High Court · 2024
Facts
IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 10223 OF 2022Chagan s/o Manku Badgujar,...PetitionerVERSUS1.Bhagwan s/o Gajanan Badgujar,2.Bhushan s/o Bhagwan Badgujar,3.Narendra s/o Bhagwan Badgujar,4.Chandrakalabai w/o Bhagwan Badgujar,5.The State of MaharashtraThrough Dist. Collector, Jalgaon....Respondents....Advocate for the Petitioner : Mr. M. L. SangitAGP for Respondents-State : Mr. Mr. B. A. Shinde Advocate for Respondent No.1:Mr.A.E. Madne h/f Mr. Ajeet B. Kale…CORAM : R. M. JOSHI, J.Reserved for Order on: 04/07/2024Pronounced on : 08/07/2024ORDER :-1.This petition takes exception to orders passed below Exhibit 6 and31 in Regular Civil Suit No.217/2021 dated 18/10/2021 which has beenconfirmed by the District Judge-1, Jalgaon in Misc. Civil AppealNo.49/2021 by order dated 26/07/2022.2.The facts which led to the filing of present petition can be narratedin short as under : -Petitioner is defendant No.1 in Regular civil Suit No.217/2021., whohad filed an application before Tahsildar, Erandol for seeking way to hisagricultural land in Rasta Case No.19/2018. Said application was partlyPage 1 of 7 2WP 10223-2022allowed by Tahsildar whereby approach road from bandh of Gut No.35,36, 37 and 40 was granted. The petitioner/ defendant No.1 beingaggrieved by the said order, preferred appeal before Sub-DivisionalOfficer claiming that the said land owners are not party to theproceeding and easy and accessible road is available from bandh of GutNo.49 belonging to respondent/ plaintiff. The said appeal wasdismissed. Against the said dismissal, further appeal came to be filedbefore Collector, who by order dated 07/09/2020 allowed the appealand remanded the matter to the Tahsildar for fresh inquiry. Onremand, Tahsildar passed order dated 01/02/2021 allowing theapplication and granted approach road from bandh of Gut No.49. Theappeal filed by the respondent/ plaintiff before Sub-Divisional Officerand Collector came to be rejected. Respondent Nos.1 to 4 thereforefiled suit bearing Regular Civil Suit No.217/2021 against the orderdated 11/08/2021 passed by Tahsildar granting approach road throughGut No.49. An application below Exhibit 6 was moved for stay ofimpugned order. Whereas, petitioner/ defendant moved applicationExhibit 31 for seeking injunction against the plaintiff not to obstruct himfrom use of the way granted by the Tahsildar. By common orderpassed below Exhibit 6 and 31, application Exhibit 6 came to beallowed whereas Exhibit 31 is rejected. Defendant Nos.1 and 2 werePage 2 of 7 3WP 10223-2022restrained from entering into the Block No.49/1 to Block No.49/4 aswell as creating road from block No.49/1 to 49/4 as per order passedby Tahsildar, Erandol in Vahivat Case No.13/2020, dated 01/02/2021till final decision of the suit. This order was unsuccessfully challengedbefore the District Court, hence this petition. 3.Learned Counsel for the petitioner submits that the Trial Court aswell as Appellate Court have committed serious error ofmisinterpretation of the provisions of Section 143 of Maharashtra LandRevenue Code (MLRC) and also order passed by Tahsildar by holdingthat the order passed by Tahsildar is not for providing road overboundary/ bandh but same is beside the boundary which is notpermissible. He also drew attention of the Court to the panchanamadrawn by Tahsildar indicating that the said order of granting of way hasbeen implemented on 14/09/2021. To support his submissions apartfrom panchanama, photographs were also relied upon. According tohim, by suppression of the said material fact, order is obtained from theCourt. It is his submission that the order passed by the Trial Court isstayed by this Court on 07/10/2022, and hence, after lapse of period oftwo years, there is no propriety in challenging the said order.Page 3 of 7 4WP 10223-20224.Learned Counsel for respondents/ plaintiffs vehemently opposedthe said submission by pointing out that the suit was filed before14/09/2021, and hence, there is no question of any suppression offacts being done by the plaintiffs. According to him, both Courts belowhave dealt with the case sought to be made out of execution of orderon 14/09/2021 and is rightly rejected. It is submitted that in the firstproceeding for way, Tahsildar had directed the way to be granted fromGut No.35, 36, 37 and 40. Said order was interfered with by theAppellate Authority only for the reason that the owners of the suit landswere not heard. It is his submission that in such circumstances withoutrecording any finding as to reason for not joining them as a party andthen to pass order, Tahsildar has committed error in granting roadfrom Gut No.49. By referring to Section 143 of the MLR Code it issubmitted that if at all any way is to be granted owing to the needs ofthe cultivator for reasonable access to their field, such way would beover the boundaries of the other survey numbers and not from anyother part of the land than the boundaries thereof. It is submitted thatthe Tahsildar in this case has granted way beyond boundary, hencesuch order is not tenable. On these contentions, he support theimpugned orders.Page 4 of 7
Legal Reasoning
5WP 10223-20225.There is no dispute with regard to the fact that initially when thepetitioner approached to Tahsildar for way to Gut No.49/4, he wasgranted way from bandh/ boundary of Gut No.35, 36, 37 and 40. Thisorder was set aside only for the reason that the owners of these landswere not party to the proceedings. Once Tahsildar had come to theconclusion that the way was available for the petitioner through thesegut numbers, before issuance of any direction to provide way from GutNo.49, there ought to have been findings recorded by the Tahsildar atleast on the point of feasibility of the way from the aforestated gutnumbers, except distance. 6.As far as to the exercise of powers by Tahsildar under Section143 of MLR Code is concerned, Sub-section (1) of Section 143 providesthat Tahsildar may inquire into and decide claims by persons holdingland in a survey number to a right of way over the boundaries ofother survey numbers. As rightly argued on behalf of therespondents, the power of the Tahsildar to grant way would berestricted to the position over the boundaries of the other surveynumbers and not through any other portion of land including portionabutting to the boundary. In the instant case, the order passed bythe Tahsildar clearly shows that the way is granted abutting toPage 5 of 7 6WP 10223-2022bandh of Gut No.49. The learned Trial Court has reproduced thesaid order in paragraph No.31 and from the order impugned primafacie it needs to be held that the way has been granted not over theboundaries but from the land to the aside of boundary. Owing toprovisions of Section 143 of the MLR Code, the observations madeby Trial Court, regarding want of power of Tahsildar to do so, cannotbe prima facie called perverse. 7.With regard to the submission of the petitioner that the orderpassed by Tahsildar is already executed on 14/09/2021, andtherefore, question of stay of the said order does not arises. It ismaterial to note that panchanama dated 14/09/2021 itself recordsthat there was water channel having five to six feet deep water andthere being standing cotton crop in the field. It further records,request being made seeking some time for removal of the said cropfor execution of the order. There is no material on record to indicatethat after 14/09/2021, at any time actual work of creation of road/way was undertaken in compliance of order of Tahsildar. Havingregard to the facts as they appear from record, finding recorded bythe Trial Court as well as Appellate Court being in consonance withPage 6 of 7 7WP 10223-2022the material on record cannot be termed as perverse, to callinterference therein.8.Merely because this Court in the year 2022 by way of interimrelief has stayed impugned orders, the same would not become aground for continuation thereof. Having regard to the aforestateddiscussion, this Court finds no reason or justification to causeinterference in the impugned orders.9.As a result of above discussion, petition stands dismissed. ( R. M. JOSHI, J. )vj gawade/-.Page 7 of 7