V.G. Palshikar, J.
1. By this petition, the Petitioners have challenged the order passed by the Minister of State for Urban Development Shri Raj K. Purohit on several grounds including the ground of mala fides of the Respondent No. 9 i.e. the concerned minister.
2. The facts giving rise to the present petition necessary for adjudication are that one Dnyanoba Baban Mokate was owner of certain lands. After theUrban Land (Ceiling and Regulation) Act 1976 came into operation in the State of Maharashtra, proceedings were commenced for determining surplus urban land held by the holder Baban Mokate. The proceedings ultimately culminated in land survey No. 54(5) and 54(7) which were declared as surplus under Section 8(4) of the same Act. The application made by Baban Mokate under Section 20 for exemption of his land from the provisions of the Ceiling Act was also rejected on 31-3-1977. The land therefore vested in the State of Maharashtra as provided by the Ceiling Act.
3. On 25-4-1984 Cabinet Sub-Committee resolved to allot the land to the Petitioners under Section 23 of the Ceiling Act. Accordingly the land was given in possession of the petitioner and the petitioner has thereafter spent considerable amount in the development of that land.
4. The land holder had filed a Writ Petition before this court challenging the action taken under Sections 10, 8 etc. of the Ceiling Act. That petition was dismissed. Thereafter the present Respondent No. 8 filed an appeal under Section 33 of the Act challenging the order of declaring the land as surplus under Section 8(4) of the Act dated 31-3-1977. The appeal so filed came to be dismissed.
5. On 24-9-1998 Respondent No. 8 filed an application as the Karta of the family and as the member of the persons aggrieved, moving the State Government in exercise of its revisional powers under Section 34 of the Ceiling Act. It was this Revisional Application as made by the Respondent No. 8 which was decided by the Minister by his order dated 9-7-1999 which is now impugned in this petition. This petition challenging that order was filed immediately thereafter and was heard at length.
6. Several questions of law and fact were agitated before us by the learned counsel for the petitioner. They were all opposed by the learned counsel appearing for respondent No. 8. The State Authorities were represented by Government Pleader and the Respondent No. 9 the Minister was unrepresented. The allegations of mala fide remained unrefuted. However we need not dilate on other submissions made or contentions raised as the whole petition can be decided on a pure question of law as to the interpretation of the provisions of Section 34 of the Ceiling Act. We therefore make it clear that we are not deciding any of the questions raised by the petitioner other than jurisdictional scope of Section 34 of the Ceiling Act.
7. In order to determine what is the scope and extent of the power of the State under Section 34 of the Act, it would be beneficial to go through the entire scheme of the Act. This Act was enacted to acquire for the benefit of the State. Surplus urban land is the problem of the land, is growing acutely and the requirement of land is increasing. The purpose of acquisition of urban land also is not an issue in this case. The Act provides for determination of vacant urban land, provides for its acquisition. It also provides for disposal of the land acquired and since all these actions visits the holder of the land with civil consequence, the Act also provides for appeals and revision in certain situation. Chapter 1 of this Act deals with preliminary. Chapter II gives definition and in the definition land has been defined to mean any land situated within the limit of urban agglomeration. The land in the present case is obviously therefore a urban land as it was referred tp in the master plan of the Pune city. Chapter III deals with Ceiling on vacant, land, which provides the manner in which it is to be calculated. Section 10 of this Chapter speaks of acquisition of vacant land in excess of the ceiling limits fixed under the Act. Sub-section (3) of Section 10 provides that after the publication of the notification, declare that the excess vacant land be deemed to have been acquired by the State Government and upon the publication of such declaration such land shall be deemed to have vested in the State Government free from all encumbrances with effect from the date so specified. In the present case the declaration under Section 10(3) having been made on 22-11-1984, the land vested in the State of Maharashtra. It was after the vesting on 22-11-1984 that the possession of the land was given to the petitioner as it was allotted to the petitioner under Section 23 of the Act. Delivering of possession took place on 6-6-1985. It was after delivery of the possession that W.P. 2288/85 was filed by Maruti Mokate in this court and ultimately it was dismissed by this court.
8. It will thus be seen that Section 11 provides for payment of compensation for vacant land. It is pertinent to note that the Act then provides by Section 12, Constitution of Urban Land Tribunal and the Tribunal is vested with the jurisdiction to deal with appeals filed by any person aggrieved by the order of the competent authority under Section 11, determining the amount of compensation payable. Section 13 provides for a second appeal to the High Court.
