High Court · 2024

Legal Reasoning

(1) wp-15320-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.15320 OF 2023Dilip S/o Bajirao Aher.Age-34 yrs., Occ. - Agri.R/o Nillod, Tq. Silload,Dist. Aurangabad...PetitionerVersus1.The State of Maharashtra2.The District Collector Aurangabad,Dist. Aurangabad.3.The Sub-Divisional Officer Sillod,Dist. Aurangabad.4.The Tahsildar Sillod, Tq. Sillod,Dist. Aurangabad.5.The Talathi, Talathi Sajja Nillod,Tq. Sillod, Dist. Aurangabad.6.Ajinath S/o Ramdas Jadhav.Age-36 yrs., Occ. - Agri. R/o Nillod, Tq. Silload, Dist.Aurangabad.7.Anil S/o Muralidhar Gorade.Age-37 yrs., Occ. - Agri.R/o Nillod, Tq. Silload,Dist. Aurangabad...Respondents....Mr. V. M. Humbe, Advocate for Petitioner.Mr. A. S. Shinde, AGP for Respondent Nos.1 to 5.Mr. P. D. Jarare, Advocate for Respondent Nos.6 and 7.... CORAM : S. G. CHAPALGAONKAR, J. DATED : 22nd JULY 2024.JUDGMENT:- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission. (2) wp-15320-2023.odt2.The petitioner impugns the order dated 11.09.2023 passed bythe Sub Divisional Officer, Sillod, District Aurangabad therebyrejecting Revision Outward No.2023@ekeysnkj@iquZfj{k.k@flvkj&13@2023@dkoh&162 and confirming theorder dated 20.10.2021 passed by the Tahsildar, Sillod underSection 5 of the Mamlatdar Courts Act, 1906 (for short ‘Act of1906’).3.Mr. Humbe, learned Advocate appearing for the petitionersubmits that the respondents approached Tahsildar/Mamlatdarseeking customary way from land bearing Gut No.656 owned bythe petitioner. No specific application was made for that purpose.The learned Tahsildar without following due process of law accededto the prayers of respondent nos.6 and 7 and granted way in theirfavour. The petitioner assailed said order before Sub DivisionalOfficer in Revision under Section 23(2) of the Act of 1906, however,suffered dismissal. Mr. Humbe submits that previously applicationwith similar prayer was made by the father of respondent no.7 andothers, but no orders were passed thereon. Mr. Humbe wouldinvite attention of this Court to the statements of Mr. HaridasJadhav and Mr. Ajinath Jadhav, owners of Gut No.611, who deniedthe existence of customary way as claimed by respondent nos.6 and7. Mamlatdar acted beyond parameters of his jurisdiction andpassed impugned order without following prescribed procedureunder Sections 7 to 15 of the Act of 1906.4.Per contra, Mr. Jarare, learned Advocate appearing forrespondent nos.6 and 7, vehemently submits that there isvoluminous evidence indicating existence of customary way thatpasses from common Bandh of Gut Nos.617 and 650, which reachesto the Nillod-Palshi cart road. The petitioner has blocked the road (3) wp-15320-2023.odton common Bandh between Gut No.655 and 611. He would furthersubmit that respondent nos.6 and 7 had tendered the applicationbefore the Mamlatdar narrating requisite details in terms ofprovisions contained in Section 7 of the Act of 1906. The Tahsildarrecorded panchanama and noted existence of cart road, which hasbeen blocked by the petitioner. Mr. Jarare would further point outthat petitioner had challenged order dated 20.10.2021 passed bythe Mamlatdar by filing Regular Civil Suit No.73/2022 along withapplication seeking temporary injunction as regards to suit way.The Civil Court rejected petitioners application vide order dated02.12.2022. Even Miscellaneous Appeal filed before the DistrictJudge has been dismissed. Thereafter, Revision Application hadbeen filed before the Sub Divisional Officer under Section 23(2) ofthe Act of 1906, which is rejected. Consequently, he submits thatthere is no substance in the petition and urges to reject the same.5.Having considered submissions advanced, it is apparent thatrespondent nos.6 and 7 filed an application dated 04.06.2019 beforethe Tahsildar invoking provisions of Section 5 of the Act of 1906,contending that they are owners of Gut No.621 and 628respectively. The cart road passes from Gut Nos.611, 612, 656,655 and 652, that has been used by the farmers. However, ownersof Gut Nos.656 and 611 have disturbed the road when constructionwas undertaken under government scheme. Consequently, causeof action arose on 31.05.2019. Accordingly, the prayer was made toclear customary way passing from the Bandh of Gut Nos.655, 656and 611. In pursuance of such application, the Tahsildar causedspot inspection and found obstruction. Consequently, passed theorder dated 20.10.2021 directing clearance of road from GutNos.611, 612, 652, 655 and 656. (4) wp-15320-2023.odt6.Pertinently petitioner approached Civil Court by filingRegular Civil Suit No.23/2022, assailing order of Tahsildaralongwith application seeking injunction against respondent nos.7and 8 and other farmers. The Civil Court after hearing the parties,rejected petitioners prayer for injunction against respondents inrespect of Gut No.656 situated at village Nillod. The petitioner hadthereafter approached the District Judge in Miscellaneous AppealNo.07/2023 challenging the order passed below Exhibit-5 in R.C.S.No.23/2022. Pertinently, during the pendency of the Appeal, CourtCommissioner was appointed by the order of the learned DistrictJudge. The report of the Court Commissioner depicts existence of12 feet road on the boundary of Gut No.611 and Gut Nos.650, 651and 652, which goes to Nillod-Palshi cart road. Accordingly,learned District Judge rejected the appeal confirming the order ofthe Civil Court. As rightly pointed out by Mr. Jarare, aftersuffering rejection of application for temporary injunction in trialCourt as well as the Appellate Court, the petitioner approached theSub Divisional Officer by filing Revision under Section 23(2) of theAct of 1906.7.It is not disputed before this Court that the Civil Suit filed byrespondent nos.6 and 7 is still pending trial. The dispute can befinally resolved on final adjudication by Civil Court and orderpassed by the Mamlatdar would be subject to the final decision inSuit. In the present case, the Authorities exercising jurisdictionunder the Act of 1906 have concurrently recorded finding thatpetitioner has obstructed existing way, consequently, directedremoval of obstruction made by the petitioner. Similarly, the CivilCourt on, prima facie, consideration of the material, rejected thecontentions of the petitioner that no such way was in existence. In (5) wp-15320-2023.odtthis background, there is no reason to interfere in the concurrentfindings recorded by the respondents-Authorities.8.So far as contentions raised by Mr. Humbe regarding non-observance of the procedural aspects under the Act of 1906, it isdifficult to accede with such contentions. As indicated aboveproceeding before the Mamlatdar appears to have been commencedon the basis of application dated 04.06.2019 filed by respondentnos.6 and 7. The cause of action dated 31.05.2019 is specificallypleaded. The contents thereof are duly verified. The contentionthat backdated application is registered is raised first time in thispetition and found to be fallacious. Apparently, there is no scope tofind out material defect in plaint in terms of Section 7 of the Act of1906. Therefore, reliance placed by Mr. Humbe on the judgment ofthis Court would not assist him in the facts of the case.Resultantly, there is no merit in Writ Petition and the same isdismissed.9.It is made clear that the decision rendered under the Act of1906 shall be subject to the final outcome of the pending Civil Suitbetween the parties qua the subject matter and any observationmade in this order shall not prejudice petitioner in prosecutingremedy before Civil Court.10.Rule is discharged.(S. G. CHAPALGAONKAR) JUDGEDevendra/July-2024