High Court
Facts
1 6318-18-WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.6318 OF 20181.Dnyandeo s/o Radhakisan Zirpe,Age: 50 years, Occ : Agril,R/o – At Kolegaon, Tq. Shevgaon,Dist Ahmednagar2.Sopan s/o Radhakisan Zirpe,Age: 48 years, Occ : Agril,R/o – At Kolegaon, Tq. Shevgaon,Dist Ahmednagar3.Adinath s/o Radhakisan Zirpe,Age: 40 years, Occ : Agril,R/o – At Kolegaon, Tq. Shevgaon,Dist Ahmednagar...PetitionersVersus1.The State of Maharashtra,Through its SecretaryDepartment of RevenueMantralay Mumbai,2.The Collector,Ahmednagar3.The Sub Divisional Officer,Sub Division, Pathardi,Tq. Pathardi, Dist. Ahmednagar.4.The Tahsildar,Tahsil Office, Shevgaon,Tq. Shevgaon, Dist. Ahmednagar5.Sarjerao s/o Baburao Zirpe,Age: Major, Occ: Agril,6.Vitthal s/o Vishwnath Zirpe,Age: Major, Occ: Agril,7.Arjun s/o Chatur Zirpe,Age: Major, Occ: Agril,SVH 2 6318-18-WP.odt8.Radhakisan S/o Sitaram Zirpe,Age: Major, Occ: Agril,9.Haribhau S/o Vishwnath Zirpe,Age: Major, Occ: Agril,10.Ashok s/o Murlidhar Wagh,Age: Major, Occ: Agril,11.Ramkisan S/o Aaba Wagh,Age: Major, Occ: Agril,12.Baban s/o Aaba Wagh,Age: Major, Occ: Agril,13.Chandrakant S/o Arshu Zirpe,Age: Major, Occ: Agril,14.Indubai Prabhakar Zirpe,Age: Major, Occ: Agril,15.Naryan S/o Haribhau Zirpe,Age: Major, Occ: Agril,16.Arjun s/o Chatru Zirpe,Age: Major, Occ: Agril,17.Rajkumar S/o. Asaram Zirpe,Age: Major, Occ: Agril,All R/o – At Kolegaon, Tq. Shevgaon,Dist Ahmednagar...Respondents…..Mr. Yuvraj Kakde, Advocate h/f Mr. D. B. Chavan, Advocate forPetitionerMrs. A.S. Mantri, AGP for Respondents/StateMr. Nikhil S. Jaju, Advocate for Respondent Nos.5 to 7, 9 & 16….. CORAM : MANJUSHA DESHPANDE, J. DATE : 16th JANUARY, 2025JUDGMENT : 1.Rule. Rule made returnable forthwith. Heard finally withthe consent of the parties.SVH 3 6318-18-WP.odt2.Petitioners are challenging orders dated 24/05/2013 and04/07/2016, passed by the Tahsildar, Shevgaon, in Rasta CaseNo.42/2012, so also the order dated 06/12/2017, passed by SubDivisional Officer, Pathardi, in Revision Application No.145/2016,thereby confirming the order of Tahsildar, Shevgaon.3.Petitioners are original non-applicants in Rasta Casefiled by respondent Nos.5 to 17, under Section 5(2) of theMamlatdars’ Courts Act, 1906, on 23/07/2012. It was the case ofrespondents that they are the owners of Gut No.196/1, 196/334,238/2, 238/4 and 196/334 at Kolegaon, Taluka Shevgaon. They arein possession of the above properties and it’s approach road goesfrom the Bandh of land Gut Nos.196 and 237, owned by petitioners.Though the road is old one, however, there is no entry to that effect.Since applicants/respondent Nos.5 to 17 do not have any otheralternate road, they use that road for bringing agriculturalimplements, and the bullock cart is plied on that road itself. They donot have any other alternate road. About a month prior to filing ofapplication, the approach road was blocked by petitioners,therefore, they have filed application for not causing interference intheir passage from the said road. In the application, it was prayedthat petitioners be restrained from obstructing usage and passageof respondents from the said road, which is passing through GutNo.235. Respondents have filed one more application which isnumbered as Rasta Case No.42/2012 before the Tahsildar,SVH 4 6318-18-WP.odtShevgaon. In the this application the prayer made by respondentswas that, no obstruction should be caused for usage of the South-North road passing from Gut Nos.235 and 203. Petitioners have filedtheir say on 24/08/2012. Panchanama was conducted on16/04/2013. In the Panchanama it was observed that there is a cartroad from western side of Gut No.196/1 and 196/2. However, thesaid cart road when it reaches Gut No.235/3, there is a diversion atBandh and the road has been dug at that spot, therefore, it hasbeen closed. Based on the said panchanama Tahsildar, Shevgaon,has allowed the application of respondents vide order dated24/05/2013, directing to open the road going through Gut No.234,235, 203, 204, 206 and 229 for use of respondents by removing theobstructions.4.Petitioner herein has filed Revision ApplicationNo.09/2013 before the Sub Divisional Officer, Ahmednagar. The SubDivisional Officer, Pathardi, has been pleased to remand the matterback to Tahsildar vide it’s order dated 18/07/2014, by partlyallowing the Revision application. The order dated 