SHRIRAM GANPAT LANDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE original landholder has challenged the appellate order of the Maharashtra Revenue Tribunal as also the order passed by the Sub-Divisional Officer, Akot. THE Maharashtra Revenue Tribunal had remanded the matter by giving a fresh choice to the landholder to offer 2.02 acres of land from the possession for being delimited as surplus land. Shortly stated, the facts are a under:- That there was an enquiry by the Sub-Divisional Officer in the return filed by the landholder/petitioner and it was ultimately found that the landholder had surplus land to the extent of 27.18 acres. This surplus land was delimited from certain fields. However, one Harinarayan Krushnarao Nathe took an objection that the landholder had included survey No.61/2, area 2.02 acres for being delimited though that land in fact belonged to the said Harinarayan Nathe as he had purchased the same from one Mahadeo who in turn had purchased it from Devkabai. THE land was included the ceiling area of the petitioner as it was held that he was a tenant of Devkabai in respect of survey No.61/2, total area 7 acres and 7 gunthas. It was also held that the said Devkabai had resumed about 5 acres of land leaving only 2.02 acres and as such the said land was included in the ceiling area of the landholder. A plea was taken that even this land was surrendered by petitioner Shriram in favour of Devkabai on 7-2-1969 but the said surrender was found to be untenable in law by the Sub-Divisional Officer and he included that land in the holding of the landholder. THE landholder ultimately included this land of 2.02 acres in his choice for being delimited. Now as a matter of fact, it was claimed by Harinarayan by filing a written statement that he had purchased that 2.02 acres of land by registered sale-deed executed by Mahadeo and at that time the petitioner himself had given an assurance that this land would be saved from the ceiling proceedings. THE Sub-Divisional Officer, therefore, held that the petitioner was in possession of this land and, therefore, he could give the land for being delimited. An appeal came to be filed against this order of the Sub-Divisional Officer by said Harinarayan Nathe which was registered as Ceiling Appeal No.ALC-A-44/90. Even Shriram the present petitioner filed an appeal which was registered as Ceiling Appeal No.ALC-A-96/90. In fact, there appears to be no reason why the appeal was filed by Shriram the present petitioner. 3. It seems that the Maharashtra Revenue Tribunal has upset the order of Sub-Divisional Officer and has held that the Sub-Divisional Officer could not have ordered the delimitation of this land of 2.26 acres as it was an encumbered land. On that count, the matter has been remanded back for allowing the petitioner to give a fresh choice. Now as a matter of fact, in his appeal also the petitioner has prayed for a fresh choice and his appeal has been disposed of in terms of the orders passed on an appeal filed by Harinarayan Krishnarao Nathe. In effect, therefore, the petitioner has really succeeded in getting a fresh choice but he has to get a fresh choice barring the land in survey No.61/2. 4. Shri S. R. Deshpande, the learned Counsel for the petitioner, however, submits that the Maharashtra Revenue Tribunal had erred in accepting the case of Harinarayan that the land measuring 2.02 acres in survey No.61/2 amounted to an encumbered land. I am afraid, this contention cannot be raised by Shri Deshpande here in the absence of the said Harinarayan. It is an accepted fact that Harinarayan has not been joined as a party to this petition though Harinarayan had himself filed an appeal and in that appeal had joined this petitioner as a party respondent. It seems that inspite of this, the said Harinarayan has not been joined as a party in the present petition. THErefore, no exception can be taken by Shri Deshpande to the finding given by the Maharashtra Revenue Tribunal in favour of the said Harinarayan. Shri Deshpande then contended that in fact the order of Sub-Divisional Officer was itself without jurisdiction. THE Maharashtra Revenue Tribunal has held that the order is completely with jurisdiction and has given a fresh choice to the petitioner. On that count, the contention of Shri Deshpande is rejected. However, the Maharashtra Revenue Tribunal has given a fresh choice to the petitioner to give any other land than the one in dispute, i.e. survey no.61/2. THE petitioner, therefore, may give any such choice excluding the field survey No.61/2 before the Sub-Divisional Officer. With these observations, the petition will have to be dismissed on the preliminary ground that the petitioner has not joined proper party, i.e. Harinarayan Krishnarao Nathe at whose instance the original appeal was filed before the Maharashtra Revenue Tribunal. 