Writ Petition No. 5074 of 2022 · Bombaybench High Court
Case Details
2025:BHC-AUG:20532 15074.2022WP+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5074 OF 2022Vimal W/o. Bhausaheb NabdeAge : 50 years, Occ : Agril, R/o Sirasgaon, Tq. Newasa, Dist. Ahmednagar. ..PETITIONERVERSUS1.The Sub Divisional Officer, Ahmednagar, Dist. Ahmednagar. 2.The Tahsildar, Tahsil Office, Newasa, Tq. Newasa, Dist. Ahmednagar. 3.Radhakisan Sandipan Thorat, Age : 49 years, Occ : Agril, R/o Sirasgaon, Tq. Newasa, Dist. Ahmednagar. 4.Sanjay D/o Sandipan Thorat Age : 43 years, Occ : Agril., R/o as above. 5.Hirabai W/o Asaram Fukte Age : 56 years, Occ : Agril., R/o As above. 6.Barku S/o Dagdu Auti Age : 43 years, Occ : Agril., R/o As above. 7.Shivaji S/o Dagdu Auti Age : 50 years, Occ : Agril., R/o As above. 8.Babasaheb S/o Dagdu Auti, Age : 46 years, Occ : Agril, R/o As above. 25074.2022WP+.odt9.Sunanda W/o Shankar Auti Age : 49 years, Occ : Agril, R/o As above. ..RESPONDENTS…Mr.D.A. Mane, Advocate for the petitioner Mr.N.D. Raje, AGP for the respondent/State. Mr.S.V. Jadhawar, Advocate for respondent Nos.3 and 4. ...AND WRIT PETITION NO. 5155 OF 20221.Santosh Bhausaheb Waghmode Age : 32 years, (Major), Occ. Agri.,R/o Babhulgaon, Taluka Rahuri, Dist. Ahmednagar. 2.Amol Ramdas Waghmode, Age : 26 years, Occ : Agril., R/o Babhulgaon, Tq. Rahuri, Dist. Ahmednagar...PETITIONERSVERSUS1.The State of Maharashtra, through the Collector, Ahmednagar. 2.The Sub Divisional Officer/ The Deputy Collector, Shrirampur Division, Shrirampur, Dist. Ahmednagar.3.The Tahsildar, Tahsil Office, Rahuri, Tq. Rahuri, Dist. Ahmednagar. 4.Mr. Dada Raibhan Waghmode Age : Major, Occ : Agril., R/o Babhulgaon, Tq. Rahuri, Dist. Ahmednagar. ..RESPONDENTS…Mr.V.B. Jagtap, Advocate for the petitioners Mr. R.D. Raut, AGP for the respondent/State. Mr. R.S. Kasar, Advocate for respondent No.4. 35074.2022WP+.odtANDWRIT PETITION NO. 5623 OF 20221.Sitaram S/o Dhula Gaikwad Age : 71 years, Occ : Agriculture, R/o Borsar (Kh), Tq. Kannad, Dist. Aurangabad. 2.Dattu S/o Nana Gaikwad Age : 35 years, Occ : Agriculture, R/o Borsar (Kh), Tq. Kannad, Dist. Aurangabad. 3.Pundlik S/o Jagannath Gaikwad Age : 33 years, Occ ; Agriculture, R/o Borsar (Kh), Tq. Kannad, Dist. Aurangabad. 4.Sunil S/o Jagannath Gaikwad Age : 42 years, Occ : Agriculture, R/o Borsar (Kh), Tq. Kannad, Dist. Aurangabad. ..PETITIONERSVERSUS1.The State of Maharashtra through the Secretary, Revenue Department, Mantralaya, Mumbai. 2.The Deputy Collector (EGS), Aurangabad. 3.The Tahsildar, Kannad, Dist. Aurangabad. 4.Appa S/o Laxman Gaikwad Age : 55 years, Occ : Agriculture, R/o Jod Borsar, Tq. Kannad, Dist. Aurangabad.
Legal Reasoning
205074.2022WP+.odton merits, however, according to them, the civil court cannotsit in appeal over the orders passed by Mamlatdar and that thecivil court does not have jurisdiction to decide correctness orotherwise of orders passed by Mamlatdar, although withrespect to the substantive dispute decided under the Act, civilcourt may take a contrary view on adjudication of the samedispute on merits. 5.The learned advocates for the petitioners placereliance on the following judgments :- (i)Judgment dated 10.12.2018 passed by this Court in thematter of Mangalabai Vitthal Jadhav and another Vs. ManishaGokul Jadhav and others (Second Appeal (ST.)No.25760/2018-Bombay Civil Appellate Jurisdiction). (ii)Judgment dated 05.07.2022 passed by this Court in thematter of Baban @ Nainsukh Dagadu Kurandale and anotherVs. Dattu Sadashiv Kurandale and others (Writ PetitionNo.4425/2021-Bombay Civil Appellate Jurisdiction) 6.The objection pertaining to alternate remedy isrequired to be considered in the light of judgments relied byboth sides. 215074.2022WP+.odtJUDGMENTS RELIED BY THE RESPONDENTS :- 7.In the case of Rajendra Shendge (supra) a suitwas filed by the plaintiff for removal of encroachment andpossession over agricultural land. The defendant in the suithad raised an objection to jurisdiction of the civil court byplacing reliance on Section 5 of the Act. It was contended thatthe relief sought in the suit was covered by Section 5 of theAct which is a special enactment, and therefore, jurisdiction ofcivil court was barred. Dealing with the contention aboutmaintainability of the civil suit, this Court held thatMamlatdars’ Courts Act recognizes existence and continuationof powers and jurisdiction of a civil court. It is held thatjurisdiction of the authorities under the Act is a summaryjurisdiction. It is held that the jurisdiction of civil court is notbarred either expressly or by necessary implication. 8.The orders passed under the Act were notchallenged in the suit in the aforesaid matter, and therefore,Rajendra Shendge (supra) is not a direct authority forproposition that the orders passed under the Act can bechallenged before a civil court. 225074.2022WP+.odt9.Although in the matter of Digambar and others(supra) declaration was sought that the order passed by theMamlatdar was null and void, substantive relief of perpetualinjunction restraining the defendants from creating a cart-waywas also sought by the plaintiff in the said suit. While dealingwith the contention with respect to the jurisdiction of civilcourt to grant relief in respect of an order passed by theTahsildar, this Court has held that in view of Section 22 of theAct, a party to proceeding before Mamlatdar can approachcivil court to obtain relief contrary to the decision taken byMamlatdar and decision by civil court contrary to order passedby Mamlatdar sets the decision by Mamlatdar at naught. ThisCourt has all throughout dealt with the merits of controversyinvolved in the matter. The judgment does not directly holdthat orders passed by the civil court can be challenged byfiling a suit. 10.In the case of Mohommad Khan S/o Rahim Khan(supra) this Court has specifically held that the orders passedunder the Act can be challenged in a civil suit. The substantialquestions of law in the said Second Appeal were pertaining to 235074.2022WP+.odtjurisdiction of civil court to entertain a challenge to orderspassed by the Mamlatdar under the Mamlatdars’ Courts Act.Following substantial questions of law were framed in theappeal :- "a) Whether the learned lower appellate Court wasjustified in not framing a specific issue with respect tojurisdiction of the Civil Court to entertain civil suit,inter alia, challenging the order passed under theMamlatdars' Courts Act, 1906, especially in view ofthe provision under section 23 of the said Act?b) Whether civil suit lies against the order passed bythe Mamlatdar's Court under the Mamlatdars' CourtsAct, 1906?c) Even if it is held that the civil suit lies, inter alia,challenging the order passed under the Mamlatdars'Courts Act, 1906, whether the learned lower appellateCourt was justified in considering the entirecontroversy afresh? "11.The aforesaid questions of law have beenanswered by this Court by holding that the jurisdiction ofMamlatdar is a summary jurisdiction and jurisdiction of civilcourt is not barred under the scheme of the Act. With respectto maintainability of suit to challenge orders passed byMamlatdar, this Court has held as under :- 245074.2022WP+.odt"6. In fact, the question of jurisdiction of the CivilCourt to entertain, try and decide the suitchallenging the order passed under Section 5 of theMamlatdars' Courts Act is no longer res integra inview of the decision of the learned Single Judge ofthis Court in the case of Rajendra Sheshrao Shendgev. Smt. Shobhatai S. Ravate & Anr. Paras 11, 12 and13 of the said decision being relevant. I fully endorse the aforesaid view and intendto reinforce it as under:7. I have gone through the provision of Section 5of the Mamlatdars' Courts Act. The proviso belowsub-section (1) of Section 5 of the said Actempowers the Mamlatdar to refuse to exercise thepower under the said provision if it appears to himthat