JUDGMENT B.P. Dharmadhikari, J.
1. Heard Shri Deshpande, Advocate for the petitioners and Shri Doifode, Assistant Government Pleader for respondents No. 1 and 2.
2. By this writ petition filed under Article 226 of Constitution of India, the petitioner has prayed for quashing and setting aside the notices dated 4-12-1992 and 17-4-1993 issued by respondent No. 2 - Commissioner, for conducting enquiry into the holding of petitioner as per the Principal/unamended provisions of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, (hereinafter referred to as Ceiling Act).
3. The petitioners state that after filing of return under Section 12 of Principal Act on 30-11-1974, the Sub-Divisional Officer passed orders declaring 34.07 acres of land as surplus and against it an appeal was preferred before the Maharashtra Revenue Tribunal which was partly allowed. Against the said order of Maharashtra Revenue Tribunal, Writ Petition No. 1902 of 1975 was filed in the High Court and the High Court remanded the matter back vide its order dated 4-2-1981. After remand, on 28-9-1985, the Sub-Divisional Officer dropped the proceedings holding that the petitioner holds area of 126.23 and as such there was no surplus land with him. The petitioners state that Survey Nos. 18, 43, 69, 72, 74 and 28 in relation to which the show cause notices are issued are included in the holding of petitioners in those proceedings.
4. Thereafter, the petitioner filed return in view of amended provisions and on 31-12-1985 the Surplus Land Determination Tribunal (S.L.D.T.) held that the petitioner is surplus by 83.13 acres. The said order was challenged by the petitioner in appeal before the M.R.T. and M.R.T. decided the said appeal on 21-7-1986 holding that Survey Nos. 74 and 28 were not transferred to defeat the provisions of Ceiling Act and as such excluded those survey numbers from holding of petitioner. It remanded the matter back for holding enquiry in relation to Survey No. 18. It is the case of the petitioners that in this appeal before the Maharashtra Revenue Tribunal, the State Government had also filed Cross Objection challenging exclusion of Survey No. 28/2 but that Cross Objection was rejected. The S.L.D.T. after remand, enquired into the matter and on 7-11-1986 held that the petitioner is surplus by 16 acres and 18 gunthas and Survey No. 18 was excluded from holding of petitioner observing that it was not in possession of petitioner at the relevant time.
5. Thereafter, respondent No. 2 started proceedings under Section 45 of the Ceiling Act suo motu and issued notice to petitioner on 4-12-1992. The said notice required him to remain present on 19-1-1993 for hearing at Amravati and the petitioner states that upon enquiry he learnt that enquiry was in relation to Survey Nos. 18, 74 and 28/1 of Mouza - Umari. Thereafter he received another notice dated 17-4-1993 in which it was mentioned that the enquiry in relation to order dated 28-9-1985 passed by the Sub-Divisional Officer under the provisions of unamended/Principal Ceiling Act was to be conducted. The petitioner approached this Court challenging these notices contending that respondent No. 2 - Commissioner did not possess jurisdiction to interfere in the matter in Revision as period of three years was already over and also the matter had already gone to M.R.T. in appeal.
6. This Court issued notice before admission and protected the possession of the petitioners by order dated 4-5-1993. On 29-10-1993, this Court issued Rule and continued interim order.
7. Shri Deshpande, Advocate for the petitioners invites attention of this Court to the notice at Annexure-E to point out that the said notice is only a notice of hearing in revision and it does not mention why hearing in revision was necessary or why revision was being entertained. He further states that for the first time in second communication i.e. communication dated 17-4-1993, these details are given and it is alleged that the petitioner sold land from Survey Nos. 18, 74, 69, 28 and 72 of Mouza - Umari before decision of the Sub-Divisional Officer under unamended Ceiling Act. He contends that both these notices are not in accordance with the provisions of Section 45 of the Ceiling Act. He points out that as per Section 45, the Commissioner is competent to look into the matter if no appeal is filed against a declaration under Section 21 of the Ceiling Act and if period of three years from the date of such declaration has not elapsed. He points out that the declaration under section 21 in this respect is dated 28-9-1985. He states that period of three years from said declaration expired in September, 1988 while the notices are issued in December, 1992 and thereafter on 17-4-1993. He further states that even if it is presumed that effort was made to revise the order dated 7-11-1986 passed by the S.L.D.T. under the amended Act, in that case period of three years expired in 1989 itself. He further states that the matter was taken up in appeal before the Maharashtra Revenue Tribunal and Maharashtra Revenue Tribunal had passed appropriate orders as mentioned above on 21-7-1986. He, therefore, contends that in view of both these events there could not have been any revision after the year 1989. He relies upon the Full Bench judgment of this Court in the case of Manohar v. State of Maharashtra, reported at 1989 Mh.L.J. 1011 to show that revisional authority has to apply its mind within three years. He contends that once it is demonstrated that revisional authority has applied its mind consciously to the facts of the case within three years, the final orders in the revision can be passed even beyond the period of three years. He contends that since the notices are issued in December, 1992, as such the enquiry is bad and without jurisdiction.
8. As against this, the learned Assistant Government Pleader by placing reliance upon records with him states that the Deputy Collector applied his mind and recorded necessity of revising orders on 13-9-1989. He states that as the Deputy Collector applied its mind within three years from 7-11-1986, the initiation of revisional proceedings are within limitation. He further states that as the petitioner suppressed the sale of Survey Nos. 18, 74, 69, 28 and 72, though those sale were effected prior to 28-9-1985, the said period of three years will start running only from the date on which the respondent got knowledge of these sale. In support of this, he relies upon the judgment of the Hon'ble Apex Court in the case of State of Maharashtra v. Rattanlal, reported at . He states that the respondents have initiated action immediately after getting knowledge of the fraud played by the petitioner.
