UdhavShamrao Patil v. Ashok Chandrakant Dhas and others), dated
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD908 WRIT PETITION NO. 14137 OF 2024SUBHASHCHANDRA BHAVARLAL JAINVERSUSYOGESH JAWAHARLAL RAJPUT AND OTHERS…..Mr. D. S. Bagul, Advocate for the PetitionerMr. S. N. Kendre, AGP for the respondent/StateCORAM: R. M. JOSHI, J.DATE: 10th JANUARY, 2025PER COURT :-1.Heard.2.This petition takes exception to order dated 4th January, 2022passed by the Sub Divisional Officer, Shirpur in RTS Revision ApplicationNo.43 of 2020, whereby the order passed by Tahasildar in Vahiwat SuitNo. 19 of 2016 dated 14th September, 2020 was confirmed.3.The facts led to the filing of this petition can be narrated asbrief as under:.Respondents filed suit under Section 5 of the Mamlatdars'Courts Act (in short the ‘Act’) before Tahasildar, Shirpur. It was hiscontention that he has the customary way for entering into hisagricultural land through the land belonging to the petitioner. It isspecifically stated that on 07/06/2016, obstruction was caused by the908.wp14137.24.odt1 of 5
Legal Reasoning
petitioner for use of the said way. Within six months of the saidobstruction the suit came to be filed on 14/06/2016. Petitioner hereinappeared before the Tahasildar and filed his say contending that the waysought by the plaintiff is not customary way. Apart from this it is averredthat there is alternate way available for the respondents, the Tahasildarby order dated 14/09/2020 accepted the contention of respondents anddirected the petitioner herein to move obstruction and to permit therespondents to use the way. This order came to be challenged before theSub Divisional Officer under Section 23(2) of the Act in RevisionApplication No. 43 of 2020. It is contended therein that without givingopportunity to the petitioner, order came to be passed by Tahasildar. Healso took objection to the manner in which the proceedings wereconducted before Tahasildar. There is also allegation that Tahasildar hadobtained signatures on blank papers and by misusing the same, the spotinspection report is prepared. It is also alleged that Tahasildar did notcarry out any spot inspection. The Revisional Authority did not accept thecontention of the petitioner and rejected the revision by passingimpugned order. 4.Learned counsel for the petitioner submits that the petitionerhas specifically taken a plea before the Tahasildar that there is alternateroad available for the respondents and without deciding the said issue, it908.wp14137.24.odt2 of 5 was not open for the Tahasildar to pass order of direction of removal ofobstruction and permitting the respondent to use the said way. Tosupport his submission, he placed reliance on the judgment of Co-ordinate Bench of this Court in Writ Petition No. 2109 of 2023 (UdhavShamrao Patil Versus Ashok Chandrakant Dhas and others), dated03/07/2024. He placed reliance on the observations made by this Courtin paragraph no. 7 of the said order.7. Per contra, respondents have denied existence of thecustomary way as claimed. Perusal of the evidence onrecord shows that except spot panchnama carried byTalathi/Circle Officer, no evidence is recorded on the pointof existence of the customary way. The Tahsildar wasunder obligation to cause spot inspection, recordstatements of the land holders from adjacent gatnumbers and also verify village record. In thisbackground, Sub-Divisional Officer is justified inremanding the matter for re-consideration. Therefore, nofault can be found in the impugned order. However, itwould be appasite to observe that spot panchnamarecorded by the Circle Officer and Talathi depicts thatpetitioner has no other approach way except claimed byhim from common bandh of gat no.484 and 487. Itcannot be disputed that, in case of survey bandhs, therecannot be obstruction to use it as path way. However,petitioner claims that he was using common bandh ascustomary-cart way and he do not have alternate way. Inthis background, it would be appropriate for Tahsildar tofind out if customary way as claimed by the petitionerever existed, and, in case, he comes to positiveconclusion, remove obstruction and grant prayers asmade in the application. However, if he comes to theconclusion that petitioner has no alternate cart-way tocarry out his agriculture operations, by giving appropriatenotices to all the concerned, Tahsildar may exercise hisjurisdiction under 143 of the MLR Code by following dueprocess of law.908.wp14137.24.odt3 of 5 5.There is no dispute about the fact that the proceedingsbefore the Tahasildar was under Section 5 of the Act. Perusal of Section 5of the Act does not indicate that the Tahasildar is required to considerthe alternative ways available for the parties. Sub section 2 of Section 5of the Act empowers the Tahasildar to issue injunction when any personotherwise than by due course of law disturbed or obstructed or when anattempt has been so to disturb or obstruct any person, in the possessionof any lands or in the use of roads or customary ways thereto. Thejudgment relied upon by the learned counsel for the petitioner wasdealing with the fact that the Sub Divisional Officer had remitted backthe proceedings to Tahasildar on the ground that the panchnama was notdrawn by Tahasildar himself but its sub ordinate officer. It is in thiscontext observation is made there that Tahasildar was under obligationto carry out spot inspection, record statements of land holders ofadjacent gut number and also to verify village record. This cannot beconstrued as Tahasildar being under obligation to find out whether anyalternate way is available to the parties.6.The reference is made in portion of paragraph no. 7 of thesaid judgment is also misplaced as in the facts of the said case it wasexpected by this Court that the Tahasildar may exercise the jurisdictionunder Section 143 of the Maharashtra Land Revenue Code which908.wp14137.24.odt4 of 5 contemplates creation of the road. This observation seems to have beenmade in the context of the peculiar facts involved therein.7.As far as the issues raised before the Revisional Authority areconcerned, the Revisional Authority order has held that the proceedingsbefore the Tahasildar were conducted properly. It is also observed thatpetitioner as well as respondents appeared before the Tahasildar fromtime to time and their signatures are also found on the record. The SubDivisional Officer has refused to accept the contention of the petitionerthat blank signatures were obtained of petitioner. This is not the casewherein the objection is raised by the petitioner about Tahasildar notcomplying with the mandatory provisions of the Act for the purpose ofconducting the proceeding. The scope of the revisional authority waslimited to decide as to whether there is exceeding of jurisdiction or nonexercise therein. The findings recorded by Revisional Authority are notperverse, in order to cause interference therein, in exercise of writjurisdiction.8.Having regard to the above discussion, this Courts finds nomerit in the petition. Hence, petition stands dismissed.(R. M. JOSHI, J.)ssp908.wp14137.24.odt5 of 5