1 wp4227.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4227 OF 2016
1] Indrawati Rajndraprasad Gupta,
aged about 58 years, Occ. Agriculture.
2] Surendra Rajendraprasad Gupta,
aged about 35 years, Occ. Agriculture,
3] Mohan Rajendraparasad Gupta,
aged about 32 years, Occ. Agriculture,
R/o. Khamgaon, Distt. Buldhana. PETITIONERS
...VERSUS...
1] State of Maharashtra,
through Ministry of Revenue and Forests,
Manatralaya, Mumbai.
2] The Collector, Buldhana.
3] Sub Divisional Police Officer,
Khamgaon, Distt. Buldhana.
4] Sub Divisional Officer,
Khamgaon, Distt. Buldhana.
5] Deputy Collector,
Khamgaon, Distt. Buldhana.
6] Naib Tahsildar,
Khamgaon, Distt. Buldhana.
7] Dr. Prakash Narayandas Maloo,
aged about 54 years, Occ. Medical
Practitioner and Agriculturist,
Director - School of Pratima Creative,
R/o. Civil Lines, Khamgaon,
District Buldhana...... RESPONDENTS
::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:05:59 :::
2 wp4227.16.odt
-------------------------------------------------------------------------------------------
Shri Yash Maheshwari, counsel for Petitioners.
Ms. Hemlata Jaipurkar, AGP for R-1 to 6
Shri A.V.Bhide, counsel for Respondent No.7
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
DATE : 22 nd DECEMBER, 2016 .
ORAL JUDGMENT
1] Rule made returnable forthwith.
Heard the matter finally by consent of the learned counsels appearing for the parties.
2] The petitioners are the owners of land Survey No. 624, whereas respondent No.7 is the owner of land Survey No. 623. It is not in dispute that respondent No.7 has started a school in land Survey No. 623 and the claim before the Tahsildar was in respect of removal of obstruction/ opening of Government road flowing from North to South from Survey No. 624 belonging to the petitioners. The Tahsildar rejected this application under Section 5 of the Mamlatdar Courts' Act by an order dated 10.06.2015, whereas in revision under Section 23(2) of the Mamlatdar Coruts' Act, the Sub Divisional Officer, Khamgaon has set aside the order of Tahsildar on 20.06.2016, directing the ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:05:59 ::: 3 wp4227.16.odt petitioners to remove the obstruction created in the Government road flowing from his field Survey No. 624.
Hence, this writ petition by the original non-applicants.
3] The fact that there existed a Government road flowing from North to South from the field Survey No. 624 is not in dispute and this is also the finding recorded by the Tahsildar, who rejected the application. The Tahsildar in his order further observed that such road stops at the end of Survey No. 624 on the southern side and there is nothing to connect this road to Survey No. 623 belonging to respondent No.7. The finding is based upon the spot inspection conducted on 10.06.2015 by the Naib Tahsildar himself, who passed the order. The Sub Divisional Officer in exercise of his revisional jurisdiction records a finding that the Government road joins field Survey No. 623 belonging to respondent No.7.
4] Shri Maheshwari, the learned counsel appearing for the petitioners submits that the Sub Divisional Officer has no jurisdiction to entertain, try and decide the revision under Section 23(2) (a) of the Mamlatdar Courts' Act and the ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:05:59 ::: 4 wp4227.16.odt powers can only be exercised by the Assistant Collector, Deputy Collector or Assistant Commissioner. The reliance is placed upon the decision of this Court in the case of Bija Maroti Hatwar vrs. Kisan Chirkut Padole and another, reported in 2015(1) Mh.L.J. 282. Relying upon this decision, it is urged that in the revisional jurisdiction, the findings of fact recorded by the Tahsildar cannot be set aside.
5] Inviting my attention to the order-sheet in the proceedings before the Sub Divisional Officer, it is urged that the matter was heard on 08.03.2016 on the application for dismissal of the revision, but the revision itself has been finally decided on 20.06.2016 and hence, the matter is required to be remanded back for hearing afresh. He has further invited my attention to the communication issued by the Collector and the Police Report to urge that the Sub Divisional Officer has exercised its jurisdiction under the pressure exerted by the Collector and the Sub Divisional Police Officer.
6] Shri Maheshwari concedes to the position that in the decision rendered by this Court in case of Bija Maroti ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:05:59 ::: 5 wp4227.16.odt Hatwar vrs. Kisan Chirkut Padole and another, cited supra, section 2 of sub-section 34 of the Maharashtra Land Revenue Code was not brought to the notice of this Court while holding that the Sub Divisional Officer has no jurisdiction to entertain, try and decide the revision application. Apart from this, the order impugned in this petition has been passed by the Deputy Collector, Khamgaon. In view of this, such point urged, no longer subsists.
7] So far as the question of pressure being exerted by the Collector and the Sub Divisional Police Officer is concerned, the only thing which has been brought to the notice of the Sub Divisional Officer is that there exist the Government road, which is also the finding recorded by the Tahsildar. Hence, such communication hardly makes any difference. So far as the question of findings of fact is concerned, once the fact is admitted that there existed a Government road and the inspection having been conducted after creating obstruction by destroying the way, the inspection report loses its significance, particularly when the respondent No.7 came up before the Court with a case that ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:05:59 ::: 6 wp4227.16.odt the road has already been destroyed. The Deputy Collector has recorded the finding that the Government way flowing from Survey No. 624 joins the adjacent survey No. 623 on the southern side. In view of this position, there is no point in remanding the matter back to the Deputy Collector for rehearing of the matter.
8] igIn the result, the writ petition is dismissed. No order as to costs.
9] At this stage the learned counsel for the petitioners submits that the interim order passed by this Court on earlier occasion be continued for a period of six weeks so as to enable the petitioners to approach the appropriate forum to challenge the decision of this Court.
10] In view of the adjudication above, I do not find any reason to continue the said interim order any more and the parties concerned are directed to see that the order passed by the Sub Divisional Officer is implemented.
JUDGE Rvjalit ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:05:59 :::