Ahmednagar.......Mr v. P. Latange
Legal Reasoning
{1} wp338-14.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO.338 OF 20141.Narayan Kisan Shelke PETITIONERSAge – 53 years, Occ – Agriculture2.Bhagwan Kisan ShelkeAge – 51 years, Occ – Agriculture3.Shivaji Kisan ShelkeAge – 47 years, Occ – Agriculture4.Kisan Shankar ShelkeAge – 75 years, Occ – Agriculture5.Kalawati Kisan ShelkeAge – 69 years, Occ – AgricultureAll R/o Koregaon, Taluka – KarjatDistrict - AhmednagarVERSUS1.The State of Maharashtra RESPONDENTSThrough Secretary, Revenue and Forest Department, Mantralaya, Mumbai2.The TahsildarShrigonda, District – Ahmednagar3.The Sub Divisional OfficerKarjat Taluka – KarjatDistrict – Ahmednagar4.Vishwanath Shankar ShelkeAge – 75 years, Occ – Agriculture5.Sambhaji Vishwanath ShelkeAge – 60 years, Occ – Agriculture6.Laxman Vishwanath ShlekeAge – 57 years, Occ – Agriculture {2} wp338-14.doc7.Dattu Vishwanath ShelkeAge – 54 years, Occ – Agriculture8.Gokul Vishwanath ShelkeAge – 51 years, Occ – AgricultureRespondents No.4 to 8 R/o Koregaon, Taluka – Karjat, District - Ahmednagar9.Pandurang Gopala DhandeAge – 75 years, Occ – AgricultureR/o Dhandewadi, Taluka – KarjatDistrict – Ahmednagar10.Abasaheb Vitthal DhandeAge – 45 years, Occ – AgricultureR/o Dhandewadi, Taluka – KarjatDistrict - Ahmednagar.......Mr. V. P. Latange, Advocate for the PetitionersMrs. P. V. Diggikar, AGP for Respondent - State Mr. Yuvraj Kakade h/f Mr. N.V. Gaware, Advocate for RespondentsNo.4 to 8....... [CORAM : MANJUSHA DESHPANDE, J.] RESERVED ON : 17 th JANUARY, 2025 PRONOUNCED ON : 31 st JANUARY, 2025 JUDGMENT :1.Rule. Rule made returnable forthwith. Heard finally with theconsent of learned Advocates for the parties.2.Order dated 20th July, 2013 passed by Sub DivisionalOfficer, Karjat in Revision No. 1 of 2009, thereby confirming order13th December, 2008 passed by Tahsildar, Shrigonda, in Rasta {3} wp338-14.docCase no. 14 of 2006, is challenged in the present Writ Petition.3.The Petitioners are the original Respondents No.1 to 5 inRasta Case No. 14 of 2006. Respondents No.4 to 8 are theComplainants / Applicants in Rasta Case No. 14 of 2006. RastaCase No. 14 of 2006 was filed by Respondents No. 4 to 8 undersection 5 (2) of the Mamlatdars’ Courts Act, 1906 claiming thatthe present Petitioners have obstructed the road, which ispassing through Gut Nos. 620, 621, 623, 625, 626 and 622.Consequently making prayer that the obstructions created by thepresent Petitioners be directed to be removed and makeavailable the approach to field of present Respondents No.4 to 8.Spot Panchanama was conducted on 18th October, 2006 in thepresence of Panchas and respective parties. It is stated in thePanchanama that no previous way exists on the allegedboundaries of Gut No. 622 and Gut No. 619 to 626. In view of thePanchanama conducted, temporary injunction was granted bythe Tahsildar on 3rd November, 2006 in favour of RespondentsNo. 4 to 8. However, the temporary injunction was vacated bythe Tahsildar by order dated 26th January, 2007.4.It is the contention of the Petitioners that, since thetemporary injunction was vacated by Tahsildar Karjat, theRespondents sought transfer of the Rasta Case from Tahsildar,
Legal Reasoning
{4} wp338-14.docKarjat to Tahsildar, Shrigonda. It is the contention of thePetitioners that, after the case was transferred to Tahsildar,Shrigonda, he visited the spot on 13th December, 2008, withoutissuing notice to the present Petitioners. Further objection israised to Panchanama on the ground that, 13th December, 2008,being a public holiday, Panchanama could not have beenconducted on public holiday.5.Learned Advocate for the Petitioners contends that thePanchanama which was conducted on 13th December, 2008 i.e.on public holiday, shows that there is road available, whichpasses from the field of the Petitioners. The Petitioners alsoraised objection about the Panchanama dated 13th December,2008 on the ground that the Panchanama though shown to havebeen signed by one V. S. Mahajan as witness and resident ofKoregaon, according to the Petitioners V. S. Mahajan is not theresident