Indira Chhabilal Jadhav vs The State Of Maharashtra And ...
2017 Latest Caselaw 4073 Bom

                                     1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                      WRIT PETITION NO. 1662 OF 2014

     Indira Chhabilal Jadhav, 
     Age. 44 yrs., Occ. Household,
     R/o. Rameshwar Tanda, Tq. Amalner, 
     Dist. Jalgaon,
     At present 'Drongiri' 210, Lokgram, 
     Kalyan (East), Tq. Kalyan,
     Dist. Thane.                                            ...Petitioner.

          Versus

 1.  The State of Maharashtra.

 2.  The Deputy Director, 
      Land Record Nashik Region,
      Nashik.                                           ...Respondents.

      Advocate for Petitioner : Shri V.B. Patil.
      AGP for Respondent Nos. 1 & 2 : Shri S.P. Deshmukh.



                                      CORAM : RAVINDRA V. GHUGE, J.

                                      Dated    : 05th July, 2017

 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by

the consent of the parties.

2. The petitioner is aggrieved by the order dated

25/06/2013, passed by respondent No. 2, by which, the said

authority has declined to consider the appeal preferred by the

petitioner under Section 247 of the Maharashtra Land Revenue

Code.

3. I have considered the submissions of Shri Patil on behalf

of the petitioner and the learned AGP on behalf of the

respondents.

4. A peculiar situation is put forth by this petition. The

petitioner claims to have purchased a portion of land bearing

gut No. 65/2-B/1 on 03/07/2007. Measurement of the land

indicated encroachment up to 19 Ares. The petitioner preferred

R.C.S. No. 47/2007, which has been dismissed by the Trial

Court. He then preferred a Regular Civil Appeal, which was also

dismissed by the Appeal Court. His Second Appeal is now

pending before this Court.

5. In the meanwhile, an adjacent owner, by name Prakash

Ukha Vanjari, filed R.C.S. No. 71/2007, with regard to his land

bearing gut No. 65/2A/1B. The petitioner is not a party to the

said suit as there is no grievance by the said plaintiff against

the petitioner. An application Exhibit 22, was filed by Prakash

Ukha Vanjari for appointment of the Court Commissioner. Vide

order dated 08/07/2010, the Trial Court, while allowing the

application and appointing the S.L.R.O., Jalgaon, as a Court

Commissioner, directed the measurement of the land of this

petitioner as well as Prakash Ukha Vanjari. However, all earlier

reports of the T.I.L.R. were set aside, thereby leading to setting

aside the report of T.I.L.R. dated 16/04/2009 and 10/09/2009,

which indicated encroachment of 19 Ares in the land of the

petitioner. Prakash Ukha Vanjari thereafter, conveniently

withdrew R.C.S. No. 71/2007, after the report of the S.L.R.O.

Dated 28/10/2010, was submitted which indicated

encroachment of only 2 Ares in the land of the petitioner.

6. Aggrieved by the above, the petitioner approached

respondent No. 2 for considering the validity of the Court

Commissioner's report dated 28/10/2010. By the impugned

order, respondent No. 2 declined to entertain the appeal filed by

the petitioner on the ground that he can approach the same

Court which has passed the order in R.C.S. No. 71/2007.

Apparently respondent No. 2, has lost sight of the fact that the

said suit was withdrawn by said Prakash Ukha Vanjari on

21/01/2012.

7. It is settled law that a litigant who has suffered a legal

injury, cannot be rendered remediless. In the present case, the

petitioner can neither approach the Trial Court which has

disposed of R.C.S. No. 71/2007, nor is respondent No. 2 willing

to consider his appeal.

8. In the light of the above, this petition is partly allowed.

The impugned order dated 25/06/2013, is quashed set aside

and the appeal filed by the petitioner, bearing Outward No.

6993/2013, is restored to the file of respondent No. 2. The

petitioner shall appear before respondent No. 2 on 04/08/2017

at 3.00 p.m. and shall continue to participate in the proceedings

on such dates on which the matter would be posted. Needless

to state, respondent No. 2, shall consider the grievance of the

petitioner on it's own merits and the order dated 8/07/2010,

passed below exhibit 22 in R.C.S. No. 71/2007 shall not

influence respondent No. 2 and shall not be an impediment for

respondent No. 2 to decide the appeal of the petitioner.

9. Rule is made partly absolute in the above terms.

( RAVINDRA V. GHUGE, J. ) S.P.C.