wp8503-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8503 OF 2010 Dr.Arjun Sitaram Nittinwar ..Petitioner versus Ambika Prasad Kaushik & Ors ..Respondents Mr.A.A.Kumbhakoni, Sr.Adv with Mr.Yogesh Mehta for the petitioner. Mr.Y.S.Jahagirdar, Sr.Adv with Mr.Vishal Kanade with Mr.Sushant Chavan i/by Shiralkar & Co for respondent No.1. Mr.A.R.Pitale for respondent No.2. Mr.S.N.Bhosle, A.G.P for respondent Nos.2,3, 8 and 9. Mr.P.K.Dhakephalkar, Sr.Counsel with Mr.Rohan Cama and Mahesh Londhe i/by Sanjay Udeshi & Co for respondent Nos. 10 to 21. CORAM : S.C.DHARMADHIKARI, J. 6th July 2011. P.C.: . This writ petition is filed by the petitioner Dr. Arjun Sitramji Nitinwar. He challenges the order passed by the Minister of Revenue, Government of Maharashtra dated 3rd June 2010 in suo motu proceedings bearing No.S-30/2009/219 wp8503-10.doc 2 (Part 2)/L-9. These were proceedings to review the order dated 27th August 2009 passed by the Minister of Revenue, Government of Maharashtra. 2 When this petition was placed before me for admission, a preliminary objection has been raised by Mr.Dhakephalkar, learned senior counsel appearing on behalf of respondent Nos.10 to 21. He submits that the petitioner Dr. Arjun Nitinwar has no locus to file a petition to challenge the order dated 3rd June 2010. He submits that the proceedings that were commenced from the order dated 29th March 2007 have been at the instance of the respondent Nos.10 to 21. The petitioner Dr.Nitinwar acted as a power of attorney holder of respondent Nos.10 to 21. The order dated 29th March 2007 records this fact and the said order grants permission for sale of the tribal lands in favour of one Ambika Prasad Kaushik, who is respondent No.1 to this petition. The land has been sold for non-agricultural use. The permission seeking transfer has been granted on the terms and conditions stipulated therein. It is wp8503-10.doc 3 contended that the order passed on 29th March 2007 was challenged by way of an appeal before the Additional Commissioner, Konkan Division by respondent Nos.10 to 21 to this writ petition and even in the said proceeding, the present petitioner appeared as a power of attorney holder of the respondent Nos.10 to 21. His claim that he has an independent right in the tribal lands stands falsified because of the fact that the proceedings were never initiated by him in his own name. He may have obtained certain agreement from these tribals but throughout, he represented them as power of attorney holder. He did not claim any rights in the property. That is a fact which is apparent till the order of the Commissioner. It is clear that the Commissioner’s order was challenged once again purportedly by the respondent Nos.10 to 21 and the petitioner remained present as a power of attorney holder. Surprisingly, this order of the Minister dated 27th August 2009 grants a relief which was not sought by the present petitioner independently and in his own name but as a power of attorney holder. wp8503-10.doc 4 3 Mr.Dhakephalkar, learned senior counsel appearing on behalf of respondent Nos.10 to 21 submits that the order impugned in this writ petition passed on the review and dated 3rd June 2010 was challenged by way of a writ petition being Writ Petition No.4754 of 2010. In this writ petition, civil application was moved by respondent Nos.10 to 21 to the present writ petition seeking leave of the Court to withdraw the said writ petition. That writ petition was also filed by the present petitioner as a power of attorney holder and it is in that capacity that he objected to the withdrawal. For all these reasons, he submits that the petitioner has no locus to file and present this petition. More so, when his alleged and so called power of attorney is in dispute and the civil suit is filed by him, which is pending. 4 Mr.Dhakephalkar also contended that order dated 27th August 2009 was an order passed at hearing at which none remained present. The 1st respondent-Ambika Prasad Kaushik was the beneficiary of the order dated 29th March wp8503-10.doc 5 2007. He was successful before the Commissioner as well. Naturally, it was expected that being a contesting party he would be put to notice and since the permission was sought in his favour and granted as well, he would be heard as the most affected party. However, there was no notice to him and none remained present on his behalf. The order dated 27th August 2009 was passed at the behest of the present petitioner, as is clear from the operative recital No.3 and in such circumstances, the review was sought by the said Ambika Prasad Kaushik. He states that this order was passed behind his back and vitally affects his interest. Therefore, on 3rd June 2010 the same was recalled. There is nothing erroneous in the exercise undertaken by the State. For all these reasons, the writ petition be dismissed. 5 After having carefully perused the petition and its annexures including the orders dated 29th March 2007, 30th May 2009, 27th August 2009 and 3rd June 2010, so also order dated 5th August 2010 in Civil Application No.2060 of 2010 with wp8503-10.doc 6 Writ Petition No.4754 of 2010, I am satisfied that there is much substance in the preliminary objections of Mr.Dhakephalkar. The petitioner is yet to prove and establish his right independent to that of respondent Nos.10 to 21 before the authorities as their power of attorney holder. The proceedings could not be said to be substantive one and instituted by the present petitioner in his own right. From the perusal thereof, these are matters initiated by respondent Nos.10 to 21 for the benefit of Ambika Prasad Kaushik and others who are respondents to this writ petition. In such circumstances and when the order dated 3rd June 2010 was impugned by the respondent Nos.10 to 21 and they withdrew the writ petition unconditionally, it is not open for their power of attorney holder to present the fresh petition. The argument that he is not before the Court as power of attorney holder, but, in his own right cannot be accepted in this proceeding, inasmuch as there is a dispute in that behalf. The so called agreement has not been accepted by respondent Nos.10 to 21 and infact they argue that it is contrary to the mandate of section 36A of the wp8503-10.doc 7 Maharashtra Land Revenue Code, 1966. In such circumstances, these disputes cannot be made subject matter of the present proceedings and finding that the petitioner has no independent status other than that of a power of attorney holder for respondent Nos.10 to 21 and that is how the matters proceeded before the authorities, it is not possible to entertain the writ petition at the instance of the petitioner. On this short ground and upholding the objection of the contesting respondents to the locus of the present petitioner, the writ petition is dismissed. (S.C.DHARMADHIKARI, J)