of village Koregaon. As such, the person, who does notreside in the village is shown to be the Pancha, which is false andbogus.6.It is further submitted that Tahsidlar Shrigona, withoutgiving any intimation or notice, proceeded to pass judgment anddecreed the suit filed by Respondents No. 4 to 8, therebygranting injunction against the Petitioners directing not to create {5} wp338-14.docobstruction for the use of the road by the Respondents.7.The Petitioners being aggrieved by the order of theTahsildar, Shrigonda, filed Revision No. 1 of 2009 before the SubDivisional Officer, Karjat. The Revision was rejected by the SubDivisional Officer, Karjat, without assigning any reason. By thesaid order dated 7th July, 2010, the Sub Divisional Officer, Karjathas confirmed the order passed by the Tahsildar, Shrigonda.8.Being aggrieved and dissatisfied by the order dated 7th July,2010, passed by the Sub Divisional Officer, Karjat in Revision No.1 of 2009, the Petitioners preferred Writ Petition No. 7773 of2010 before this Court. This Court, after hearing the parties,partly allowed the Writ Petition, and remanded the matter backto Sub Divisional Officer, Karjat, and directed the Sub DivisionalOfficer to decide the Revision de novo. It was observed by thisCourt that the order passed by the Sub Divisional Officer, Karjatis not a reasoned order. This Court directed the Sub DivisionalOfficer, Karjat to hear and decide the Revision within threemonths.9.It is the contention of the Petitioners that, after the revisionapplication was remanded, the Petitioners had submitted writtensubmissions before the Sub Divisional Officer, Karjat, reiteratingthe issues, which were raised before the Tahsildar, as well as the {6} wp338-14.docRevisional Authority. According to the Petitioners, thoughRespondents No.4 to 8 have claimed that there is a customaryway on the bandh between Gut No. 620, 621, 623, 625, 626 and622 towards east west side, however, the fact is that no suchroad exists on the bandh. Panchanama conducted on 18thOctober, 2006, clearly discloses that there is no such customaryroad, which is in existence. Therefore, considering that thePanchanama dated 18th October, 2006, wherein observation hasbeen made that there exists no road, reflects the actual positionexisting on that day. Since the order of vacating interim reliefwas passed against the Respondents, they have sought transferof the case and after transfer, without giving any notice orprevious intimation to the Petitioners, Panchanama wasconducted on 13th December, 2008. It was a second Saturdayand a public holiday. It is further alleged that the Respondentsare hand in glove with Tahsidlar Shrigonda, therefore, they havemanaged to conduct Spot Panchanama on a holiday, withoutgiving any intimation to the Petitioners. The false and bogusPanchanama shows that there is a cart way of 7 to 8 feet, whichpasses through Gut No. 622 and 620 upto Bandh of Gut No. 626.Even the witness to the Panchanama one Shri Mahajan is a boguswitness. The Panchanama is conducted without following theprinciples of natural justice with no opportunity to lead evidence. {7} wp338-14.doc10.It is the contention of the Petitioners that, provisions ofsections, 9, 10, 11 and 14 of the Mamlatdars’ Courts Act are notfollowed by the Tahsidlar, while passing the order. The SubDivisional Officer has passed the order in hasty manner.11.It is further stated in the written submissions that,considering that there were two conflicting Panchanamasexisting on record, the Tahsildar, Shrigonda ought to have againconducted the Panchanama in order to ascertain the actualposition on the spot, as to whether the road exists whereinobstruction is allegedly created by the Petitioners. On the basisof record as well as the objections which were raised by thePetitioners, the Revision Application was decided and the SubDivisional Officer, Karjat, by the impugned judgment dated 20thJuly, 2013 rejecting the Revision No. 1 of 2009 and confirmingthe order passed by the Tahsildar, Shrigonda in Rasta Case No.14 of 2006.12.Learned Advocate for the Petitioners submits