon the basis of the order passed by the Authority underthe Ceiling Act declaring the land of Hiralal Jainbeing excess. Review Applicant had also made identicalclaims in his Petition. It is claimed by them that nonotice was issued to them under Section 17(2) of theCeiling Act and for want of such notice, the orderpassed by the Authority to the extent of their lands isnot maintainable. It is further claimed that Collectorhas failed to take into consideration mandatoryprovision of the Act and the Tribunal has failed toappreciate the same.4.It is contended that Tribunal though hasrecorded the contentions of the Petitioner in the orderUmeshPAGE 5 OF 21 1-WP-1415-2002.odtimpugned, however, Appeal came to be rejected solely onthe ground that order passed under Section 14 of theCeiling Act has been upheld up to the Supreme Court.Tribunal has not dealt with the merit of the Appeal.Hence, this Petition.5.Learned Counsels for the Petitioner/Applicanthave drawn attention of this Court to the provisions ofSection 17(2) of the Ceiling Act, which according tothem, mandates issuance of notice to the holder or tothe person interested in the subject land. It issubmitted that on the basis of the registered saledeeds executed in his favour in the year 1969 byHiralal Jain and pursuant thereto, they are inpossession of the lands and have become holder as wellas person interested therein. It is contended thatthere was no notice issued under Section 17(2) of theCeiling Act to the Petitioner and as a result of which,the order passed by the Authority under Section 14 ofthe Ceiling Act of including the land held by thePetitioner/Applicant to be excess is not sustainable.It is their submission that the Tribunal ought to havetaken into consideration the said aspects and wouldUmeshPAGE 6 OF 21 1-WP-1415-2002.odthave dealt with the merits of the Appeal rather thanits dismissal simply with observations that theproceedings under Section 14 of the Ceiling Act hasattained finality up to the Supreme Court. It is theircontention that since admittedly the Petitioner/Applicant were not heard while passing of order underSection 14 of Ceiling Act and since they are interestedparties, the said order would not bind them.6.Learned Counsel for the Applicant in CivilApplication No. 7366 Of 2020 contends that twoPetitions were filed challenging similar order passedby Tribunal and on the same day, were moved before thisCourt. According to him, though they involved samequestion of facts and law, one Petition was dismissedat threshold, whereas companion Petition bearing WritPetition No. 1415/2002 came to be admitted. This,according to him, is clearly an error apparent on theface of the record and as such, the said order ofdismissal deserves to be set aside and the Petitionneeds to be restored. With regard to the condonation ofdelay, it is argued that after dismissal of thePetition, remedies were adopted and no mala fides couldUmeshPAGE 7 OF 21 1-WP-1415-2002.odtbe attributed to the Applicant.7.On merit, it is his submission that the entirescheme of the Ceiling Act does not contemplatedeclaration of any transaction after commencement ofthe Act to be null and void and only in such case suchtransaction can be kept out of the transaction. Byreferring to provision of Section 18(2) of the CeilingAct, it is his contention that during the enquiry underSection 14 of the Ceiling Act, it is obligation on thepart of the Collector to consider certain matters andthe transfers of any land from the date of commencementof the Act till 26.09.1970 are required to beconsidered in calculating total ceiling area. Thus, itis his contention that if the arguments advanced onbehalf of the Intervenor are accepted that there iscomplete bar to the transaction and the transactionwould be illegal under Section 8 of the Ceiling Act,the provision under Section 18(b), which was introducedby way of amendment by Act 21 of 1975, would becomeredundant. In any case, it is his submission thatPetitioner being physical holder of the land and titleholder as well as actual holder i.e., possessing theUmeshPAGE 8 OF 21 1-WP-1415-2002.odtland, is the person interested as contemplated bySection 17(2) of the Act. He further argued that allthese aspects ought to have been considered by theTribunal and, therefore, this is a fit case wherein theorder impugned is set aside and the proceedings arerelegated back to the Tribunal for decision afresh. Tosupport his submissions, he placed reliance onfollowing judgments: Shriram s/o Jagoji Brahmane vs.State of Maharashtra and Others, 2007(2) Mh.L.J. 353,Pandharinath S/o Vithalrao Awari vs. The State ofMaharashtra and Others, [2009 (2) Mah L R 545] & H. A.Somvanshi vs. The State of Maharashtra, 1978 (2) MH.L.R. 73.8.Learned Counsel for the