High Court
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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD908 WRIT PETITION NO. 4170 OF 2024DINESHCHANDRA WAMANRAO LOKHANDE AND OTHERSVERSUSTHE SUB DIVISIONAL OFFICER AND OTHERSMr. S. S. Kulkarni, Advocate for the petitioners Mr. S. N. Kendre, AGP for the respondent/StateMr. M. D. Narwadkar, Advocate for respondent No.3.CORAM: R. M. JOSHI, J.DATE: 23rd APRIL, 2025PER COURT :-1.By consent of both sides, petition is heard finally at the stageof admission.2.This petition takes exception to the orders passed byTahasildar dated 21/03/2023 on an application filed by contestingrespondent under section 5(2) of the Mamlatdar’s Courts Act (for short‘the Act’) and confirmation of the said order by the Revisional Authority.3.The facts which led to the filing of this petition can benarrated in brief as under:-(i)The contesting respondent filed an application before theTahasildar on 17/06/2022 contending that he is the owner of Gut No.412 situated at Sheri/Sutari. It is claimed in this application that there908.wp4170.24.odt1 of 7 are two ways available for him to approach his agricultural land,however, on account of destruction of the said roads by the adjoining,agriculturist, he is unable to cultivate his land. This application made tothe Tahasildar was responded with reply dated 07/07/2022 informingthat since the applicant is seeking a new way, he was advised to file anapplication under Section 143 of Maharashtra Land Revenue Code. Thecontesting respondent has not taken exception to this communicationdated 01/07/2022 but preferred application on 11/07/2022 underSection 5 of the Act by contending that there is existing way to Gut No.411 and he was using the same, however, the said road has been closedby the owner of Gut No. 411 by erecting a gate and thereby obstructionhas been caused to ingress and ingress of applicant. Pursuant to the saidapplication panchanamas were drawn on 17/08/2022, 18/08/2022 and03/03/2023. Tahasildar after hearing both sides passed order dated21/03/2023 allowing application. It was directed to remove obstructioncaused by the owner of Gut No. 411. This order was taken exception inRevision Application No. 97/2023 before the Sub Divisional Officer,Bhokardan, District Jalna. Sub Divisional Officer confirmed the orderpassed by Tahasildar. Hence, this petition.4.Learned counsel for the petitioner has drawn attention of theCourt to the application dated 17/06/2022 which was made for seeking908.wp4170.24.odt2 of 7
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creation of a new road. It is his submission that the said application hasbeen rejected by the Tahasildar by communication dated 01/07/2022 andsince there was no exception taken to the communication, the contestingrespondent is precluded from filing fresh application before Tahasildar. Inany case it is his contention that application filed before the Tahasildardoes not meet the requirement of the act. By drawing attention of theCourt to the application in question it is contended that there is nospecific averment as to when the obstruction has been caused by thepetitioner and also the date/ approximate time of erection of gate. Hedrew attention of the Court to the written statement filed by theTahasildar raising issue about limitation and other issues on merit of theapplication. It is his contention that though in the panchanama nothing isindicated about existence of customary way by obstruction caused by thepetitioner, the Tahasildar passed impugned order granting relief torespondent. It is his submission that the order passed by the Tahasildaris unreasoned one and since all the issues raised were not dealt with bythe Tahasildar, the said order ought to have been set aside by theRevisional Authority. He, therefore, seeks interference in the ordersimpugned.5.Learned counsel for the contesting respondent supports theimpugned orders. According to him the first application was not filed908.wp4170.24.odt3 of 7 under Section 5 of the Act and hence there was no prohibition for therespondent to file appropriate application. It is his submission that thereis finding recoded by the Tahasildar with regard to the obstruction causedby the petitioner by erecting the gate and as such there is no reason orjustification for causing interference in the impugned order.6.During the course of the hearing this Court is apprised of thefact that the petitioner has already filed R.C.S. No. 119/2023 before CivilJudge Junior Division, Bhokardan seeking following relief:-^^v& oknhpk nkok [kpkZlg eatqj