Bombay High Court High Court

Rajaram Shivram Nirwan vs State Of Maharashtra on 23 July, 2009

Bombay High Court
Rajaram Shivram Nirwan vs State Of Maharashtra on 23 July, 2009
Bench: S.R. Dongaonkar
                                   1

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
                      NAGPUR BENCH: NAGPUR




                                                                           
                   WRIT PETITION NO. 3482 OF 1997
    PETITIONER:        Rajaram Shivram Nirwan, aged 67 years,




                                                   
                       occupation : business, resident of Bhandara,
                       Tahsil Bhandara, District : Bhandara

                             VERSUS




                                                  
    RESPONDENTS: 1] State of Maharashtra, through The
                        Secretary, Revenue & Forest Department,
                        Mantralaya, Mumbai 32




                                      
                        2] The Additional Commissioner, Nagpur
                        Division, Nagpur
                        
                        3] The Additional Collector, Bhandara
    ===============================================
    Shri V.G.Wankhede, Advocate for the petitioner
                       
    Shri P.D.Kothari, A.G.P. for respondents.
    ===============================================
    CORAM: S.R. DONGAONKAR, J.

DATE: 23.7.2009

ORAL JUDGMENT
By this petition, under articles 226 and 227 of the Constitution

of India, petitioner is challenging the order passed by the Additional

Commissioner, Nagpur Division, Nagpur in Appeal No.

NAP-36/Pinglai -/95-96, an appeal under section 247 of the

Maharashtra Land Revenue Code, 1966.

2] Facts which are necessary for the disposal of this petition can

be briefly stated thus. The petitioner is resident of Bhandara, having

::: Downloaded on – 09/06/2013 14:49:25 :::
2

land bearing Khasara No. 198/1 and 198/3 admeasuring 4 acres,

P.H.No.54, Mouja Village Pinglai and District : Bhandara. As the

petitioner wanted to start Brass Industries on that land. He moved

the office of the S.D.O. for grant of permission for non-agricultural

Use. The case was registered and the S.D.O. had passed certain

order. Accordingly the certificate to permit use of the land for non-

agricultural purpose was also issued. Later on the matter was

reopened on the query of the Audit Party as regards the non-

agricultural assessment of this land. The Sub Divisional Officer,

Bhandara then in Revenue Case No. 6/NAP-36/87-88 of Pinglai

passed order directing the petitioner to pay a sum of Rs.38,516/- as

calculated in the said order. The order was then challenged by the

petitioner before the Additional Collector, Bhandara. The Additional

Collector found that the appeal was barred by limitation and as such

he rejected the appeal.

3] The matter was then taken up by the petitioner before the

Additional Commissioner, Nagpur. The Additional Commissioner,

considered the matter on merits and passed the impugned order on

28.8.1997.

::: Downloaded on – 09/06/2013 14:49:25 :::
3

4] The learned counsel for the petitioner relying on judgment

reported in 2004(1) Mh.l.J. 951 – Shobha wd/o Prakash Deshmukh

& others ..vs.. State of Maharashtra, contended that once the non

agricultural assessment was fixed, it could not be revised for 30 years

in view of the provision of the M.P. Land Revenue Code and as such

initial order of S.D.O. Bhandara, through which these appeals arose

was incorrect. According to learned counsel, the appeal should have

been decided by the Additional Collector on merits. But he has

wrongly applied the law of limitation to reject this appeal. His further

contention is that the Additional Commissioner, should not have

decided the matter on merits as the merits of the matter were not

considered by the Additional Collector , Bhandara. Therefore,

according to him, at the most the matter could have been remanded

by the learned Additional Commissioner, instead of deciding the

same on merit.

5] Learned A.G.P. has however, supported the order of the

learned Additional Commissioner. According to him, there was no

revision of non agricultural assessment. Only because of the

::: Downloaded on – 09/06/2013 14:49:25 :::
4

Auditor’s query some mistakes were directed to be rectified.

according to him, Additional Commissioner has rightly considered

the matter on merits instead of remanding the same and his order is

final.

6] I have given anxious consideration to the above submissions of

the parties.

7]

It appears from the order passed by the S.D.O. , Bhandara that

the matter was reopened because of the query raised by the Audit

Party. Some mistakes were noticed and therefore, the matter was

rejected. On perusal of his order, it clearly appears that it was not a

case of revision of the assessment, but it was a case of correction in

the levy of the assessment. Therefore, the contention of the learned

counsel for the petitioner that the non agricultural assessment can not

be revised for 30 years, does not hold water.

8] Turning to the submission that the Additional Commissioner

should have remanded the matter back for fresh consideration to the

Additional Collector, I am inclined to accept this submission,

::: Downloaded on – 09/06/2013 14:49:25 :::
5

inasmuch as the Additional Commissioner seems to have considered

all the contentions raised by the learned counsel for the appellant in

the appeal.

9] The possible contention to be raised by the petitioner are

considered by him and rightly.

10] In these circumstances, I do not find that there is any case

made out for interference with the impugned order in the extra-

ordinary writ jurisdiction of this court under articles 226 & 227 of

the Constitution of India. As such the petition is dismissed. No order

as to costs.

JUDGE

smp.

::: Downloaded on – 09/06/2013 14:49:25 :::