9. Then comes Section 33 which provides for appeals with which we are presently concerned. It would be better to note the entire provision verbatim which reads thus :
'33.(1) Any person aggrieved by an order made by the competent authority under this Act, not being an order under Section 11 or an order under Sub-section (1) of Section 30, may within thirty days of the date on which the order is communicated to him, prefer an appeal to such authority as may be prescribed (hereafter in this section referred to as the appellate authority).
Provided that the appellate authority may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) On receipt of an appeal under Sub-section (1), the appellate authority shall, after giving the appellant an opportunity of being heard, pass such orders thereon as it deems fit as expeditiously as possible.
(3) Every order passed by the appellate authority under this section shall be final.'
10. It will be seen from the section quoted above that this section provides for appeals from the orders made by the competent authority but excludes an order made under Section 11 or an order under Section 30 of the Act.
11. It is to be noted therefore that an elaborate provision have been madefor persons aggrieved to file appeals in every situation where his rights areaffected. Whenever a declaration of surplus land and it is vesting and is causingany injury to any person, appeal can be made under Section 33 of the Act. If anyperson is aggrieved by the compensation determining under Section 11 of theAct, the appeal is provided under Section 12 with, further appeal under Section 13. Section 30 provides for demolition of certain structure in certain cases, which also provides an appeal against the order of demolition. So also a substantive appeal is provided in all cases where any injury is likely to be caused or is reported to be caused to any person to whom any provision of this Act is made applicable. Having made all such adequate provisions for appeals it was deemed necessary by the Parliament to give suo motu powers to the State Government to consider any illegality that may have occurred in any proceeding which could not be noticed by any Appellate Authority because no appeal was filed. It is with this intention that the provisions of Section 34 are enacted which reads as under :
'34. The State Government may, on its own motion, call for and examine the records of any order passed or proceeding taken under the provisions of this Act and against which no appeal has been preferred under Section 12 or Section 30 or Section 33 for the purposes of satisfying itself as to the legality or propriety of such order or as to the regularity of such procedure and pass such order with respect thereto as it may think fit :
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard in the matter.'
12. It will be seen that the power of the State Government to call for re-examination of records of any order is only on its own motion. Therefore an application under Section 34 by any other person may not be sufficient to invoke the jurisdiction. The State Government itself may on its own motion do so. We also need not go into the question as to whether the Government may be brought into motion to call for re-examination of records on an order declaring some land surplus by application made by someone else, as in the present case, was done by Respondent No. 8 and the power was exercised by Respondent No. 9 as we have observed already on declaration under Section 10 was made in 1985 and the revisional powers has been exercised in 1999 i.e. 14 years after the declaration was made, 14 years after the land vested in the State, 14 years after the possession was delivered to the petitioner, and years after the petitioner challenging the correctness of the declaration under Section 10 was dismissed by this Court. Years after appeal under Section 33 was filed by Baban Maruti Mokate which was dismissed by the appellate authority.
13. Two main submissions were made in this regard by the learned counsel appearing before us.
1) The jurisdiction under Section 34 of the Act could not be exercised by Respondent No. 9 in the present case as an appeal under Section 33 of that Act was made and dismissed.
2) Even if it is assumed that no appeal was lodged in law, the power of revision cannot be exercised after irrevocable situation comes into existence by the appellant of the Act itself.
14. The Legislature has chosen a period of 30 days to be sufficient for an aggrieved person to appeal against an order by which he is aggrieved. The appellate provision is also available to the State. If the State if aggrieved by an order ef declaration under Section 10, it can also appeal to the appellate authority, nominated in that behalf and for such appeal also the limitation is 30 days. By necessary implications, the appellate provision is therefore meant for persons aggrieved by an order under Section 10, if it is an individual or the State. Consequently it is only in cases where the State has not preferred an appeal or the aggrieved person has not preferred an appeal, the same illegality has created in the persons that the powers to be exercised under Section 34 of the Act. Therefore the wording in the Act 'no appeal has been preferred under Section 12 or Section 30 or Section 33', occurred in Section 34. In our opinion the powers under Sections 33 and 34 are mutually exclusive. If the State was aggrieved by an order of competent authority under Section 10, it can go in appeal and for some reason it fails to go in appeal it may under Section 34 revise that order. In such a situation it would be unreasonable to interpret that Section 33 prescribed the limitation of 30 days and no limitation is prescribed by Section 34. The reason for not prescribing any limitation under Section 34 is clear and simple. It is to avoid miscarriage of justice either to an individual or to the State by the lapse committed by the competent authority. Consequently this power of correcting illegalities has to be exercised within reasonable time. As aforesaid in our opinion the period of three years from the date of order can always termed as reasonable.
