Vinay Kumar S/O Madhukarrao ... vs Additional Commissioner, Nagpur ...
2017 Latest Caselaw 2064 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR


                          WRIT PETITION NO. 4592 OF 2009


            Vinay Kumar s/o Madhukarrao Sambare,
            aged about 29 years, R/o. Plot No.1
            Deotale Layout, Ambazari, Nagpur-10 ......               PETITIONER

                               ...VERSUS...

 1.         Additional Commissioner,
            Nagpur

 2.         Sub Divisional Officer,
            Ramtek, District Nagpur.

 3.         Deochand Kanai Demde,
            aged 36 years, R/o. Kandala,
            Tq. Parshioni, Distt. Nagpur.

 4.         Baban Kanhai Demde,
            aged 44 years, Occ. Service,
            R/o. Gosi Khurd Dharan Colony,
            Tah. Paoni, Bhandara.

 5.         Smt. Manabai wd/o Kanai Demde
            (Deleted)

 6.         Smt. Kasturabai Parasram Patil,
            aged 51 years, R/o. Rainagar,
            Kanhan, Tq. Parshioni, Distt. Nagpur.

 7.         Sunderbai w/o. Durjan Mahure,
            aged 48 years, R/o. Jawahar Nagar,
            Manewada Road, Nagpur.

 8.         Smt. Girjabai w/o Dayaram Chandele,
            R/o. Ashok Nagar, Kanhan,
            Tq. Parshioni, Distt. Nagpur.



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 9.       Vitthal Mahadeo Demde
          (through L.Rs)

 i.       Nandulal s/o Vithal Demade,
          aged about 50 years, Occ. Service,
          R/o. Koradi, Tq. Kamptee,
          Distt. Nagpur.

 ii.      Shankar s/o. Vitthal Demade,
          aged about 40 years, Occ. Agriculturist,
          R/o. Khandal (Dumari),
          Tq. Parseoni, Distt. Nagpur.

 iii.     Smt. Chindhi w/o Ramesh Akone,
          aged about 35 years, Occ. Household,
          R/o. Zenda Chowk, Saoner,
          Tq. Saoner, Distt. Nagpur.

 iv.      Anita Raju Daswar,
          aged about 35 years, Occ. Household,
          R/o. Zenda Chowk, Ward No.15,
          Saoner, Tq, Saoner, Distt. Nagpur....                      RESPONDENTS

 -------------------------------------------------------------------------------------------
 None for the parties.
 Shri K.R.Lule, AGP for Respondent nos. 1 and 2
 -------------------------------------------------------------------------------------------
                          CORAM: R. K. DESHPANDE, J.

th DATE : 27 APRIL, 2017 .

ORAL JUDGMENT

1] This petition challenges the order dated

28.02.2005 passed by the Sub Divisional Officer, cancelling

the sale deed dated 15.07.2003 said to have been executed

by the respondent No. 9 in favour of the petitioners. It is

cancelled on the ground that it is in respect of dry crop land

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and the standard area for fragment prescribed is of 2 acres of

land. Since the sale deed is in respect of 1 acre of land, it is

held to be hit by the provisions of Sections 7 and 8 of the

Maharashtra Prevention of Fragmentation and Consolidation

of Holdings Act.

2] The petition also challenges the order dated

30.03.2009 passed by the Additional Commissioner, Nagpur,

rejecting the appeal filed by the petitioner and confirming the

order passed by the Sub Divisional Officer.

3] From the orders impugned, it seems that the

petitioner had not filed any written statement or reply. The

contention in the petition is that the perusal of the sale deed

shows that adjacent dry crop land to which standard area of 2

acres is applicable and according to the petitioner, it is a

paddy land for which the standard area of 1 acres is

applicable and therefore, the authorities have committed an

error in setting aside the sale deed.

4] None appears for the parties except the learned

Assistant Government Pleader for respondent Nos.1 and 2.

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The order passed by the Sub Divisional Officer shows that

the sale deed dated 15.07.2003 in respect of sale of 0.40 HR

of land out of Survey No. 174/1 is cancelled. The contents

of the petition do not refer to any such sale deed. The sale

deeds placed on record do not indicate the date of

15.07.2003. There is no adjudication as to whether the land

in question is a dry crop land or an irrigated land, upon which

the determination of the applicability of the standard area is

to be made. The order passed by the appellate authority is

cryptic. It does not deal with all the aspects of the matter.

Even the order passed by the Sub Divisional Officer do not

refer to the sale deeds which are placed on record. In view

of this, both the orders impugned cannot be sustained. The

same will have to be set aside with an order of remand.

6] In the result, the order dated 30.03.2009 passed

by the Additional Commissioner, Nagpur, along with the order

dated 28.02.2005 passed by the Sub Divisional Officer, are

hereby quashed and set aside. The matter is remanded back

to the Sub Divisional Officer to decide the question afresh

after hearing all the parties concerned. The order should

specifically refer to the sale deed and determine the nature

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and character of the land with the standard area determined

for the said purpose.

Rule is made absolute in above terms. No orders as to

costs.

JUDGE

Rvjalit