Intervenor resistedthe Petition and Review Application by submitting thatSection 8 of the Ceiling Act impose restrictions on thetransfer of any land of area after commencement of theAct. It is his submission that once such restriction isthere, consequences of such transfer would be entail asprovided by Section 10 of the Ceiling Act. He placedheavy reliance on the judgment of the Coordinate Benchof this Court in case of Suhas Pralhadrao Deshmukh vs.UmeshPAGE 9 OF 21 1-WP-1415-2002.odtState of Maharashtra, 2007(4) ALL MR 75, to argue thatonce the transfer has been effected after coming intoforce of the Act, Section 8 would have application tosuch transfer. It is his contention that since in viewof the express restriction for transfer of the land, itcannot be said that the Petitioner has acquired anyinterest in the land, which was included in the returnsfiled under Section 12 by the land owners. It is hiscontention that it would also be relevant to take intoconsideration the provision of Section 16 of the Actwhile deciding issue involved in the present Petitions.He has drawn attention of the Court to the fact that inthe instant case proceedings under Section 14 and theorder passed therein have attained finality, byreferring to the order of the Hon’ble Supreme Court incase of Hira Lal (Dead) By Lrs. Etc vs. State ofMaharashtra and Another, 1997(1) BCR 302. Finally, itis argued that the Intervenor is allotted with thesubject lands long back and his right to receive thelands cannot be ignored.9.In order to appreciate rival submissions, itwould be absolutely necessary to take note of theUmeshPAGE 10 OF 21 1-WP-1415-2002.odtrelevant provisions of the Act. Firstly, it would berelevant to take note of Section 8 of the Ceiling Age,which reads thus:8. Restriction on transfer.-Where a person, or as the case may be, afamily unit holds land in excess of theceiling area on or after the commencementdate, such person, or as the case may be,any member of the family unit shall not, onand after that date, transfer any land,until the land in excess of the ceilingarea is determined under this Act.Explanation :- In this section, "transfer"means transfer, whether by way of sale,gift, mortgage with possession, exchange,lease, assignment of land for maintenance,surrender of a tenancy or resumption ofland by a landlord or any otherdisposition, whether by act of parties madeinter vivos or by decree or order of acourt, tribunal or authority (except wheresuch decree or order is passed in aproceeding which is instituted in suchCourt, Tribunal or before such authoritybefore the 26th day of September, 1970),but does not include transfer by way ofsale or otherwise of land for the recoveryof land revenue or for sums recoverable asarrears of land revenue, or acquisition ofland for a public purpose under any law forthe time being in force.10.This provision speaks about the restrictionson the transfer of the land in excess of the ceilingarea after the commencement of the Act until the landin excess of the ceiling area is determined under thisUmeshPAGE 11 OF 21 1-WP-1415-2002.odtAct. Explanation indicates that restrictions applied tothe transfer in any manner does not include transfer byway of sale or otherwise of the land for the recoveryof the land revenue or acquisition of the land for thepublic purpose under the law for the time being inforce. Pertinently, though restrictions are imposedconsequence of any transaction so entered into has notbeen provided. The transaction is not deemed to beinvalid. 11.Section 9 deals with the acquisition of theland in excess of ceiling area. Whereas, section 10contemplates the consequences of such acquisition aftercommencement of the Act. There is also a restriction tothe partition of the lands between family as providedby Section 11 of the Act.12.Section 14 enables the Collector to hold anenquiry in respect of every person holding land inexcess of the ceiling are and determining the surplusland held by such person or family unit. This exercisehas to be done after the expiry of period referred inSection 12 of the Act, which mandates submission ofreturns by a person or family unit.UmeshPAGE 12 OF 21 1-WP-1415-2002.odt13.It would also be relevant to take note ofSection 17, which reads thus:17 - Notice to persons affected by enquiryunder section 14.