N.L. Abhyankar, J. - (1.) THIS petition under Article 227 of the Constitution raises an important question under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, that question being what land within the meaning of section 2(16) is liable to be excluded in determining the ceiling area and the surplus area in case of a landholder.
(2.) THE petitioner returned an area of 135 acres and 25 gunthas as land in his possession under section 12 of the Ceiling Act. The ceiling limit for this area is 84 acres. The Special Deputy Collector declared 51 acres and 25 gunthas as surplus liable to vest in the State. The petitioner disputes this finding and claims that as much as 8 acres, 29 gunthas are liable to be excluded altogether because that much area does not answer the description of land given in section 2 (16) of the Act. The break -up of this area is claimed as follows: 1. Survey No. 1/1 of Hirapur, area 7 acres, 36 gunthas, out of which 2 acres and 14 gunthas are claimed by the petitioner. 2. Survey No. 28 of Jalka, area 7 acres, 15 gunthas, out of which 3 acres, 15 gunthas are claimed by the petitioner. Survey No. 39/2 of Jalka, area 15 acres, 9 gunthas, out of which 3 acres are claimed by the petitioner. 3. During the enquiry before the Special Deputy Collector, the record -of -rights entries in respect of these fields, among others, and the crop statements for the year 1963 -64 in respect of these three fields were produced. Besides, Keshaorao entered the witness -box and examined Manikrao as well as Syed Habib and Rameshwar Tone who was the patwari. Keshaorao stated that out of the total area of 135 acres and (sic) gunthas in his possession, there are nalas and roads on account of which as area of 8 acres and 33 gunthas is uncultivated. The actual word used was (sic) i.e. fallow. He therefore claimed the exclusion of the whole of this area in determining the surplus. Manikrao, who is the owner of an adjacent land, stated that he had seen survey No. 28 and that out of this field only 5 a (sic) fit for cultivation and the rest is useless on account of a flowing nala, This nala was ten feet deep and 2 1/2 chains wide. One chain is equal to 33 feet. On account of this nala, no crop can be taken from the same. Similarly, he stated that 3 or 3 1/2 acres of land is uncultivated from survey No. 39/2 because where is a road to the east and south of the field. The width of this road is about 5 to 6 cubits. One road is called Wadura road and the other road is called Jungle road. He also stated that the nala in survey No. 28 also passed through this field causing it to lie fallow to the extent of 3 1/2 acres. As regards survey No. 1/1 of Hirapur, he stated that his survey No. 88/3 is adjacent to is and in this field survey No. 1/1 there is a Government road about one chain in length called Akola road. On account of this road, one -half acre of land in fallow and another 2 acres is fallow on account of the nala. During cross -examination he was asked only one question by the officer, to which the witness replied that it is not possible to grow grass in the nala though it may be grown on the sides.
(3.) SYED Habib who is a retired Assistant Superintendent of Land Records and an experienced revenue officer, stated that he had seen all the three fields because he was the Revenue Inspector at the time of settlement and thereafter worked as Assistant Superintendent of Land Records, and also as Superintendent of Land Records and Naib -Tahsildar for some time. He has supported the petitioner that 3 acres, 1 guntha out of survey No. 28, 3 acres, 8 gunthas out of survey No. 39 /2 and 2 acres, 21 gunthas out of survey No. 1 /1 were uncultivable due to nalas and roads. He also stated that it was not possible to grow crops in this much area. No crop can be grown even if an attempt were made. It appears that this witness was not asked any question in cross -examination.;