dj.;kr ;kok-ekSts ikj/k cq- rk- Hkksdjnu ;sFkhy tehu xV ua- 411 {sk 4 gsDVj 59vkj iksV[kjkc 7 vkj ,dq.k {ks 4 gsDVj 66 vkj oknhaP;k dk;ns’khj rkck oekydhp laiq.kZ xV T;kph prq%flek iqosZl& ikj/k rs ookylkaoxh jksM]if’pesl& izfroknhaps 'ksr] nf{k.ksl & xV uacj 409 e/khy /kkjdkaP;k tehuho mRrjsl & ukyk v’kh vkgs] ;k tehuhr izfroknhauh dks.kR;kgh izdkjpk Lor%vxj ukSdj pkdj gLrd ,taV eqysckGs ;kaP;kekQZr gLr{ksi vkMFkG d: u;s-rlsp xVke/kqu uohu jLrk ikMq u;s Eg.kqu dk;e Lo:ih eukbZgqdqens.;kr ;kok&& bZrj ;ksX; o U;k; vkns’k oknhps gDdkr dj.;kr ;kos T;kl oknh ik=vkgsr-**7.In the proceeding under Section 5(2) of the Act, petitionerhas raised specific objection with regard to the non disclosure of cause ofaction so also the objection to the limitation. Tahasildar while passingimpugned order has failed to deal with the said objection. Withoutconsidering the said objection order came to be passed. Any such orderwhich is passed ignoring the objection raised by the other side and which908.wp4170.24.odt4 of 7 are relevant for the decision of the application can not sustain.8.It is sought to be argued on behalf of the petitioner thatpreviously an application was moved before the Tahasildar on17/06/2022 and the same has been rejected. In this regard perusal ofthe said application indicates that it was addressed to the Collector, Jalnaand not to Tahasildar. A copy thereof was endorsed to Tahasildar. Thus,on the face of it it cannot be said that this was an application filed underSection 5 of the Act to the Tahasildar for seeking relief under theprovisions of the said Act. In the light of this fact, communicationaddressed by Tahasildar dated 01/07/2022, may not become animpediment in entertaining application. In any case this Court does notwish to make any further observation thereon and this issue isspecifically kept open for consideration of Tahasildar at the time of re-hearing and decision of the application.9.As far as the issue of limitation is concerned, once specificpleadings are there in the written statement about the application beingnot maintainable so also the objection to the application for nondisclosure of cause of action, Tahasildar is directed to decide the saidobjection while disposing the application under Section 5(2) of the Act.10.At this stage it would be relevant to take note fo the908.wp4170.24.odt5 of 7 submission made by the learned counsel for the petitioner that thecontesting responded has suppressed the material fact before theTahasildar by not disclosing the earlier application and order passedtherein. By taking support of the judgment of the Hon’ble Supreme Courtin Case of S. P. Chengalvaraya Naidu (Dead) by Lrs., Vs. Jagannath(Dead) by Lrs. And ors., Supreme Court Reports (1993) Supp. 3 S.C.R.,it is contended that the order passed by the party with suppression offact deserves to be set aside. In this regard it is pertinent to note thatthis Court has recorded the finding that Tahasildar has not dealt with therelevant issues involved in the application and for this reason the orderpassed by the Tahasildar is set aside and the matter is sought to berelegated back to Tahasildar for decision afresh. In such circumstances itwould not be appropriate on the part of this Court to record any findingabout suppression of fact and the said issue is kept open for agitation bypetitioner before Tahasildar.11.It is also sought to be contended that in view of the filing ofR.C.S. No. 119/2023 by the petitioner in respect of Gut No. 411, theMamlatdar is precluded from entertaining any such issue. In this regardperusal of the prayers made in the said suit indicate that injunction issought to be respect of causing obstruction to the peaceful possessionand cultivation of the Gut No. 411, so also from creating any new road908.wp4170.24.odt6 of 7 therein. As far as proceedings under Section 5(2) of the Act areconcerned, question of directing any creation of new road does not arise.Thus, the issue involved before the Civil Court is altogether different thanthe one involved in the proceedings before Tahasildar. Merely becausesuit is filed which has no nexus to the issue before the Mamlatdar, theproceeding before Mamlatdar cannot be prohibited.12.As a result of above discussion, petition stands allowed.Impugned orders are set aside. The proceedings are relegated back toTahasildar for decision afresh. It is expected that Tahasildar beconsidered all objection raised by the petitioner while deciding theapplication. Application be decided within a period of three weeks fromtoday. (R. M. JOSHI, J.)ssp908.wp4170.24.odt7 of 7