: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2570 OF 2007 WRIT PETITION NO.2570 OF 2007 WRIT PETITION NO.2570 OF 2007 1. Shri Vithoba Sahadu Vadhane, since deceased through L.R.’s .. Petitioners. Versus Shri Aba Prabhu Masalkar .. Respondent. Mr.P.B.Shah i/b.Mr.A.B.Avhad for the petitioners. Mr.A.V.Anturkar i/b.S.B.Deshmukh for respondent No.1. Mr.C.R.Sonawane, A.G.P. for respondent Nos.2 and 3. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & R.Y. GANOO, JJ. R.Y. GANOO, JJ. R.Y. GANOO, JJ. DATE : 26th June, 2008. DATE : 26th June, 2008. DATE : 26th June, 2008. P.C.: P.C.: P.C.: 1. This petition is not on board for final hearing. However, by consent of parties, we have heard the petition finally. 2. The petitioner by this petition is challenging the order passed under Section 48(1) of the Land Acquisition Act, 1894 by the Divisional Commissioner, Pune Division, Pune. By that order, the Commissioner has deleted a portion of the land acquired from the respondent No.1 from acquisition and has acquired some other portion from the holding of the respondent No.1. The order, admittedly, has been made under the provisions of the Section 48(1) of the Land Acquisition Act. There is serious debate whether : 2 : possession of the land that has been acquired was taken from the respondent No.1 before the land was allotted to the petitioner. However, we find that the order has been made under Section 48(1) of the Act but the Commissioner by that order not only deleted a piece of land from acquisition but he also acquired another piece of land. 3. Perusal of the provisions of Section 48(1) of the Act, prima-facie, shows that what can be done by an order made under that Section is that the Government can withdraw a piece of land from acquisition. It appears that in exercise of powers under Section 48(1) of the Act, some other land cannot be acquired. When this was pointed to the learned Counsel appearing for respondent No.1, the learned Counsel submitted that this question has not been considered by the Commissioner because it was not raised by the petitioner before the Commissioner. 4. In our opinion, however, as this is a matter of jurisdiction and power of the Commissioner, the Commissioner himself should have decided this point. The learned Counsel for respondent No.1 also submitted that though that power may not be available to the Commissioner under Section 48(1) of the Act, according to him, there are other statutory instruments by which such a power is : 3 : vested with the Commissioner. But he fairly stated that this aspect of the matter has not been enquired into by the Commissioner. 5. In our opinion, it would be in the interest of justice to direct the Commissioner to first enquire into his own jurisdiction and then make order that the respondent No.1 was seeking in his application. 6. In our opinion, therefore, following order would meet the ends of justice :- a) The order made by the Commissioner under Section 48(1) of the Act, impugned in this petition is set aside. b) The application filed by the respondent No.1 is remitted back to the Divisional Commissioner, Pune Division, Pune for de-novo consideration and decision in accordance with law. c) All the questions are kept open to be raised before the Commissioner and to be decided by the Commissioner, considering that the application was made long back and the order is : 4 : passed in the year 2006. 7. The Commissioner shall pass final order on the application of respondent No.1 as expeditiously as possible and in any case within a period of 4 months from the date on which writ of this order will be served on the Commissioner. 8. Rule is made absolute accordingly with no order as to costs. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)