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{1} wp542-16.16.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.542 OF 2016Narayan Gangadhar Yewale PETITIONERAge – 45 years, Occ – AgricultureR/o Chandegaon, Taluka – RahuriDistrict - AhmednagarVERSUS1,The Additional Commissioner RESPONDENTSNashik Division Nahik2.The Additional Collector,Taluka – Shrirapur, District – Ahmednagar3.Sub Divisional OfficerShrirampur, Taluka – ShrirampurDistrict – Ahmednagar4.Tahsildar ShrirampurTaluka – Shrirampur, District – Ahmednagar5.Circle Officer, Belapur,Taluka – Shrirampur, District – Ahmednagar6.The Talathi, Village ValadgaonTaluka – Shrirampur, District - Ahmednagar.......Mr. P. S. Dighe h/f Mr. V. R. Dhorde, Advocate for the PetitionerMrs. M. L. Sangit, AGP for Respondent - State ....… [CORAM : MANJUSHA DESHPANDE, J.] DATE : 8 th JANUARY, 2025 JUDGMENT :1.Rule. Rule made returnable forthwith. Writ Petition is takenup for final disposal with the consent of the learned Advocates {2} wp542-16.16.docfor the parties.2.Petitioner has challenged the legality and validity of orderspassed by Respondent No. 1 – Additional Commissioner, NashikDivision, Nashik dated 5th January, 2015 thereby dismissing RTSRevision No. 5 of 2013 for non prosecution and order rejectingMiscellaneous Application No. 16 of 2015 for setting aside theorder dated 5th January, 2015, dated 30th June, 2015 .3.Brief facts, giving rise to the present Writ Petition, are that,the Petitioner is an agriculturist having agricultural land at villageChandegaon, Taluka – Rahuri. In the month of May, 2010,petitioner received notice dated 4th May, 2010 issued byRespondent No.4 – Tahsildar stating that Petitioner along withone person has illegally excavated sand from Pravara riverbed atvillage Valadgaon and hence, imposing penalty of Rs.11,60,525/-on the Petitioner.4.Being aggrieved by the order passed by Respondent No. 4– Tahsildar imposing penalty on him, the Petitioner filed AppealNo. 180 of 2010 under section 247 of the Maharashtra LandRevenue Code, 1966 before Respondent No. 3 – Sub DivisionalOfficer, Shrirampur. The Sub Divisional Officer, Shrirampur, afterhearing the RTS Appeal No. 180 of 2010, confirmed the orderpassed by the Tahsildar, Shrirampur. Order dated 22nd March, {3} wp542-16.16.doc2012, passed by the Sub Divisional Officer, was challenged bythe Petitioner before Additional Collector, Ahmednagar in SecondAppeal No. 69 of 2012, which was dismissed by the AdditionalCollector, Ahmednagar, by order dated 20th December, 2012.Hence, the Petitioner filed RTS Revision No. 5 of 2013 on 4thFebruary, 2013, before Respondent No. 1 – AdditionalCommissioner, Nashik challenging order passed by the AdditionalCollector, on various grounds. Respondent No. 1 issued notice on3rd September, 2013 to the petitioner asking him to remainpresent for hearing on 29th November, 2013. Thereafter, nonotice of hearing was issued to the petitioner.5.It is the contention of the Petitioner that since thepetitioner was represented through Advocate, it was expectedthat the Advocate would take care of the matter. However, all ofa sudden, the RTS Revision filed by the Petitioner came to bedismissed by the Additional Commissioner, Nashik by orderdated 5th January, 2015, for non prosecution, holding that thepetitioner and the respondents have remained absent from timeto time and, therefore the RTS Revision is dismissed for want ofprosecution.6.Upon going through the impugned order dated 5th January,2015, it transpires that the Additional Commissioner, Nashik has {4} wp542-16.16.docobserved that the Petitioner as well as Respondents haveremained consistently absent from 2nd May, 2013, therefore, theAdditional Commissioner, Nashik has come to the conclusion thatboth the parties are not interested in working out the matter.Hence, the RTS Revision application has been dismissed for nonprosecution.7.On receipt of the order dated 5th January, 2015 throughpost, the petitioner immediately approached Respondent No.1,by filing application on 18th February, 2015, for restoration of theRTS Revision.8. On going through the application filed by the Petitioner forrestoration of the Revision, it discloses that the Petitioner hascategorically mentioned that the Petitioner, being anagriculturists, was busy in agricultural activities and hence hisabsence was neither deliberate nor intentional. The Petitionerhas also expressed his intention to proceed with the matter and,therefore, it was requested to restore the RTS Revision.9.It is the contention of the petitioner that though thePetitioner has filed application for restoration of RTS Revision,giving satisfactory reasons, without considering the reasonsstated in the application, the Additional Commissioner, Nashik bysubsequent order dated 30th June, 2015, has held that the RTS {5} wp542-16.16.docRevision was dismissed without any inquiry, in absence ofsatisfactory reason, it would not be appropriate to restore thematter. 