9. In reply, Shri Deshpande states that dispute in relation to these very Survey Nos. has been considered by the Maharashtra Revenue Tribunal and the Maharashtra Revenue Tribunal has held that the transactions in relation to Survey Nos. 74 and 28 were not to defeat the provisions of Ceiling Act and therefore, area of Survey Nos. 74 and 28 was excluded from the holding of the petitioner. He further states that it remanded the matter back for holding enquiry in relation to Survey No. 18 and after enquiry, Survey No. 18 was excluded from the holding of the petitioner. He further states that earlier Sub-Divisional Officer had included Survey Nos. 18, 43, 69, 72, 74 and 28 in his holding. He therefore, contends that there was no question of any fraud or any deceit by the petitioner and even there was cross objection preferred by the State Government in appeal before the Maharashtra Revenue Tribunal.
10. The perusal of provisions of Section 45(2) of the Ceiling Act reveals that the Commissioner can suo motu or on an application from the aggrieved person, entertain a revision but as per proviso thereto, the revision cannot be entertained if appeal against any such declaration was filed and also if period of three years from the date of said declaration has expired. In the case at hand, it is to be seen that the Sub-Divisional Officer passed the order on 28-9-1985 and it was challenged before the Maharashtra Revenue Tribunal in Appeal No. 1 of 1986 by the petitioner. The impugned notice at Annexure-F expressly mentions this order of Sub-Divisional Officer dated 28-9-1985. The perusal of notices at Annexures-E and "F" reveal that the decision to revise was proposed only in relation to certain Survey numbers only on the ground that those Survey numbers were disposed of by the petitioner prior to the decision by the Sub-Divisional Officer on 28-9-1985. However, from the discussion above, it is clear that those Survey Nos. were considered by the Sub-Divisional Officer as also by the Maharashtra Revenue Tribunal in appeal. It is apparent that the transactions entered into by the petitioner in relation to those Survey Nos. are also on record and it also appears that the State Government filed cross-objection in this respect in the appeal, before the Maharashtra Revenue Tribunal, filed by the petitioner. In such circumstances, when appeal was filed before the Maharashtra Revenue Tribunal in view of the power prescribed under proviso to Section 45(2) of the Ceiling Act, the Commissioner did not possess jurisdiction to entertain suo motu revision. Thus, the notices issued i.e. Notice dated 4-12-1992 at Annexure-F and Notice dated 17-4-1993 at Annexure-F to the petition are without jurisdiction.
11. The arguments of learned AGP that the Deputy Collector had applied his mind within a period of three years from 7-11-1986 i.e. on 13-9-1989 and therefore, the application of mind within a period of three years needs to be considered now. It is to be noticed that the respondents have filed their submission on record on 30-8-1993 and in the said submissions in para 4 there is reference to the order of Surplus Land Determination Tribunal dated 7-11-1986 and it is further mentioned that the Collector, Yavatmal, found that more area could be declared surplus and as such revision under Section 45(2) of the Ceiling Act was initiated by the Commissioner on 13-9-1989. It is further mentioned that said initiation is within three years from 7-11-1986. However, the order-sheet which is produced for perusal of the Court from the original records is in relation to scrutiny and is styled as scrutiny and it is prepared by the Deputy Collector, Yavatmal, on 13-9-1989. It is approved by the Collector, Yavatmal, on 4-4-1991. It is to be noticed that the impugned notices in this case are issued on 4-12-1992 and 17-4-1993 by respondent No. 2 Commissioner. Thus, if the Collector has approved the note on 4-4-1991, the said matter ought to have gone to the Commissioner thereafter and thus if the Commissioner had at all applied his mind, that application of mind would be after 4-4-1991 and therefore, beyond the period of three years from 7-11-1986. The notices impugned are, therefore, liable to be quashed and set aside even on this ground. It is no doubt true that the Full Bench of this Court in the case reported at 1989 Mh.L.J. 1011 (supra) has considered the situation in which the application of mind within three years by the Competent Authority has been held as sufficient compliance with said proviso to Section 45(2) of the Ceiling Act. However, here application of mind is not by the Competent Authority at all and as such the said ruling cannot save the situation in favour of the respondent. In fact, the observations made by the Full Bench tilt the balance in favour of the petitioners.
12. The learned AGP has also placed reliance upon the judgment of the Hon'ble Apex Court in the case reported at (supra). It appears that the Hon'ble Apex Court there was considering the scope of revisional powers in favour of the Divisional Commissioner and one of the arguments was in relation to expiry of said period of three years. The Hon'ble Apex Court has found that the said period of three years prescribed by proviso to Section 45(2) of the Ceiling Act would not begin to run until and unless the suppression of material facts come to the knowledge of higher authorities and in such circumstances, limitation would start running from the date of discovery of the fraud or suppression of material or relevant facts or omission thereof and the order under Section 17 is not a bar to exercise revisional power. Here, as already discussed above, there is nothing on record to conclude that the petitioner in any way played any fraud upon the revenue authorities or suppressed any material or relevant fact from them. As already observed above, even if it is presumed that the knowledge in this respect was received by the authorities on 7-11-1986, still the application of mind by the Commissioner is beyond the period of three years. It is in this background that the Hon'ble Apex Court has further held that the Commissioner was not devoid of jurisdiction to initiate suo motu enquiry after the appellate order of Maharashtra Revenue Tribunal, however, as facts of case at hand are entirely different, this ruling has no application.
13. Under the circumstances, writ petition is allowed. The show cause notices at Annexures "E" and "F" are quashed and set aside. Rule is made absolute in above terms. There shall be no order as to costs.