High Court · 2024
Legal Reasoning
(1) wp-8601-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8601 OF 2022Ram Nivrutti BirajdarAge: 60 years, Occ.: AgricultureR/o. Baspur, Tal. Nilanga, Dist. Latur..PetitionerVersus1.Dhondiba Dadarao Birajdar,Age: 58 years, Occ.: Agriculture,R/o. Baspur, Tal. Nilanga, Dist. Latur.2.The Tahsildar,Nilanga, Tal. Nilanga, Dist. Latur.3.The Sub Divisional Officer,Nilanga, Tal. Nilanga, Dist. Latur...Respondents....Smt. M. S. Mhase, Advocate for Petitioner.Mr. N. D. Raje, AGP for Respondent Nos.2 and 3.Mr. V. R. Jain, Advocate for Respondent No.1.WITHCIVIL APPLICATION NO.5478 OF 2024INWRIT PETITION NO.8601 OF 2022Dhondiba Dadarao Birajdar,Age: 63 years, Occ.: Agriculture,R/o. Baspur, Tal. Nilanga, Dist. Latur...ApplicantVersus1.Ram Nivrutti BirajdarAge: 65 years, Occ.: AgricultureR/o. Baspur, Tal. Nilanga, Dist. Latur2.The Tahsildar,Nilanga, Tal. Nilanga, Dist. Latur.3.The Sub Divisional Officer,Nilanga, Tal. Nilanga, Dist. Latur...Respondents....Mr. V. R. Jain, Advocate for Applicant.Mr. N. D. Raje, AGP for Respondent Nos.2 and 3.Smt. M. S. Mhase, Advocate for Respondent No.1.... (2) wp-8601-2022.odt... CORAM : S. G. CHAPALGAONKAR, J. DATED : 24th JUNE 2024.JUDGMENT:- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner approaches this Court under Article 227 of theConstitution of India impugning order dated 28.02.2022, passed bythe Sub Divisional Officer, Nilanga-respondent no.3, confirmingorder dated 23.12.2013 passed by the Tahsildar-respondent no.2under Section 5 of the Mamlatdar Courts Act, thereby grantingcustomary way to respondent no.1. 3.Smt. Mhase, learned Advocate appearing for the petitionersubmits that respondent no.1 filed a formal application beforeMamlatdar seeking restoration of customary way, alleging that thesame is intercepted by the petitioner and two others. It issubmitted that the application does not contain requisite details.Even, the learned Tahsildar has not followed the procedureprescribed under Mamlatdar Courts Act and allowed theapplication granting customary way recording alleged consent ofthe parties. She would point out that in fact there is nothing onrecord to show that the petitioner had ever consented for grant ofway. The stipulation appearing in the impugned order passed bythe Tahsildar is mere surmise. She would further submit that thelearned Sub Divisional Officer ignored the aforesaid aspect anddismissed the Revision Application filed by the petitioner. Shewould, therefore, urge to quash and set aside the impugned orders. (3) wp-8601-2022.odt4.Per contra, Mr. Jain, learned Advocate appearing forrespondent no.1 submits that the Tahsildar concluded proceedingon 23.12.2013 as per consensus between the parties. The customary8.5 feet approach road was granted to respondent no.1 from theinner part of the Bandh of Survey No.25. He would submit that infact the dispute between the parties was resolved. The parties hadacted upon the same. However, after more than 8 years of the saidorder, the petitioner filed Revision Application under Section 23(2)of the Mamlatdar Courts Act before the Sub Divisional Officer,Nilanga raising objection to the order passed by the Mamlatdar.He would invite attention of this Court to the map prepared by theauthorities that has been singed by the respective parties andwitnesses. He would, therefore, urge to maintain the order passedby the authorities.5.Having considered submissions advanced on behalf of thelearned Advocates appearing for the respective parties, it isapparent that the application tendered by respondent no.1 was notin consonance with requirement of Mamlatdar Courts Act. It sansrequisite details about existence or obstruction as to customaryway. No particulars of cause of action to initiate proceeding arementioned. Although, Section 5 confers jurisdiction upon theMamlatdar to pass the necessary orders regarding removal of theobstruction, the exercise of power is subject to procedure prescribedunder Sections 7 to 15 of the Mamlatdar Courts Act. Section 7stipulates the requirement of the plaint. Clauses (d), (e) and (f)require plaint to mention specific date of cause of action andsubsequent circumstances. It is true that Section 8 of theMamlatdar Courts Act permits filing of the formal application, butfurther duty rest upon Mamlatdar to assist plaintiff to meet withmandatory requirements. Section 9 requires that the Mamlatdar (4) wp-8601-2022.odtshall record plaintiffs statement on oath to secure the complianceof requirement under Section 7 and secure necessary information,which shall be reduced in writing and appended to the plaint. 6.The record tendered before this Court nowhere depictsaforesaid compliance. The order of the Tahsildar appears to havebeen passed merely in reference to the panchanama dated21.12.2013, which stipulates existence of customary way fromcommon Bandh between Survey Nos.25 and 26. However, sameappears to have vanished on portions of common Bandh of Survey25 and 28. The respondent holds agriculture land in Gut No.29,whereas the petitioner holds land in Survey No.25.7.The learned Tahsildar observed in his order dated 23.12.2013that petitioner agreed to provide access to respondent no.1 frominternal part of common Bandh of Survey No.25. The record placedbefore this Court nowhere depicts that any such consent wasrecorded in writing or in form of statement on oath. The replytendered by the petitioner refutes the contentions of respondentno.1. As such, the impugned order sans any basis. Therefore, thisis a fit case to remit back matter to Mamlatdar for disposal inaccordance with law.8.Pertinently impugned order passed by the Mamlatdar wassubsisting till 23.08.2022 passing of interim order in this petition.The petitioner has unsuccessfully assailed said order in the year2021 in Revision Application before the Sub Divisional Officer.Looking to the map available on record, it can be observed that thepath way was available from Baspur Road on the band of SurveyNos.23 and 25 to reach Survey No.26 and further on the Bandh ofSurvey No.29 to approach the road. The part of such path way (5) wp-8601-2022.odtappears to have been vanished on the Bandh between SurveyNos.25 and 27, which is subject matter of conflict. It is trite that,path way from common Bandh of survey numbers can be used byall land holders and there cannot be obstruction for such use.However, it cannot be treated or used as cart road or fortransportation of the vehicles. 9.Taking into account the legal position and factual aspects asdiscussed, it is necessary to remit back the matter to Mamlatdarwith certain directions. Resultantly, following order is passed:ORDERa.Writ Petition is partly allowed.b.The impugned order dated 28.02.2022 passed by the SubDivisional Officer, Nilanga-respondent no.3 as well as order dated23.12.2013 passed by Tahsildar-respondent no.2 are herebyquashed and set aside.c.The learned Mamlatdar is directed to decide applicationdated 01.11.2013 filed by respondent no.1 in accordance withprovisions contained under Sections 7 to 15 of the MamlatdarCourts Act within a period of three (03) months from the date ofappearance of the parties. d.The parties shall appear before the Mamlatdar on 28.06.2024and submit the documents in support of their contentions, if any, inaddition to the documents already on record. The Mamlatdar mayresort to the fresh inspection of the spot himself or through anyauthorized person.e.Pending hearing and final disposal of the application beforeMamlatdar, respondent no.1 shall be at liberty to use the path way
Decision
(6) wp-8601-2022.odton common Bandh between Survey Nos.25 to 27 for accessing toBaspur Gavthan.f.In view of disposal of the Writ Petition, present CivilApplication stands disposed of. g.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) JUDGEDevendra/June-2024