P.B. Sawant, J.
1. By this petition filed under Articles 226 and 227 of the Constitution, the petitioner has sought to challenge the order dated 30-9-1978 passed by the Additional Commissioner, Pune Division, Pune, in exercise of his revisional powers under section 45(2) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as the Ceiling Act).
2. The petitioner in the return filed by him under the Ceiling Act showed his total holding of agricultural lands as 20 hectares and 70 acres. Since his family consisted of himself, his wife, his minor son and minor daughter, his total holding according to him was below the ceiling of 21 hectares and 85 acres prescribed for a family unit under the Ceiling Act. He, therefore, claimed that there as no surplus land with him. The surplus Land Determination Tribunal, Sangamner, accepted this plea and by its order dated 25-3-1978 held that the petitioner was not a surplus land holder within the meaning of the Ceiling Act and dropped the further proceedings. The Additional Commissioner, Pune Division, however re-opened the proceedings suo motu in exercise of the powers conferred upon him under section 45(2) of the Ceiling Act and held that the order passed by the Surplus Land Determination Tribunal was erroneous inasmuch as, among other things, lands together totalling 11 hectares and 97 acres were wrongly excluded by the Tribunal from the total holding of the petitioner on the ground that they were in the possession of five different tenants right from the year 1964-65 onwards. He held that for the first time on 13-10-75 these fives persons the alleged tenants had made an applications to the Tenancy Court under section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act) and in collusion with the petitioner landlord had obtained a declaration that they were the tenants of the different pieces of land from out of the said area of 11 hectares and 97 acres as follows :---
A.G.1) Govind Abaji. 5-122) Arjun Sakharam Pansare. 6-003) Dada Damu Nawale. 6-004) Murlidhar Balwant Godage. 6-005) Yadav Gunjal. 5-12
He, therefore, ignored these so called tenancies and held that they were fraudulent transfers in favour of the said five persons and the transfers were hit by the provisions of section 8 of the Ceiling Act, the transfers having been affected after 26-9-1970. He accordingly included the said area in the total holding of the petitioner, and along with the other omissions made by the Surplus Land Determination Tribunal declared the petitioner to be surplus to the extent of 9 hectares and 64 acres, by his impugned order dated 30-9-1978.
3. The only point that is canvassed before me on behalf of the petitioner is that the Additional Commissioner had committed an error of law in including the said area of 11 hectares and 97 acres in the total holding of the petitioner. Shri Savant, the learned Counsel for the petitioner contended that there was a 'solemn' declaration made by the Tenancy Authority under the Tenancy Act declaring the said five persons as the tenants in respect of the said area. The declaration shows that they have been declared as tenants right from the year 1964-65. Hence, argued Shri Savant, it could not be said that the transfers were made by the petitioner after 26-9-1970 and hit by the provisions of section 8 of the Ceiling Act. The second submission was that if in fact the petitioner was not in actual and factual possession of the said area on 2-10-1975, the same could not have been taken into consideration for calculating his total holding. For the first proposition he relied upon an unreported decision of the Single Judge of this Court in Special Civil Application No. 1641 of 1976, decided on 6-8-1976. For the second proposition he referred me to a decision of the Division Bench of this Court reported in : AIR1973Bom225 , The Godavari Sugar Mills Ltd., Bombay and others v. S. Ramamurthy and others. I am not impressed by either of those contentions for the following reasons :
The proceedings before the Additional Tahsildar and Agricultural Lands Tribunal III, Sangamner under the Tenancy Act have been produced before me. They show in unmistakable terms that all these so called five tenants had made at a time applications under section 70(b) of the Tenancy Act for the first time on 13-10-1975 for a declaration that they were the tenants of the respective pieces of land from out of the said area of 11 hectares and 97 acres which is the subject matter in this petition. Surprisingly enough all of them claimed that they were tenants of the said lands from the very same year viz. 1964-65. That was accepted by the Additional Tahsildar without giving any reason. In the records of rights, it is the name of the petitioner landlord which was shown till as long as 1973-74 as being the only person both in possession and cultivation of all the said lands. Till that year none of the tenant's name was shown in the records of rights as even being in possession or cultivation of the respective pieces of land in which they claimed tenancy. It is for the first time in the year 1974-75 that their names came to be