1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR M.C.A. NO.598/2011 IN WRIT PETITION NO.2981/1994(D) MRS KUSUMBEN BIPINBHAI PATEL AND TWO OTHERS ..VS.. STATE OF MAH AND ANOTHER. __________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. Shri S.P. Bhandarkar, advocate for applicants. CORAM : B.P.DHARMADHIKARI & A.B. CHAUDHARI, JJ. NOVEMBER 08, 2011. Heard. Vide order dated 16.11.2010, constitutional validity of Section 36-A has been upheld. In latter paragraph this court has found that even on merits there was no substance in the challenge. Shri Bhandarkar invites attention to opening part of the said order to show that counsel for petitioner was not available. He states that writ petition was filed because constitutional challenge was raised and there was assertion that otherwise petitioner had an alternate remedy. He states that even in paragraph 3 of said order, while rejecting the contention on merit no reasons are recorded and absence of reasons therefore, is sufficient to vitiate the entire order. Reliance is being placed upon judgment reported at AIR 1985 SC 389 – Paragraph 29 [Lingappa Pochanna Appealwar ..vs.. 2 State of Maharashtra and another. Learned counsel states that, the issue as to the constitutional validity was answered against petitioner. The alternate remedy was available and hence petitioner should have been permitted to take recourse to it and dismissal of petition on merit by unreasoned order is therefore, unsustainable. We have also attempted to find out what is the challenge raised on merits. Learned counsel has stated that the land was already put to non agricultural use on 5.9.1990 and the petitioner (applicant) purchased land on 10.12.1990. While explaining relevance of these events, it is contended that as land had already ceased to be an agricultural land, the State Government was not competent to enact any law and Section 36-A therefore, cannot be construed to hold that said non agricultural land is also covered thereunder. Our attention is invited to Schedule Seven List III Entry No.6 of the Constitution of India for said purpose along with List II Entry no.18. The contention of learned counsel on merit, if accepted, again shows that it has bearing on validity of section 36-A of the Maharashtra Land Revenue Code. In paragraph 2, Division Bench has upheld constitutional validity and that question is not even agitated before us in this review. Because of observations in paragraph 2, Division Bench has found no substance even in challenge which has been narrated before us. The Division Bench, therefore, has recorded that on facts reasonable and possible view has been taken which required no interference. The interference is possible only if section 36- 3 A(1) is required to be construed in a mode and manner as argued by Advocate Bhandarkar. Perusal of Section 36(A)(1) does not show any such distinction between agricultural land or non agricultural land held by a tribal. In view of this, we also find no substance in the contention that the Division Bench has recorded no reasons while rejecting challenge on merits. Availability of alternate remedy is not absolute bar and here as constitutionality was questioned, Division Bench was required to look into petition on merits. Review application is therefore rejected. No costs. JUDGE JUDGE smp