such a case can be more suitably dealt with bythe Civil Court. Though there is a revision providedunder Section 23 of the said Act to challenge theorder passed by the Mamlatdar under Section 5, theAct nowhere attaches finality either to the orderpassed under Section 5 by the Mamlatdar on meritsor to the order passed in revision under Section 23of the said Act. In the absence of such finality beingattached to the order passed under the Act, thejurisdiction of the Civil Court cannot be held to beimpliedly barred merely because the Act provides aseparate machinery for getting the grievanceredressed. The ouster of the plenary jurisdiction of 255074.2022WP+.odtCivil Court cannot be readily interfered and suchjurisdiction remains intact and available to beexercised either against the order under Section 5 oragainst the order of revision under Section 23 of thesaid Act.8. The learned counsels appearing for the partiescould not bring to my notice any express provisioncreating bar of jurisdiction of the Civil Court toentertain, try and decide the suit challenging eitherthe order passed under Section 5 or under Section23 of the Mamlatdars' Courts Act. In a given case, aCivil Court may refuse to grant relief on the groundthat the remedy of revision under Section 23 of thesaid Act is not exhausted, but that is not themandate which the Civil Court is required toobserve. The lower Appellate Court has, in terms,recorded the finding that when the order passed bythe Mamlatdar is without following the procedure, itcannot come in the way of the Civil Court to decidethe substantive rights of the parties. The view takencannot be faulted with. The substantial questions oflaw at serial Nos. (a) and (b) are, therefore,answered accordingly.12.In the matter of Alka w/o Pandit Ghongade(supra) this Court has relegated parties challenging orderpassed under Section 5(2) by the Mamlatdar and orderdismissing the revision passed by the Sub-Divisional Officer 265074.2022WP+.odtunder Section 23(2) to alternate remedy of filing civil suit inview of the judgments in the matters of RajendraShendge(supra) and Mohommad Khan (supra). JUDGMENTS RELIED BY THE PETITIONERS :- 13.Per contra, in the matter of Mangalabai VitthalJadhav (supra), it is held that in view of Section 22 of theMamlatdars’ Courts Act, it will be open for either party to aproceeding before Mamlatdar to approach the civil court foradjudication of the dispute before the Mamlatdar on its ownmerits. It is held that the civil court is required to adjudicatethe controversy individually on its own merits. It is howeverheld that the civil court cannot be used by any party to theproceeding before the Tahsildar as an appellate forum tochallenge the findings rendered by Mamlatdar. Relevantportion of the judgment is reproduced hereinbelow for readyreference :- “12.It is thus evident that the rights claimedbefore the authorities under the Act are transitoryin nature and can be finally crystallized only in acivil remedy before the Civil Court. There canthus be no dispute that the party approaching theCivil Court is required to prove his case 275074.2022WP+.odtindependently on its own merits and not use theCivil Court as an Appellate Forum to challengethe findings rendered by the Mamlatdar, assought to be done by the appellants herein.” 14.The said judgment is followed in the matter ofBaban @ Nainsukh Dagadu Kurandale (supra), wherein it isheld as under:- “7. …. The statutory scheme is that rights andliabilities of the parties to the lis have to beindependently addressed and decided by the civilcourt uninfluenced by the order which may havebeen rendered by the Mamlatdar. In that sense,the adjudication under Section 5 of the Act issubservient to the adjudication by the civil court. …. While the civil court can arrive at findingswhich are different and indeed opposite to thefindings recorded by the Mamlatdar, the findingsshall have to be recorded by the civil court on thebasis of the material on record in the civilproceedings, and not on the basis of certainperceived infirmities procedural or substantive, inthe proceedings by the Mamlatdar.” 15.As noted above, the judgment of MohommadKhan S/o Rahim Khan (supra) directly holds that orders 285074.2022WP+.odtpassed under Sections 5 and 23 of the Act can be challengedbefore the civil court. As against this, the judgment in thematter of Mangalabai Vitthal Jadhav (supra) and Baban @Nainsukh Dagadu Kurandale (supra) directly hold that thecivil court cannot sit in an appeal over the decision by theMamlatdar, although the controversy adjudicated byMamlatdar can be decided afresh by a civil court and on suchadjudication by the civil court, the decision taken byMamlatdar is rendered ineffective. 16.All these judgments are delivered by the learnedSingle Judges of this Court. The judgment in the matter ofMohommad Khan S/o Rahim Khan (supra) is prior in point oftime. This judgment is not considered in subsequent twodecisions of this Court i.e. in the matters of Mangalabai VitthalJadhav (supra) and Baban @ Nainsukh Dagadu Kurandale(supra).17.At this stage, it will be appropriate to briefly referto the scheme of the Act. The Mamlatdar is a revenue officer,generally of the rank of Tahsildar. The Act confers jurisdiction 295074.2022WP+.odton him to pass appropriate orders in a summary proceeding.The orders passed under the Act are not meant to decide therights of parties finally and conclusively. The proceedingbefore the Mamlatdar is called a suit. The person who invokesthe jurisdiction is called plaintiff and other side is calleddefendant. The proceedings are commenced with presentationof plaint which is required to be filed in compliance of Section7. The plaint must amongst other things disclose the nature ofright, particulars regarding infringement of right and the reliefsought. The plaintiff is also required to file list of documentsand witnesses, if any. In case of any technical defects in theplaint, the Mamlatdar is required to remove the defects byfollowing procedure prescribed under Sections 8 to 11 of theAct. The Mamlatdar is also authorized to summon andexamine witnesses on oath. The Mamlatdar also has authorityto enforce and execute his orders. However, as will beapparent from reading of Section 22 of the Act, the order ofMamlatdar is subject to any decree or order to the contrary tobe passed by the Civil Court. 18.Since the controversy in the present matters isrelating to alternate remedy, Sections 22 and 23 of the Act will 305074.2022WP+.odtbe relevant. Section 23 provides that there shall be no appealfrom any orders passed by the Mamlatdar under the Act.However, Section 23(2) confers jurisdiction/authority uponthe Collector to exercise revisional powers against the orderspassed by the Mamlatdar. The orders passed by Mamlatdar aresubject to orders passed on the same subject matter by thecivil court. Section 22 provides that a person in whose favourorder is passed by Mamlatdar is entitled to reap benefits of theorder only till otherwise decreed or ordered by the competentcivil court. The provision also states that in any subsequentproceeding between the same parties before the civil court,the decision by Mamlatdar will not be held to be conclusive.Thus, orders passed under the Act are subservient to orderand/or decree by a civil court. 19.There is no provision under the Act expresslyexcluding jurisdiction of the Civil Court. Jurisdiction of a CivilCourt to test the correctness or otherwise of orders passed byMamlatdar under the Act is not expressly barred by anyprovision under the Act. The provisions of the Act also do notindicate that any finality attached either to the orders passedby the Mamlatdar or the orders passed by the Collector in 315074.2022WP+.odtRevision under Section 23(2). 