Writ Petition No. 2530 of 2022 · The High Court
Case Details
1 957wp2530.22IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD957 WRIT PETITION NO. 2530 OF 2022SARJAN REALTITIES LTD THROUGH AUTHORIZED PERSONMANOJ SUDHAKAR BORSEVERSUSTHE TAHSILDAR SAKRI AND OTHERS...Advocate for the Petitioner : Mr. Temkar Rajendra K.AGP for Respondents/State : Mr. K.S. PatilAdvocate for Respondents : Mr. S.V. Suryawanshi h/f Mr. PatilPramod D. ... CORAM : KISHORE C. SANT, J. DATE : 3rd SEPTEMBER, 2024. PER COURT : 1.Heard the parties. With the consent of the parties thepetition is taken up for final disposal.2.The petitioner Company has approached this Courtchallenging the judgment and order passed by the learned SDO,Dhule dated 19.03.2020, rejecting the Revision ApplicationNo.84 of 2018 and confirmed the order dated 19.04.2018passed by the Tahsildar Sakri. It is directed to removeobstruction caused to the petitioner by it and allow respondentsto use easementry way.
Facts
2 957wp2530.223.The case in short is that the respondent Nanhu ishaving land Gut No. 261/2 in Village Bhamer, Tq. Sakri. Thepresent petitioner purchased few lands in the village andinstalled solar panels for generation of electricity. Since theCompany purchased various lands they joined all lands togetherand erected Solar Panels. An access which was available to thesaid respondent was thus stopped by the Company. Respondentthus appeared learned Tahsildar by filing application statingthat his right for access and way that passes through Gut No.261/2 be made available by removing obstructions by theCompany. It is the case of the Company that there is no suchroad in existence. It is stated that the Company has givenalternative way after the raising wall fencing of 3 mtrs. width onthe eastern side. This road was specifically made available tothe adjoining land owners to avoid dispute over land and anaccess. As on the date no excess is claimed by respondent No. 3.4.Learned Tahsildar conducted inquiry after hearingthe parties and visiting spot and held that an access which wasalready there is closed by the petitioner Company and allowedthe application. Learned SDO confirmed the said order. Thus, 3 957wp2530.22the petitioner Company is before this Court.5.Learned Advocate for the petitioner vehementlyargued that the Company has made a road on the eastern sideof their property. The said road is of 3 meters width, which isspecifically created for the adjoining land owners. Both theauthorities failed to consider this aspect. Both the authoritieshave not considered the village map etc. In the village map nosuch road is seen as demanded by the original applicant. Helastly submitted that if the matter is remanded back thepetitioner can lead evidence before the Mamlatdar’s Court insupport of his case. The similarly situated agriculturists hadalso filed applications under same proceedings before theTahsildar, whereas the Tahsildar has rejected thoseapplications, considering that there is other alternative way. Thesaid findings were confirmed. 6.Learned Advocate for Respondent No. 3 on the otherhand opposed the petition vehemently stating that sufficientopportunities were given to the petitioner to put up his case.The learned Tahsildar has gone through the entire record 4 957wp2530.22produced before him and thereafter a conclusion is drawn afterthe site visit, wherein he himself has personally visited the site.The findings of the Tahsildar are confirmed by the SDO. Nowthis Court need not go into the question of facts and prays forrejection of the petition.7.Learned AGP also supports the impugned judgmentand adopted the argument of respondent No. 3.8.Parties have also relied upon the followingjudgments:a.Jorge Alexandre Cruz Lourenco Vs.Lucas Fernandes (since deceased) and Others -2016 (5) Mh.L.J. 95. b.Sanjay Annaji Pohokar Vs.Shriramchandra Samaj Seva SamatiBramhanwada (Kasba) and Others - 2022 (2)Mh.L.J. 41 c.U.P. State Sugar Corporation Ltd. Vs.Dy. Director of Consolidation and Others -(2002) 2 SCC 572,9.While considering the above judgments, this Courtfinds that the learned Tahsildar has visited the spot on21.02.2018. The spot was inspected in the presence of both the 5 957wp2530.22parties. There are documents on record in the form of 7/12extract, village map and 4 boundaries and photographs etc.10.The petitioner has given