Judgment:
V.S. Sirpurkar, J.
1. By this writ petition, the petitioner landholder challenges the order passed by the Maharashtra Revenue Tribunal, Nagpur as also the orders passed by the Surplus Land Determination Tribunal, Kelapur (hereinafter referred to as 'the S.L.D.T.' for the sake of brevity). The S.L.D.T. had held the total excess area in the holding of the landholder to be 104.13 acres. The Maharashtra Revenue Tribunal has confirmed the order of the S.L.D.T. but has observed that there was an arithmetical mistake committed by the S.L.D.T. and on that ground it has directed to correct the arithmetical mistake and has dismissed the appeal.
2. In the return which was filed, the petitioner pointed out that there were number of sales made in respect of lands survey Nos. 12/2, 13 and 11 of Ghanmod, Survey Nos. 2 and 4 of Ganeshpur and 45 and 2 of Bahattar. The contention of the petitioner in respect of all these lands was that there were already agreements of sale executed by the landholder in favour of the transferees and those agreements of sales were prior to prohibited period, i.e. prior to 26-9-1972. It was claimed by the petitioner that all the sales have taken place during the prohibited period of 26-9-1972 to 2-10-1975. However, the contention of the petitioner was that since the petitioner had already parted with the possession of the lands in question, even prior to 1970, these sales should have been ignored. Firstly on merits, the S.L.D.T. found that the possession of these lands was not parted with prior to 1970-71. It was on this ground alone that the S.L.D.T. rejected all these sales and directed all the lands sold to be included in the holding of the petitioner. In short, the S.L.D.T. on merits had found that the contention of the landholder that he had already parted with the possession of the lands ultimately sold prior to 1970-71 was not correct. The S.L.D.T., therefore, directed these sales to be ignored. The Maharashtra Revenue Tribunal has also confirmed this finding. It has also found that the said sales could not be said to be innocuous sales and a presumption under section 10 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 had to be raised that these sales were in anticipation of and to avoid or defeat the provisions of the impending ceiling legislation. There appears to be absolutely nothing wrong with these findings.
3. Shri A.M. Bapat, the learned Counsel for the petitioner, contended that firstly the finding that the possession was not parted with was itself incorrect. There is really no reason for holding so. Both the courts have observed that the crop statements did not show that the petitioner had parted with the possession of this land prior to 1970-71. That apart, even if such possession was parted with, if ultimately the lands were transferred in the grey period then it would be incumbent upon the petitioner to show the purpose for which the said sales were made. The landholder would still have to justify that the sales were made not with an idea to defeat or avoid the provisions of the Ceiling Act but they were genuine sales made without any such design on the part of landholder. Now there is a presumption under section 10 that any sale made during the grey period is presumed to be made in anticipation of the ceiling legislation or to defeat or avoid its rigour. Shri Bapat is unable to show the purpose for which the said sales were made. He merely submits that the sales were made because there was a commitment to sell which commitment is apparent from the agreements made. Now this alone cannot be a purpose for the sale. After all the landlord was aware of the fact that there was a presumption against the landlord. There is absolutely no evidence suggested or led by the landlord to justify the sale. In the absence of any such evidence, it will be difficult to hold that the said sales were not made with an idea to defeat or avoid the provisions of the Ceiling Act. The argument of the learned Counsel will have, therefore, to be rejected.