-(1) For holding an enquiry under section14, the Collector shall cause publicnotice, in the prescribed form, to be givenat convenient places in village or villagesin which the land comprised in the holdingis situate, specifying in the notice theland in respect of which enquiry is to beheld to ascertain the surplus land (if any)held by the person or family unit, andcalling upon all persons interested in theland to submit to the Collector theirobjections within a period of fifteen daysfrom the date of publication of the notice.Where a public notice has been given asprovided in this sub-section, then theholder and all persons who are interestedin the land shall be deemed to have beenduly informed of the contents of suchnotice. If in the course of any proceedingsa question arises whether a person was dulyinformed of the contents of the noticegiven in pursuance of this sub-section, thepublication of the notice in the mannerprovided in this sub-section shall,notwithstanding anything contained in sub-section (2), be conclusive proof that hewas so informed of the contents of suchnotice.(2) The Collector shall serve notices tothe same effect on the holder, and allother persons who are known or believed tobe interested in the land, calling uponthem to appear before him personally orthrough an agent on a date and at a timeand place (such date not being earlier thanfifteen days after the issue of notice), tobe stated in the notice.UmeshPAGE 13 OF 21 1-WP-1415-2002.odt(3) The notices under sub-section (3) mayalso call upon the holder -(a) to state any objections orsuggestions to the particulars given inthe notice;(b) to show cause, where necessary, why -(i) any land transferred incontravention of the provisions ofsection 8, or any land transferredduring the period specified in clause(a) of sub-section (1) of section 10,or any land partitioned incontravention of the provisions ofsection 11, should not be taken intoconsideration in calculating theceiling area, as provided in sub-section (1) of section 10 or section11,(ii) any land acquired in wilfulcontravention of section 9 should notbe forfeited, as provided by sub-section (3) of section 10,(iii) any land held in excess of theceiling area should not be forfeited tothe State Government as provided bysub-section (3) of section 13,(iv) any land referred to in sub-section (2) of section 10 or in section[11-A] held by him should not be deemedto be surplus land as provided in thatsub-section or in section [11-A];(c) to state the land to be retained by theholder under section 16; and to furnish tothe Collector in the prescribed form, theprescribed particulars of the land so to beretained.UmeshPAGE 14 OF 21 1-WP-1415-2002.odtExplanation :- Subject to the provisions ofthis Act and of the Amending Act, 1972, inthis section and in the followingprovisions of this Act, the expression'holder', unless the context requiresotherwise, includes a family unit.14.This provision can be divided into two parts,which requires the Collector to issue public notice inthe prescribed format calling upon all personinterested in the land to submit to the Collector theirobjections within a period of 15 days from the date ofpublication of the notice. Publication of notice in themanner provided in this provision and shall beconclusive proof that the person is informed of thecontents of such notice notwithstanding anythingcontained in sub-section (2).15.In the backdrop of this provision of publicnotice, there is specific provision of service ofnotice on specified categories of persons in sub-section (2). This part of section mandates theCollector to issue notice to the same effect on theholder and/or all other persons who are known orbelieved to be interested in the land. Such person isrequired to show cause as to why land transferred inUmeshPAGE 15 OF 21 1-WP-1415-2002.odtcontravention of provision of Section 8 and otherprovisions should not be taken into consideration incalculating the ceiling area as provided by Section (1)of sections 10 or 11. This provision more thansufficiently demonstrates that irrespective of the factthat the transfer effected in favour of a person is hitby Section 8, a notice is necessarily to be issued tosuch person to show cause as to why such landtransferred in contravention of the said provisionshould not be taken into consideration whilecalculating the ceiling area. This becomes more clearfrom provision of Section 18(b). This provisionrequires the Collector to consider amongst othermatters following matter:“Whether any land transferred between theperiod from the 26th day of September, 1970and the commencement date, or any landpartitioned after the 26th day of September,1970, should be considered or ignored incalculating the ceiling area as provided bysub-section (1) of section 10 of section11”16.This clearly indicates that it is open for theCollector, in appropriate cases, to consider or toUmeshPAGE 16 OF 21 1-WP-1415-2002.odtignore in calculating the area as provided by section10 of 11, whether any land transferred between theperiod of commencement of the Act till 26 September,1970 or land partitioned after 26 September, 1970.17.In the light of provisions of law, as narratedand discussed