that thePetitioners had submitted written submissions before the SubDivisional Officer, Karjat and in the said submissions thePetitioners had raised legal issues, which are not at all dealt withby the Sub Divisional Officer while deciding the Revision.According to learned Advocate for the Petitioners, in fact, after {8} wp338-14.docremand of the matter, as per directions of this Court in WritPetition No. 7773 of 2010, de novo inquiry should have beenconducted by the Sub Divisional Officer through Tahsildar, whichhas not been conducted, therefore, it is contrary to the directionsgiven by this Court. He also raises objection that issues were notframed by the Sub Divisional Officer, as contemplated undersection 19 of the Mamlatdars’ Courts Act. Learned Advocate forthe Petitioners has submitted that as per the objections raised bythe Petitioners in the written submissions, order is not inaccordance with the provisions of the Mamlatdars’ Courts Actand in fact, the first Panchanama conducted on 18th October,2006 reflects the correct position existing on the spot, whichdoes not show any existing road. Therefore, making available theroad, which does not exist, is not contemplated under section 5(2) of the Mamlatdars’ Courts Act.13.Learned Advocate Shri Yuvraj Kakade for Respondents No.4to 8, has opposed the prayers made by the Petitioners. Accordingto learned Advocate fo Respondents No.4 to 8, Tahsildar,Shrigonda has passed order dated 13th December, 2008, afterfollowing due procedure and issuing notice to the Petitioners, byadhering to the principles of natural justice. It is his contentionthat since proceedings before the Tahsildar, Shrigonda were notwithin the jurisdiction of Tahsildar, Shrigonda, therefore, on {9} wp338-14.docaccount of administrative difficulties, he decided to conduct thePanchanama on 13th December, 2008. Notices were accordinglyissued on 26th November, 2009 for the parties to remain presenton 13th December, 2008. The notices were duly served on thePetitioners and it is acknowledged on the receipt by affixingsignature. So far as objection to the witness to the PanchanamaMr. Mahajan is concerned, according to learned Advocate forRespondents No.4 to 8, he is not stranger to the village, but he isowner of the adjoining land gut No. 627 and he was very muchpresent during the Panchanama dated 13th December, 2008.14.Learned Advocate for Respondents No.4 to 8 submits thaton 13th December, 2008, Petitioners No.1 to 4 were very muchpresent and their statement was recorded before Tahsildar,Shrigonda. So far as grievance regarding conductingPanchanama on public holiday is concerned, it is resisted by thelearned Advocate for Respondents contending that since thePetitioners were very much present on the day of Panchanamaupon receiving notice, they have not raised any objection aboutconducting Panchanama on a public holiday, therefore, nowraising objection regarding conducting Panchanama on publicholiday is an afterthought. This being a frivolous and mala fideobjection, it does not deserve consideration. {10} wp338-14.doc15.Joint statement of the Petitioners has been recorded duringthe Panchanama, wherein they have categorically stated thatGut No. 624 and 626 are owned by them and there was acustomary road which was in existence for approaching Gut No.626, which passes through Gut Nos. 622, 620, 625, 623 and 626.That road was customary cart track, which was passing frombandh of Gut No. 625 and 623 and obstruction is caused on thesaid over near Gut No. 621 on which tamarind tree exits. Theroad has further been obstructed from the Tamarind tree. Theroad has been ploughed between Gut No. 625 and 621 andhence, the Respondents have filed application for alternate newroad. According to them the application filed by Respondents isnot maintainable. After recording statements of the partiespresent, Tahsildar, Shrigonda has held that there exists a 7 to 8feet wide road. Hence, there is no substance in the objectionsraised by the Petitioners. It is therefore, requested that the WritPetition deserves to be dismissed.16.Respondent No.3 has filed