24/05/2013passed by Tahsildar, Shevgaon, in Rasta Case No.42/2012 has beenquashed and set aside and the Tahsildar was directed to re-inquireon the issues which were referred to him in the order passed by SubDivisional Officer and thereafter pass order on merits. Whileremanding the matter, Sub Divisional Officer has specificallyremanded the matter to be re-inquired on the issues which areSVH 5 6318-18-WP.odtreproduced herein below:-(1)Though the applicant states that the road has been ploughed,while making submissions it was submitted that the road wasobstructed by constructing Bandh. Therefore, there is a conflictstatement made in the application and while making submission.(2)The Panchanama shows that there is diversion on the Bandhand there is a Char. Name of person in whose presence thePanchanama has been conducted, has not been mentioned in thePanchanama. So also, it does not bear signatures of the Authoritypresent. Therefore, it will have to be presumed that it was notrecorded in presence of competent Authority. Therefore, the saidPanchanama cannot be taken into consideration.(3)Applicants have stated that respondents therein havealternate road available and village map also shows the same.Therefore, the Tahsildar should inquire whether actually said roadexists and if it is so, whether there is an alternate road available.Sub Divisional Officer had remanded the matter withspecific issues to be decided after making due inquiry by Tahsildar.After the said order of remand was passed, the Tahsildar, Shevgaon,has passed order on 04/07/2016, observing that in accordance withthe order passed by Sub Divisional Officer in the Revision he hasissued notice to the respective parties. Sufficient opportunity wasgranted to the parties to file their written submission as well asmake oral submissions. Fresh panchanama was also conducted inSVH 6 6318-18-WP.odtthe presence of respective parties. In view of the same he has againpassed the same order, thereby allowing the application ofrespondents herein and maintaining the earlier order dated24/05/2013 passed by him. The said order was again challenged bythe petitioners before Sub Divisional Offier, Pathardi, in RevisionApplication No.145/2016, contending that though the matter wasremanded to the Tahsildar on the issues, which were framed by theSub Divisional Officer, the Tahsildar has failed to pass a reasonedorder and has merely observed that, in accordance with thedirections given by Sub Divisional Officer, he has given opportunityto the parties and conducted fresh Panchanama. 5.So far as merits of the matter and also the issues whichwere directed to be looked into by the Tahsildar is concerned, thesame have not at all been adverted to while passing the order dated04/07/2016. In view of the objections raised by the petitioners, therevision application was heard and was decided on 06/12/2017. SubDivisional Officer, Pathardi, has rejected the second RevisionApplication No.145/2016, thereby maintaining the orders passed bythe Tahsildar, Shevgaon, in Rasta Case No.42/2012, dated24/05/2013 and 04/07/2016. So far as the reasons for allowing theRevision application is concerned, Sub Divisional Officer has alsofailed to appreciate the grounds raised by the petitioners in Revisionapplication.6.Learned advocate for petitioner has contended that theSVH 7 6318-18-WP.odtTahsildar has failed to pass a reasoned order while deciding theRasta Case, though the matter was remanded back to him forpassing reasoned order on specific issues which were referred tohim. Learned advocate Mr. Kakde has drawn my attention to theoperative part as well as conclusion part of the order, wherein noreasons are recorded by the Tahsildar in support of the order passedby him. Similarly in the Revision Application No.145/2016, SubDivisional Officer has merely confirmed the order passed byTahsildar on 04/07/2016. He also has failed to pass reasoned order,more particularly on the background of the remand order, with theissues which were raised by the petitioners in Revision application.It was his case that while remanding the case, issues to be decidedwere framed by Sub Divisional Officer, Pathardi. However, theTahsildar has failed to pass reasoned order on the issues. In theorder dated 06/12/2017 the Sub Divisional Officer has merely reliedupon the earlier orders and passed the impugned order, rejectingRevision application.7.Learned advocate for respondents submits that in factSub Divisional Officer has rightly passed the impugned order, sincethere were two findings which were already recorded in favour ofrespondents on the basis of Panchanama and inquiry conducted bythe Tahsildar, both the authorities have recorded concurrent findingsin favour of the answering respondents. Hence, on this ground alonewrit petition deserves to be dismissed. According to him, one moreSVH
