Remanded

Abarao Dhondiba Wadekar and Another v. the Additional Collector Aurangabad and Others

Bombay HC5 Dec 2018WP/6619/2016

Case brief

AI extract

What is this about?

The High Court set aside the order of the Revisional Authority which directed removal of obstruction. The matter was restored to the Deputy Collector for fresh recording of a definite factual finding regarding the existence of the road.

What did the court decide?

The order of the Revisional Authority is set aside and the revision proceedings are restored to the Deputy Collector to record a definite finding.

Abarao Dhondiba Wadekar and Another Vs the Additional Collector Aurangabad and Others — Bombay HC (2018) — LawSathi Research

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Mrs Ankush 1 WP 6619.2016

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT AURANGABAD

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WRIT PETITION NO.6619 OF 2016

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Abarao Dhondiba Wadekar and another

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...Petitioners....

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Versus

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Te Additional Collector, (Revenue),
Auranganad and others....Respondents...

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Advocate for Petitioners : Mr. Gore Ravindra Vitthal
AGP for Respondents 1,2 : Mr. S W Munde
Advocate for Respondent 3 : Adv Ade Ravindra B.

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CORAM : N.M. JAMDAR, J.
Dated: December 05, 2018

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ORAL ORDER :-

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Heard learned counsel for the parties.

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2.Te petitioners have challenged the order passed by the
Deputy Collector, Aurangabad dated 23 May 2016 whereby the
revision filed by the respondent no.3/applicant was allowed and the
petitioner was directed to remove the obstruction to the road.

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3.Te respondent no.3 filed an application to the Tahsildar,

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Mrs Ankush 2 WP 6619.2016

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Phulambri on 29 July 2013. It was the contention of the respondent
no.3/applicant that he had purchased the property at village Padali and
till some time, no obstruction was raised for his access to the land as
well as taking the bullock cart. He complained that the petitioners
had obstructed his pathway which obstruction should be removed.
He stated that from 29 July 2013 the path way was obstructed.

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4.Te proceedings were once remanded by the Deputy
Collector to the Tahsildar. Te Tahsildar, on remand, relied upon the
spot panchnama of 22 April 2015 and observed that there was no such
regular path way. Te Tahsildar thereafter partly allowed the
application and stated that the respondent/applicant should use the
boundary to approach the field. Being aggrieved, the
respondent/applicant filed a revision before the Deputy Collector. Te
Deputy Collector observed that the Tahsildar could not have directed
opening of a new road, when it was never prayed and set aside the
order passed by the Tahsildar allowing the application and directed the
petitioners to remove the obstruction.

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5.Te order passed by the revisional authority shows that
the revisional authority has taken note of a panchnama of 26
September 2013. It is the contention of the respondent/applicant that
there existed a road, which was obstructed, while it is the contention

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Mrs Ankush 3 WP 6619.2016

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of the petitioners that there was no such road in existence. Learned
counsel for the petitioners submitted that the petitioners have no
objection, if the respondents/applicants uses the road as granted by the
Tahsildar.

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6.Te fact whether there existed a road which was
obstructed, is a question of fact and is not possible under Article 227
of the Constitution of India to re-appreciate the evidence to come on a
defntive factual findings. Tis exercise will have to be done by thei
authorities under the Act. In this context, it is to be noted that the
revisional authority has only referred to the panchnama of the year
2013 and there is no independent finding recorded. While recording
this finding, the Revisional Authority has omitted from consideration
the spot panchnama of 22 April 2015 on which the Tahsildar has
placed reliance. Tere is no discussion on this spot inspection at all.
Te revisional authority has not held that this spot inspection is
incorrect. Learned counsel for respondents/applicants sought to
contend that there is one more panchnama, which shows a different
position. Ten it is more the reason that the proceedings will have to
be sent to the Deputy Collector to record a defntive finding. i

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7.Te order passed by the Revisional Authority is set aside.
Te revision proceedings stand restored. Te Deputy Collector will

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Mrs Ankush 4 WP 6619.2016

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decide the revision on its own merits. It is informed that, the order
passed by the Deputy Collector on 23 May 2016 is not implemented
as on date. Same position to continue till the disposal of the
proceedings before the Deputy Collector. Parties will appear before
the Deputy Collector on 19 December 2018, wherein the Deputy
Collector will give further dates. Te Deputy Collector will make an
endeavor to dispose of the revision within a period of eight weeks from
the appearance of the parties before it.

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8.It is clarified that, the observations in this order are not a
reflection on the merits of the rival contentions, but are made to
emphasis the need to carry out a fresh enquiry.

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( N.M. Jamdar, J. )

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...

Abarao Dhondiba Wadekar and Another v. the Additional Collector Aurangabad and Others

Case brief

What is this about?

What did the court decide?

Abarao Dhondiba Wadekar and Another v. the Additional Collector Aurangabad and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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