LPA No. 172/2011 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 172 OF 2011 IN WRIT PETITION NO. 5874 OF 2010 Baban s/o. Maruti Damare, Age 70 yrs., Occu. Agri. Through GPA Ganpat s/o. Sopan Londhe, Age 52 yrs., Occu. Agri., R/o. Bhambora, Tq. Karjat, District Ahmednagar. ....Appellant. Versus 1. Dattatraya s/o. Rambhau Pawar, Age 65 yrs., Occu. Agri., R/o. Jalalpur, Tq. Karjat, Dist. Ahmednagar. 2. Jijabai w/o. Tukaram Kasare, Died Through her L.Rs. 2-a) Tukaram Baburao Kasare, Age 65 yrs., Occu. Agri., R/o. Jalalpur, Tq. Karjat, Dist. Ahmednagar. 2-b) Dattatraya Tukaram Kasare, Age 34 yrs., Occu. Agri., R/o. As above. 2-c) Smt. Hausabai Jagannath Kadam, Age 40 yrs., Occu. Agri., R/o. Baradgaon, Tq. Karjat, Dist. Ahmednagar. 2-d) Smt. Kantabai Pralhad Bobade, Age 38 yrs., Occu. Agri., R/o. Pimpri Kolandar, Tq. Karjat, Dist. Ahmednagar. LPA No. 172/2011 2 2-e) Smt. Suman Shivaji Adhav, Age 36 yrs., Occu. Household,' R/o. Koregaon, Tq. Shrigonda, Dist. Ahmednagar. 2-f) Smt. Nanda Rohidas Jagdale, Age 37 yrs., Occu. Household, R/o. Rui Chattisi, Tq. & Dist. Ahmednagar. 2-g) Smt. Alka Dilip Pawar, Age 36 yrs., Occu. Household, R/o. Ghugalwadgaon, Tq. Shrigonda, Dist. Ahmednagar. 3. The Divisional Commissioner, Nashik Division, Nashik. 4. The Additional Collector, Ahmednagar, Dist. Ahmednagar. ....Respondents. Mr. A.K. Tiwari h/f. Mr. S.S. Kotkar, Advocate for appellant. Mr. P.B. Rakhunde h/f. Mr. S.B. Bhapkar, Advocate for respondent No. 1. Mr. V.S. Bedre, Advocate for respondent Nos. 2 (a) to 2 (g). Mr. K.J. Ghute-Patil, A.G.P. for respondent Nos. 3 & 4. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on : 28th September, 2011. Pronounced on : 4th October, 2011. JUDGMENT : [ PER T. V. NALAWADE, J. ] 1. Heard both the side. LPA No. 172/2011 3 2. Rule. Rule made returnable forthwith and the matter is taken up for final hearing by consent of parties. 3. The appeal is filed to challenge the order passed in Writ Petition No. 5874/2010, dated 14th February 2011 by the learned Single Judge of this Court. The Writ Petition is partly allowed by the learned Single Judge and the order of Commissioner/respondent No. 3 dated 12.3.2010 is set aside. 4. There is a dispute over the transaction of exchange of lands made by the appellant with respondent No. 1. The land involved in the dispute was originally owned by respondent No. 2 and it came to be declared as surplus land in view of Maharashtra Agricultural Land (Celling and Holding) Act, 1961. The appellant being a landless person, was allotted the disputed land. For the exchange of this land with respondent No. 1, permission of the office of Collector was obtained. 5. The respondent No. 2, the original owner, challenged the order of Collector by filing proceeding before the Commissioner. The Commissioner allowed the appeal and set aside the order made by the office of Collector. The Commissioner has declared that the original possession, after the allotment of LPA No. 172/2011 4 land to the present appellant, needs to be maintained. 6. The learned Single Judge of this Court has set aside the order of Commissioner by observing that present respondent No. 2, the original owner has no locus standi to challenge the permission granted by the Collector and the land cannot revert back to the present respondent No. 2. The order shows that it is observed that the present appellant was served with the notice of the proceeding, but he did not appear and so in his absence, the petition came to be decided. 7. It was mainly submitted for the present appellant that no notice for final disposal of the matter [Writ Petition No. 5874/2010] was issued to the appellant and so the order of the learned Single Judge needs to be set aside. It was submitted that due to the order made by the Commissioner, the permission granted by the Collector was cancelled and so the appellant got the right to get back the disputed land. It was submitted that in view of these circumstances, it was necessary to presume that the appellant is interested party and notice of final disposal of Writ Petition was necessary. 8. The order made by the learned Single Judge shows LPA No. 172/2011 5 that the Writ Petition was not admitted. In view of Chapter XVII, Rule 5 of Bombay High Court Appellate Side Rules, 1960, it is necessary to make the rule granted, returnable within a period, which shall not be less than fourteen days, after the service thereof, on the opponent. Rule 8 also shows that when the rule is granted, it needs to be served on the opponent in the manner prescribed in Order V, Civil Procedure Code, 1908 and for that the procedure for service of summons upon the defendant needs to be followed. Admittedly, such procedure was not followed. 9. It is noticed from the record that the learned Single Judge did not issue notice for final disposal at admission stage. Therefore, the objection raised by the appellant that notice for final disposal was not issued is required to be upheld. 10. In view of the aforesaid circumstances, this Court holds that the order made by the learned Single Judge of this Court needs to be set aside. So the appeal is allowed and the order made by the learned Single Judge is set aside and the matter is remanded back to the learned Single Judge for fresh hearing. LPA No. 172/2011 6 10. The rule is made absolute in aforesaid terms. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/