affidavit opposing prayers madein the Writ Petition. According to Respondent No.3, Panchanamaswere prepared by Tahsildar, Shrigonda and Karjat on 22nd May,2007 and 13th December, 2008, respectively. In both thePanchanamas, it was found that there exists road on easternband of Gut No. 621. Therefore, taking into consideration {11} wp338-14.docexistence of road, the order has been passed, which is just, legaland proper. It is submitted that the Petitioners were presentduring the Panchanama conducted on 13th December, 2008,along with the witnesses.17.According to learned AGP, so far as objection regardingpassing of the order in a hasty manner is concerned, theMamlatdars’ Courts Act provides that any kind of obstruction tocultivation operations should be removed in eight days. It is forthe facility of agriculture operation. Therefore, there is nothingillegal in the proceedings conducted by Tahsildar. Learned AGPfurther submits that the decision of the Sub Divisional Officer,Karjat is on the basis of Panchanama prepared by Tahsildar on22nd May, 2007. The Panchanama shows existing raw cart roadfrom Gut No. 619 and well in Gut No. 621. Even Panchanamaconducted on 13th December, 2008 shows existing road oneastern bandh of Gut No. 621, which was further converted intopathway. This pathway was one cart lane road. The other lane ofthe cart road is not in use due to flow of water. The existing roadis obstructed by the flow of water for irrigating some of the area.Since, already existing way is obstructed by using the way forthe course of water, in order to facilitate irrigation of some of thearea, therefore, the order of injunction passed by the Tahsildar isjust, legal and proper. Hence, Respondent No.3 has supported {12} wp338-14.docthe order passed by the Sub Divisional Officer, Karjat as well asTahsildar, Shrigonda.18.After hearing the learned Advocates for the respectiveparties, the first point which arises for consideration is that,whether the order passed by the Sub Divisional Officer, afterremand of the matter by this Court, is just, legal and proper andis passed in accordance with the directions issued by this Court?This court has passed an order remanding the matter to the SubDivisional Officer and it was to be decided by the Sub DivisionalOfficer within the framework of powers conferred on him. So faras powers of revision are concerned, the Revision is filed undersection 23 of the Mamlatdars’ Courts Act. Since it is an appellateCourt, powers of Revisional Court are limited to the extent ofascertaining legality and correctness of the order passed by theTahsildar.19.This Court, while remanding the matter, has madeobservations that the order passed by the Sub Divisional Officeris not a reasoned order. Therefore, the matter was remanded toSub Divisional Officer to consider the record and arguments ofthe respective parties, which were already on record and to passa reasoned order. After the matter was remanded and thePetitioner has filed written submissions, the Sub Divisional Officer {13} wp338-14.dochas considered the submissions of the respective parties byaffording opportunity of hearing to them. He has recordedwritten submissions which were submitted by the respectiveparties and thereafter framed points, which were required to bedetermined. On the basis of written submissions made by therespective parties, the first issue which was framed was;(i) Whether the disputed road is in actual use by the applicant?The Sub Divisional Officer, on the basis of Panchanamasconducted on 22nd May, 2007 and 13th December, 2008 answeredthe issue in affirmative holding that there appears a cart trackfrom Gut No. 619 to the well of Gut No. 621, there is 7 to 8 feetwide road, which is in existence up to Gut No.621 till Tamarindtree. However, on the eastern side, there is pathway as well assingle cart track. There also exists pathway between Gut No. 625and 622. The Sub Divisional Officer has finally observed thatsince the Respondents do not have any other road available fortheir use, it seems that it is in use of the Respondents.20.The next issue which was