Dismissed¶24

Umakant Gangadhar Kapse and Another v. the State of Maharashtra and Others

Bombay HC6 Feb 2026WP/1086/2026

Case brief

AI extract

What is this about?

writ petition dismissed - mandamus for removal of encroachment on public road - Article 226 Constitution of India - civil suit pending - disputed questions of fact - maintainability of writ petition - measurement dispute - panchnama - Tahsildar, Naib Tahsildar, Circle Officer, Village Revenue Officer, Purna - Kanadkhed, Bhategaon, Kantheshwar walking path - Gat No.257, Gat No.258 - no order as to costs

What did the court decide?

Since some matter relating to the encroachment is pending before the Civil Court, and the petitioners approached this Court without taking information about that civil suit, this is not a fit case to exercise powers under Article 226 of the Constitution. ¶24

Umakant Gangadhar Kapse and Another vs the State of… — Writ and Judicial Review | Bombay HC (2026)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the Court should exercise its writ powers under Article 226 of the Constitution to direct removal of the alleged encroachment on the public road, where the matter is pending before the Civil Court and involves disputed questions of fact.

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Court's answer

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Ratio / Principle

The facts involve disputed questions of fact, as the measurement of the road is in dispute.

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Key takeaways

In the initial applications dated 26.05.2023 and 13.05.2024 the petitioners did not come with any case of encroachment, which further weighs against entertaining the petition.ratio¶24

Detailed headnote1 paragraphs

Bombay High Court, Aurangabad Bench (Smt. Vibha Kankanwadi & Hiten S. Venegavkar, JJ.; decided 25.03.2026) DISMISSED, with no order as to costs, Writ Petition No.1086 of 2026 in which the petitioners sought a writ of mandamus directing the respondents to remove encroachment on the public road from Kanadkhed shivar Gat Nos.257 and 258 to Bhategaon shiv road and on the Kantheshwar walking path. The Court held the petition not fit for adjudication under Article 226 because: (i) some matter arising from the encroachment was already pending before the Civil Court and the petitioners had approached the High Court without obtaining information about that suit; and (ii) disputed questions of fact were involved - the measurement itself was in dispute, and the initial applications dated 26.05.2023 and 13.05.2024 had projected only a rain-damaged, sunken road without any case of encroachment. Background recorded by the Court: Tahsildar's directions of 28.05.2024 for a site inspection and eight-point report; panchnama of 13.03.2025 recording encroachment over around 125 meters in Gat No.257 blocking the road (barren, no crop; Gat No.258 7/12 holders absent/refusing notice; boundaries undemarcated; the allegedly encroaching person taken as panch); Tahsildar's letter of 13.03.2025 directing removal with inspection on 07.04.2025; further directions around 18.07.2025 to the Naib Tahsildar, Circle Officer and Village Revenue Officer; and the 07.04.2025 report/panchnama recording resistance by Gat No.258 farmers claiming a pending civil suit, on which basis the Village Revenue Officer stated further removal action would depend on the Civil Court's order.

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2026:BHC-AUG:13162-DB

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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910 WRIT PETITION NO.1086 OF 2026

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UMAKANT GANGADHAR KAPSE AND ANOTHER

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VERSUS

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THE STATE OF MAHARASHTRA AND OTHERS

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Mr. Menezes Joslyn A., Advocate for petitioners Miss. Neha B. Kamble, AGP for respondent Nos.1 to 5

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CORAM : SMT. VIBHA KANKANWADI & HITEN S. VENEGAVKAR, JJ. DATE : 25^th MARCH, 2026

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ORDER :

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. Present petition has been filed for following relief :

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“(B) By issuance of the Writ of Mandamus or any other appropriate Writ, Order or direction, this Hon’ble Court may kindly be pleased to direct respondents to remove the encroachment on the road from Kanadkhed Shivar Gat No.257, 258 to Bhategaon Shiv (Sadak) and so also the Kantheshwar walking path so as to make the existing public road available for public use.”