earlier statement before theLand Record Officer. As per the statement he denied theexistence of the road. The Company has left 3 ft. wide road forthe agriculturists. The respondents are asking for creation ofnew road. The Tahsildar, however, specifically observed that itis the case of the petitioner that 3 ft. wide road is left open forthe agriculturists and no evidence is produced on record inspiteof several opportunities given in support of this. It is furtherobserved that there fencing is made on the foot way, whichclearly shows that an easementry right is obstructed. TheTahsildar has also recorded specific dates giving details ofhearing and allowed the application.11.From the judgment of learned SDO it is seen that thelearned SDO has also perused the record. Learned SDO hasalso observed that no evidence is produced by the petitionerCompany to show that an alternative way is available.12.On going through the judgments, it is clearly seen
Legal Reasoning
6 957wp2530.22that sufficient opportunities were given to the petitionerCompany to produce on record material documents to showthat there is alternative way in existence. Inspite of severalchances no evidence is produced before the Court. So far asconsidering the parameters and interference are concerned, thisCourt has gone through the judgments relied upon byrespondent No. 3.13.In the case of Jorge Alexandre Cruz (supra) theprovisions of transfer of property Act and the Easementry Actand the scope for interference in the said finding under Article227 of the Constitution of India are considered. In that casethere was a dispute between the land owner and a tenant inrespect of road, way/access to the tenanted premises. Theconcurrent findings were recorded by both the authorities, thatno alternative way/road is in existence. This Court has heldthat in view of findings, the findings could not be said to beperverse or arbitrary. The said finding cannot be interfered inexercise of supervisory jurisdiction under Article 227 of theConstitution of India.14.In Sanjay Annaji Pohokar (supra), the Division 7 957wp2530.22Bench of this Court has held that the finding of fact recorded bythe Tribunal cannot be re-opened and nor record be re-appreciated.15.In the case of U.P. State Sugar Corporation Ltd(supra) the Hon’ble Apex Court held that the concurrent findingof fact in revisional Court need not be disturbed while exercisingwrit of jurisdiction under Article 226 of the Constitution of Indiaand 115 of the Act.16.Considering above judgments, this Court has toconsider as to whether case is made out to call for interferencein the findings of facts.17.So far as the judgments of the petitioner side areconcerned the learned Advocate has relied upon the followingjudgments : (a)Sudhir Yashwant Dhangade Vs. AnkushKashiram Bole and Ors. - 2019 (1) ALL MR 825.18.This Court has observed that though no ground israised before the Mamlatdar’s Court or before the learned SDO,still the said ground can be raised in Writ Petition when it does 8 957wp2530.22not require determination of facts. The reliance of the learnedAdvocate for the petitioner on these judgments in the Court ismisplaced. In the present petition the question about theacceptance of access is a question of fact.19.So far as judgments of the Tahsildar in other casesare concerned, on going through the judgments in the VahivatCase No. 44 of 2018, this Court finds that the judgment is notuseful to the petitioner firstly because this case is independentof the present case and secondly for the reason that theapplicants therein are owners of different lands therefore, thesame need not be considered.20.No case is made out to show that the authoritieshave committed any jurisdictional error or legal error. Noquestion therefore, arises to remand the matter to theauthorities.21.Considering the submissions, judgments relied by ofthe parties, this Court finds that no case is made out calling forany interference. The Writ Petition is, therefore, dismissed. Noorder as to the costs. 9 957wp2530.2222.At this stage the learned Advocate for the petitionerprays for continuation of interim relief, which is in operation.Learned Advocate for the Respondent has objected for the same.As there is interim relief since 2022, the same is continued foreight weeks from today. ( KISHORE C. SANT ) JUDGE mahajansb/