KASHINATH DAMODAR KAD Vs. STATE OF MAHARASHTRA
HIGH COURT OF BOMBAY
KASHINATH DAMODAR KAD
STATE OF MAHARASHTRA
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G.N.VAIDYA, J. -
(1.) This petition under Article 227 of the Constitution of India is directed against an order of the Additional Commissioner, Poona Division, Poona, dated June 21, 1968, under section 45(2) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, hereinafter referred to as the "Ceiling Act", and involves facts which are somewhat similar to the facts in Special Civil Application No. 2536 of 1968, decided by us on January 24, 1972.
(2.) By an order dated August 13, 1965, the Special Deputy Collector, Land Ceilings, Shrirampur, made a declaration under section 21 of the Ceilings Act, after verification of the return furnished by the petitioner under section 12 of the Act that no land was held by him in excess of ceiling area and that the petitioners sons Parshuram and Jagannath should be excluded from the family for purposes of calculating the ceiling area of the petitioner, because the hold lands in Poona District separately in their names since the year 1967. The case was taken up in revision under section 45(2) by the Office of the Commissioner and after issuing a show cause notice to the petitioner the impugned order was passed on the ground that the lands measuring 45 acres 25 gunthas situate in Malsiras, Taluka Purandar, District Poona, standing in the name of Jagannath and Parashuram since the date of the mutation Entry No. 2330 dated November 16, 1957 and the lands measuring 32 acres and 22 gunthas situate at Nayagaon, Taluka Purandar, District Poona, under mutation Entry No. 1851 dated January 27, 1958, had to be added to the lands held by the petitioner as the said Jagannath and Parshuam were members of the joint family of the petitioner and the transfers by which the lands were entered by the said mutation entries in the name of Jagannath and Parshuram were invalid; and cultivation by the sons was cultivation by the family of the petitioner and his sons under section 2(9) of the Ceiling Act.
(3.) It is contended on behalf of the petitioner that the reasons given by the Additional Commissioner, Poona Division, for setting aside the order of the Special Deputy Collector were illegal inasmuch as the proviso to section 6 of the Ceiling Act lays down :
"Provided that for purpose of increasing the holding of a family in excess of the ceiling area as aforesaid, if any member thereof holds any land separately he shall not be regarded as a member of that family for such purpose." It has been already laid down us in the aforesaid Special Civil Application No. 2526 of 1968 that section 2(9) is of no relevance in deciding that is the holding of the family under section 12 and section 2(14) of the Ceiling Act. Similarly, the reasons given by the Additional Commissioner, that because Nathu, who was the uncle of Jagannath and Parashuram, had sons, he had no power to transfer the property without the consent of his sons for the reasons shown in the mutation entry for transferring the lands as under partition; and that such as a partition between Nathu and his nephew could not be valid as the petitioner was not a party to it, are incur opinion, baseless. These reasons have no basis on the record and in relevance as holding of Parashuram and Jagannath, as defined under section 2(14) of the Ceiling Act had to be considered.;
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