framed was;(ii) Whether without issuing notice and conducting Panchanamaon holiday, the Panchanama and the order that followed is avalid order?The Sub Divisional Officer has rightly observed that since {14} wp338-14.docPanchanama was conducted after issuing due notice to theparties, who were very much present and their presence hasbeen acknowledged on the notices as well as on the statements,which were recorded on that day. There does not seem to be anyvalid ground for entertaining the objection. Even as regardsPancha witness, it is stated that he belongs to the same villageand is the owner of adjoining land Gut No. 627. So far asobjection regarding conducting the Spot Inspection andPanchanama and recording statements on the same day andpassing order within 8 days is concerned, according to the SubDivisional Officer, considering the fact that the matter wastransferred from Tahsildar Karjat to Tahsildar, Shrigonda andthere was already delay in passing appropriate orders, there isno substance in the objection raised by the Petitioners in thisregard.21.After taking into consideration the two Panchanamas,which are on record, it is observed by the Sub Divisional Officerthat he does not find any conflict in the two Panchanamas, whichwere conducted on 22nd May, 2007 and 13th December, 2008. Onthe basis of two Panchanamas, the Sub Divisional Officer hasrecorded finding that from the two Panchanamas, it is apparentthat there is pathway up to tamarind tree, which exists to theeastern side of Gut No. 621 and further from that tree there {15} wp338-14.docappears a pathway, which is further obstructed by releasingwater for irrigating fields which has created obstruction. Hence,the Sub Divisional Officer has come to the conclusion that theorder passed by the Tahsildar Shrigonda does not deserve anyinterference.22.Upon perusal of the order passed by the Sub DivisionalOfficer, intent of the order of this Court while remanding thematter back is very much complied by the Sub Divisional Officer.After receiving written submissions the Sub Divisional Officer hasframed points for determination as well as considered the recordwhich was available. So far as objection of the Petitionersregarding non compliance of section 9 of the Mamlatdars’ CourtsAct is concerned, he has raised objection that the Tahsildar hasnot examined the Complainant / Applicant on oath, as persection 9 of the Act. Upon going through section 9 of the Act, it isevident that it provides that where the plaint does not containparticulars specified in section 7 of the Act or is unnecessarilyprolix, the Mamlatdar shall forthwith examine the plaintiff uponoath and ascertain from him such of the particulars specified insection 7 as are not clearly and correctly stated in the plaint andshall reduce the examination to writing in the form of anendorsement on or annexure to the plaint which shall thereuponbe deemed to be part of the plaint. {16} wp338-14.doc23.So far as objection regarding non adherence to theprovisions of the Mamlatdars’ Courts Act is concerned, the SubDivisional Officer has observed that considering the urgency inthe matter, which was pending since long, the Tahsildar,Shrigonda has promptly acted and conducted spot inspectionand Panchanama and also recorded statements and has passedan order within 8 days in order to facilitate removal ofobstruction from the road and there is nothing wrong in theorder. It is also observed that the Tahsildar, Shrigonda hadpassed order adhering to the procedure provided under theMamlatdars’ Courts Act. Therefore, the objection regarding nonadherence has been turned down.24.The Sub Divisional Officer, after remand of the matter bythis Court, has framed issues and accordingly answered them.He has dealt with each and every issue raised by the Petitioners.Hence, in my opinion there is no reason for causing anyinterference in the concurrent findings recorded by twoauthorities in favour of the Respondents, by exercising powersunder Article 227 of the Constitution of India. Hence, the writPetition is dismissed. [ MANJUSHA DESHPANDE ] JUDGE drp/wp338-14.doc