FATTECHAND DHARAMCHAND MEHTA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this writ petition filed under Articles 226 and 227 of the Constitution of India, the land owners are challenging the order of Sub-Divisional Officer, Darwha, dated 31-1-1986 in Ceiling Case No. 1/60-A (5)/70-71 and the order dated 11-4-1988 delivered by the member, maharashtra Revenue Tribunal, Nagpur, in Ceiling Appeal No. A/c. A. 71/86 by which the deceased land owner Shri Fattechand was held to be surplus holder of land to the extent of 235. 09 acres and Maharashtra Revenue Tribunal had remanded matter back to Sub-Divisional Officer for obtaining the choice of said land holder about retention of lands and to de-limit the surplus land.

(2.) I have heard Shri Madkholkar, learned Counsel for the petitioners who are legal representatives of the deceased Fattechand and Shri Kankale, learned assistant Government Pleader for respondents No. 1 and 2.

(3.) THE necessary facts in brief can be summarised thus: upon report of Tenancy Revenue Inspector, a case under section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, (hereinafter referred to as Ceiling Act), was started against the deceased Fattechand by the Sub-Divisional Officer, Darwha, vide Ceiling Case No 260/ (2) of 62-63 of Digras. It was stated therein that the deceased was in possession of land more than the prescribed ceiling area of 108 acres and still he did not file return under section 12 of the Ceiling Act. The deceased was noticed to show cause and accordingly he filed his say. The deceased stated that he was holding only 96 acres and 17 gunthas of land which was below the prescribed ceiling area and therefore he was not required to file return. In these proceedings, an order was passed and a penalty of Rs. 25 was imposed upon him under section 13 of the Ceiling Act and he was directed to file return. Accordingly, he filed a return of his holding on 16-1-1971 and he had shown that he was in possession of only 40 acres and 37 gunthas of land comprised of field survey Nos. 34 and 27 situated at village Sarigwa, Tahsil-Darwaha. It is to be noticed that since 1975, the provisions of new Ceiling Act have come into force and the ceiling limit was reduced from 108 acres to 54 acres. Earlier, the deceased had submitted that his ancestor by name mohanchand who expired in the year 1942 had huge agricultural lands and in the year 1942, he executed a document on stamp paper of Rs. 1. 50 (alleged to be a "sulenama") by which he allotted some property to the deceased fattechand (677. 35 Acres), Jewtibai wife of the appellant (111. 17 acres ). Anukabai wife of Mohanchand (115. 20 acres) and Mohanchand himself 76. 21 acres. He further states that there was oral partition in the years 1958-59, according to which, the property which came to the share of the above persons was again divided between the above persons except Mohanchand. He stated that in this partition, lands admeasuring 94 acres and 20 gunthas was allotted to the son of the appellant-deceased viz. , Rukapchand and this oral partition was reduced into writing and registered on 31-10-1960. In view of this say, the authority called for a report from the Revenue Officer and thereafter provisionally held that the deceased was in possession of 194 acres and 30 gunthas of land. The authority thereafter passed a detailed order and held that by virtue of the family arrangement, the deceased Fattechand was in possession of 673. 35 acres of lands. This order came to be passed on 27-10-1970. It is mentioned by the Sub-Divisional Officer in his order that by the time of next partition which took place on 31-10-1960, the deceased had transferred all lands that were allotted to him in Sulenama of 1942 except 96. 17 acres of lands and in return he stated that he was holding only 40 acres 37 gunthas of lands and remaining land out of this 96 acres and 17 gunthas was disposed of. When the appellant was fined Rs. 25/-, the appellant in his return revealed that he possess 782. 22 acres of land and out of it only 40. 37 remained with him and remaining lands were disposed of by him by various means prior to 4-8-1959. In this view of the matter, the concerned Revenue inspector was again directed to place on record correct information regarding the holding of deceased. The said Revenue Inspector submitted his report and stated that the deceased was holding land to the extent of 996. 10 acres. He further mentioned that on 4-8-1959, the deceased was holding land to the extent of 416. 25 acres and after 4-8-1959, he was found holding land to the extent of 357. 26 acres of land. The Sub-Divisional Officer found from the record of Patwari and other crop statements that the deceased was holding 357. 26 acres of land as on 4-8-1959. The order of Sub-Divisional Officer was challenged before the Maharashtra Revenue Tribunal, Nagpur, and. the maharashtra Revenue Tribunal by its order 15-11-1978 found that the inquiry was not conducted by the Sub-Divisional Officer in proper mode and manner. The Maharashtra Revenue Tribunal, therefore, directed holding of fresh inquiry after giving fair and reasonable opportunity to the deceased as well as by inviting all the interested persons or transferees of the suit land. The Maharashtra Revenue Tribunal also specifically framed five issues for that purpose. The said issues were : (1) What was the quantum of the land held by the appellant in 1942 by virtue of the so called Sulenama. (2) Whether partition of 1960 was brought into existence in accordance with the directions given in Sulenama whether partition of 1960 is valid in law apart from its validity under section 10-A of the Ceiling Act. (3) What was the exact extent of land held by the deceased within the meaning of section 2 (1) (14) of the Ceiling Act on the relevant date. (4) Whether this partition was brought into existence with an oblique motive to defeat the object of the Ceiling Act and what was the exact extent of land held by the appellant-deceased on reference date i. e. 4-8-1959. (5) Lastly, to decide the extent of land alienated by the deceased after 4-8-1959. The matter came back to Sub-Divisional Officer, Darwha, who after giving due opportunity, passed an order holding that the deceased was having 374. 21 acres of land with him and he was entitled to retain only 108 acre. Therefore, it was held that the deceased was holder of surplus land to the extent of 266. 21 acres. It directed the deceased-surplus land holder to exercise his choice of retention within 7 days from the date of communication of this order. This order was challenged by the deceased before the Maharashtra revenue Tribunal and the Maharashtra Revenue Tribunal partly allowed his appeal. The order including the field survey No. 22 / 1-area 4 acres and Survey no. 44-area 27. 12 acres (Total 31. 12 acres) by Sub-Divisional Officer in holding of deceased was set aside and the deceased was declared to be a surplus holder to the extent of (266. 21-31. 12) 235. 09 acres. This order of Maharashtra revenue Tribunal and the order dated 31-1-1986 passed by the Sub-Divisional Officer have been challenged in this petition.