4. The learned Counsel then submitted that there were no individual notices as contemplated under section 17(2) of the Ceiling Act to all the persons interested. He, therefore, contended further that the whole proceeding had been vitiated because of such non-issuance of the notice. In the first place, factually speaking it is difficult to accept the contention that the notices were not so served. There is a clear-cut statement made in the order itself that the notices individual as well as public were issued and that the concerned persons were heard and examined. Shri Bapat, however, submits that be had raised a contention to that effect before the Maharashtra Revenue Tribunal and the Maharashtra Revenue Tribunal had not considered the said contention with reference to the record. For that purpose, Shri Bapat relies on ground No. 10 raised in the appeal before the Maharashtra Revenue Tribunal. In that what is merely stated is that the impugned order was vitiated as mandatory procedure was not followed before the order was passed. It is only stated in the bald terms further that the notices under section 17(2) of the Act have not been served on the persons interested. Shri Bapat submits that on this basis it was incumbent upon the Maharashtra Revenue Tribunal to examine whether the notices were so served. He, therefore, submits that the Maharashtra Revenue Tribunal has erred in not examining that question and he, therefore, demands a remand on this question, in this writ petition. The submission is wholly without merits. In the first place, now because of the amendment to section 17(1), the non-compliance of section 17(2) has not remained mandatory though it was the settled law that such compliance was necessary. The amendment made to section 17(1) has completely taken out the rigour out of the said provision. The said amendment has been introduced by Maharashtra Act No. 2 of 1976. The amendment has added the following Clause :
'Where a public notice has been given as provided in this sub-section, then the holder and all persons who are interested in the land shall be deemed to have been duly informed of the contents of such notice. If in the course of any proceedings a question arises whether a person was duly informed of the contents of the notice given in pursuance of this sub-section, the publication of the notice in the manner provided in this sub-section shall notwithstanding anything contained in sub-section (2), be conclusive proof that he was so informed of the contents of such notice.'
This will go to suggest that merely because an individual notice was not given to a person interested, such person would not be heard to say that he did not have the notice and was, therefore, prejudiced. It is no doubt true that sub-section (2) would have its own utility and for the purposes of showing as to whether there was a complete enquiry the notice under sub-section (2) would be necessary. However, it cannot be said that the non-compliance with sub-section (2) would be fatal to the proceedings as was the earlier view. That apart, in the present case it has not been even suggested as to who are those persons who were not served with this notice. There is not even a semblance of contention either before the S.L.D.T. or before the Maharashtra Revenue Tribunal. What is complained is a non-service of the notice. It is apparent from the orders that the persons concerned have not filed any objections though some of the persons seem to have been examined as the witnesses in these proceedings. Apart from this, there is no complaint made by those persons either before the Maharashtra Revenue Tribunal or before this Court. The complaint is only made by the landlord. The only purpose of this complaint appears to be gunning for the fresh remand and further time. It cannot, therefore, be said that the proceedings have been vitiated on that count. Shri Bapat submitted that this position could have been seen from the record and since the record is not available with this Court, this position cannot be ascertained by the Court. It is not for this Court in writ petition to ascertain some factual positions once those positions are clear from the orders of the authorities below. The Court in a writ petition would not go into the questions of fact as to whether the notices were in fact issued or were served once the statements to that effect are to be found in the orders of the S.L.D.T. This contention of the learned Counsel has, therefore, to be rejected.
5. Shri Bapat then submitted that there was an apparent mistake committed by the S.L.D.T. by referring to field survey No. 3 of Ghanmod the total area of which is suggested to be 20.19 acres. Shri Bapat points out that from the observation of the order of the S.L.D.T. wherein the delimitation has been ordered that field has been shown to be field survey No. 3 area 16.24 acres. According to Shri Bapat this is a discrepancy, as the Maharashtra Revenue Tribunal shows the area of that field to be 20.19 acres while the S.L.D.T. has delimited 16.24 acres out of that field. According to me, there is absolutely no discrepancy. Survey No. 3 of Ghanmod has always been treated to be and is admitted by the landlord to be having an area of 20.19 acres. That is the position apparent from the record. In view of that admission, this contention of Shri Bapat has also to be rejected. It will have to be held that the order of the Maharashtra Revenue Tribunal dismissing the appeal is, therefore, absolutely correct.
6. The Maharashtra Revenue Tribunal has given a direction that the calculation mistake committed by the S.L.D.T. should be ignored and total area should be read as 289.13 instead of 189.13. That direction also is a correct direction. In that view of the matter, there is no merit in this writ petition and the writ petition deserves to be dismissed and is so ordered to be dismissed with costs.