Remanded

Shri. Krishnat Dnyanu Wapilkar and Ors. v. the Range Forest Officer

Bombay HC10 Jul 2009WP/4478/2009

Case brief

AI extract

What is this about?

This writ petition challenged a revision order dismissing an appeal regarding land mutation. The High Court found the entire appeal chain vitiated due to wrong party characterization and set aside all orders, remanding the matter for de-novo consideration.

What did the court decide?

All challenged orders set aside and the matter remanded to the Assistant Collector for de-novo consideration with proper party characterization within four months.

Shri. Krishnat Dnyanu Wapilkar and Ors. Vs the Range Forest… — Land Acquisition | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.4478 OF 2009

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Krishnat Dnyanu Wapilkar & ors

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..Petitioners

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 V/s.

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The Range Forest Officer & ors ..Respondents

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Mr.N.J.Patil, Advocate, for the petitioners
Mr.V.A.Sonpal, Assistant Government Pleader, for
the respondent Nos.1, 2 & 4 � State

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CORAM : R.M.SAVANT, J.

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DATE :10TH JULY, 2009

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P.C.

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1.Rule with the consent of the parties, made

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returnable forthwith and heard.

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2.This Writ Petition filed under Article 226
& 227 of the Constitution of India takes exception

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to the Order dated 16th February, 2009, passed by
the learned Additional Commissioner, Pune Division,
Pune, in RTS Revision Application No.752 of 2003.

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3.Such of the facts which are necessary to be
cited are stated thus :-

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The petitioners are the owners of the

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property being Gat No.10 Hissa Nos.A and B (Old
R.S.No.53) totally admeasuring 12 Hectares, 74 Ares
situated at village Senawade, Taluka Gaganbawada,
District Kolhapur. The said property, on coming

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into force of the Maharashtra Private Forest
(Acquisition) Act, 1975 acquired under the
provisions of the said Act. The Sub-Divisional
Officer concerned handed over the possession of the

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said property to the Forest Department. It appears
that the petitioners filed an application for
restoration under the provisions of the said Act.
By an Order dated 11th June, 1976, the Government

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restored about 3 Hectares and 34 Ares to the
possession of the petitioners and accordingly,
Diary Number 21 has been made and the said Diary

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Number 21 has been certified on 6th June, 1985.

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4.It appears that the Consolidation Scheme

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came to be implemented in the village Senawade,

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Taluka Gaganbawada, District Kolhapur wherein the

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land was situated, as a consequence of which the
remaining land was also restored to the
petitioners. It is the case of the petitioners

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that the entire property to the extent of 12

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Hectares 74 Ares was returned to the petitioners

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and according to the petitioners a Certificate
under Section 24(1) of the Consolidation Act, 1947

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has been registered in the office of Sub-Registrar,

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Karvir on 23rd February, 1988 and Index No.2 has

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also been issued in respect of the said land.

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Being aggrieved by the Mutation Entry and issuance
of the Index No.2 in favour of the petitioners,
respondent No.1 filed RTS Appeal No.77 of 2001
before the Assistant Collector, Radhanagari

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Division, Kolhapur. The respondent No.1 prayed for

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making entry in the name of the Forest Department

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in the Revenue record by setting aside the Orders

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passed in favour of the petitioners. The Assistant
Collector by Order dated 28th February, 2002, after

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hearing the parties allowed the appeal and directed
that the Mutation Entry No.21 be amended so as to

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include 3 Hectares, 3 Ares in the name of the

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petitioners and in respect of the rest of the land,
name of the Forest Department should be entered.
The petitioners aggrieved by the Order dated 28th
February, 2002 of the Assistant Collector preferred
RTS/IInd Appeal No.88 of 2002 before the Additional
Collector, Kolhapur. The Additional Collector,
Kolhapur by his Order dated 8th October, 2002,

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partly allowed the said appeal by setting aside the
Order dated 28th February, 2002 and remanded the
matter back to the Assistant Collector/Sub
Divisional Officer, Radhanagari Division, Kolhapur
for a fresh hearing.

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On remand, the said RTS Appeal No.77 of

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2001 which was filed by the respondent No.1 was

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renumbered as RTS Revision Appeal No.5 of 2003.

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However, the character of the parties was wrongly
shown. Though, the petitioners were the

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respondents in the First Appeal filed by the

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respondent No.1, they were wrongly shown as

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appellants and the respondent No.1 herein and other
officials were wrongly shown as the respondents to

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the said appeal. The said appeal came to be
dismissed for want of jurisdiction as according to
the Assistant Collector, considering the provisions

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of the Maharashtra Private Forest (Acquisition)

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Act, 1975, the Revenue Authorities under the Land
Revenue Code had no jurisdiction. Against the said

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Order dated 4th September, 2003, the petitioners

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herein filed RTS Second Appeal No.298 of 2003

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before the Additional Collector, Kolhapur which was
dismissed by the Additional Collector, Kolhapur by
his Order dated 16th October, 2003, as not tenable.

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The petitioners, thereafter, carried the matter by
way of revision being RTS Revision Application No.

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752 of 2003, before the Additional Commissioner,

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Pune. The said Revision Application came to be
dismissed by the Additional Commissioner, Pune by
Order dated 16th February, 2009. As indicated

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above, this is the Order which is impugned in the
present Writ Petition.

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5.As mentioned herein above, the character of

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the parties was shown wrongly by the Assistant

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Collector, on remand of the matter to him by the
Additional Collector though, the said First Appeal

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was filed by the Range Forest Officer, the

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petitioners were shown as the appellants and the
Range Forest Officer and the other officers were

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shown as the respondents. The said fact in my

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view, goes to the root of the matter as the said

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mistake has been continued right upto the
Additional Commissioner as ultimately, if the

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appeal was not found to be tenable, the same would

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be the First Appeal filed by the Range Forest

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Officer before the Assistant Collector and not the

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petitioners. In that view of the matter, since the

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proceedings before the various Authorities are
vitiated on the said ground, though the petitioner
has impugned only the Order dated 16th February,

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2009, since the said impugned Order is the

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successor Order to the Order passed in the First
Appeal filed by the respondent No.1. All the
Orders namely Order passed by the Assistant
Collector, Radhanagari Division, Kolhapur dated 4th
September, 2003, thereafter, the Order passed by
the Additional Collector, Kolhapur dated 16th

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October, 2003 and thereafter, the impugned Order
dated 16th February, 2009, passed by the Additional
Commissioner, Pune Division, Pune would have to be

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set aside and is accordingly set aside and the
matter remanded back to the Assistant Collector for
de-novo consideration of the First Appeal filed by

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the respondent No.1 being RTS Revision Appeal No.5
of 2003 by showing the parties in their proper
character namely the respondent No.1 and other
respondents as the appellants and the petitioners
as the respondents. While setting aside the Order

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and remanding the matter back this Court has not
expressed any opinion as regards tenability of the
said appeal filed by the respondent No.1. It is

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for the Assistant Collector to consider the said
appeal on its own merits and in accordance with
law. On remand, the said appeal to be decided by
the Assistant Collector within a period of four
months of the communication of this Order to him.
All the contentions of the parties are kept open.
Rule is accordingly made absolute in the aforesaid

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terms with parties to bear their respective costs.

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 ( R.M.SAVANT. J.)

Shri. Krishnat Dnyanu Wapilkar and Ors. v. the Range Forest Officer

Case brief

What is this about?

What did the court decide?

Shri. Krishnat Dnyanu Wapilkar and Ors. v. the Range Forest Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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