20.Legal position that the adjudication by Mamlatdaris merely ad-hoc adjudication to seize the matter of momentand not a final and conclusive adjudication is beyond anydoubt. There is complete unanimity in this regard in all thejudicial pronouncements. Perusal of Section 22 of the Act itselfmakes this legal position clear. Rather, it provides that orderspassed under the Act are subject to order or decree passed bythe civil court. 21.It is also obvious that the act does not create anyright for the first time. The act merely provides for summaryadjudication of pre-existing rights of easement and otherrights relating to agricultural lands. Needless to reiterate thatadjudication of rights under the Act is not final adjudicationbetween the parties. 22.In order to decide the issue of jurisdiction of civilcourt with respect to orders passed by Mamlatdar underSection 5 or the Collector under Section 23 of the Act, it will 325074.2022WP+.odtbe profitable to refer to the Constitution Bench judgment ofthe Hon'ble Supreme Court in the matter of Dhulabhai etc.,Vs.State of Madhya Pradesh and another, AIR 1959 SC 78. TheHon'ble Supreme Court has referred to several judgments,particularly relating to taxing statutes, which contain aspecific provision excluding jurisdiction of civil court andprovided immunity to the orders passed by the authoritiesunder the said statutes from challenge before the civil court.After referring to catena of judgments, the Hon'ble SupremeCourt has culled out following legal principles :- "(1) Where the statute gives a finality to the orders ofthe special tribunals the Civil Court's jurisdiction mustbe held to be excluded if there is adequate remedy todo what the Civil Courts would normally do in a suit.Such provision, however, does not exclude those caseswhere the provisions of the particular Act have notbeen complied with or the statutory tribunal has notacted in conformity with the fundamental principlesof judicial procedure.(2) Where there is an express bar of the jurisdiction ofthe court, an examination of the scheme of theparticular Act to find the adequacy or the sufficiencyof the remedies provided may be relevant but is notdecisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the 335074.2022WP+.odtexamination of the remedies and the scheme of theparticular Act to find out the intendment becomesnecessary and the result of the inquiry may bedecisive. In the latter case it is necessary to see if thestatute creates a special right or a liability andprovides for the determination of the right or liabilityand further lays down that all questions about thesaid right and liability shall be determined by thetribunals so constituted, and whether remediesnormally associated with actions in Civil Courts areprescribed by the said statue or not.(7) An exclusion of the jurisdiction of the Civil Courtis not readily to be inferred unless the conditionsabove set down apply."23.It is clear from the aforesaid that even where astatute attaches finality to the orders passed by statutoryauthorities, jurisdiction of civil court is held to be ousted onlyif the statute provides for adequate remedy to do what thecivil court is competent to do. It is further clear that ifprovisions of the Act have not been complied with then even ifthe statute provides for finality to orders, jurisdiction of civilcourt to challenge the orders is not excluded. In cases wherethere is no express bar to jurisdiction of civil court, the 345074.2022WP+.odtrelevant consideration is as to whether the right is conferredby the Act for the first time along with remedies for theenforcement of the same. It is held that if a right is createdand remedy is provided under the same statute normally, thejurisdiction of the civil court ousted. However, if the right is apreexisting civil right and a forum is provided fordetermination of the said right, the test is whether such forumis competent to grant relief that a civil court can grant to alitigant. The judgment also states that where the order of theauthority is ultra vires the Act i.e. it is passed in disregard tomandatory provisions of the Act itself and in cases wherefundamental principles of law have not been followed, in suchcases also jurisdiction of the Civil Court will not be ousted.Finally, it is held that exclusion of jurisdiction of civil courtshould not be readily inferred. 24.In the light of 2nd and 7th principle laid down inthe matter of Dhulabhai (supra), it must be held thatjurisdiction of civil court to decide correctness or otherwise oforders passed by the Mamlatdar is neither expressly norimpliedly excluded. In this regard, it must be noted that thereis no express bar to jurisdiction of Civil Court under the Act 355074.2022WP+.odtand further that the statute does not create any special rightsor liabilities for the first time by simultaneously providing forremedy for adjudication and enforcement of the same. The Actdoes not create rights and provide for machinery forenforcement of the same uno flatu i.e. in the same breath. Themachinery under the Act is only for summary adjudication ofpre-existing rights and even finality is not attached to suchadjudication.25.In the considered opinion of this Court, the firstprinciple in the matter of Dhulabhai (supra) will also berelevant. The judgment provides that even where statuteprovides finality to the orders passed by special tribunalsjurisdiction of the civil court is not excluded in cases wherethe statutory authority has not complied with the provisions ofthe Act and/or has not acted inconformity with fundamentalprinciples of judicial procedure. Thus, even in cases where theAct provides for finality to the orders passed by the statutoryauthorities or tribunals, such orders cannot enjoy completeimmunity of being tested by a civil court. Jurisdiction of civilcourt to ascertain correctness of orders passed by theauthorities under the Act, which provide for finality of orders 365074.2022WP+.odtis not completely excluded. Having regard to the aforesaidlegal position as also the scheme of Mamlatdars' Courts Act, itmust be said that jurisdiction of civil court is not excluded toascertain correctness or otherwise of orders passed by theMamlatdar. 26.Having regard to law laid down in Dhulabhai(supra), it must be held that the civil court, apart fromdeciding the merits of the main dispute, can also decidecorrectness or otherwise of the order passed by the Mamlatdarunder Section 5(2) as also by the revisional authority i.e.Collector under Section 23(2) of the Act. 27.At this juncture, it will be profitable to refer to aDivision Bench judgment of this Court in the matter ofHuseinmiya Dosumiya Vs. Desai Khandubhai Jethabhaireported in AIR 1954 Bom 239. In the said matter, orderpassed by Mamlatdar under the provisions of the BombayTenancy and Agricultural Lands Act, 1948 was challenged asultra vires of the Act by filing a civil suit rather than availingremedy of filing appeal provided under the said Act. Section 375074.2022WP+.odt85 (2) of the Tenancy Act provides that order passed byMamlatdar or other authorities under the Act shall not bequestioned in any Civil Court. The Mamlatdar had passed anorder directing delivery of possession under Section 29 of theAct. The order passed by Mamlatdar was challenged by filinga civil suit. It will also be pertinent to mention that Section 74of the Act provides for an appeal against order passed by theMamlatdar under Section 29. Ignoring the remedy of filingappeal provided under the Act itself, a suit was filed in orderto challenge the order passed by the Mamlatdar. In thiscontext, issue pertaining to jurisdiction of Civil Court arose forconsideration before the learned Division Bench of this Court.Holding that the Civil Suit is maintainable, the learnedDivision Bench has held as under :-“ The other matter that has got to be considered is,what is the effect of s. 74 of the Act which providesfor an appeal against the order of the Mamlatdar. Itwas open to the opponents to prefer an appealagainst the decision of the Mamlatdar because s. 74in terms provides for an appeal to the Collectoragainst an order made by the Mamlatdar under s. 29.Instead of preferring an appeal the opponents havefiled this suit in a Civil Court. 