1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 6095 OF 2006 Mr.Narshinh Nana Patil & Ors. ...Petitioners Vs. Mr.Narayan Bhaskar Raut & Ors. ...Respondents Mr.A.Y.Sakhare , Sr. Counsel with Mr. G.S. Kulkarni i/b. Mr. Anilkumar Joshi Mr. Kakade, A.G.P for Respondents 1,5 to 10 Mrs.Neeta Karnik for Respondents 3 & 4 Mr.Nilesh Patil for Intervener CORAM: SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. DATED: 1ST FEBRUARY, 2008 P.C. 1. Petitioners have inter alia challenged the decision of the second respondent i.e. Bhrashtachar Nirmulan Samiti (Samiti for short) taken in its meeting dated 13th February 2006 in respect of the land bearing survey No.171 and 172 of village Asangaon, Tal: Dahanu. 2. We have heard learned Counsel for the petitioners. Learned Counsel for the petitioners contended that the Samiti has taken a decision that the Collector should initiate 2 action against the petitioners for taking over the land of third respondent in an improper manner. He pointed out that affidavit filed by Devidas Shivaji Kshirsagar, Resident Nayab Tahsildar, Dahanu, District: Thane in reply to the writ petition indicates that acting on the said report, the Additional Collector, Thane has passed order dated 4th May 2006 whereby the Additional Collector has directed that because of breach of conditions of tenure Government should take back the land. He submitted that this order could not have been challenged by the petitioners in this petition because they came to know about it only when affidavit was filed by the Tahasildar in this Court. Learned Counsel further submitted that the Additional Collector, Thane has passed this order without following the procedure laid down in Section 53 of the Maharashtra Land Revenue Code, 1966 (MLR Code,1966 for short). 3. Several contentions have been raised by learned Counsel for the petitioner on merits which were also replied to by learned Counsel Ms. Karnik, appearing for respondents 3 and 4. However, we do not wish to go into any of those contentions because we are of the considered opinion that Additional Collector should have followed procedure laid down under Section 53 of the M.L.R. Code, 1966. The Samiti's decisions are recommendary in nature and the 3 Additional Collector if he wants to take any action after receipt of the decision/report of the Samiti, must follow the procedure prescribed in M.L.R. Code, 1966. Principles of natural justice have not been followed. 4. We are aware that the Additional Collector's order is appealable under MLR Code, 1966. But it is pointed out to us that appeal lies before the Divisional Commissioner, Konkan Division. Divisional Commissioner, Konkan Division is a part of the Samiti which has submitted the report. He is the Chairman of the Samiti. Therefore, in our opinion in the facts of this case remedy of appeal would not be a proper and ineffective remedy for the petitioners. 5. Since there is no dispute about the fact that the Additional Collector has passed order dated 4th May 2006, which is brought on record through the affidavit of the Nayab Tahasildar and since there is a clear breach of principles of natural justice as required procedure has not been followed by the Additional Collector, instead of driving the petitioners to file another petition or asking them to amend the present petition and prolong the litigation which will not be in the interest of either parties, we are of the opinion that in the interest of both sides and to comply with the principles of natural justice the said order should be set 4 aside only on the ground that there is a breach of principles of natural justice. 6. Hence the following order :- ORDER (i) Order dated 4th May 2006 passed by Additional Collector, Than is set aside. (ii) We direct Additional Collector, Thane to follow the procedure laid down in Section 53 of the Maharashtra Land Revenue Code, 1966. He shall give notice to all concerned and take appropriate decision and communicate the same to the parties. He shall complete the entire exercise within a period of 3 months from the date of receipt of this order. (iii) All contentions of parties are kept open. (iv) We may note that the learned A.G.P contended that the possession of the land has been taken over by the Government. We also record that Mr. Sakhre, learned Senior Counsel seriously disputes this fact and he states that the possession is with the petitioner. 5 (v) We also record that Mr.Nilesh Patil, appearing for the intervener says that the possession is with the intervener. We express no opinion on the contentions of the parties. (vi) Petition is disposed of in the aforestated terms. (SMT. ROSHAN DALVI, J.) (SMT.RANJANA DESAI, J.)