Ramesh Raosaheb Markad and Others v. the State of Maharashtra and Others

Bombay HC29 Oct 2014WP/7432/2013

Case brief

AI extract

What is this about?

The High Court rejected a writ petition challenging an order under the Mamlatdar's Courts Act requiring removal of an encroachment. The Court held that authorities provided an opportunity for reply, the petitioners filed a civil suit on the same subject, and no case for interference was made out.

What did the court decide?

Writ petition rejected with no order as to costs.

Ramesh Raosaheb Markad and Others Vs the State of… — Landlord and Tenant | Bombay HC (2014)

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W.P. No.7432.13

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(1)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.7432 OF 2013

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1.	Ramesh Raosaheb Markad, Age : 35 years, Occu. Agri.,
2.	Raosaheb Pandharinath Markad, Age : 67 yrs., Occu.Agri.,
3.	Kaduchand Rambhau Markad, Age : 33 yrs., Occu. Agri.,
4.	Harichandra Rambhau Markad, Age : 33 yrs., Occu. Agri.,
5.	Shridhar Raosaheb Markad, Age : 37 yrs., Occu. Agri.,
6.	Manisha Harichand Markad, Age : 27 yrs., Occu. Agri.,
7.	Vimal Kaduchand Markad, Age : 30 yrs., Occu. Agri.,
8.	Saraswati Bhausaheb Markad, Age : 53 yrs, Occu. Agri.,
9.	Janabai Sambhaji Markad, Age : 47 yrs., Occu. Agri.,
10.	Bhausaheb Kanhu Markad, Age : 54 yrs., Occu. Agri.,
11.	Sambhaji Kanhu Markad, Age : 36 yrs., Occu. Agri.,
12.	Sharda Shridhar Markad, Age : 36 yrs., Occu. Agri.
	All R/o At Post Madhi, Tal. Pathardi, Dist. Ahmednagar ..PETITIONERS

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(2) W.P. No.7432.13

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VERSUS

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The State of Maharashtra, Through its Secretary, Revenue Department,' Mantralaya, Mumbai – 32

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The Tahasildar, Pathardi, Tal. Pathardi, Dist. Ahmednagar

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Laxman Kisan Markad, Age : 60 yrs., Occu.Agri., R/o Madhi, Tal. Pathardi, Dist. Ahmednagar ..RESPONDENTS

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Mr P.R. Nangare, Advocate for petitioners; Mrs S.G. Chincholkar, A.G.P. for respondents no.1 & 2; Mr D.R. Markad, Advocate for respondent no.3

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CORAM : N.W. SAMBRE, J.

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DATE : 29th October, 2014

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ORDER

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The petitioners herein were defendants before the Mamlatdar's Court in the proceedings initiated by respondent no.3 herein, under section 5 of the Mamlatdar's Courts Act, 1906. The Mamlatdar, Pathardi passed order dated 18^th December, 2010 directing the petitioners herein to remove the encroachment/impediment from the way passing through Gat Nos.398 and 401, situated at village Madhi. The said order dated 18^th December, 2010 was the subject-matter of challenge before the Sub-

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(3)

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W.P. No.7432.13

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Divisional Officer, Ahmednagar, in Revision No.1 of 2011. The SubDivisional Officer, Ahmednagar has dismissed the revision of the petitioners herein by order dated 25^th June, 2013, confirming the order dated 18^th December, 2010 passed by the Mamlatdar, Pathardi. As such, present petition.

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The learned Counsel for the petitioners, while questioning the orders passed by the Mamlatdar and Sub-Divisional Officer, has invited my attention to the area of holding of the petitioners herein. According to him, the prayer for removal of encroachment from the alleged existing way ought not to have been granted in view of the fact that if the road is permitted to be used, there is hardly any land left for his cultivation. He further submits that the petitioners were not noticed by the Mamlatdar before passing the impugned order. In addition to above, he has invited my attention to the map drawn by Tahsildar on 23rd November, 2010 and he objected to the same on the ground that the spot inspection report does not bear the signatures of either of the parties. According to him, the Tahsildar, without inspecting the spot has prepared the spot inspection report in his office. He further submits that the findings recorded by the Courts below are in violation of the principles of natural justice as no opportunity of leading evidence is given to the petitioners and as such prayed for quashing of the impugned orders.

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(4)

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W.P. No.7432.13

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The learned Counsel for respondent no.3 has invited my attention to the very fact that though the Tahsildar has prepared spot panchnama after visiting the spot on 23^rd November, 2010, the petitioners have chosen to file their reply to the claim made before the Mamlatdar on 25^th November, 2010. According to him, no objection was raised as regards drawing of spot inspection report. He further urged that what is ordered by both the authorities below is removal of encroachment, as already the way is in existence. He further submits that if respondent no.3 is not permitted to use the way, he will suffer monetary loss. The petitioners have already filed reply to the claim made before the Mamlatdar. According to him, neither any application was moved by the petitioners herein seeking permission to lead evidence nor oral prayer was made to that effect. As such denial of said opportunity as is sought to be canvassed before this Court, is baseless. He, therefore, submits that the writ petition deserves to be dismissed.

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Having considered the rival contentions of the parties and having gone through the impugned orders, it is noticed that the petitioners herein have submitted their reply to the claim made by respondent no.3 before the Mamlatdar, Pathardi on 25^th November, 2010. There is no dispute that the Mamlatdar, after visiting the spot has drawn inspection report on 23^rd November, 2010 and about drawing of the inspection report, no objection was raised by the petitioners before the Mamlatdar, either at the

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(5)

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W.P. No.7432.13

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time of filing reply on 25^th November, 2010, or subsequent thereto. In addition to above, it is requited to be taken note of the fact that the grievance made by the petitioners about non-service of the notice by the Mamlatdar is of hardly any consequence as they have engaged a Lawyer and filed a reply through him on 25^th November, 2010. The contentions raised in the reply were taken care of by the Mamlatdar while passing the impugned order. Mamlatdar has reached to the conclusion, based upon the revenue record about existence of road and right of way to the petitioners herein so also that respondent no.3 has created hurdle in the same by putting thorny bushes.

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Perusal of the order passed by the Sub-Divisional Officer reflects consideration of the entire case of the petitioners including that of preexisting right of respondent no.3 as regards use of way. In addition to above, it is also required to be taken note of the fact that the petitioners no.1 & 3 have already instituted Regular Civil Suit No.240 of 2010, in relation to the same subject-matter, in which the trial has already begun. As such, no case for interference made out.

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In that view of the matter, writ petition stands rejected with no order as to costs.

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amj

Ramesh Raosaheb Markad and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Ramesh Raosaheb Markad and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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