385074.2022WP+.odt Now, does the fact that a statute provides for a rightof appeal against an order made by an authority set upunder that statute make any difference to the positionwhen the order made by the authority is an invalid orultra vires order? It is clear that if the order itself isultra vires it is a nullity and there is no obligationupon a party against whom the order is made to preferan appeal against that order. The appeals that areprovided for under s. 74 are strictly appeals againstvalid orders made by the Mamlatdar and orders madewith jurisdiction. It may be that the Collector couldhave corrected the Mamlatdar and could have heldthat the order of the Mamlatdar was ultra vires. Butthe question is not whether the opponents could haveappealed to the Collector and could have got thenecessary relief. The question is whether theopponents are bound to appeal and are prevented orprecluded from going to a civil Court. In our opinion,on principle it is erroneous to argue that merelybecause a statute provides for a right of appeal, theparty against whom the order is made is bound toappeal although the order made is a nullity. If theorder is a nullity, the party is entitled to ignore it, totreat it as waste paper, and to go to a civil Court for adeclaration that the order is a nullity and no actionshould be taken against the party under that orderwhich would prejudice his rights. See for this purposethe decision of a Full Bench of this Court inAbdullamiyan Abdulrehman v. The Government of 395074.2022WP+.odtBombay. Therefore, in our opinion, the learned Judgebelow was right in coming to the conclusion that hedid that the Court had jurisdiction to try this suit.”28.The judgment in the matter of HuseinmiyaDosumiya (supra) is followed by learned Single Judge in thematter of Meerabai Madhav Kossambe Vs. Laxmi NarayanNaik reported in 2024 SCC Online Bom 1212. The saidjudgment arises out of an order passed by the Mamlatdarunder the provisions of the Goa Agricultural Tenancy Act,which is pari materia with the Bombay Tenancy Act. A suitwas filed seeking declaration that the order passed by theMamlatdar was a nullity. Section 58B of the said Act providesthat orders passed by the authorities under the said Act cannotbe challenged before the civil court. It was held that the orderpassed by the Mamlatdar was obtained by practicing fraudand principles of natural justice were also not followed in theproceeding before the Mamlatdar. The observations withrespect to fraud may not be relevant for the purpose ofpresent petitions. However, as regards breach of principles ofnatural justice, the learned Single Judge has held that breachof principles of natural justice resulted in violation of one of 405074.2022WP+.odtthe foundational principles of judicial procedure. It wastherefore held that the suit was maintainable in view of firstprinciple laid down in Dhulabhai. Apart from Dhulabhai, thelearned Single Judge has placed reliance of judgment in thematter of State Bank of Patiala and others Vs. S.K. Sharmareported in (1996) 3 SCC 364, wherein it was held that orderpassed by authority without opportunity of hearing would beinvalid and also be termed to be void or a nullity. Likewise, bypressing reliance on the judgment in the matter ofHuseinmiya Dosumiya (supra), it is held as under :- “ 53..... When the Mamlatdar makes an orderwithin the jurisdiction or, in other words, makes anorder for the purposes of the Act or an order requiredby the Act, such an order cannot be questioned in acivil Court. However, if Mamlatdar's order is not forthe purposes of the Act or not required by the Actand the order is incompetent or ultra vires, then theorder is a nullity, and it can be challenged in a civilCourt. 54.The Division Bench rejected the argument thatsince an appeal was provided against Mamlatdar'sorder, the Civil Court would lack jurisdiction toentertain the suit." 29.With respect, the judgments in the matters of 415074.2022WP+.odtMangalabai Vitthal Jadhav (supra) and Baban @ NainsukhDagadu Kurandale (supra) do not appear to be in consonancewith the principles laid down in the matter of Dhulabhai(supra). It is not possible to reconcile the ratio of Mangalabaiand Baban @ Nainsukh with the law laid down in Dhulabhai(supra).30.The judgments in the matters of MangalabaiVitthal Jadhav and Baban @ Nainsukh Dagadu Kurandale(supra) relied upon by the petitioners not only run contraryto the ratio of Dhulabhai (supra) but also to the ratio of theaforesaid Division Bench judgment in Huseinmiya Dosumiya(supra) which deals with jurisdiction of the Civil Court toentertain the challenge to the order passed by the Mamlatdarunder the Tenancy Act. It will be pertinent to mention herethat the said judgment deals with a statute under whichjurisdiction of civil court is specifically barred and finality isattached the orders passed by authorities exercisingjurisdiction under the Tenancy Act. The law laid down in thesaid judgment will apply with greater force in the presentcases which deal with orders passed by Mamlatdar and/orCollector under the Mamlatdars Courts Act, which neither 425074.2022WP+.odtexpressly or impliedly excludes the jurisdiction of a civil courtbut rather provides that adjudication under the Act will besubject to any order to the contrary to be passed by a civilcourt.31.In view of Mangalabai and Baban, relied upon bythe petitioners, although, the civil court cannot sit in appealover decision taken by Mamlatdar, it can certainly takedecision on merits of the matter contrary to the decision ofMamlatdar as also the Sub-Divisional Officer. Adjudication ofthe matter on merits by the civil court will have the effect ofrendering the orders impugned in the present petitionnugatory. Therefore, the petitioners can file a suit to have civilrights adjudicated by competent civil court once and for all.On adjudication of the matter by civil court controversy willbe set at rest for all times to come. 32.It will also be pertinent to mention that thecontroversy involved in the matters under Mamlatdars’ CourtsAct essentially involve a scrutiny of disputed facts. The issuethat arises for consideration pertains to existence of a 435074.2022WP+.odteasementary right and obstruction thereof. The obstructionshould be within period of six months prior to the date offiling of the suit before the Mamlatdar. In all these aspectsinquiry is required in disputed questions of facts. It is wellsettled that a court exercising jurisdiction under Article 226 or227 of the Constitution of India should not venture into aninquiry with respect to disputed questions of facts. Although,in cases of perversity or findings being based on conjecturesand not on any evidence, and such other limited grounds,interference with findings of fact is permissible, it is wellsettled that in no case the evidence can be re-appreciated in apetition under Article 226 or 227 of the Constitution of India.However, civil court is a court of facts and law both. It haspower and jurisdiction to permit parties to lead evidence andadjudicate disputed questions of facts in a full-dressed trial.Having regard to the nature of controversy, it is desirable thatthe dispute between the parties is thrashed out once and forall before a civil court. The remedy of filing a civil suit is notonly an equally efficacious remedy but it is rather a moreappropriate and effective remedy. 