Kamlakar Ananda Patare And ... vs The Additional Commissioner ...
2017 Latest Caselaw 5411 Bom

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 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                     WRIT PETITION NO.5804 OF 2017

 1.       Kamlakar s/o Ananda Patare                          PETITIONERS
          Age - 45 years, Occ - Service
          R/o B.I.T. Chal, Building No. 3,
          Room No. 274, Majhgaon,
          Mumbai

 2.       Raghu s/o Vithoba Narsale,
          Age - 55 years, Occ - Agriculture
          R/o Gooregaon, Taluka - Parner,
          District - Ahmednagar

          VERSUS

 1.       The Additional Commissioner (Revenue)             RESPONDENTS
          Nashik Division, Nashik

 2.       The Additional Collector,
          Ahmednagar

 3.       The Sub - Divisional Officer,
          Parner, Ahmednagar

 4.       The Tahsildar, Parner,
          District - Ahmednagar

 5.       Sidharth Ambu Patare,
          Age - 45 years, Occ - Agriculture

 6.       Bhivsen Ambu Patare,
          Age - 43 years, Occ - Agriculture

 7.       Manisha Ananda Patare,
          Age - 40 years, Occ - Household

       All above R/o Goregaon,
       Taluka - Parnet, Nehru Nagar,
       Pimpri, Pune, 18
                               .......

Mr. Nitin V. Gaware, Advocate for the petitioner

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Mr. S. N. Kendre, AGP for respondent - State Mr. D. R. Jethliya, Advocate for respondents No. 5 to 7 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 2nd AUGUST, 2017 ORAL JUDGMENT:

1. Rule. Rule is made returnable forthwith and heard learned

advocates for the parties finally with consent.

2. There is no particular dispute in respect of factual position

that pursuant to sale deed executed in favour of present

petitioners, mutation entry bearing No. 2853 had been taken

around 2010 and the same had been subjected to litigation and

the last of the orders passed in revision by Additional

Commissioner is subject matter of present writ petition.

3. Mr. Gaware, learned advocate purports to point out that in

similar situation, as a matter of fact his contention is present

petition is a left out matter, writ petition No. 12743 of 2016 had

been allowed and the matter was remitted to revisional

authority.

4. Learned advocate submits that the petitioners have

purchased property on exclusive separation of properties taking

place among family members, under a compromise. The

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property had been purchased under a registered deed of sale.

Pursuant to sale deed, authority of first instance, Tahsildar, had

approved mutation entry under his orders, whereas, in appeal

therefrom before Sub Divisional Officer, at the instance of

respondents, the same purportedly had been set that aside,

primarily for some civil litigations were pending and he had

directed to enter petitioners' names in other rights column rather

than in ownership. As such, the petitioners had been in appeal

before Additional Collector. Additional Collector had allowed the

appeal directing reinstatement of petitioners' names in

ownership column. That order of Additional Collector had been

subject matter of challenge before Revisional Authority. Learned

advocate submits that revisional authority has decided the

matter rather cursorily without letting the petitioners to have a

proper opportunity to deal with the matter. He further purports

to point out that Maharashtra Prevention of Fragmentation and

Consolidation of Holdings Act, which had weighed with the

authority, no particular material in respect of the same can be

said to have been made available, except submissions on behalf

of the respondents. He, therefore, urges to treat present writ

petition similarly as circumstances have been treated in writ

petition No. 12743 of 2016.

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5. Learned advocate Mr. Jethliya appearing on behalf of the

respondents submits that the respondents have taken a specific

objection with regard to registration of sale deed, having regard

to position as would be emerging from provisions of the

Maharashtra Prevention of Fragmentation and Consolidation of

Holdings Act. The same may not have been ostensibly referred

to by two authorities namely, Sub Divisional Officer and the

Additional Collector, yet factual position is that transaction of

sale is affected by application of said enactment. In the

circumstances, order rendered by Sub Divisional Officer was

correct, also for different additional reasons in the same. The

appellate authority, however, unnecessarily got overwhelmed by

the aspect that deeds are registered and as such, under the

rules of Maharashtra Land Revenue Code, it had been incumbent

to record names of petitioners in ownership column. Revisional

authority, in the circumstances, according to learned advocate,

has rightly adjudged the matter and has passed the order

impugned in present writ petition.

6. Mr. Jethliya submits that Additional Commissioner, while

deciding the revision, has rightly taken into account respective

land areas from various land gut numbers and had appreciated

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the same to be constituting fragment, pursuant to the

Maharashtra Prevention of Fragmentation and Consolidation of

Holdings Act.

7. Perusal of the order, however, shows that besides the

reference to respective areas from respective land gut numbers,

it has not been made clear under impugned order what had been

fragment under the enactment for the area concerned or for that

matter any notification has been there in this respect.

8. Apart from aforesaid, reasons which have been appearing

in the order dated 31st January, 2017 in writ petition No. 12843

of 2016, refer to that judgment of the Commissioner fells short

of consideration of litigations referred to in paragraph No. 8 of

said order in writ petition. In said writ petition, the court also

further appears to have considered that it had been necessary

for the Additional Commissioner to apply mind to the material

aspects involved in the case. The court, under the

circumstances, had deemed it appropriate to remit the matter to

the revisional authority for reconsideration afresh of the matter

in accordance with law by giving opportunity to contesting

parties and to decide the same expeditiously.

9. Taking overall view of the matter, facts and circumstances

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of the case in present matter as well would call for a similar

treatment as has been given to the matter in writ petition No.

12743 of 2016.

10. As such, writ petition succeeds partly. Impugned order

dated 21st October, 2016 passed by Additional Commissioner,

Nashik Division, Nashik in RTS Revision No. 422 of 2011 stands

set aside. RTS Revision No. 422 of 2011 is restored to its

position as had been subsisting before impugned decision has

taken place. Revisional Authority to proceed with the matter as

expeditiously as possible, giving opportunity to contesting

parties and dispose of the same preferably within a period of

three months from the date of appearance of the parties. Parties

to appear before revisional authority on 21 st August, 2017. Rule

is made absolute in aforesaid terms.

11. It is further made clear that observations made

hereinbefore in this order are for the purpose of decision in writ

petition and have efficacy no further. Revisional authority shall

decide the matter on its own merits without getting bogged

down by observations made in this order.

[SUNIL P. DESHMUKH, J.] drp/wp5804-17