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2 Heard learned Advocate Mr. Menezes Joslyn A. for petitioners

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and learned AGP Miss Neha B. Kamble for respondent Nos.1 to 5.

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2 910_WP_1086_2026

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3 The petitioners are aggrieved by inaction on the part of respondent authorities to remove the alleged encroachment on public road used by petitioners and other farmers. The road is from Kanadkhed shivar Gat Nos.257 and 258 to Bhategaon shiv road and walking path from Kantheshwar, which has been encroached upon by adjoining land owners.

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4 Learned Advocate for petitioners has taken us through the documents. Initially, the application was made on 26.05.2023 and thereafter on 13.05.2024. Thereupon, on 28.05.2024 the Tahsildar had given directions to Circle Officer, Purna and Talathi, Sajja Kanadkhed to inspect the site and give report on the eight points formulated. It appears that after much persuasion, the inspection was done. Panchnama is stated to have been done on 13.03.2025, wherein it was found that the adjoining owners have made encroachment on the road and thereby blocked it. In spite of persuasion when the respondents have not taken steps, specifically even after the directions were given all are around 18.07.2025 by Tahsildar to the Naib Tahsildar, Purna, Circle Officer, Purna and Village Revenue Officer, Kanadkhed; yet, till today the said road has not been cleared and, therefore, the petitioners have approached this Court.

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5 It is to be noted that in the application dated 26.05.2023 and 13.05.2024 there is absolutely no mention about the alleged encroachment.

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910_WP_1086_2026

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Rather at that time it was presented that due to the heavy rains the road has sunked and even readiness was shown to get the work of road done with the participation of people. When Tahsildar gave directions for spot inspection and to find out the answer for eight queries, it appears that ultimately the panchnama was done, wherein even the person who is stated to have made encroachment was taken as panch. In the panchnama dated 13.03.2025, no doubt, there is statement that in Gat No.257 to the extent of around 125 meters the road has been encroached, but it was stated that there is no crop taken on the said stretch. That portion was barren. The farmers then told the panchas that they have no objection for removal of encroachment, but again a statement has been made that those farmers, whose names are appearing on 7/12 extract of Gat No.258, were not present. It is also expressed that there was no demarcation of the boundary of Gat Nos.257 and 258. It was then also mentioned that the panchas tried to contact those farmers, whose names are appearing on 7/12 extract of adjacent land, they refused to take the notice. It appears that again Tahsildar by letter dated 13.03.2025 gave directions to remove the encroachment by inspecting the land on 07.04.2025. This direction was given to Naib Tahsildar, Purna and others. Thereafter, there appears to be a report along with panchnama on 07.04.2025 given by Village Revenue Officer to Tahsildar, wherein it has been specifically mentioned that when the officers gathered along with the

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910_WP_1086_2026

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Surveyor from Taluka Inspector of Land Records and tried to measure the land by taking the middle of road and measuring 30 feet wide road, at that time resistance was made by farmers from Gat No.258 and it was specifically mentioned that they have filed civil suit. In the report, therefore, Village Revenue Officer states that the further action of removal of road would depend upon the order that would be passed by the Civil Court.

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6 Thus, it is clear that some matter is pending before the Civil Court. The petitioners have not taken information about the said civil suit and have directly approached this Court. If the matter is pending before the Civil Court, then this will not be a fit case where we should exercise our powers under Article 226 of the Constitution of India. Further, the facts also involved the disputed question of facts as the measurement is in dispute and also the fact that in the initial applications i.e. on 26.05.2023 and 13.05.2024 the petitioners have not come with a case of encroachment. All these facts lead us to dismiss the writ petition. Accordingly, we dismiss the same. No order as to costs.

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( HITEN S. VENEGAVKAR, J. ) ( SMT. VIBHA KANKANWADI, J. )

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agd

Umakant Gangadhar Kapse and Another v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Umakant Gangadhar Kapse and Another v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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