33.Of late many petitions are coming up before this 445074.2022WP+.odtCourt arising out of provisions of Mamlatdars’ Courts Act.Whereas the provisions of Mamlatdars’ Courts Act arestatutory provisions, which are meant to give immediateurgent reliefs to villagers with respect to the matters coveredunder Section 5 of the Act, it is found that the proceduralrequirements of the Act are seldom followed. As aconsequence of this, whenever a challenge to the orderspassed under the Act is brought before this Court, submissionsare advanced with respect to technical aspects regarding non-compliance of statutory provisions relating to procedure. Evenwhen submissions with respect to merits of the rival claims aremade, since merits of the matter involve essentially disputedquestions of fact, this Court is unable to make a venture torule on disputed questions of facts. Most of the times, thematters are required to be remanded back to decide the caseby following procedural formalities. These proceduralformalities are held to be mandatory. Litigants who arefarmers coming from villages are forced through repeatedrounds of litigation. However, if the matter goes to the civilcourt, the controversy between the parties can be adjudicatedon merits and can be set at rest once and for all. 455074.2022WP+.odt34.There are two regimes regulating right of wayprevailing in the State of Maharashtra. One is under Section 5of the Mamlatdars’ Courts Act, which enables a Mamlatdar toorder removal of obstruction on an existing road, if the suit isfiled within a period of six months from the date ofobstruction. Apart from this there is another provision underSection 143 of the Maharashtra Land Revenue Code, underwhich the Tahsildar is authorized to grant a new road overboundaries of agricultural lands. Whereas, the jurisdictionunder the Mamlatdars’ Courts Act is to order removal ofobstruction over existing roads, jurisdiction under Section 143of the M.L.R. Code is to grant a new right of way overboundaries of agricultural lands. However, when a suit is filedunder Section 5(2) of the Act, the Mamlatdar cannot grantright of through fare over a road which is not previously inexistence. Similarly, while exercising jurisdiction underSection 143, the Tahsildar cannot order removal ofobstruction over an existing road. 35.Right of way over a property of another person ispre-existing civil right of easement. This right is not createdfor the first time either under the Mamlatdars’ Courts Act or 465074.2022WP+.odtunder the Maharashtra Land Revenue Code. This ispreexisting right of easement. Such easementary right can beenforced by any person by instituting a civil suit before thecompetent civil court. Jurisdiction of civil court is notrestricted like jurisdiction of Mamlatdar or Tahsildar underSection 143. On an easementary right being established, civilcourt can grant right of way through a road which did notexist prior in point of time, as can be done by the Tahsildarunder Section 143 and likewise civil court can also orderremoval of obstruction as can be done by Mamlatdar underSection 5 of the Mamlatdars’ Courts Act. A party, whoapproaches civil court for adjudication of his civil right, thushas the benefit of prosecuting claim before a judicial forumwhose jurisdiction is not circumscribed or restricted butlimitless. Therefore, a person on proving the need can getorders for creation of a road and/or removal of obstructionover existing road. Both these reliefs can be sought in thesame proceeding. Likewise provisions of Easements Act canalso be invoked by both parties. 36.In a suit for enforcement of easementary rightsparties can also take resort to provisions of the Indian 475074.2022WP+.odtEasements Act before the civil court relating to easement ofnecessity, easement by prescription etc., as also extinction ofeasement, frustration of easement etc. Such defences whichdepend on scrutiny of facts cannot be raised and adjudicatedbefore the High Court in a petition under Article 226 or 227 ofthe Constitution of India. It also needs to be mentioned thatthere are provisions under the M.L.R. Code, which can also bepressed into service while prosecuting the matter before thecivil court. Recourse to the provisions can be taken by both theparties. 37.Thus, for the reasons aforesaid, in the consideredopinion of this Court, remedy of filing a civil suit is not onlyan efficacious alternate remedy but a more effective andmeaningful remedy. 38.As regards, any emergent situation, that arises insuch matters, it goes without saying that the same can beaddressed by the civil court by passing appropriate orders oftemporary injunction, which will of course prevail over orderspassed under Section 5(2) and 23(1) of the Mamlatdars'Courts Act. Section 22 includes the words “decree” and 485074.2022WP+.odt“order” both . The words unless otherwise ordered would notmean unless otherwise finally ordered. The legislature hasdeliberately used the words “decree” and “order” both in theprovision. Therefore, even if an interlocutory order is passedby the civil court contrary to the decision of Mamlatdar, theinterim order by civil court will prevail. This would, therefore,take care of any urgent or emergent situation, in as much as,the plaintiff can also seek order of temporary injunctioncontrary to the orders passed under the Act and if order oftemporary injunction is granted, the same shall prevail overthe formal orders passed under the Act. It will be pertinent tomention that the judgment in the matter of Baban @Nainsukh, relied upon by the petitioners, this Court hasspecifically held that an application for grant of temporaryinjunction in a civil suit should be decided by the civil courton its own merits and not merely by deciding correctness orotherwise of the order passed by the Mamlatdar. The saidjudgment implies that order of temporary injunction can alsobe passed by a civil court contrary to final order passed underthe Mamlatdars’ Courts Act. 39.The contentions raised by the petitioners as 495074.2022WP+.odtrecorded in the initial paragraph are pertaining to :-(a)limitation;(b)grant of new road under the guise of directions forremoval of obstruction; (c)plaint is not filed and verified as prescribed under thestatute and steps required for curing the defects are also nottaken;(d)evidence is not recorded and opportunity of crossexamination is not granted;(e)panchanamas are not drawn in accordance withprescribed procedure and (f)apart from this grounds are also raised with respect tomerits which were not argued since the petitions were heardon the point of alternate remedy. 40.The contentions pertaining to limitation andcreation of new road in excess of jurisdiction can be raisedbefore the civil court in view of first principle in the matter ofDhulabhai (supra), which states that even if jurisdiction of thecivil court is excluded by the statute, suit will be maintainablein cases where provisions of the statute are not complied with. 505074.2022WP+.odtThis principle is reiterated in the matter of Huseinmiya(supra).41.Grounds pertaining to principles of natural justicecan also be raised before the civil court in view of the clearexposition in the matter of Dhulabhai that a civil suit will bemaintainable against order passed by a statutory tribunal,even if finality is attached to such order, if the tribunal has notacted inconformity with fundamental principles of judicialprocedure. This principle is reiterated in Huseinmiya andState Bank of Patiala (supra).42.The above grounds can also be raised andentertained under Articles 226 and 227 of the Constitution ofIndia. However, apart from grounds pertaining non-compliance with provisions of Act, principles of natural justiceand error of jurisdiction, issues pertaining to disputedquestions of facts are also raised in petitions arising out ofMamlatdars’ Courts Act. The issues pertaining to facts arebetter left to be decided by a civil court, which is a court ofempowered to record evidence and conclusively decidequestions of facts and law both. As stated above, this Court 515074.2022WP+.odthas