High Court · 2024
Legal Reasoning
(1) wp-735-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.735 OF 20241.Kaka S/o Bhaurao Goje,Age:62 years, Occ. Agriculture,2.Narayan S/o Bhaurao Goje,Age: 67 years, Occ. Agriculture,3.Raosaheb S/o Bhaurao Goje,Age: 69 years, Occ. Agriculture,4.Dnyaneshwar S/o Bapurao Goje,Age: 35 years, Occ. Agriculture,5.Aruna W/o Bhausaheb Goje,Age: 55 years, Occ. Agriculture,6.Annasaheb S/o Bhausaheb Goje,Age: 27 years, Occ. Agriculture,7.Sudam S/o Bapurao Goje,Age: 47 years, Occ. Agriculture,All Residents of Kumbhephal, Village Kumbhephal, Tq. & Dist. Chhatrapati Sambhajinagar...PetitionersVersus1.Subhash S/o Agaji Goje,Age: 65 years, Occ. Agriculture,2.Sachin S/o Subhash Goje,Age: 38 years, Occ. Agriculture,3.Sharad S/o Subash Goje,Age: 34 years, Occ. Agriculture,All Residents of Kumbhephal, Village Kumbhephal, Tq. & Dist. Chhatrapati Sambhajinagar.
Legal Reasoning
(2) wp-735-2024.odt4.The Sub-Divisional Officer,Sub-Divisional Office, Chhatrapati Sambhajinagar.5.The Tahsildar,Tahsil Office, Chhatrapati Sambhajinagar...Respondents …Mr. P. D. Jarare, Advocate for the Petitioners.Mr. S. B. Jadhav, AGP for Respondent Nos.4 and 5.Mr. M. D. Narwadkar, Advocate for Respondent Nos.1 to 3. … CORAM : S. G. CHAPALGAONKAR, J. DATED : 06th AUGUST 2024.JUDGMENT:-1.Rule. Rule made returnable forthwith. By the consent of theparties, matter is taken up for final hearing at the stage ofadmission.2.The petitioners impugn order dated 24.11.2023 passed bySub Divisional Officer-respondent no.4, thereby allowing RevisionApplication against order dated 14.07.2023 passed by Tahsildar,Chhatrapati Sambhajinagar in exercise of powers conferred underSection 5(1)(2) of the Mamlatdar’s Courts Act, directing removal ofobstruction on customary way from Gut No.119 towards commonbandh of Gut No.120.3.Mr. Jarare, learned Advocate appearing for the petitionerssubmits that petitioners had approached the Mamlatdar underSection 5 of the Mamlatdar’s Courts Act claiming customary wayfrom Gut No.119 of village Kumbhephal, Tal. and Dist.Chhatrapati Sambhajinagar. It is specifically pleaded inapplication that petitioners were using way from Gut No.119 toapproach Gut No.120. However, respondent nos.1 to 3 haveobstructed such use. As such, they are unable to cultivate theirland. In pursuance of such application, spot panchanama was (3) wp-735-2024.odtdrawn on 26.05.2022. Consequently, Mamlatdar recorded findingthat customary way was in existence from Gut No.119 and passedorder dated 14.07.2023, thereby granting free access from GutNo.119 to approach Gut No.120 to the petitioners. However,respondent no.4-Sub Divisional Officer, in Revision filed byrespondent nos.1 to 3, quashed and set aside the order ofTahsildar. Mr. Jarare would invite attention of this Court to thekhasara patrak of land Survey No.49, which records existence ofcart way. He would invite attention of this Court to certainphotographs indicating existence of cart way, which wassubsequently destroyed by ploughing land. He would point outthat there is no alternate way to the petitioners to enter their land.Mr. Jarare also points out that the respondents approached CivilCourt vide RCS No.1670/2022 seeking decree of perpetualinjunction against the petitioners as regards to the customary way.He would, therefore, urge to quash and set aside the impugnedorder and restore the directions given by Tahsildar.4.Per contra, Mr. Narwadkar, learned Advocate appearing forrespondent nos.1 to 3 submits that there is nothing on record todepict existence of customary way from Gut No.119 as claimed bythe petitioners. The learned Tahsildar had passed order merelyrelying upon spot panchanama carried by Circle Officer. However,nothing is discernible from said panchanama to substantiate claimof the petitioners. He would submit that although prayer for grantof temporary injunction is rejected by the Trial Court in Suit filedby respondent nos.1 to 3, the substantive Suit is still pending. Theconclusion in the Suit would bind the parties. Therefore, no case ismade out to cause interference in Writ jurisdiction of this Court.5.Having considered submissions advanced, apparentlypetitioners filed application dated 11.05.2022 stating that they had (4) wp-735-2024.odtcustomary way from Gut No.119 to approach their land in GutNo.120 that has been obstructed by respondent nos.1 to 3. Theyclaim that they do not have alternate way to approach their land.Accordingly, they prayed for