1 wp2544.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2544/2017
1. Sheshrao S/o Jagannath Ghatod,
age 77 Yrs., Occu. Agriculturist.
2. Bhayya S/o Jagannath Ghatod,
age 70 Yrs., Occu. Agriculturist.
3. Bhaurao S/o Jagannath Ghatod,
age 75 Yrs., Occu. Agriculturist.
4. Vasanta S/o Jagannath Ghatod,
age 67 Yrs., Occu. Agriculturist.
All R/o Lonkhairi, Tah. Kamptee,
Distt. Nagpur. ..Petitioners.
..Vs..
1. The State of Maharashtra,
through Revenue Department,
Mantralaya, Mumbai.
2. Additional Divisional Commissioner,
Nagpur Division, Nagpur.
3. Nayab Tahasildar, Kamptee (Koradi
Mandal) Kamptee, Tah. Kamptee,
Distt. Nagpur.
4. Devidas S/o Deoman Bhoyar,
aged 58 Yrs., Occu. Agriculturist,
R/o Lonkhairi, Tah. Kamptee,
Distt. Nagpur. ..Respondents.
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Shri A.A. Sonak, Advocate for the petitioners.
Ms. Mrunal Naik, A.G.P. for respondent Nos.1 to 3.
Ms. S.D. Anjankar, Advocate for respondent No.4.
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CORAM : Z.A. HAQ, J.
DATE : 5.1.2018.
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2 wp2544.17
ORAL JUDGMENT
1. Heard Shri A.A. Sonak, Advocate for the petitioners, Ms. Mrunal Naik, A.G.P. for respondent Nos.1 to 3 and Ms. S.D. Anjankar, Advocate for respondent No.4.
2. Rule. Rule made returnable forthwith.
3. The petitioners have challenged the orders passed by the Additional Commissioner by which the revision application and review application filed by the petitioners are dismissed.
4. The petitioners had filed an application under Section 143 of the Maharashtra Land Revenue Code which was allowed by the Tahsildar by order dated 30th March, 2001 and the respondent No.4 was directed to make available 12 feet wide way from the dhura between Survey No.253 and Survey No.254. This order was challenged by the respondent No.4 before Sub-Divisional Officer in appeal which was dismissed. Further appeal was filed by the respondent No.4 before the Deputy Collector which was also dismissed. The respondent No.4 then approached Additional Commissioner under Section 257 of the Maharashtra Land Revenue Code and this revision ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 00:52:22 ::: 3 wp2544.17 was allowed by order dated 27th March, 2012. The Additional Commissioner recorded that respondent No.4 was not served with notice of the proceedings before the Tahsildar and, therefore, the order passed by the Tahsildar was unsustainable and the subsequent orders passed by the Sub-Divisional Officer and Deputy Collector by which the order passed by the Tahsildar was maintained, were also bad in law. The petitioners approached the Additional Commissioner for review of the order dated 27th March, 2012. The review application filed by the petitioners is dismissed by the impugned order. Being aggrieved by the order passed by the Additional Commissioner by which the revision application filed by the respondent No.4 is allowed and by the order passed by the Additional Commissioner dismissing the review application filed by the petitioners, this writ petition is filed.
5. The learned Advocate for the respondent No.4 has submitted that though the Additional Commissioner has recorded that notice of proceedings before Tahsildar was not served on the respondent No.4 and, therefore, the order passed by the Tahsildar is bad in law, the order passed by the Tahsildar is otherwise sustainable as the claim of the petitioners for right of way is rejected by the civil Court in Regular Civil Suit No.166/1999.
6. The submission made by the learned Advocate for the respondent No.4 cannot be considered as the copy of the judgment passed in Regular Civil ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 00:52:22 ::: 4 wp2544.17 Suit No.166/1999 is not placed on record of this petition. The Additional Commissioner has not set aside the orders passed by the subordinate Authorities on the ground that the claim of the petitioners for way is negatived by the civil Court. The orders passed by the subordinate Authorities are set aside by the learned Additional Commissioner only on the ground that the notice of proceedings before Tahsildar was not served on the respondent No.4.
7. However, in the above facts, I am of the view that the matter should be remanded to the Tahsildar for deciding the application filed by the petitioners under Section 143 of the Maharashtra Land Revenue Code, afresh.
8. Hence, the following order:
(i) The matter is remanded to the Tahsildar, Kamptee for deciding the application filed by the petitioners under Section 143 of the Maharashtra Land Revenue Code afresh.
(ii) The Tahsildar, Kamptee shall decide the proceedings according to law after issuing notices to the concerned parties.
(iii) The impugned orders are modified in the above terms.
(iv) The petitioners and the respondent No.4 shall appear before the Tahsildar, Kamptee on 12th March, 2018 at 11 a.m. and abide by further orders / instructions in the matter.
(v) The parties are at liberty to file additional pleadings and documents. ::: Uploaded on - 12/01/2018 ::: Downloaded on - 13/01/2018 00:52:22 :::
5 wp2544.17 (vi) The Advocate for the petitioners and the Advocate for the
respondent No.4 have submitted that the way in question is not in use by the petitioners. This position will continue till the Tahsildar, Kamptee passes appropriate orders after hearing the parties in the matter.
The petition is disposed in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE Tambaskar.
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