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Avinash Alias Tatyarao Martandarao Mahajan Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 192 of 1978
Judge
Reported in1982(2)BomCR110
ActsMaharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 - Sections 12
AppellantAvinash Alias Tatyarao Martandarao Mahajan
RespondentState of Maharashtra and anr.
Appellant AdvocateR.G. Bhadekar, Adv.
Respondent AdvocateS.S. Choudhary, G.P. for respondent No. 1
Excerpt:
- - it is now a well settled law on account of the decisions of this court that in matters of ceiling appeal, no order could be passed adverse to the interest to the appellant in an appeal filed by the appellant himself alone......to as 'the s.l.d.t.') dated 31st august, 1977 declaring the present petitioner to be an additional surplus holder to the extent of 12 acres 2 gunthas, the petitioner has come to this court by way of writ petition under article 226 of the constitution of india. the material facts giving rise to this litigation are as follows.2. the petitioner filed his return as required by section 12 of the maharashtra agricultural lands (ceiling on holdings) act, 1961 (hereinafter referred to as 'the ceiling act'), to the tahsildar, sillod. it was in accordance with the amended ceiling act, which lowered the ceilings. the s.l.d.t. on 27-1-1976 declared that the petitioner was on a surplus holder to the extent of 17 acres 35 gunthas, but while delimiting the land, an area of only 16 acres 27 gunthas was.....
Judgment:

D.B. Deshpande, J.

1. Feeling aggrieved by the order of the Maharashtra Revenue Tribunal (hereinafter referred to as 'the M.R.T.') confirming the finding of the Surplus Land Determination Tribunal (hereinafter referred to as 'the S.L.D.T.') dated 31st August, 1977 declaring the present petitioner to be an additional surplus holder to the extent of 12 acres 2 gunthas, the petitioner has come to this Court by way of writ petition under Article 226 of the Constitution of India. The material facts giving rise to this litigation are as follows.

2. The petitioner filed his return as required by section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to as 'the Ceiling Act'), to the Tahsildar, Sillod. It was in accordance with the amended Ceiling Act, which lowered the ceilings. The S.L.D.T. on 27-1-1976 declared that the petitioner was on a surplus holder to the extent of 17 acres 35 gunthas, but while delimiting the land, an area of only 16 acres 27 gunthas was delimited by the S.L.D.T. It appears that the remaining fragment of 1 acres 8 gunthas was ignored. While giving this decision, the S.L.D.T. held that the petitioner was holding only 16 acres 27 gunthas from Survey No. 247 of village Undangaon, feeling aggrieved by this order, the petitioner preferred an appeal before the M.R.T. at Aurangabad. It appears from the true copy of the appeal memo annexed to this petition that so far as Survey No. 247, which is equivalent to Gat No. 747, is concerned, the petitioner's contention was that he was in possession of land only to the extent of 3 acres 22 gunthas and not 16 acres 27 gunthas as held by the S.L.D.T. Here itself it may be made clear that against this order of the S.L.D.T. holding the petitioner to be the holder of only 16 acres 27 gunthas so far as Survey No. 247 is concerned, the State Government did not prefer any appeal or cross-objections and, therefore, this finding of the S.L.D.T. holding only 16 acres 27 gunthas to be the holding of the petitioner so far as Survey No. 247 is concerned must operate as res judicata. As already stated, the petitioner in his appeal contended before the M.R.T. that the area in his possession was only 3 acres 22 gunthas and he raised some legal points also so far as the area mentioned in the notices under section 17(1) and 17(2) of the Ceiling Act. The M.R.T. while deciding this appeal, on 4th March, 1977, went on to observe in paragraph 20 of its judgment that the S.L.D.T. should have held the area of this land to be 28 acres 29 gunthas instead of 16 acres 27 gunthas and finding that there were illegalities committed by the S.L.D.T., the M.R.T. in its order of remand directed issuance of fresh notices under section 17(1) and 17(2) of the Ceiling Act only in respect of Survey No. 247 showing the entire area of 28 acres 29 gunthas and thereafter to given a chance to the present petitioner for submitting his say and document, if any. I shall now confine myself to the discussion of Survey No. 247 only, because ultimately the present petitioner is declared to be additional surplus holder to the extent of 12 acres 2 gunthas only, which is exactly the area covering the difference between 28 acres 29 gunthas and 16 acres 27 gunthas which was held by the S.L.D.T. to be the area of Survey No. 247.

3. It appears that after the remand, when the matter went back to the S.L.D.T., by virtue of its order dated 31st August, 1977, the S.L.D.T held that this land was 28 acres 29 gunthas instead of 16 acres 27 gunthas, as earlier held by the S.L.D.T. to be, and after considering the entire matter, the S.L.D.T. on 31st August, 1977 declared that the present petitioner was additional surplus holder to the extent of 12 acres 2 gunthas. It is not disputed before me that the first surplus area of 16 acres 27 gunthas was already delimited and was distributed amongst the landless persons and hence the S.L.D.T. declared the present petitioner to be an additional surplus holder to the extent of 12 acres 2 gunthas.