very limited jurisdiction while dealing with questions offacts. It cannot reappreciate the evidence or even substitute itsview with view taken by the authority, if the same is probablealthough the court may be inclined to take a different view.Such limitations and hindrances will not come in the way oflitigants if the matter is decided by civil court. In theconsidered opinion of this Court, the remedy of challengingthe orders before the civil court is therefore a moremeaningful remedy where the entire controversy can beresolved finally.43.Therefore, in the considered opinion of this Court,the jurisdiction of civil court extends to deciding matter fallingwithin the jurisdiction of a Mamlatdar on merits and also todecide the correctness or otherwise of the orders passed by theMamlatdar and/or the Collector under Sections 5 and 23respectively of the Act. 44.The learned advocates for the petitioners contendthat even if it is assumed that civil court will have jurisdictionto entertain challenge to orders passed by the Mamlatdar andRevisional Authority/Sub-Divisional Officer under the Act, 525074.2022WP+.odtjurisdiction of this Court under Article 226 and 227 of theConstitution of India can never be barred. They place relianceon the judgment of the Hon’ble Supreme Court of India in thecase of L. Chandra Kumar Vs. Union of India and othersreported in AIR 1997 SC 1125. There cannot be any quarrelabout this well settled legal proposition. The jurisdiction ofthis Court is certainly not barred, however, it is well settledthat in cases where an equally efficacious remedy is availableto the petitioner, normally High Courts should not exercisetheir jurisdiction under Article 226 or 227 of the Constitutionof India.45.This judgment/order should not be interpreted tomean that jurisdiction of High Court under Article 226 and/or227 of the Constitution of India cannot be invoked in order tochallenge orders passed under the provisions of Mamlatdars’Courts Act. It is merely held that remedy of civil suit isavailable in order to challenge orders passed by the authoritiesunder the Mamlatdars’ Courts Act and that the said remedy ismore meaningful and effective remedy.46.For the reasons above, this Court is of the opinion 535074.2022WP+.odtthat judgments in the matter of Mangalabai and Baban areper incuriam of Dhulabhai and Huseinmiya and therefore,cannot be followed as binding precedents for the propositionthat the orders passed under the Mamlatdars’ Courts Actcannot be challenged in a civil suit. Judgment in the matter ofMohommad Khan S/o Rahim Khan which holds that orderspassed under the Mamlatdars’ Courts Act can be challenged inthe civil suit lays down the correct position of law.47.In the matters of Mangalabai and Baban it is heldthat whenever a civil suit is filed with respect to a matterwhich is decided by a Mamlatdar or the Collector in exerciseof revisional powers under the Act, the civil court shoulddecide the suit on its own merits in the light of evidencebrought before it and that it cannot decide the suit as if it isdeciding an appeal against order passed by the Mamlatdar orthe Collector. Having regard to the judgments in the matter ofDhulabhai, Huseinmiya and Mohommad Khan Rahim Khan,correctness of the order passed by the Mamlatdar or theCollector can be tested by a civil court. However, havingregard to Section 22 and 23 of the Act, the law laid down inthe said judgments that the civil court can independently 545074.2022WP+.odtadjudicate the issue which is already decided by theMamlatdar or the Collector cannot be doubted. The law laiddown to that extent is correct.48.The correct position of law is that civil court hasjurisdiction to decide the correctness or otherwise of orderspassed by Mamlatdar and Collector and also to independentlyadjudicate the matter on merits dehors of the decisionrendered under the Act. In the considered opinion of thisCourt, it will be advisable that whenever a dispute is carriedwith respect to orders passed under the Act, apart fromchallenging the decision, the parties also include pleadingsand lead evidence with respect to merits of the dispute.Whenever, a suit is filed against any adjudication by theauthorities under the Act, the decree to be passed will be inthe nature of declaration as regards correctness or otherwiseof the order passed by Mamlatdar or Collector. Section 34 ofthe Specific Relief Act is not exhaustive as regards thedeclaration which a civil court is competent to grant. Likewise,jurisdiction to grant a decree for declaration is a matter ofdiscretion. A declaratory decree cannot be claimed as a matterof right. In this regard it will be appropriate to refer to 555074.2022WP+.odtjudgment of the Hon’ble Supreme Court in the matter of VaishDegree College Vs. Lakshmi Naraian reported in AIR 1976 SC888. The Hon’ble Supreme Court has referred to variousdecisions by different High Courts as also by this Court to holdas under :-“26. ...... It is manifestly clear from the authorities discussedabove that the relief of declaration and injunction under theprovisions of the Specific Relief Act is purely discretionary and theplaintiff cannot claim it as of right. The relief has to be granted bythe court according to sound legal principles and ex debitojustitiae. The court has to administer justice between the partiesand cannot convert itself into an instrument of injustice or anengine of oppression. In these circumstances, while exercising itsdiscretionary powers the court must keep in mind the well settledprinciples of justice and fair play and should exercise the discretiononly if the ends of justice require it, for justice is not an objectwhich can be administered in vacuum."49.In view of the aforesaid legal position pertainingto declaratory reliefs, the civil court may refuse to grant adecree for declaration in cases where although the order maynot be passed strictly in compliance with the provisions of theAct but the defendant is in a position to establish his right tothe relief granted under the order impugned on the basis ofevidence and justify the final decision. Such discretion willobviously be exercised on case to case basis. It is well settledthat jurisdiction of this Court under Articles 226 and 227 isalso a matter of discretion to be exercised judiciously and nota matter of right. 565074.2022WP+.odt50.Since, the question that is being decided pertainsto existence of alternate remedy of filing of civil suit, it mustbe reiterated that even in the light of Mangalabai and Babanon which the petitioners have placed strong reliance, thepetitioners can be relegated to the remedy of filing civil suit inas much as once the matter is decided by the civil court onmerits, the order passed either under Section 5 or Section 23of the Act shall automatically be inoperative. This a personaggrieved by order passed by authorities under the Act can getrid of the same by filing a civil suit and seeking adjudicationof the subject matter on merits.51.In view of the aforesaid, it needs to be held thatthe remedy of filing a civil suit is an adequate alternateremedy and rather a more efficacious remedy for challengingthe orders passed by Mamlatdar or Collector under theprovisions of the Mamlatdars’ Courts Act. The civil court hasthe jurisdiction to decide correctness or otherwise of the orderpassed by authorities under the Act. Likewise even in theabsence of challenge to the orders passed by the authoritiesunder the Act, the party aggrieved by the order can file a
Arguments