shown in the record of rights as being in possession and cultivation of the lands. Since the surplus holding was to be calculated with reference to 2-10-1975, this was a play obviously employed to defeat the provisions of the Ceiling Act. The proceedings further show that all the tenants in their applications made vague statements that they were the tenants of their respective lands 'for many years'. The record also shows that the claim of their tenancies was not contested by the petitioner landlord and the Tenancy Authority within a month of the applications i.e. on 13-11-1975 allowed all the said applications declaring all these persons as tenants right from the year 1964-65. There is, therefore, no doubt whatsoever that proceedings were instituted in collusion between the said five persons and the petitioner- landlord with the only object of defeating the provisions of the Ceiling Act. There is also no doubt in my mind that the Tenancy Authority concerned had obliged these colluding parties and given a very prompt declaration that they were tenants in respect of the lands in question. There is no record to show as to when the notices of the said applications were issued to the petitioner, when and how they were served, what was the defence taken by the petitioner if at all etc. In fact this is a case where an inquiry ought to have been instituted into the conduct of the Tenancy Officer who has given the said declaration. It is the usual experience of his Court that similar applications under the Tenancy Act remain pending before the Tenancy Courts for years together. However, in the present case there was a quick disposal of the said application. No further comment need be made in this respect. It is, therefore, more than clear that these transfers have been made after 26-9-1970 and, therefore, they would be hit by the provisions of section 8 of the Ceiling Act. The Additional Commissioner, therefore, rightly came to the conclusion that the so-called tenancy proceedings were collusive in nature and were resorted to, defeat the provisions of the Ceiling Act and hence were liable to be ignored. I see no reason to differ from the said conclusion. There is, therefore, no need for me, while exercising the extraordinary discretionary jurisdiction under Articles 226 and 227 of the Constitution, to interfere with the said finding.
4. The decision of the learned Single Judge on which Shri Savant relied will not help the petitioner in the present case. The facts in that case were that the Surplus Land Determination Tribunal has issued a notice under section 17 of the Ceiling Act to the land-holder, wherein the Tribunal had referred to only an acre a of 1 hectare and 40 acres from a certain survey number being Survey No. 51-A of village Sawad where the land-holder and his agricultural holding. However, while passing the final order, the Tribunal took into account the entire area of 6 hectors and 22 acres of the said survey number as a result of which the total are of 24 hectares and 17 acres was found surplus with him. In the appeal filed by the land-holder before the Revenue Tribunal, one of the contentions of the land-holder was that one Sadashiv was declared as an owner under section 38-E of the Hyderabad Tenancy Act, to the extent of 12 acres and 2 gunthas from out of Survey No. 51 and therefore, his possession over the land was neither of an owner nor of a tenant and the same was, therefore, liable to be deducted from his total holding. The Revenue Tribunal took the view that the petitioner had not produced any documentary evidence before the Surplus Land Determination Tribunal to hold that the said Sadashiv was declared as owner in respect of the said area of the 12 acres and 2 gunthas. With regard to the documents produced before it, the Tribunal remarked that it could not be gathered from the certified copy produced that there was final declaration of ownership in favour of Sadashiv. The contention before the High Court on the writ petition against the decision of the Revenue Tribunal was that in the list of the protected tenants. Sadashiv was one such tenant in respect of Survey No. 51 to the extent of 12 acres and 2 gunthas and subject to his satisfying other conditions as provided in the Hyderabad Tenancy Act, he was entitled to claim possession to the extent of the said acre age and the ownership would relate back to July 1957 being the statutory date of the ownership under that Act. However, the Counsel for the petitioner-landlord was not in a position to produce any final declaration of ownership in favour of the tenant Sadashiv. What was, however, contended was that if Sadashiv was un-disputably a protected tenant he had a right to get back possession and in that case the land-holder could not be held to be in possession either as owner or tenant in respect of the said acre age. This Court observed that it was difficult to entertain the extremely submission that merely because Sadashiv's name was found as a protected tenant in respect of the said land, the entire said land was liable to be excluded from the total holding of the