PURNABAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Two lands bearing Survey Nos. 139 and 140 measuring in all 33 acres 11 gunthas of village Chandekasre belonged to Bapu and Pandu, nephew and uncle respectively. Major portions of these lands were irrigated and were in possession of one Bahiru Zagade as tenant. In the course of inquiry in the holdings of the said tenant under Section 14 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, hereinafter referred to as "the Ceiling Act", the tenant was found to be a surplus landholder. Before, however, his surplus lands were finally delimited, both Bapu and Pandu, appeared before the Deputy Collector in response to notices under Section 20 to claim resumption of these lands under Section 19 for personal cultivation. Bapu alone claimed entire two lands, alleging that on partition with Pandu in the year 1955-56 these lands were given to Bapu and he was entitled to claim so much more area of land as would make up the total of 108 acres which is the ceiling area for his Taluka under the Ceiling Act. Pandu supported Bapu's claim of partition and alternatively claimed resumption of his share for himself. The Deputy Collector, by his order dated 30-9-1965 rejected their case of partition for want of any evidence and held that Bapu and Pandu had each eight annas shares in the lands. Pandu himself was already declared a surplus land holder and as such was found disentitled to claim resumption of any area out of these lands. Bapu was found already to have been in possession of 37 acres 38 gunthas out of his eight annas share in survey No. 140. This area of 2 acres 20 gunthas is perennially irrigated land and the same is admittedly equivalent to 10 acres 2 gunthas of Jirayat land. Upon restoration of land as ordered, the total area possessed by Bapu for personal cultivation came to 48 acres of Jirayat land which is the prescribed ceiling area under Section 5 of the Bombay Tenancy and Agricultural Land Act of 1948 hereinafter referred to as "the Tenancy Act". Claim of Bapu to resume land to the extent of ceiling of 108 acres fixed by the Ceiling Act was rejected on the ground that the same would be contrary to the ceiling of 48 acres fixed under the Tenancy Act. Bapu having died, his four heirs and Pandu challenged but without success. The petitioners Nos. 1 to 4 being the heirs of Bapu, and petitioner No. 5 Pandu challenge the validity and the legality of the order of the Additional Commissioner, Poona dated 20-3-1968, in this special Civil Application under Art. 227 of the Constitution.

(2.) Dr. B. R. Naik, the learned advocate appearing for the petitioners, relies on the non obstante clause in Section 19(b) of the Ceiling Act and contends that the provisions in the Tenancy Act fixing the ceiling for the area that could be resumed by a landlord are irrelevant in the matter of resumption of land by a landlord under the Ceilings Act. Relevant parts of Section 19 may be conveniently quoted here :- "Where, during any inquiry into the holding of any person x x x x x under the last preceding section, it appears that -- (a) the whole or any part of the surplus land delimited under the foregoing provisions, is held by that person from a landlord, and (b) the landlord has a right of resumption for personal cultivation in respect of that land (or a part thereof) under the relevant tenancy law applicable to such land, the Collector shall x x x notwithstanding anything containing in that tenancy law restore possession to the landlord of so much only of the surplus land, as he is entitled to resume; and the balance, if any, shall be surplus land".

(3.) Towards ascertaining the true meaning and effect of the above provisions, it is convenient to notice the following.