M.P. Kanade, J.
1. The proceedings arise out of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (herein after referred to as 'the Ceiling Act'). One Jayaram Krishnaji Gayakwad filed a return under section 12 of the Ceiling Act contending, inter alia, that there was a family petition on March 20, 1957 amongst the members of the joint family consisting of himself and his major four sons. In the said partition Jayaram Krishnaji Gayakwad was allotted 46 acres 39 gunthas of the land. The said partition is not disputed in this proceeding. Jayaram's wife Laxmibai's was allotted 4 acres 7 1/2 gunthas and she also acquired on area of 2 acres and 3 gunthas as her Stridhan. Therefore, her total holdings comes to 6 acres and 10 1/2 gunthas or so. The land held by Laxmibai the wife of Jayaram under the law can be calculated together and the total holdings thus comes 53 acres and odd gunthas. Jayaram died after filing the return and his heirs have filed several proceedings. Jayaram's family consists of himself and his wife. Other members in the family are major. The daughters of Jayaram are married daughters and, therefore, they do not become the family members of the deceased Jayaram. The petitioners' further case is that an area of 15 acres and 20 gunthas of land had been gifted to widowed daughter Saritadevi and Vasantrao the eldest son who retired from his Government service to the extent of 13 acres and 20 gunthas. There is a Mutation Entry No. 9234 dated 28th March, 1972. On the basis of the transfer made by the deceased Jayaram it was contended that he was not a surplus holder within the meaning of the Ceiling Act and his holding was less than 54 acres.
2. The Surplus Land Determination Tribunal. (hereinafter referred to as 'the SLDT') by its judgment dated 29-11-1976 held that all the total holdings of the petitioner Jayaram were of dry crops and the transfer of such lands in favour of sons and daughters was bona fide and not anticipatory of the Ceiling Act intending to defeat the provisions of the said Act.
3. The learned Divisional Commissioner having perused the record issued a show cause notice dated December 2, 1976 as to why the lands held by the deceased should not be considered to be the lands within the irrigable command. The show cause notice also indicated that the transfer effected in favour of the son and daughter of the deceased Jayaram was anticipatory of the Ceiling Act and, therefore, the said transfers were invalid. The learned Divisional Commissioner by his judgment and order dated December 17, 1976 held that the lands held by Jayaram were within the irrigable command and, therefore, the lands fell within the meaning of section 2(5) (b)(iii) of the Ceiling Act. It is further held by the Divisional Commissioner that the transfers by way of mutation entry in favour of the son and daughter were illegal and cannot be considered as transfer in view of the provisions of section 10 of the Ceiling Act. The said judgment and order of the learned Divisional Commissioner, Bombay are challenged in this petition under Article 226 o of the Constitution of India.
4. Mr. M.A. Rane, the learned Counsel appearing in support of this special civil application contended that the learned Divisional Commissioner committed an obvious error in treating certain lands held by the deceased Jayaram to be within the irrigable command. There was no evidence, whatsoever, on record to come to that conclusion. The finding without any legal evidence on record is erroneous. Secondly, it is argued by Mr. M.A. Rane that the transfers effected by deceased Jayaram during his life-time in favour of his son and daughter are bona fide transfers. Daughter Saritadevi's husband died in an accident on April 13, 1971 and the gift was made by way of transfer in favour of the daughter on March 6, 1972. Since son Vasantrao retired from Government service on July 22, 1974 and he had only 5 acres and 25 gunthas of land in the aforesaid partition it was but natural for the father to make a provision for his son. In the circumstances both the transfers ought to have been treated as bona fide transfers and the finding recorded by the learned SLDT should been upheld by the learned Divisional Commissioner.
5. Mr. R.D. Rane the learned Additional Government Pleader appearing on behalf of the respondents submitted that the transfers after the due date should not have been considered until and unless special circumstances existed to support such a transfer. It is further submitted by Mr. R.D. Rane that the said transfers are not effected under registered deeds but merely on the mutation entry, therefore, it cannot be said that the transfers were bona fide and valid transfers in favour of the sons and the daughters of the deceased Jayaram. Secondly Mr. R.D. Rane further argues that the certain lands held by the deceased Jayaram are falling within the irrigable command and, therefore, the provisions of section 2(5)(b)(iii) are attracted. It is fairly conceded by Mr. Rane that there is no legal evidence on record to come to that conclusion. A notification indicating a command area has not been placed on record. A map showing irrigable command has also not been placed on record. It is, however, submitted by him that the matter may be remanded to the learned SLDT for further enquiry, in order to uphold as to whether the lands held by the deceased Jayaram are within the irrigable command.
6. Having heard the learned Counsel on either side it appears to me that the learned Divisional Commissioner had exceeded in the exercise of his jurisdiction under section 45(2) of the Ceiling Act. It is suo motu action on the part of the Commissioner to find out the legality or propriety of the order passed by the learned SLDT. It is a revisional power of the Divisional Commissioner. It is an admitted fact that there is no map on the record to show that how much is the area covered by the irrigable command. The petitioner has produced a certificate of Sub-Divisional Engineer, Nasik dated November 19, 1976. That certificate states that the Survey Nos. 466, 467 and 468/2 which belong to Shri Raosaheb Jairam Krishna Gaikwad and others two of Ozar (Mig) Taluka Niphad District Nasik are on well irrigation and not on canal irrigation. The well constructed at present are beyond 600 ft. (Six hundred feet) from the canal or Distributary boundary. This certificate is not challenged but the same seems to be misinterpreted by the learned Divisional Commissioner. It is clear from the record that the wells have been standing on the land for the last number of years. The lands are not directly irrigated through canal water. The wells are not situated within the distributary boundary of the canal water. There is nothing on record to show that the lands held by the deceased Jayaram are capable of being irrigated by the canal water. In the absence of any notification indicating the area covered by the irrigable command, the finding recorded by the learned Divisional Commissioner cannot be sustained. It must be stated that the finding recorded by the learned Divisional Commissioner is without any evidence on record and, therefore, it amounts to an apparent error on the face of the record which can be corrected by this Court under Article 227 of the Constitution of India. I do not find any material whatsoever on the record to come to the conclusion that the wells situated in the land are within the irrigable command and, therefore, this finding is obviously erroneous and liable to be quashed. If it is held that the lands held by the deceased Jayaram would not fall within the irrigable command then all the lands held by him will be considered as to be dry lands and thereby he became entitled to retain 54 acres of the land. Admittedly the lands held by deceased Jayaram are less than 54 acres of land and he is not surplus holder within the definition of this Act. Thus the finding recorded by the learned Divisional Commissioner deserves to be set aside.
7. Mr. R.D. Rane submitted that the matter should be remanded for a detailed enquiry. I am not inclined to accept his submission of Mr. Rane Admittedly the wells were standing much more before the commencement of the Ceiling Act. There is no evidence that the wells have got the benefit from the canal water. The learned SLDT held on a consideration of evidence, recorded a finding that the lands are not in the irrigable command and the finding recorded by the learned Divisional Commissioner is without any evidence on record and in view of this position it is futile to exercise the powers to remand a matter to the trial Court for further enquiry.
8. In the result the rule is made absolute. The judgment and order passed by the learned Divisional Commissioner, Bombay Division, on December 17, 1976 is set aside and that of the S.L.D.T. Niphad dated November 29, 1976 in restored. In the facts and circumstances of the case there would be no order as to costs.