land-holder. However, it was also admitted that Sadashiv's right of ownership to the extent of the said land was not raised before the S.L.D.T. apparently because the notice issued to the land-holder did not relate to the said land at all. But the record showed that when the notice was issued, the fact that Sadashiv was a protected tenant of the said land was present to the mind of the Surplus Land Determination Tribunal. If, therefore, the Surplus Land Determination Tribunal wanted to include the said area, the proper course would have been to issue a notice to Sadashiv who was a resident of the same village and ascertain from him as to whether he had any subsisting right to restoration of possession and if he had any such right what was the extent of the land to which he was entitled to be resorted to possession. Since to that extent the land-holder would not be entitled to retain possession either as owner or tenant and if it was permissible under the law for the Surplus Land Determination Tribunal functioning as Tahsildar under the Hyderabad Tenancy Act to restore possession to Sadashiv in the exercise of his powers under the Hyderabad Tenancy Act, the Tahsildar ought to have adopted that course while exercising his powers under the Hyderabad Tenancy Act. If however, Sadashiv had no subsisting rights or there was no power in the Tahsildar to the restore possession of any part of the said land, then it was obvious that the part of land had to be included in the holding of the petitioner. The Court, therefore, held that the proper course in the case was the remand the matter to the Surplus Land Determination Tribunal to make a proper enquiry after issuing a notice to Sadashiv to find out whether Sadashiv was entitled to be restored to possession of any part of the said land by virtue of the declaration under section 38-E of the Hyderabad Tenancy Act and if he was not so entitled to include the same in the total holding of the petitioner.
Thus it would appear from the facts of that case that in the first instance, the tenant was undisputably a protected tenant on the land and the was entitled to the ownership of the land under the relevant provisions of the Tenancy Act. The notice issued to the land-holder itself showed that this fact was apparent to the mind of the Tribunal. However, at the time of the final order the said land was included in the total holding although it was not mentioned in the notice. Further, in spite of this position, the Court did not accept the plea of the land-holder ipso facto but remanded the matter to the Tribunal for enquiry into the true state of affairs. In the present case the right of tenancy were sought to be created for the first time after 26-9-1970 and to be precise on 13-10-1975. There is nothing to show except the fraudulent declaration obtained from the Additional Tahsildar that the five persons concerned were ever in possession or cultivation of the lands in question. In fact, the declaration as stated above was product of a collusion between the land holder. The said five persons and the obliging Tenancy Authority. There is, therefore, no need even for an enquiry as was done in the decision cited before me.
5. As regards the decision of the Division Bench reported in A.I.R. 1973 Bom 255 (supra), the facts in that case were as follows :
Prior to October 1, 1949, one J.K. Somaiya was the owner of three big agricultural farms, one of them being Somaiya farm which was sold on October 1, 1949 to the petitioner-Company. The holding of the Company was 869 and 02 gunthas. This very holding was the subject-matter of an agreement of partnership executed by the six petitioners including the company on November 30, 1959. The substance of the agreement of partnership was that as from June 1, 1956, the six petitioners should carry on the business of working and running of an agricultural farm on the lands belonging to Somiaya Farm and of cultivating sugar-cane and other crops. The partnership was terminable at will. Though the company took the remaining five petitioners as partners, the good will of the firm name and the benefit of the agricultural tenancy rights and all other rights in respect of the land were agreed to continuously belong to the Company. The capital for the business was also to be brought in only by the company. The rest of the petitioners were only taken as working partners with a right to remuneration plus shares in profits and losses of partnership. The Company kept 25 percent and the rest of the partners were given varying percentage in the profits and losses. Thereafter, the partnership firm filed a return under the Unamended Ceiling Act in respect of the said lands. In the return that partnership claimed that the farm lands were being cultivated by the partnership as from June 1, 1959, and that under the Act each of the six partners were entitled to retain lands to the extent of one ceiling area viz., 108 acres of dry-crop land which was the then ceiling. In the alternative, it was claimed that in any case the partnership firm as holders were entitled to retain with itself 108 acres of dry crop land.