intervention of Mamlatdar for removalof obstruction made by respondents in Gut No.119, so that they canuse customary way. Perusal of application submitted bypetitioners would show that no particulars of cause of action arepleaded. Even necessary details of customary way are notspecified. In pursuance of aforesaid application, Circle Officerdrawn panchanama dated 26.05.2022. However, said panchanamais in form of statements of respective land holders, but sansrequisite details of actual position on the spot, particularly asregards to the existence of customary way or obstruction byrespondents as claimed by the petitioners. The learned Mamlatdarrelying upon aforesaid panchanama drawn conclusion regardingexistence of customary way and passed order directing respondentsto make a way from Gut No.119 to approach Gut No.120 in favourof the petitioners. 6.Apparently, the proceeding is taken up under Section 5 of theMamlatdar’s Courts Act, which envisaged powers in favour ofTahsildar/Mamlatdar to remove obstruction in use of customaryway. The scheme of Act also indicate that cognizance ofobstruction created within a period of six months can be taken bythe Mamlatdar. It was, therefore, obligatory on the part of thepetitioners to establish existence of customary way and obstructioncreated by the respondents within a period of six months before thedate of institution of proceeding under Section 5 of the Mamlatdar’sCourts Act. Apparently, Tahsildar is required to see thatapplication is presented as per procedure prescribed and verified byrespective parties. It must indicate the details as regards to theexistence of customary way and period of its use. It must also (5) wp-735-2024.odtclarify cause of action to file the proceeding. If application is not inproper format, it is duty of Mamlatdar to get it rectified afterrecording verification of applicants. 7.Perusal of proceeding before the Mamlatdar depicts that nosuch procedure has been followed in the present case. It isexpected that Mamlatdar shall himself cause spot inspection.However, in the present case he relied upon spot inspection ofCircle Officer. As indicated above, the spot inspection is in theform of recording statements and does not throw light on actualposition at spot regarding use of customary way or obstruction byrespondents. The Mamlatdar failed to record the statements ofparties and adjacent land holders or appreciate documentaryevidence in the form of map, record of village panchayat, record ofsurvey office, so that appropriate findings of facts can be recorded.The learned Sub Divisional Officer merely observing thatproceeding is pending before the Civil Court, set aside the order ofTahsildar without taking care to see that lis is decided on merit. 8.In that view of the matter, it would be appropriate to relegatethe parties to the Mamlatdar by setting aside order passed by theSub Divisional Officer as well as Mamlatdar with further directionto consider issue afresh and decide the application filed bypetitioners by following procedure prescribed under Sections 7 to15 of the Mamlatdar’s Courts Act. To make substantial justice, thepetitioners may be given opportunity to amend applicationincorporating requisite details supported by their affidavits. TheTahsildar/Mamlatdar shall thereupon decide to take up proceedingeither under Section 5 of the Mamlatdar’s Courts Act or underSection 143 of the Maharashtra Land Revenue Code and passappropriate orders. In that view of the matter, following order ispassed: (6) wp-735-2024.odtORDERa.Writ Petition is partly allowed.b.The impugned order dated 24.11.2023 passed by SubDivisional Officer-respondent no.4 and order dated 14.07.2023passed by Tahsildar, Chhatrapati Sambhajinagar-respondent no.5,are hereby quashed and set aside. c.The matter is remitted back to the Tahsildar/Mamlatdar forfresh consideration. The petitioners shall be at liberty to amendapplication and incorporate pleadings in support of their claim.d.Parties shall appear on 26.08.2024 before theTahsildar/Mamlatdar, who shall endeavour to decide proceedingwithin a period of three months thereafter.e.The Tahsildar/Mamlatdar shall take appropriate call toconsider and decide proceeding either under Section 5 of theMamlatdar’s Courts Act or under Section 143 of the MaharashtraLand Revenue Code by granting opportunity of hearing to both theparties. f.Writ Petition is disposed of.g.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR)JUDGEDevendra/July-2024