Petitioner challenged Mamlatdar's order granting right of way. Court held acting Naib Tahsildar had jurisdiction under section 3(a). Dismissed ignoring optional formalities under sections 8-9 due to judicial leniency. Upheld finding of road existence based on spot inspection and sale deed.
Petition dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO.7555 OF 2021
Smt. Laxmibai w/o Vasant Jadhav
Petitioner
Versus
Kashinath s/o Dagdu Wagh and others
Respondents
Mr.P.N.Sonpethkar, advocate for the petitioner Mr.Kishor Hoke Patil, AGP for Respondents No.5 & 6.
CORAM : AVINASH G. GHAROTE, J.
DATE : 12th July, 2021.
PC :
1 Instant petition challenges the order passed by the Mamlatdar, dated 20.09.2019 granting a right of way to the respondent, which order has been confrmed by the Respondent
No.6– the Deputy Collector in Revision
No.2019/Revision/Mamlatdar/CR-02.
2 The learned Counsel for the petitioner, at the outset, submits that the Naib Tahsildar, who has passed the order dated
20.09.2019, did not have jurisdiction to do so, as no such power had been delegated to him.
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3 The learned AGP submits that, there is no requirement of delegation.
4 A perusal of Section 3(a) of the Mamlatdars’ Courts Act, 1906, indicates that the word “Mamlatdar”includes any revenue offcer exercising for the time being the powers of the Mamlatdar, of a Mahalkari or of a Tahsildar or Naib Tahsildar. It is, thus, apparent that the Naib Tahsildar, would be included in the expression “Mamlatdar”as defned in Section 3(a) of the Mamlatdars Court Act. The delegation of powers, as contemplated in Section 3(a), is for persons other than those stated above. The contention, therefore, is rejected.
5 The next contention of the learned Counsel for the petitioner, is that under Section 5(3) of the Mamlatdars’ Courts Act, a suit shall not be entertained by the Mamlatdar’s Court unless it is brought within six months from the date on which the cause of action arose, which under Section 5(4), is deemed to have arisen on the date on which the impediment to the natural fow of surface water or the dispossession, deprivation or determination, of tenancy or other right occurs, or when the impediment,
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disturbance or obstruction or the attempted impediment or disturbance or obstruction, frst commenced. The learned Counsel for the petitioner places reliance upon Vïshnu Sukhdeo Ghanvat & others Vs. The Collector, Ahmednagar & others , 2017 (1) MhLJ 811.
6 The next contention is that in the application dated 17.12.2014, no date is given for the impediment/obstruction and, therefore, the requirement of Section 5(3) of the Act of 1906, has not been complied with. The learned Counsel further relies upon Bhagwat Namdeo Nirmal & another Vs. Sub Divisional Offcer, Shrirampur Division & others (Writ Petition 10346 of 2012, decided on 18.03.2013).
7 Insofar as these contentions are concerned, a perusal of the application dated 17.12.2014, indicates the absence of the date of obstruction, neither is the application in the proper form, as required by the provisions of the Mamlatdars’ Courts Act. It, however, needs to be seen that, the application has been made by the respondents in-person. Though the application does not contain the date of obstruction or was not in proper form, however on that ground alone, the application cannot be rejected, for the
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reason that Sections 8 and 9 of the Mamlatdars’ Courts Act casts a duty upon the Mamlatdar, where a petition not in the form of a plaint is presented to him, and the subject matter thereof appears to fall within the scope of Section 5, for the Mamlatdar to explain to the person presenting the application, the nature of the relief afforded by the Act and to enquire whether the petitioner desire to obtain relief thereby and on an affrmative answer, to endorse such desire on the petition which shall, thereupon deemed to be a plaint presented under Section 7. So also, Section 9 of the Act of 1906, casts an obligation upon the Mamlatdar, where, the plaint does not contain the particulars specifed in Section 7, to examine the plaintiff on oath and ascertain from him such of the particulars specifed in Section 7, as are not clearly and correctly stated in the plaint and to reduce the examination to writing in the form of an endorsement or on the annexure to the plaint, which are thereafter deemed to be a part of plaint.
8 The judgment in the case of Vishnu Sukhdeo Ghanvat (supra), is clearly not attracted for the reason that it does not consider the obligation cast upon the Mamlatdar under Sections 8 and 9 of the Mamlatdars’ Courts Act.
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9 The record does not indicate that the Mamlatdar has performed his statutory obligation under Sections 8 and 9 of the Act of 1906. It is also necessary to note that the application has been considered to be a proper application under Section 5 of the Mamlatdars’ Courts Act and has been adjudicated upon. It is, thus, too late in the day for the petitioner to contend, in the writ petition, after having participated in the proceedings before the Mamlatdar as well as the Revisional Authority and taken a decision from them, to now contend otherwise. That it was an obligation of the Mamlatdar, is a position in which I am fortifed by the decision in Bhagwat Namdeo Nirmal (supra), relied upon by the learned Counsel for the petitioner. However, instead of taking the course as taken therein, I prefer to decide the matter on its own merits as remanding the matter, on this count, would not only amount to waste of time, but would also cause prejudice to the parties.
10 The authorities below have categorically held that an East to North-South road adjacent to the boundary of G.No.108 belonging to the petitioner which was in existence should be opened and made available to the respondents for ingress and egress, which fnding is based upon the spot panchanama dated
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24.07.2019, at the time of which Shri Rajiv Balu Mokase, the son of the original owner of the property, and vendor of the petitioner was present and who had admitted the existence of the road. This position, was also admitted by the adjacent owner of G.No.107, namely Kailas Sarjuba Jadhav. It is further material to note that the sale deed dated 28.04.1999, in respect of land of G.No.108 by Kashinath Dagdu Wagh, also indicates the existence of the road. In view of the fnding, that the said road was obstructed by the petitioner, I do not see any reason to interfere with the concurrent fndings, which after consideration of the factual position on the spot as well as the statements of witnesses and entries in the sale deed dated 28.04.1999, have arrived at a conclusion regarding existence of the road and its obstruction by the petitioner.
11 The petition is, therefore, without merit and the same is accordingly dismissed. In the circumstances, there shall be no order as to costs.
(AVINASH G. GHAROTE) JUDGE
adb
3 issues framed by the court
Whether the Naib Tahsildar had the jurisdiction to pass an order granting a right of way.
Whether the abstention from statutory obligations under Sections 8 and 9 invalidates the order.
Whether the existence of the road and obstruction are established on facts.
Colour shows how this judgement treated each authority
Vishnu Sukhdeo Ghanvat & others Vs. The Collector, Ahmednagar & othersDistinguished¶6
Vishnu Sukhdeo Ghanvat & others Vs. The Collector, Ahmednagar & others, 2017 (1) MhLJ 811 · Who else cites this
BhagNat Namdeo Nirmal & another Vs. Sub Divisional Officer, Shrirampur Division & othersReferred¶9
BhagNat Namdeo Nirmal & another Vs. Sub Divisional Officer, Shrirampur Division & others (Writ Petition 10346 of 2012)
4 provisions across 1 enactments
Smt. Laxmibai w/o Vasant Jadhav
Kashinath s/o Dagdu Wagh
Avinash G. Gharote
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
