JULIKHABI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioners are seeking to impugn the order dated 6. 12. 1989 passed by the Respondent No. 1 and the order passed by the Additional Commissioner, Amravati on 24-11-1987.

(2.) THE learned Counsel for the petitioner, at the outset, urged that the order passed by the respondent No. 1 on 4-12-1989 is innocuous and as a matter of fact, no proceedings could have been initiated by the petitioners before the State Government against the order passed by the Additional Commissioner on 24. 11. 1987 and, therefore, he does not challenge the order passed by the State Government on 4. 12. 1989 whereby the interim stay order passed by it on 30-2-1982 was vacated. During the course of arguments, accordingly, challenge is confined to the legality and correctness of the order passed by the Addl. Commissioner, Amravati Dvn. , Amravati on 24. 11. 1987 whereby the Additional Commissioner, in exercise of his powers under section 45 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (for short, the Ceiling Act) upon revision filed by the Sarda Education Trust (respondent No. 4 herein) allowed the said revision and set aside the order passed by the Sub-Divisional Officer. Daryapur on 8-10-1995.

(3.) THE important question involved in the writ petition is construction and interpretation of the expression, "subject to an encumbrance" in Clause (a) of section 16 (1) of the Ceiling Act and the said construction of expression, "subject to an encumbrance" is to be made on the facts whether right of landowner to resume the land under section 19 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, the Tenancy Act) can be said to be an encumbrance on the land held by tenant under the Ceiling Act and where the said tenant holds land in excess of the ceiling area permissible under the Ceiling Act.