5. Shri Deshpande submits that the other choice given by the petitioner should have been accepted by the Sub-Divisional Officer. I am afraid, the petition is completely silent about any other field excepting the field survey No.61/2. In that view of the matter, the contention of Shri Deshpande that his own choice in respect of the other fields should have been accepted will have to be rejected. 6. Last but not the least, Shri Deshpande averred that the Sub-Divisional Officer had no jurisdiction to pass the orders of delimitation particularly in view of Section 44-A. Shri Deshpande contends that Section 44-A specifically provides that once a Tribunal has been constituted or reconstituted under Section 2-A for any area, then the jurisdiction of the Collector is ousted and it is the Tribunal alone which has to act in place of the Collector. He points out that Section 44-A has come by way of an amendment by Amending Act No.2/76 and the language suggests that it applies to the whole Act. According to the learned Counsel, the language of Section 44-A would cover even the proceeding under the old Act meaning under the Principal Act, i.e. Act No.27 of 1961 (THE Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961). Shri T. R. Kankale, the learned Assistant Government Pleader, opposes this and submits that this question is not open in view of the Division Bench decision of this Court in AIR 1977 Bombay 99 : Vithalrao Udhaorao Uttarwar and others Vs. THE State of Maharashtra. THE Division Bench in paragraph No.220 has observed as follows :- "As already stated, Sec.44-B has been added by amended Acts. THE first Amending Act itself to which the second Amending Act added further amendments followed by Act No.2 of 1976, a saving section being Section 5 of the Act No.21 of 1975 has been enacted. Section 5 of Act No.21 of 1975 in terms saves all the proceedings which were taken under the provisions of the original un-amended Act as if that Act had not been amended. Even without such a provision the principles of Section 7 of the Bombay General Clauses Act would operate when there is repeal. Express provision in Section 5 indicates that the proceedings under the original Act have to be continued as if that Act had not been amended. Right of representation by a pleader necessarily is a vested right and cannot be treated as merely formal, for it has consequences including the one that the appeal can be filed by the professional duly authorised in that behalf. THEse rights involving the proceedings pending and already initiated would obviously be affected leading to unjust results if Section 44-B is also made applicable to original Act. THErefore, in view of the provisions of Section 5 of the Act No.21 of 1975 and also the provisions of Section 7 of the Bombay General Clauses Act, it appears to us reasonable to hold that the proceedings initiated under un-amended Act or the original Act will have to be continued as if Section 44-B had not been placed on the statute book. In other words, the operation of Section 44-B is prospective and restricted to the Act which is amended by Amending Acts Nos.21 of 1975, 47 of 1975 and 2 of 1976. To the proceedings pending when those Acts came into force obviously Section 44-B would not be applicable and prohibition against "Pleader" would not be available therein." THE specific language would suggest that the Division Bench has held specifically that Section 5 of Act No.21 of 1975 stands supreme and has the effect that if the proceedings are under the Principal Act, they should continue as if that Act has not been amended more particularly by Act No.21 of 1975. In this case the Division Bench was considering the provisions of Section 44-B which have also been introduced by subsequent Act No.2/76. It is to be seen that Sections 44-A and 44-B as also Section 2-A have been introduced by Amending Act No.2/76. THE Division Bench has also observed in paragraph 215 that Sections 2-A, 44-A and 44-B are a part of the clear scheme underlying a composite structure of the Tribunal. It will be, therefore, clear that what applies to Section 44-B would also apply to Section 44-A and it will have to be held that those provisions would apply only to the matters under the Amended Act and not to the Principal Act. 7. Shri Deshpande submits that the observations in paragraph 220 were made as the provision under Section 44-B was held to be a substantive right and, therefore, it was held that it was a prospective amendment. THE learned Counsel argues that the provision under Section 44-A only provides for a forum and as such it is an amendment of a procedural nature. According to the learned Counsel, if it is an amendment of the procedural nature then it has to be read with retrospective effect and, therefore, after the said amendment came into force all the proceedings whether they have been started under the provisions of the Principal Act or after the amendments would have to be disposed of in the light of that provision meaning thereby that if there is a Tribunal