Legal Reasoning
8 6318-18-WP.odtpanchanama was drawn on 17/07/2015 which is not placed onrecord by petitioners. In the said panchanama existence of road isrecorded. Learned advocate for respondents has taken me throughthe panchanama dated 17/07/2015, which is annexed with the replyaffidavit. According to him, only obstruction which is made bypresent petitioners is on the road abutting to Gut No.203. There is infact an existing road which goes from south to north and passesthrough Gut Nos.196/3, 234/3 and 206. In Gut No.203 it is observedthat there is a well which is dug and the stones which are removedwhile digging the well are scattered on the said Bandh which iscreating obstruction. It is further observed that when the Bandhfrom Gut Nos.243/3 to 196/3 is inspected, it appears that there is aroad which is existing. Similarly as per the claim of respondentsthere is an alternate road available from eastern side of GutNo.196/1, on inspection it is seen that from the Bandh of GutNo.196/1 to Gut No.229 there there exists a small pathway.8.Though the respondents have relied on thepanchanama, however, the fact remains that the order passed byTahsildar after remanding the matter by Sub Division Officer, is nota reasoned order. So also, the order passed in Revision in whichorder of Tahsildar has been assailed, is also not a reasoned order.9.The petitioners have relied on the judgment passed bythis Court in Karbhari Raibhan Thete and Others vs.Additional Collector, Aurangabad and Others, 2022SVH 9 6318-18-WP.odtDGLS(Bom.) 1682, wherein following observations are made,“The authority has to undertake inquiry into the allegedobstruction under Section 5(2) of the Mamlatdars’ CourtsAct, as if it is a suit. The subsequent provision of the Actalso explicitly demonstrate that the inquiry to beundertaken by a Mamlatdar has all the drappings of a suit,which are clearly analogous to the powers conferred upona civil court under the Code of Civil Procedure. It is,therefore, expected of a Mamlatdar to try and decide asuit filed before him under the Act, as if it is a civil suitand exercise the various powers conferred upon him like acivil court”.10.Similar view has been taken in case of TarabaiRavsaheb Chaudhari and Others Vs. State of Maharashtraand Others, 2022 DGLS(Bom.) 1807.11.Therefore, according to learned advocate for petitionersTahsildar while deciding both the applications, have not followed theprocedure as contemplated under Mamlatdars’ Courts Act and hasmerely relied on the panchanama. Even one of the Panchanamadated 16/04/2013 was found to be not in consonance with theprocedure since it did not bear the signature of the competentauthority conducting it. Considering the conflicting panchanamasplaced on record by the parties and also the observations maderegarding the panchanama made by Sub Divisional Officer whileremanding the application, it would be appropriate to quash and setaside the impugned order and remand the matter back to Tahsildar.SVH 10 6318-18-WP.odt12.Orders dated 24/05/2013 and 04/07/2016, passed bythe Tahsildar, Shevgaon, in Rasta Case No.42/2012, so also theorder dated 06/12/2017, passed by Sub Divisional Officer, Pathardi,in Revision Application No.145/2016, are quashed and set aside. Thematter is remanded back to the Tahsildar, Shevgaon, to be decidedas per the directions issued by Sub Divisional Officer, Pathardi, videorder dated 18/07/2014 in Revision Application No.258/2013, byadhering procedure as prescribed in law by affording opportunity torespective parties in respect of their claim. However, it is madeclear that the exercise of deciding the application should becompleted by the Tahsildar, Shevgaon, preferably within a period offour months from the date of remand. All contentions of the partiesare kept open. Rule is made absolute accordingly. Writ petitiondisposed of. (MANJUSHA DESHPANDE, J.) SVH