4. Feeling aggrieved by this order, the petitioner again went in appeal to the M.R.T. along with certain other contentions such as pot kharab etc. It appears that the petitioner preferred two appeals before the M.R.T., one was Case No. 247/A/77 : and the other was Case No. 243/A/77. It appears that one appeal was regarding the area of Survey No. 247. The learned Member of the M.R.T., after considering the matter in details, dismissed the appeal filed by the petitioner so far as the area is concerned and, it appears that, a grievance was made before the M.R.T. regarding choice of land to be delimited and to the extent of choice of land for delimitation, the M.R.T. modified the order of the S.L.D.T. Feeling aggrieved by this, order, the petitioner has filed this writ petition.

5. I have already pointed out that the petitioner is now declared to be an additional surplus holder to the extent of 12 acres 2 gunthas only. I have also pointed out that by virtue of its order dated 27-1-1976, the S.L.D.T. held the area of Survey No. 247 (Gat No. 747) to be only 16 acres 27 gunthas and I have also pointed out in the earlier portion of my judgment that this finding of the S.L.D.T. operates as res judicata. I have also pointed out that it was the grievance of the petitioner that his area in this survey number is only 3 acres 22 gunthas and it must be construed that the order of remand of the M.R.T. was only to ascertain whether the area of this land was 3 acres 22 gunthas as contended by the petitioner or whether it was 16 acres 27 gunthas as held by the S.L.D.T. After the remand, the S.L.D.T. could under no circumstances hold that this area would be more than 16 acres 27 gunthas as the earlier finding operates as res judicata in the absence of any appeal preferred by the State Government, or in the absence of any cross-objections preferred by the State Government in the appeal filed by the present petitioner before the M.R.T. Hence, after the remand, even if the successor S.L.D.T. came to the conclusion that the real area of Survey No. 247 ought to have been held as 28 acres 29 gunthas, the successor S.L.D.T. could not come to this conclusion in view of the principles of res judicata. Shri S.S. Choudhari, learned Government Pleader appearing on behalf of the State, was fair enough to concede that in the appeal filed by the present petitioner before the M.R.T. against the order of the ceiling authorities, any order adverse to the interest of the petitioner could not be passed by the M.R.T. It is now a well settled law on account of the decisions of this Court that in matters of ceiling appeal, no order could be passed adverse to the interest to the appellant in an appeal filed by the appellant himself alone. It will, therefore, be seen that even after remand, the successor S.L.D.T. could not hold that the area of Survey No. 247 in the holding of the present petitioner was more than 16 acres 27 gunthas. But, we find that the successor S.L.D.T. has held this area to be 28 acres 29 gunthas and here exactly, there has been a clear error of law on the part of the successor S.L.D.T. while passing the order dated 31st August, 1977 that the present petitioner was additional surplus holder to the extent of 12 acres 2 gunthas. As already pointed out, this is exactly the difference between 28 acres 29 gunthas and 16 acres 27 gunthas, which ought to have been held as the area of the petitioner in his holding so far as this survey number is concerned, and in the appeal filed by the petitioner, this very finding, of holding him to be an additional surplus holder to the extent of 12 acres 2 gunthas, is confirmed by the M.R.T. It is, therefore, more than apparent that these orders of the S.L.D.T. Dated 31-8-1977 declaring the petitioner to be additional surplus holder to the extent of 12 acres 2 gunthas and of the M.R.T. dated 25th October, 1977 confirming the aforesaid order of the S.L.D.T. are in violation of the principles of res judicata and are, therefore, illegal. Although no such point is actually mentioned by the petitioner in the memo of the writ petition, this is a pure question of law not requiring any additional evidence at all and which affects the very jurisdiction of the successor S.L.D.T. and of the M.R.T. to reconsider the area of Survey No. 247 to the disadvantage of the present petitioner and, therefore, I allowed Shri Bhadekar to raise this point in this writ petition. It may be stated in fairness to Shri Choudhari, Government Pleader, that he was fair enough to concede that in the appeal filed by the appellant in the ceiling matters no order could passed against his interest in the absence of cross-appeal or cross-objections by the State Government. It cannot be disputed that the earlier finding holding the petitioner to be a holder to the extent of 16 acres 27 gunthas so far as Survey No. 247 is concerned operates as res judicata and, therefore, the writ petition deserves to be allowed.

6. The result is that this special civil application is allowed. The orders of the S.L.D.T. dated 31-8-1977 and of the M.R.T. dated 25-10-1977 declaring and confirming respectively the petitioner to be an additional surplus holder to the extent of 12 acres 2 gunthas are quashed and it is hereby declared that the petitioner is not additional surplus holder to the extent of 12 acres 2 gunthas as declared by the S.L.D.T. and confirmed by the M.R.T. Rule made absolute, but in the circumstances, there will be no order as to the costs.


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