45074.2022WP+.odt5.Vitthal S/o Laxman Gaikwad Age : 53 years, Occ : Agriculture, R/o Job Borsar, Tq. Kannad, Dist. Aurangabad. 6.Eknath S/o Laxman Gaikwad Age : 50 years, Occ : Agriculture, R/o Job Borsar, Tq. Kannad, Dist. Aurangabad. 7.Janardhan S/o Pandurang Gaikwad Age : 45 years, Occ : Agriculture, R/o Job Borsar, Tq. Kannad, Dist. Aurangabad. 8.Madhav S/o Sakhahari Gaikwad Age : 50 years, Occ : Agriculture, R/o Job Borsar, Tq. Kannad, Dist. Aurangabad. 9.Lata W/o Karbhari Gaikwad Age : 45 years, Occ : Agriculture, R/o Job Borsar, Tq. Kannad, Dist. Aurangabad. ..RESPONDENTS…Mr.K.F. Shingare, Advocate for the petitioners Mr. V.S. Badakh, AGP for the respondent/State. Mr. N.D. Sonavane, Advocate for respondent Nos.4 to 9. ...ANDWRIT PETITION NO. 6895 OF 20221.Lata Manohar Magar Age : 52 years, Occ : Agri., 2.Manohar Dhondiba Magar Age : 57 years, Occ : Agri., Both R/o Sade, Tq. Kopargaon, Dist. Ahmednagar. ..PETITIONERS 55074.2022WP+.odtVERSUS1.Rekha Bhaskarrao GadeAge : 57 years, Occ : Agri., 2.Gokul Punja Barhate Age : 53 years, Occ : Agri., 3.Eknath Dhondiba Magar Age : 61 years, Occ : Agri., All R/o Sade, Tq. Kopargaon, Dist. Ahmednagar. ..RESPONDENTS…Mr.P.M. Borde h/f Mr.Shailesh S. Chapalgaonkar, Advocate for the petitioners Mr. A.D. Sonkawade, Advocate for respondent No.1. ...AND WRIT PETITION NO. 7499 OF 20221.Sunil Govardhan Kabra Age : 55 years, Occ : Agri., R/o Sai Palace, K-10, Tirupati Supreme Enclave, Jalan Nagar, Aurangabad. 2.Anil Govardhan Kabra Age : 51 years, Occ : Agri., R/o Govardhan Niwas, Opposite District Court, Aurangabad. ..PETITIONERSVERSUS1.The Sub-Divisional Officer, Bhokardan, Dist. Jalna. 2.The Tahsildar/Mamlatdar, Jafrabad, Tq. Jafrabad, Dist. Jalna. 65074.2022WP+.odt3.The Circle Officer, Tembhurni, Tq. Jafrabad, Dist. Jalna. 4.Dinkarrao Marotrao Deshmukh Age : 45 years, Occ : Agri., 5.Suresh Kisanrao DeshmukhAge : 41 years, Occ : Agri., 6.Bhagwanrao Marotrao Deshmukh Age : 50 years, Occ : Agri., 7.Jagannath Marotrao Deshmukh Age : 49 years, Occ : Agri., 8.Vasant Vyankatrao Deshmukh, Age : 50 years, Occ : Agri., 9.Smt. Sunita Kisanrao Ambhore (Died) Through her legal heirs 9.1.Sunil Kisanrao Ambhore Age : 48 years, Occ : Agri., 9.2.Neeta Sarjerao Patil Age : 45 years, Occ : Agri., 9.3.Geeta Narayan Mule Age : 43 years, Occ : Agri., 9.4.Anil Kisanrao Ambhore Age : 38 years, Occ : Agri., All R/o Timbhurni, Tal. Jafrabad, Dist. Jalna. 10.Smt. Kavitatai Ganeshrao Deshmukh Age : 39 years, Occ : Agri., 11.Smt. Sandhyatai Rameshrao DeshmukhAge : 40 years, Occ : Agri., 75074.2022WP+.odt12.Sau. Padmini Vasantrao DeshmukhAge : 30 years, Occ : Agri., 13.Sau. Hausabai Shamrao Gaikwad Age : 50 years, Occ : Agri., 14.Sandip Shamrao GaikwadAge : 50 years, Occ : Agri., 15.Sudhakar Baliram WaghmodeAge : 45 years, Occ : Agri., 16.Bhagwan Rajaram Deshmukh Age : 42 years, Occ : Agri., 17.Abarao Rajaram Deshmukh Age : 48 years, Occ : Agri., 18.Shivaji Aheluba Deshmukh, Age : 46 years, Occ : Agri., 19.Ankush Pandurang ChaureAge : 45 years, Occ : Agri., 20.Shrirang Sukhdeo ChaureAge : 53 years, Occ : Agri., 21.Girish Jagannath Deshmukh Age : 52 years, Occ : Agri., 22.Shantabai Jagannath Deshmukh Age : 55 years, Occ : Agri., 23.Sandip Dinkarrao Deshmukh Age : 49 years, Occ : Agri., 24.Anand Dinkarrao Deshmukh Age : 47 years, Occ : Agri., 25.Sau. Sangita Suresh Deshmukh Age : 30 years, Occ : Agri., 85074.2022WP+.odtRespondent Nos.4 to 25 All R/o Tembhurni, Tq. Jafrabad, Dist. Jalna. ..RESPONDENTS…Mr.A.M. Hajare, Advocate for the petitioners Mr. R.D. Raut, AGP for the respondent/State. Mr.V.R. Dhorde, Advocate for respondent Nos.4 to 25. ...ANDWRIT PETITION NO. 7526 OF 2022Bismillabi Amanulla Khan Age : 76 years, Occ : Agricultural, R/o At-Chikalthan, Taluka-Kannad, Dist. Aurangabad, Maharashtra - 431 103. ..PETITIONERVERSUS1.Kalpanabai Murlidhar Raghu Age : 55 years, Occ : Agricultural, 2.Vijay Murlidhar RaghuAge : 30 years, Occ : Agricultural, Both R/o At-Chikalthan, Taluka-Kannad, Dist. Aurangabad, Maharashtra - 431 103. ..RESPONDENTS…Mr.A.A. Kokad, Advocate for the petitioner Mr.P.S. Pawar, Advocate for respondent Nos.1 and 2. ...ANDWRIT PETITION NO. 8819 OF 20221.Digambar S/o Shivaji Marathe Age : 38 years, Occ : Service and Agriculturist, R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 95074.2022WP+.odt2.Dagadu S/o Shivaji MaratheAge : 41 years, Occ : Service and Agriculturist, R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. ..PETITIONERSVERSUS1.The Sub-Divisional Officer, Pachora, Through Sub-Divisional Office, Pachora2.The Tehsildar, Bhadgaon, Through Tehsil Office, Bhadgaon. 3.Pratap S/o Arjun Patil Age : 62 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 4.Sandhyabai W/o Prataprao Patil Age : 57 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 5.Rajani W/o Arun Wani Age : 52 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 6.Ganesh S/o Dattu Wani Age : 24 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 7.Salochanabai W/o Ramesh Patil Age : 67 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 8.Rajendra S/o Bhavrao Patil Age : 52 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 105074.2022WP+.odt9.Ramkrishna S/o Bhavrao Patil Age : 64 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 10.Lilabai W/o Lotan Patil Age : 62 years, Occ : Agriculturist, R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon.11.Kashinath S/o Narayan Patil Age : 60 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon.12.Kalpanabai W/o Vithhal Patil Age : 37 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 13.Sindhubai W/o Ramesh Marathe Age : 67 years, Occ : Service and Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 14.Dilip S/o Ramesh Marathe Age : 50 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon.15.Kiran S/o Ramesh Marathe Age : 48 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon.16.Deepak S/o Ramesh Marathe Age : 46 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 17.Prashant S/o Ramesh MaratheAge : 44 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 115074.2022WP+.odt18.Hirabai W/o Bhila Gaikwad Age : 57 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 19.Madhavrao S/o Shankar Gaikwad Age : 72 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 20.Mirabai W/o Bapu Gaikwad Age : 67 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 21.Santosh S/o Baburao Marathe Age : 57 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. 22.Sumanbai W/o Uttam Patil Age : 58 years, Occ : Agriculturist,R/o Bhadgaon Peth, Tq. Bhadgaon, Dist. Jalgaon. ..RESPONDENTS…Mr.Swapnil S. Patunkar for J.P. Legal Associates, Advocate for the petitioners Dr. Kalpnata Patil Bharaswadkar, Addl. GP for the respondent/State. ...ANDWRIT PETITION NO. 8920 OF 2022Premraj S/o Achutrao VaratAge : 45 years, Occ : Agriculture, R/o Pimpalgaon Kanada, Tq. Georai, Dist. Beed. ..PETITIONERVERSUS1.The Sub-Divisional Office at Beed, Tq. & Dist. Beed. 125074.2022WP+.odt2.The Tahsildar Office Georai, Tq. Georai, Dist. Beed. 3.The Nayab Tahsildar, Georai, Tq. Georai, Dist. Beed. 4.The Circle Officer, Pachegaon, Tq. Georai, Dist. beed. 5.The Talathi Pachegaon, Tq. Georai, Dist. Beed. 6.Murlidhar S/o Laxman Warat Age : 50 years, Occ : Agri., R/o Pimpalgaon Kanada, Tq. Georai, Dist. Beed. ..RESPONDENTS…Mr.Sanket S. Kulkarni h/f Mr. D.B. Pookale, Advocate for the petitioner Mr. V.S. Badakh, AGP for the respondent/State. Mr. S.R. Shirsat, Advocate for respondent no.6. ...ANDWRIT PETITION NO. 3270 OF 2022 1.Motilal S/o Nirranjan Bharathi Age : 57 years, Occ : Service & Agriculture, 2.Sow. Vandanabai Motilal Bharati, Age : 51 years, Occ : Household, 3.Maharu Niranjan BharatiAge : 64 years, Occ : Agriculture, All R/o Salave, Tq. Shindkhed, Dist. Dhule..PETITIONERSVERSUS 135074.2022WP+.odt1.Sunita Bajirao Mali Age : 43 years, Occ : Household, 2.Chindhabai Vishram Mali Age : 66 years, Occ : Household, All R/o Salave, Tq. Shindkhed, Dist. Dhule3.Shobhabai Shivdas Mahajan (Deleted as per Court order dated 14.07.2022). 4.The Tahsildar, Dondaicha, Tq. Shindkhed, Dist. Dhule. 