The Collector of Ahmednagar who was the Ceiling Authority rejected the contention of the partners that each of the partner was a separate holder entitled to retain one ceiling area of 108 acres of drop-crop land. He accordingly made a declaration that the partnership as one entity was entitled to hold one ceiling area of 108 acres of drop-land and consequently declared the rest of the land as surplus. The Revenue Tribunal in appeal confirmed the order of the Collector. Aggrieved by this order, the company and the other partners preferred a writ petition before the High Court. It is in the context of these facts that the phrase 'to hold land' as defined in sub-section (14) of section 2 of the Ceiling Act fell for construction. The phrase has been defined in the said section to mean that a tenant in actual possession of the land and also an owner in actual possession of the land must be held to continue to hold land. In this connection the Court referred to yet another provision viz., sub-section (30) of the said section 2 and pointed out that persons who were deemed tenants under the Tenancy Act were also included in the definition of the phrase 'tenant'. The Court then observed that the policy of law disclosed by the two definitions was to provide that wherever a landlord was not in actual possession of the lands of his ownership and others cultivated such lands lawfully (whilst the owner was not cultivating the same personally) they must be held to be deemed tenants and as such entitled to continue in possession of lands to the extent of the ceiling area fixed under the Ceiling Act. In every case in which the landlord or the owner continues in actual possession of land he must be held to hold the land and the surplus area in his possession would have to be ascertained on the footing of the area of the land in his actual possession. In other words, in cases in which the landlord or the owner continues actual and factual possession of the land of his ownership, he cannot be heard to state that it did not form part of his holding. The Court then observed as follows :---
'The consequence of the above finding is that in cases in which actual and factual possession of land continues under any arrangement whatsoever with the landlord himself, the persons cultivating such land will not be holders of such land. In connection with the question of finding out the ceiling area that an owner of lands in actual possession thereof should be allowed to continue to hold and delimiting the surplus in his possession the owner cannot be entitled to argue that other persons cultivating his land were tenants and holders of land. Similarly, for ascertaining whether the 'tenants' or the 'deemed tenant' is holder of land under the Ceiling Act, the true test to be applied must be the fact of actual possession of the land in question by the 'tenant' or the 'deemed tenant' himself. In cases in which in spite of the cultivation of the land in question by others it is ascertained that the landlord was in actual possession thereof, the tenant cannot be held to hold the land in question.'
Having thus held, the Court came to the conclusion in that case that it was the first petitioner-company itself which had continued to cultivate the land even after the partnership carried on the business. The other partners of the Company by themselves and/or through their agents and labourers were no doubt taking part in the cultivation of the land and since they could not be said to be doing so unlawfully, they fell within the category of the deemed tenants under section 4 of the Tenancy Act. Even so, as far as the Ceiling Act was concerned the fact that the Company, as owner had not given up the possession of land could never be forgotten and had to be born in mind. The Court, therefore held that it was the Company which had continued in actual possession of every and each part of the land and, therefore, it continued to hold the land. The Court therefore, rejected the contention on behalf of the petitioners that each of the six petitioners were entitled to a finding that they were separate land-holders of the land in question and entitled to a declaration that each of them held 108 acres of dry-crop land from out of the said land. I fail to see as to how the ratio of this decision would at all assist the petitioner in the present case. The petitioner's holding was to be determined with reference to the commencement date viz. 2-10-1975. On the finding which has been arrived at by the learned Commissioner and which I have accepted, it was the petitioner who was actually and factually in possession of the lands in question on the said date, and that for the first time the lands are purported to have been transferred in favour of the said five persons on and from 13-10-1975 on the alleged footing that they were in the possession of the said five persons from 1964-65. Barring the collusive declaration there is nothing on record to show that prior to 13-10-1975 the lands were ever in factual and actual possession of the said five persons and not of the petitioner.
6. There was no other contention raised in the petition. The petition is, therefore, dismissed and the Rule is discharged with costs.