10.Learned Advocate for the Petitioner submits that it is onaccount of negligence on the part of Advocate of the Petitioner,who failed to attend the hearing before the AdditionalCommissioner, Nashik the impugned order dated 5th January,2015 has been passed. It is further submitted that withoutconsidering the reasons given by the Petitioner in the applicationfiled under Order IX, Rule 4 of the Civil Procedure Code, theAdditional Commissioner, Nashik refused to interfere with orderdated 5th January, 2015, vide order dated 30th June, 2015.Learned Advocate for the Petitioner further submits that, in viewof the fact that the Revision Application has not been decided onmerits and considering the facts and circumstances of the case,both the orders passed by the Additional Commissioner, Nashikare required to be quashed and set aside, and in the interest ofjustice, the matter is required to be remanded back to theAdditional Commissioner, Nashik for hearing and final disposal ofthe RTS Revision, on merits.11.Learned AGP appearing for the Respondents – State hasopposed the prayers made by the Petitioner and submitted that {6} wp542-16.16.docin view of the consistent absence of the Petitioner, there isnothing wrong in the orders passed by the AdditionalCommissioner, Nashik. It is further submitted that thoughAdvocate engaged by the litigant is expected to attend thematter, however, the litigant is also expected to ensure that theAdvocate engaged by him is attending the dates of hearing fromtime to time. Hence, if at all this Court is of the opinion that thematter is required to be remanded back to the AdditionalCommissioner, Nashik cost is required to be imposed on thePetitioner.12.Having perused both the orders passed by the AdditionalCommissioner, Nashik as well as the application filed by thePetitioner, it is evident that, in the order dated 5th January, 2015itself, the reason given by the Additional Commissioner, Nashik isthat the Petitioner as well as the respondents have remainedabsent consistently. It is the contention of the Petitioner that,since the Petitioner was all along represented through Advocateengaged by him, the Petitioner was expecting the matter to beattended by the Advocate and the Advocate would take care ofthe proceedings. However, Advocate for the Petitioner has failedto attend the matter on the scheduled dates of hearing, as aresult, the proceedings have been dismissed for non prosecution. {7} wp542-16.16.doc13.After hearing the parties and on going through thedocuments produced on record as well as the impugned orders,it is clear that the impugned order dated 5th January, 2015 is acryptic order. The said order is passed only due to the absence ofthe parties for hearing. Though the Additional Commissioner,Nashik has given reason of absence of the parties, however, thefact remains that the matter was entrusted to the Advocate bythe petitioner, who represented him and once the brief isentrusted to the Advocate, it is for the Advocate of the Petitionerto attend and take care of the hearing in the matter. When thebrief is entrusted to the Advocate, it is expected that theAdvocate would take care of the case and the litigant is notexpected to suffer on account of inaction on the part of hisAdvocate. The litigant is innocent party who should not beallowed to suffer for the negligence on the part of the Advocate.This has been the consistent view taken by the Supreme Court aswell as High Court in various Judicial Pronouncements. LearnedAdvocate for the Petitioner has placed reliance on judgment ofthis Court in “Bhausaheb Hiraman Mokale and Others V/sLaxman Shankr Gaikwad” reported in 2011 (6) AIR Bom. R637, wherein, similar view is taken by this Court. Similarly, in a“Ashok Ravaji Vadodriya V/s Municipal Corporation ofGreater Bombay” reported in 2003 (3) Mh.L.J. 1003, this {8} wp542-16.16.docCourt relied on the principles laid down by the Supreme Court in“Rafiq and another V/s Munshilal and Another (1981) 2SCC 788, wherein it is categorically held that the obligation ofthe party is to select his Advocate, brief him, pay the feesdemanded by him and then trust the learned Advocate to do therest of the things. To go the Court to inquire as to what ishappening in the Court with regard to his matter and inform hislawyer is not part of his job.14.Hence, considering the consistent view taken by theSupreme Court as well as by this Court, and in view of the factthat substantive rights of the Petitioner are at stake as he isfacing penalty of huge amount imposed by the Tahsildar, it isnecessary to hear the RTS Revision on merits. Therefore, in myopinion, the impugned orders passed by the AdditionalCommissioner, Nashik deserve to be quashed and set aside inthe interest of justice.15.Accordingly, Writ Petition is allowed. Order passed byRespondent No. 1- Additional Commissioner, Nashik Division,Nashik in RTS Revision No.5 of 2013 dated 5th January, 2015 isquashed and set aside. Resultantly, order dated 30th June, 2015,refusing to restore the RTS Revision No. 5 of 2013 is alsoquashed and set aside. The matter is remanded back to {9} wp542-16.16.docAdditional Commissioner, Nashik Division, Nashik for decidingRTS Revision No. 5 of 2013 on its own merits, after affordingopportunity of hearing to the respective parties. Rule is madeabsolute in above terms. [ MANJUSHA DESHPANDE ] JUDGE drp/wp542-16.16.doc