15. We would also like to note here the provisions of Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. There also declaration of surplus land by the competent authority is appealable before a Tribunal. That enactment also provides for revisional powers in the State and those revisional powers are to be exercised in the manner which they are prescribed. The provisions of the Urban Land Ceiling Act where surplus declaration of urban land is applicable and revisable are analogy to the Agricultural Lands (Ceiling on Holding) Act where declaration of surplus of agricultural land is appealable and revisable as provided by the provisions of that Act. We would therefore like to note the verbatim, the provisions of Section 45 thereof.
'45. Control.--(1) In all matters connected with this Act, the State Government shall have the same authority and control over the officers authorized under Section 27, the Collectors and the Commissioners acting under this Act, as they do in the general and revenue administration.
(2) The State Government may suo motu or on an application made to'it by the aggrieved person, at any time, call for the record of any inquiry or proceedings under Sections 17 to 21 (both inclusive) for the purpose of satisfying itself as to the legality or propriety of any inquiry or proceedings (or any part thereof) under these sections and may pass such order thereon as it deems fit, after giving the party a reasonable opportunity of being heard.
Provided that, nothing in this sub-section shall entitle the StateGovernment to call for the record of any inquiry of proceedings of adeclaration or part thereof under Section 21 in relation to any land, unlessan appeal against any such declaration or part thereof has not been filedwithin the period provided for it, and a period of three years from thedate of such declaration or part thereof has not elapsed.
(3) The State Government may, subject to such restrictions and conditions as it may impose by notification in the Official Gazettedelegate to the Commissioner the power conferred on it by subsection (2) of this section or under any other provisions of this 'Act except the power to make rules under Section 46 or to make an order under Section 49.
16. Sub-section (2) of Section 45 empowers the State Government suo motu or on an application to examine the proceedings under various provisions mentioned therein. Proviso to Section 45(2) stipulates that the powers therein can be exercised within three years. The State Legislature therefore thought the period of three years as reasonable and sufficient for taking suo motu action. Even though no such limitation is prescribed under Section 34 by necessary implication a reasonable period will have to be implied for taking such action.
17. It will be seen that both the enactments provide for distribution of surplus land which vests in the Government. Procedure is prescribed for distributing that land. Once such distribution is made and valid legal rights are created in the allottees, it would be improper and illegal to divest them of those rights by taking suo motu revision under Section 34 at any point of time. Under the Urban Land Ceiling Act, we are dealing with urban land. The purpose of acquiring land is to provide the same for creating residential accommodation. Scheme can be made under the Act for housing for which exemption under Section 20 is also available. The whole purpose of the Act being making the provisions of Urban Land for creating accommodation to hold that the revisional powers can be exercised at any point of time would be defeating the very purpose for which the Act is enacted. To illustrate we will assume that declaration of surplus under Section 10 has taken place in January 1995. Possession is taken in 1996 and distribution is completed in 1998. The land is allotted to a co-operative housing society and by 2000 co-operative housing society erected 10 tenements in that land in which 100 families are housing. In 2002 i.e. 7 years after the declaration has taken place if the State Government is to exercise the revisional powers in such situation, it would be divest those 100 tenements holders, it will be affecting co-operative societies and that would be caused without there being any fault on the part of either of the society or of tenement holders. Such harsh consequence of the Legislation are not contemplated. In any event therefore the revisional power under Section 34 cannot be exercised in cases where after valid determination of surplus declaration proceeding and after vesting of the land in the State and consequent allotment thereof in accordance with the law, the powers of revision cannot be exercised whatever be the period of limitation. In the present case the land also vested in the petitioner before the proceedings were taken up and consequently the power under Section 34 could not be exercised after 17 years of declaration. Viewed from any corner therefore the exercise of power by Minister under Section 34 is unsustainable in law, and is therefore liable to be quashed.
18. We make it clear that none of the other contentions raised before us by the petitioners are dealt with by us as we are allowing the petition in the first submission regarding total lack of jurisdiction for respondent No. 9. We are also not dealing with the allegations of mala fides and the order being liable to be quashed on the ground of mala fides also, as in our opinion these two incidentsneed not be gone into in view that we have taken with the scope of Section 34 ofthe Ceiling Act.
19. In the result, therefore, the petition succeeds and allowed.
Rule made absolute in terms of prayers (a) and (b).
Parties to act on the authenticated copy of this order.