Bombay High Court
Indubai Chhagan Waghmare vs The State Of Maharashtra And Others on 20 August, 2024
2024:BHC-AUG:18658 (1) wp-13989-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.13989 OF 2019
Sau. Indubai W/o Chhagan Waghmare
Age:-60 years, Occu:-Agriculturist
R/o Mouje Kalsambar, Tq. & Dist. Beed ..Petitioner
Versus
1. The State of Maharashtra
Through the Secretary
Revenue and Forest Department,
Mantralaya, Mumbai-32
2. The Hon'ble State Minister
Revenue Department, Maharashtra State
Mantralaya, Mumbai-32
3. The Deputy Director of Land Record
Aurangabad
4. The District Superintendent of Land Record,
Beed
5. Ramhari S/o Dhondiba Karande
Age:-60 years, Occu:-Agriculturist
R/o Mouje Kalsambar, Tq. & Dist. Beed
6. Prabhavati W/o Ramhari Karande
Age:-50 years, Occu:-Agriculturist
R/o Mouje Kalsambar, Tq. & Dist. Beed ..Respondents
....
Mr. H. V. Tungar, Advocate for Petitioner.
Mr. S. B. Jadhav, AGP for Respondent Nos.1 to 4.
Mr. M. K. Bhosle, Advocate for Respondent Nos.5 and 6 (through
V.C.).
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 20th AUGUST 2024.
JUDGMENT:
-
1. Rule. Rule made returnable forthwith. By the consent of the
parties, matter is taken up for final hearing at the stage of
admission.
2. The petitioner impugns order dated 26.08.2019 passed by the
Hon'ble State Minister (Revenue) in File No.vfiy&2018@iz-dz-
(2) wp-13989-2019.odt
411@t&7v and seeks restoration of order dated 12.01.2017 passed
by District Superintendent of Land Record, Beed in File No.dkWu@,l-
vkj@960@2015.
3. Heard Mr. Tungar, learned Advocate appearing for the
petitioner and Mr. Bhosle, learned Advocate appearing for
respondent nos.5 and 6.
4. Mr. Tungar, learned Advocate appearing for petitioner
submits that respondent nos.5 and 6 instituted proceeding before
Settlement Commissioner seeking correction in record of blocks in
resepct of Gat No.382, which are carved out of Survey No.166A-1
situated at Mauje Kalsambar, Dist. Beed. The land Survey
No.166A-1 was re-numbered as Gut No.100/1 in Consolidation
Scheme implemented during the period from 1900-91 at village
Kalsambar. In pursuance of the proceeding initiated by respondent
nos.5 and 6, respondent no.4 had issued Corrigendum under
Section 31-A of the Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, 1947, thereby reducing area from
ownership of the petitioner. The petitioner assailed the order of
District Superintendent of Land Record before the Hon'ble
Minister. The Hon'ble Minister was pleased to direct parties to
appear before Deputy Director of Land Record, Aurangabad for
decision on merit, who was pleased to further remand the case to
the District Superintendent of Land Record, Beed. The District
Superintendent of Land Record directed to carry correction as per
Anewari and area available as per Falni Bara measurement. The
said order was challenged by respondent nos.5 and 6 before the
Hon'ble Minister, who pleased to allow the Appeal by setting aside
order and remanded matter back to respondent no.4 for re-
consideration.
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5. Mr. Tungar would submit that from the reasoning adopted by
the Hon'ble Minister, it is difficult to find out purpose of remand.
He submits that casual remand of the matter is not permissible.
The analogy under Order 41 Rule 23 of the Civil Procedure Code
needs to be applied and reasons are required to be recorded. Even
while remanding matter back to any Authority, specific points for
consideration ought to have been indicated so that concerned
Authority shall take further steps in compliance with the directions
under remand. Mr. Tungar would further submit that entire
material was available before Hon'ble Minister, who could have
independently taken decision. He would point out from reasoning
part that is simply suggests third party rights are created and
those are ignored by respondent no.4. However, no particulars of
such rights or prejudices to any party are specified. To buttress his
submissions he relies upon the judgment of this Court in case of
Gangaram s/o Rajaram Ingole Vs. Malkarjun s/o.
Gangadhar Hundekar and Ors1 and judgment in case of
Machindra Chandrabhan Dange Vs. Siddhi Cnc Private
Limited2.
6. Per contra, Mr. Bhosle, learned Advocate appearing for
respondent nos.5 and 6 submits that remand order would not
prejudice rights of the parties, but they would get opportunity to
put up their stand and respondent no.4 would be in a position to re-
examine the matter in depth. He would, therefore, urge not to
interfere in the impugned order.
7. Having considered submissions advanced and after perusal of
the impugned order passed by the Hon'ble Minister, it can be
observed that matter is remanded back only on the ground that
third party rights are created in the property and no stock of such
1 2011 (1) ALL MR 874.
2 2014 (5) Mh.L.J. 173.
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rights taken while passing order by respondent no.4. It is also
observed that possibility of emerging unnecessary disputes and
complication cannot be ruled out and matter is remanded back, so
as to maintain position of rights as it was existing at the time of
implementation of Consolidation Scheme. From aforesaid reasons
it is discernible that remand is not for particular purpose. No
specific points are framed for attention of respondent no.4. The
issue of third party rights would not arise in consolidation
proceeding, as it is a matter of record to be maintained as per
provisions of Consolidation Act. Already respondent no.4 has
caused measurement and detailed report of measurement is
available on record. The position at the time of implementation of
Consolidation Scheme can be noticed from such measurement
report, which has been referred to in the order dated 12.01.2017
passed by respondent no.4.
8. At this stage, reference can be given to the judgment of this
Court in case of Machindra Chandrabhan Dange (supra),
wherein giving reference to the earlier judgments in case of
Shivaji Karbhari Badak Vs. Indian Seamless Metal Tube
Ltd. [Writ Petition No.10396 of 2012] dated 21.2.2013 and
Balasaheb Bhanudas Bhosale Vs. Laxmi Saw Mill [Writ
Petition No.2747 of 2013] dated 8.10.2013, this Court observed
that remand cannot be passed in casual manner. If the Court is
not agreeing with the view taken by Lower Court, then it can pass
independent order. Similarly, in case of Gangaram s/o Rajaram
Ingole (supra) giving reference to the judgment of the Supreme
Court of India in case of Ashwinkumar K. Patel v/s Upendra J.
Patel and others3 this Court observed that merely because
reasoning of Lower Court in some aspect was wrong, remand shall
not be ordered, particularly when material is available before the
3 AIR 1999 SC 1125.
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Appellate Court and Appellate Court itself can decide the Appeal
one way of the other.
9. Applying aforesaid principles of law to the facts of the
present case, it is apparent that the order of remand is without
justifiable reasons. The Hon'ble Minister could have applied his
own mind and decided the proceedings on the basis of material,
which is already available on record. Consequently, writ petition
succeeds. Hence, the following order :
ORDER
a. Writ Petition is partly allowed.
b. The impugned order dated 26.08.2019 passed by the Hon'ble
State Minister (Revenue) in File No.vfiy&2018@iz-dz-411@t&7v is
hereby quashed and set aside.
c. The Hon'ble Minister is requested to decide Appeal on its
own merits on the basis of material already on record preferably
within a period of one (01) year from the date of this order.
d. Parties shall appear before the Hon'ble Minister on
02.09.2024.
e. Writ Petition is disposed of.
f. Rule is made absolute in above terms.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/August-2024