which is in existence then the Collector would lose all his jurisdiction in favour of the Tribunals. He relies upon a reported decision in AIR 1952 Bombay 365 : Shiv Bhagwan Moti Ram Saraoji Vs. Onkarmal Ishar Dass and others. In this case the Court was concerned with the territorial jurisdictional aspect and held that the matter of a forum is essentially a procedural matter and, therefore, where there is an amendment as regards fixing a forum of the Court, the amendment has to be viewed as a procedural amendment and, therefore, essentially of a retrospective nature. THEre can be no dispute with the law laid down in the above case. However, the above case will not apply to the facts of the present case nor to the provisions herein. It will be seen that Section 44-A does not merely speak about the fixing the forum. It speaks of an independent authority which has been created particularly with a view to dispose of the matters speedily. That appears to be the import of the creation of Tribunals in place of Collector. Even if the argument is to be accepted that Section 44-A creates a forum, that by itself will not give a retrospectivity to this provision for the simple reason that it is trite law that the retrospectivity shall not be read where the language of the amendment suggests otherwise. If we look into the language of the Section, it clearly suggests that it contemplates the situation which prevails only after the amendment of the Act. Reference to the constitution of a Tribunal under Section 2-A would be a clear pointer to suggest that Section 44-A by itself in its language contemplates a situation not as it prevailed in respect of the original Act or the Principal Act as the case may be. THE words 'Principal Act' came to be used for the first time by Act No.21/75. THE words 'this Act' used in Section 44-A would essentially mean an Act which stood amended and not the original Act. Shri Deshpande suggests that the amendments which have been made by Act No.2/76 amend the original Act itself and become a part and parcel of that Act and as such no distinction could be made while reading those amended provisions between the principal Act meaning the un-amended Act and the amended Act. THE argument is undoubtedly attractive but lacks the substance for this reason that the language of the amendment itself suggests that the amendment has to operate necessarily after the Act was amended. In that view of the matter, it cannot be said that it has in any way affected the earlier Amending Act No.21/75. It will be seen that under Section 5 of the earlier Amending Act No.21/75, there is a clear-cut dictate by the Legislature that the proceedings under the un Amended Act shall be completed, the ceiling area determined and the area delimited as surplus land finally under Section 21 of the Principal Act and it is only thereafter that the provisions of the Amending Act No.21/75 shall be made applicable. It is thus clear that even the first Amending Act, i.e. Maharashtra Act No.21 of 1975 was intended to apply only after the proceedings under the old Act were disposed of finally. It cannot, therefore, be contemplated that in the wake of Maharashtra Act No.21/75 the Legislature would obliterate the effect of that Act or a further Amending Act No.2/76. Such intendment is not possible to be read if the two Acts are read compositely. Shri Deshpande submits that the Section 5 of Maharashtra Act No.21/75 would apply only in so far as that Act is concerned and would not take into its sweep the further Acts and if inspite of that provision the Legislature thought it fit to amend the Principal Act then it will have to be deemed as if the Act No.21/75 stood repealed at least by implication. Such contention cannot be accepted. If we see Act No.2/76, there is no such effect indicated. Further the amendments introduced by Act No.2/76 by their very language suggest that they are to apply prospectively, that is to the proceedings which have started after the amendments and not to the proceedings under the Principal Act, that is the original un-amended Act. If Section 5 of the Maharashtra Act No.21/75 still stands, then it would be absurd to hold that the provisions of Maharashtra Act No.2/76 were meant to obliterate the effect of that Act. That will clearly bring anomalous results. In this view of the matter, it cannot be held that the Sub-Divisional Officer has no jurisdiction to deal with the matter as this case was clearly in respect of the proceedings started under the Principal Act. 8. THE petitioner at this stage has made an application for amendment permitting to join the said Harinarayan Krushnarao Nathe. THEre is no reason given in the application as to why he was not added as a party. In that view of the matter, the amendment lacks bonafides and has to be rejected. 9. In the result, the petition has no merits and must be dismissed with costs. It is accordingly dismissed with costs. Petition dismissed.