above, when the Petitioners have come outwith a specific case before Tribunal that there areregistered sale deeds in their favour effected byoriginal land owner after commencement of the Actbefore 26.09.1970, it was incumbent on the part of theTribunal to ascertain the said fact and then to decideas to whether the Petitioners are the persons ascovered by Section 17(2) of the Ceiling Act and yes,the consequence of non issuance of notice to them underthe said provision.18.Tribunal further ought to have taken intoaccount the provision of Section 8 of the Act, whichprovides for restriction to the transfer, however, thetransfer effected after the commencement of the CeilingAct, is not declared to be deemed illegal. On thecontrary, combine reading of Sections 17 and 18indicates that in fact it was obligatory on the part ofUmeshPAGE 17 OF 21 1-WP-1415-2002.odtthe Collector to take into consideration such transferand then to decide whether it should be ignored orconsidered. This exercise has not been done by theCollector and this fact should have been taken intoaccount by the Tribunal.19.The Tribunal proceeds on the footing that theorder passed by the Authority under Section 14 of theAct has attained finality up to Hon’ble Supreme Court.It is true that the order passed under Section 14 hasattained finality, however, the issue as to therequirement of notice to the Petitioners andconsequence of non issuance of the notice were notraised and hence, not considered in the said order andconsequently not dealt with by any Court includingHon’ble Supreme Court. Needless to say that right toproperty though is not a fundamental right but iscertainly a constitutional right and in order todeprive any person of his property, the same could bedone only in accordance with law and not otherwise.Moreover, when a statute describes a thing to be donein a particular manner, it should be done in thatmanner only or not at all.UmeshPAGE 18 OF 21 1-WP-1415-2002.odt20.Even in case of Suhas Pralhadrao Deshmukh(supra), this Court was dealing with the issue as tothe execution of a registered sale deed dated07.05.1985 i.e., much after 25.09.1971. The said Courthas recorded specific findings that the Petitioner hasonly acted in the interest of original land owners. Inrespectful view of this Court, the said judgment has noapplication to the present case owing to the differencein the facts of both cases. Suffice it to say that allthese issues sought to be raised before the Tribunalsince include the issues of fact, it was for theTribunal to record such finding on facts first and thento accept or not the contention of the Petitioners.This exercise cannot be undertaken in this Petition andno findings of fact are permissible to be recorded forthe first time.21.In so far as the Review Application isconcerned, in view of the fact that two similarlyplaced Petitions were considered differently by thisCourt without there being any reason or justificationtherefor. Admittedly, both Petitions were moved on thesame day with similar pleadings and prayer and oneUmeshPAGE 19 OF 21 1-WP-1415-2002.odtPetition came to be admitted and another was dismissed.There cannot be any better case to hold that there iserror apparent on the face of record and such errordeserves to be corrected. In so far as time lapsed inbetween passing of the order of this Court and movingapplication for Review, from the facts andcircumstances of the case, it cannot be said that theApplicant was not pursuing other remedies. In any case,since constitutional right of the Applicant in respectof his property is affected adversely and involved inthis proceeding, this is a fit case for allowing theReview Application by condonation of delay caused, ifany. Consequently, Review Application stands allowed.Writ Petition bearing No.1618/2002 stands restored.22.Though this Court finds that grievance soughtto be made by the Intervenor to be not unreasonablethat he is being deprived of his right to get landallotted to him long back, however, at the same time,the denial of right of property to the Petitionerswithout following due process of law cannot be ignored.The balance of convenience, therefore, lies in favourof Petitioners than the Intervenor.UmeshPAGE 20 OF 21
Decision
1-WP-1415-2002.odt23.In view of above discussion, both Petitionsstand allowed. Impugned order dated 27.12.2001 passedin Appeal No. 43/A/97/A & Appeal No. 42/A/97/Arespectively by the Tribunal are hereby set aside. Theproceedings are relegated back to the Tribunal fordecision afresh. Since the proceedings are of year2001, Tribunal to decide the same within a period ofthree (03) months from the knowledge of this judgment.24.Pending civil application(s), if any, standsdisposed of. (R. M. JOSHI, J.) UmeshPAGE 21 OF 21