5.Sub-Divisional Officer, Shirpur, Tq. Shindkhed, Dist. Dhule. ..RESPONDENTS…Mr.M.V. Salunke, Advocate for the petitioners Mr.V.M. Chate, AGP for the respondent/State. Mr. M.S. Shah, Advocate for respondent nos.1 and 2. AND WRIT PETITION NO. 11246 OF 20221.Kailash S/o Jagannath Sonawane Age : 61 years, Occ : Agri., 2.Pundlik S/o Jagannath Sonawane Age : 57 years, Occ : Agri., 3.Ashok S/o Jagannath Sonawane Age : 40 years, Occ : Agri., 4.Jagdish S/o Pundlik Sonawane Age : 33 years, Occ : Agri., All residents of Dabhadi, Tq. Kannad, Dist. Aurangabad. ..PETITIONERSVERSUS 145074.2022WP+.odt1.The State of Maharashtra Through the Department of Revenue and Forest, Mantralaya, Mumbai. 2.The Sub-Divisional Officer, Kannad, Dist. Aurangabad. 3.The TahsildarKannad, Dist. Aurangabad 4.Ambadas S/o Ramrao Sonawane Age : 70 years, Occ : Agri., 5.Shivaji S/o Ramrao SonawaneAge : 55 years, Occ : Agri., 6.Dilip S/o Ambadas SonawaneAge : 35 years, Occ : Agri., 7.Amol S/o Shivaji Sonawane Age : 30 years, Occ : Agri.,8.Radhikabai W/o Ambadas SonawaneAge : 65 years, Occ : Agri., 9.Sangeeta W/o Shivaji Sonawane Age : 48 years, Occ : Agri., All residents of Dabhadi, Tq. Kannad, Dist. Aurangabad. ..RESPONDENTS…Mr.K.F. Shingare, Advocate for the petitionersMr.V.S. Badakh, AGP for the respondent/State. Mr.A.R. Ban h/f Mr.R.V. Gore, Advocate for respondent nos.4 to 9....ANDWRIT PETITION NO. 3623 OF 2024 1.Ratnakar S/o Vasantrao BulgeAge : 52 years, Occ : Agriculture,R/o Surangali, Tq. Bhokardan, Dist. Jalna. 155074.2022WP+.odt2.Prasad S/o Ratnakar BulgeAge : 26 years, Occ : Agriculture, R/o Surangali, Tq. Bhokardan, Dist. Jalna. 3.Meenabai W/o Ratnakar Bulge Age : 40 years, Occ : Agriculture, R/o Surangali, Tq. Bhokardan, Dist. Jalna. ..PETITIONERSVERSUS1.Anantrao S/o Vasantrao Bulge (Died) Through his. L.Rs. 1-A.Vijayabai W/o Anantrao BulgeAge : 60 years, Occ : Housewife, R/o Surangali, Tq. Bhokardan, Dist. Jalna. 1-B.Mangesh S/o Anantrao Bulge Age : 42 years, Occ : Service, R/o Surangali, Tq. Bhokardan, Dist. Jalna. 1-C.Umesh S/o Anantrao Bulge Age : 35 years, Occ : Housewife, R/o Surangali, Tq. Bhokardan, Dist. Jalna. 2.Yogesh S/o Anantrao BulgeAge : 60 years, Occ : Agriculture, R/o Surangali, Tq. Bhokardan, Dist. Jalna. ..RESPONDENTS…Mr.S.M. Kshirsagar, Advocate for the petitioners Mr. M.D. Deshpande, Advocate for respondent nos.1-A to 1-Cand 2.... CORAM:ROHIT W. JOSHI, J.RESERVED ON :9th JULY, 2025PRONOUNCED ON:4th AUGUST, 2025 165074.2022WP+.odtJUDGMENT :.All these petitions arise out of proceedings underthe Mamlatdars' Courts Act, 1906 (hereinafter referred to as"the Act"). The controversy in all these cases pertains toorders passed under Section 5(2) of the Act whereby thelearned Mamlatdar has passed the order directing thepetitioners to remove obstruction on road claimed by therespondents/original plaintiffs. The petitioners in all thesepetitions are original defendants in proceedings filed underSection 5 of the Act. In all these cases, the learned Mamlatdarhad passed order against the petitioners directing removal ofobstruction. The petitioners filed revision applicationschallenging the respective orders passed against them underSection 23(2) of the Act. The revision applications are alsorejected. The petitioners have approached this Courtchallenging the orders passed by the Mamlatdar, which inturn, have been confirmed by the revisional authority. Thecontentions raised by the petitioners are that the provisions ofthe Act relating to filing and verification of plaint are notfollowed; the suits are filed beyond limitation; by theimpugned orders a new road is created, which is beyond thescope of jurisdiction of the Mamlatdar exercising jurisdiction 175074.2022WP+.odtunder the Act; the spot panchanamas on the basis of whichthe impugned orders are passed are not drawn in accordancewith the prescribed procedure and that alternate road isavailable. 2.In all these matters, the respondents have raised apreliminary objection to maintainability of the petitions on theground of alternate remedy of filing civil suit. Respondentscontend that orders impugned in the present petitions can beassailed by way of civil suit and further that the petitionerscan approach the competent civil court to get the rights finallyadjudicated and that the orders passed under the Act whichare impugned in the present petitions will not come in theway to claim adjudication of the controversy on merits beforethe civil court once and for all. 3.The submission is elaborated stating that theorders passed under the Act are subject to order/decree to bepassed by a civil court. It is argued that the Act does notaccord finality to orders passed by Mamlatdar under Section 5as also to revisional orders passed by the Collector under 185074.2022WP+.odtSection 23(2) and therefore, the said orders can always beassailed in civil suit. They contend that Section 22 of the Actclearly provides that person in whose favour order under theAct is passed is entitled to derive benefits of the same onlyuntil there is decree or order to the contrary by the competentcivil court. They, therefore, state that the petitions should notbe entertained in view of the alternate remedy. The learnedAdvocates have placed reliance on the following judgments :- (i) Rajendra s/o Sheshrao Shendge Vs. Shobhatai w/o ShriraoRavate and another reported in AIR 2007 Bom. 90, (ii) Mohommad Khan S/o Rahim Khan Vs. Shankar MarotiDhage and another reported in 2017(3) Mh.L.J. 135, (iii) Digambar and others Vs. Vasant and others reported in2022(2) Bom. C.R. 154(iv) Judgment dated 03.07.2025 in the matter of Alka w/oPandit Ghongade and others passed in Writ PetitionNo.444/2024 passed at Aurangabad Bench of this Court. 4.Per contra, the learned advocates for thepetitioners contend that the orders passed by the authoritiesunder the Act cannot be challenged by filing a civil suit. They 195074.2022WP+.odtcontend that Section 23(1) of the Act bars an appeal from theorder passed by the Mamlatdar under the Act. Section 23(2)of the Act provides that the order passed by the Mamlatdarshall be subject to a revisional jurisdiction of the Collector. Thecontention of the learned advocates is that the Act is acomplete code by itself, and therefore, jurisdiction of the civilcourt to entertain challenge to order passed by Mamlatdar ororder passed in revision by the Collector is barred byimplication. As regards Section 22 of the Act, the learnedadvocates contend that the provision only contemplates thatthe orders passed by Mamlatdar will be subject to any order ordecree passed by a civil court. It is contended that orderspassed by Mamlatdar cannot be challenged before the civilcourt in view of Section 22 of the Act. The learned advocatescontend that conjoint reading of Sections 22 and 23 of the Actwill mean that a person against whom order is passed underthe Act may file a substantive civil suit for adjudication of thedispute before the Mamlatdar by a civil court and when theclaim is adjudicated by the civil court such adjudication shallhave overriding effect over the orders passed under the Act.According to the learned advocates, the civil court hasjurisdiction to decide a matter decided by a Mamlatdar afresh
Decision
575074.2022WP+.odtsubstantive civil suit and get rid of the orders by establishingthe case on merits and obtaining a decree contrary to theadjudication of the dispute by the authorities under the Act. 52.The preliminary objection relating to alternateremedy is therefore upheld.53.Writ Petitions are dismissed granting liberty to thepetitioners to avail of the alternate remedy of filing civil suit.Time spent in prosecution of the petitions, shall standexcluded for computation of period of limitation. 54.Interim orders dated 17.05.2022 in Writ PetitionNo.5074/2022, dated 19.07.2022 in Writ PetitionNo.7499/2022, dated 26.08.2022 in Writ PetitionNo.8819/2022, dated 26.09.2022 in Writ PetitionNo.8920/2022 and dated 08.04.2024 in Writ PetitionNo.3623/2024 are extended till 31st October, 2025.55.The civil applications, if any, stand disposed of. [ROHIT W. JOSHI, J.] sga/2025