Dismissed

Prabhakar Yashwant Mohale. v. Gangadhar Shankar Garde.and Others.

Bombay HC24 Jan 2013WP/1919/1989

Case brief

AI extract

What is this about?

Single judge bench disposed of a writ petition challenging a remand order of the Maharashtra Revenue Tribunal. The High Court upheld the Tribunal's exercise of jurisdiction, finding that the appellate authority failed to consider relevant documents regarding land holding and 'pot kharab' status, warranting remand for evidence.

What did the court decide?

Writ Petition dismissed. The matter was remanded to the trial court for consideration of actual holding and 'pot kharab' land status after affording opportunity to adduce evidence.

Prabhakar Yashwant Mohale. Vs Gangadhar… — Pension and Retirement Benefits | Bombay HC (2013)

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1 W.P. 1919.1989

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1919 OF 1989

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Prabhakar Yeshwant Mohole

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[ since deceased - Thr. L.Rs.] .... PETITIONERS

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V E R S U S

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Gangadhar Shankar Gorde

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[ since deceased - Thr. L.Rs.] .... RESPONDENTS

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Mr. P.S.Paranjape, Advocate for the Petitioner.

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Mr. S.T.Shelke, Advocate for Resp. Nos. 4 & 5.

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CORAM : S.V.GANGAPURWALA, J.

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DATE : 24/01/2013

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ORAL ORDER :

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The present Writ Petition is filed against the order of remand passed by the Maharashtra Revenue Tribunal, Pune [ For short, ' M.R.T. ' ] in the Revision filed by the present respondents.

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2 W.P. 1919.1989

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It appears that an enquiry U/s 32-G of the Bombay Tenancy and Agricultural Lands Act [ For short, ' B.T. & A.L. Act ' ] was initially commenced. There were various rounds of litigation and eventually the matter was referred for consideration of the holding of the tenant and for the consideration of the valuation of the suit lands. It was declared in the Appeal that the tenant was not the deemed purchaser as he held land more then the ceiling area. The M.R.T. remanded the matter back with certain observations in respect of the holdings of the tenant. The landlord has assailed the said order in the present Writ Petition.

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Mr. Paranjape, the learned counsel for the petitioner strenuously contends that the M.R.T. has over-stepped its jurisdiction while dealing with the Revision. The jurisdiction of the revisional authority is in a very narrow compass. According to the learned counsel, the revisional authority can not embark upon appreciation of facts. It is not a fact finding Court. According to the learned counsel, in the given facts of the case when twice the matter was remanded back, the M.R.T. could not have remitted back the matter for the same purpose. The Tribunal while exercising its revisional powers, was not entitled to appreciate the evidence and come to its own conclusion. The learned counsel relies on the Judgment of the Apex Court in the case of Maruti Bala, Raut V/s Dashrath Babu Wathare & Ors. - reported in AIR 1974

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3 W.P. 1919.1989

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Supreme Court - 2051 , the Judgment of the learned Single Judge of this Court in the case of Shamrao Maruti Patil & Anr. V/s Smt. Shantabai Dattatraya - reported in 1994 (4) Bom.C.R. - 432 , so also in the case of Abdul Rajtak Abdul Rehman Mulla V/s Ibrahim Yusuf Lambe - reported in 2006 (1) Mh.L.J. - 107 .

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According to the learned counsel, Section 5 of the B.T. & A.L. Act lays down the ceiling area of the lands. Except warkas land, all other lands held by a person has to be computed in the ceiling area. The learned counsel submits that the M.R.T. has committed an error in considering the " pot kharab " land out side the purview of the ceiling area. According to the learned counsel, there was no need for the M.R.T. to remit the matter back.

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Mr. S.T. Shelke, the learned counsel for respondent Nos. 4

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and 5 submits that " pot kharab " land has to be excluded from the ceiling area and for the said purpose the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Keshaorao Raojij V/s State of Maharashtra & Ors. - reported in 1969 Mh.L.J. - 165 .

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According to the learned counsel, the M.R.T. in its revisional jurisdiction can rectify the mistake committed by the subordinate authority. The learned counsel relies on the Judgment of the learned Single Judge of this

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4 W.P. 1919.1989

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Court in the case of Ananda Dattu Patil since deceased through his L.Rs.

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Nivrutti Ananda Patil & Ors. V/s Ramesh Anandrao Patil & Anr. reported in 2004 (5) Mh.L.J. - 622.

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According to the learned counsel, this Court even under Article 227 of the Constitution of India can not correct the errors of law. The learned counsel relies on the Judgment of the Apex Court in the case of Mohd. Yunus V/s Mohd. Mustaquim & Ors. - reported in AIR 1984 Supreme Court - 38 .

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With the assistance of the learned counsel, I have gone through the Judgments.

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The moot question to be decided by the authority while

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considering the enquiry U/s 32-G of the B.T. & A.L. Act is the holding of the tenant. The holding of the tenant is the " prima dona " consideration in respect of the enquiry which is initiated. The appellate authority had considered that the holding of deceased Shankar Gorde was more than 48

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Acres i.e. more than the ceiling area, as such could not have became deemed purchaser. The revisional authority, considering the 7/12 extract which is a document on record, had observed that the deceased Shankar Gorde was joint with his sons. The land S.No. 380/70 is admeasuring 5

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5 W.P. 1919.1989

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Acres 8 gunthas and the share of deceased Shankar Gorde was 1/4th i.e. 1 Acre 13 gunthas. But, the appellate authority considered 5 Acres 8 gunthas in the share of deceased Shankar. Thus, there was holding of 3 Acres 36 gunthas in the share of deceased Shankar. It was also observed by the revisional authority that about 5 Acres 2 gunthas is " pot kharab " land and the same will have to be excluded. All these facets were not considered by the appellate authority. What was the actual holding of deceased Shankar, would be the relevant aspect and for determination of the same, the evidence would be required. The same was lacking. Considering all the aforesaid conspectus of the matter, the M.R.T. had remanded the matter to the trial Court.

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For all the aforesaid reasons, I do not see any error committed by the M.R.T. in exercising its powers U/s 76 of the B.T. & A.L. Act and remitting the matter to the trial Court. The jurisdiction has been properly exercised in that regard. The facts which were not at all being considered by the appellate authority in spite of the documents on record, have been considered by the revisional authority.

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The trial Court where the matter is remitted, would consider the actual holding of deceased Shankar, so also as to whether " pot kharab " land should be included in the ceiling area or not.

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6 W.P. 1919.1989

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In light of the above, the Writ Petition is dismissed, however

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with no order as to costs. Rule discharged. No costs.

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The parties shall appear before the trial Court on 18/02/2013. The trial Court shall, after affording opportunity to the parties to adduce evidence, decide the proceedings as expeditiously as possible and preferably within six (6) months from the date of appearance of the parties. Record and proceedings be sent back immediately.

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[ S.V.GANGAPURWALA, J. ]

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KNP/W.P. 1919.1989

Prabhakar Yashwant Mohale. v. Gangadhar Shankar Garde.and Others.

Case brief

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Prabhakar Yashwant Mohale. v. Gangadhar Shankar Garde.and Others.

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