VIJAYSINGH NARAYAN BORAWATE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Special Deputy Collector, Land Ceilings, by his order dated 2nd October, 1972, declared petitioner No. 1 surplus-holder to the extent of 61 acres 25 gunthas (covered from 27 acres 25 gunthas). The petitioner himself did not prefer any appeal against this order. However, in exercise of his revisional powers the Commissioner, Poona Division, held inquiry in his holding suo motu and by an order dated 12-11-1975 declared him surplus holder to the extent of 87 acres 1 guntha. Validity of this order is challenged in this Special Civil Application under Article 226 of the Constitution.

(2.) The only contention advanced by Dr. Naik, the learned Advocate appearing for the petitioner, is that the lands survey Nos. 90, 152/1 and 217 situate at Rahata and survey Nos. 94/2 and 103 situate at Ekrukhe have been wrongly classified as irrigated lands under section 2(5)(b) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. One Yeshwant Dhangale, the constituted attorney of the petitioner has filed an affidavit dated 31st July, 1976, before us in support of this contention saying that the lands do not fall within the command area as assumed. It appears that such a plea was not raised in the Original Special Civil Application. Therefore, an application for amendment was made and we allowed the petitioner to so amend the petition by introducing para 23-A to the above effect. Of these five lands, the Deputy Collector also had treated three lands i.e. lands Nos. 90, 217, 94/2 as irrigated lands attracting the provisions of section 2(5)(b)(ii) of the Act. In para 3 of his order the Deputy Collector refers to the 7/12 extracts and found that these three lands are perennially irrigated by a well situated within irrigable command of an irrigated project constructed by the Government. The Commissioner also refers to pages 205-B, 205-C, 205-D and 303 respectively and also the extracts of irrigation demand statement and the report furnished by the Talathi as also 7/12 extracts and confirmed the said finding. Dr. Naik, however, contends that there is no evidence on record to support these conclusions of the Deputy Collector and the Commissioner. Unfortunately the record and proceedings are not before us today. No attempt was made by the petitioner to enforce the production of these records, if at all he wanted to rely on these submissions. Dr. Naik also could not show anything from his papers to indicate that extracts of the record of right relied on by both the Courts below do not support the observations and by both of them in support of their conclusion. It is true that the order of the Commissioner indicate that lack of such material also was made as the basis of the attack on this finding. The affidavit of Yeshwant adverted to earlier avers that the Commissioner has taken fresh evidence on record and on the basis of which he has reached a conclusion that the aforesaid walls fall within the irrigation command of a cannal. It is not clear from the affidavit why the extracts of the record of rights relied on by the Deputy Collector and the Commissioner cannot be sufficient for reaching this conclusion. Affidavit of Yeshwant also does not indicate which part of the evidence was admitted at the revisional stage. The order of the Commissioner does not show that any additional evidence was taken by him. In fact, specific reference are made to the pages of the records, which in the context, has reference to the records of the Deputy Collector. The same Commissioner has passed another order on the same day in the other matter giving rise to Special Civil Application No. 42 of 1976. The Commissioner has specifically referred to getting reports during the pendency of the revision petition, when it was found that the some material was lacking to show whether the wells in the lands were actually under the command area or not. The contention raised by Dr. Naik with regard, at any rate, to these three lands, does not appear to us to be well founded and its accordingly rejected.

(3.) The Commissioner also has included some area from lands in Survey No. 142/1A of Rahata and 103 of Ekrukhe, as if they are irrigated lands attracting the provisions of section 2(5)(b) of the Act. The Deputy Collector has treated these lands as being covered by Class D. The order of the Commissioner does not indicate who he thought of taking a different view in the matter. He, no doubt, refers to the same documents as also the report of the Talathi. In the absence of the records before us, we are unable to meet the contention of Dr. Naik that these lands actually do not bare out what the Commissioner has observed. The circumstance that the Deputy Collector has upheld the claim of the petitioner fortifies, the contention of Dr. Naik. We think it proper to remand the case to the Commissioner to examine the matter and find out how Survey No. 142/1A situate at Rahata and 103 situate at Ekrukhe can be classified as lands covered by section 2(5)(b) and not by section 2(5)(d). To this extent the rule deserves to be made absolute.