Bombay High Court
Savita Dattatraya Varpe vs The State Of Maharashtra And ... on 21 December, 2016
Bench: T.V. Nalawade
956_WP793716.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7937 OF 2016
Savita Dattatraya Varpe
Age: 47 years, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar. ..PETITIONER
VERSUS
1. State of Maharashtra
Through its District Collector,
Ahmednagar.
2. The Sub Divisional Officer,
Sangamner Division, Sangamner,
Dist. Ahmednagar.
3. The Tahsildar,
Sangamner, Tq. Sangamner,
Dist. Ahmednagar.
4. Sukdev Sambhaji Shinde
Age: Major, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar.
5. Machindra Baban Shinde
Age: Major, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar.
6. Gorakshnath Baban Shinde,
Age: Major, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar.
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956_WP793716.odt
7. Shivaji Sambhaji Shinde
Age: Major, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar.
8. Sitaram Namdev Dighe
Age: Major, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar.
9. Dattatraya Namdev Dighe
Age: Major, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar.
10. Bajirao Sambhaji Shinde
Age: Major, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar.
11. Gayabai Pandurang Shinde
Age: Major, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar.
12. Baban Sambhaji Shinde
Age: Major, Occu.: Agri.,
R/o Rahimpur, Tq. Sangamner,
Dist. Ahmednagar. ..RESPONDENTS
....
Mr. A.T. Kanawade, Advocate for petitioner.
Mr. B.A. Shinde, A.G.P. for Respondent Nos. 1 to 3.
Mr. V.Y. Bhide, Advocate for Respondent Nos. 4 to 7 and 12.
....
CORAM : T.V. NALAWADE, J.
DATED : 21st DECEMBER, 2016
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard both sides by
consent for final disposal.
2. The present proceeding is filed to challenge the order made by
S.D.O. in Revision No. 299 of 2015 which was pending before the S.D.O.,
Sangamner. This proceeding was filed by present respondents against the
order made by Tahsildar, Sangamner in Rasta Case No. 26 of 2014. The
said proceeding was filed by present petitioner for relief of removal of
obstruction created on the so called road situated on the eastern side and
for injunction to prevent the defendants from interfering in the right of
plaintiff to use that portion as road.
3. Submissions made and the record show that spot inspection
was made. Some portion was found to be used of eastern side of Survey
No. 207 as way. The proceeding was opposed by present respondent /
defendant by contending that on western side of Survey No. 207 there is
shiv and there is big road on that side and there is no road on the eastern
side. On the basis of spot inspection made, Tahsildar had allowed the
proceeding. Tahsildar had not given the width of the so called road. This
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decision was challenged and S.D.O. has held that existence of such road is
not proved.
4. There is one sale deed on which the petitioner is placing
reliance. Admittedly present respondents have not signed even as
witnesses or consenting party on the sale deed. The petitioner wants to
use the eastern portion of the strips prepared by five brothers who were
owners of Survey No. 205 as cart way. The panchanama and other record
shows that so called way was situated between land Survey No. 207 on
one side and land Survey Nos. 210, 201 and 202 on the other side.
Owners of Survey No. 210, 201 and 202 were not made party defendants
in the said proceeding. Due to that circumstance, it can be said that
Tahsildar could not have granted relief as the relief would have been
against the owners of those three survey numbers also.
5. Though there are aforesaid circumstances, there must be
necessarily common bandh between the Survey No. 207 on one side and
Survey Nos. 210, 201 and 201 which are on the other side. This common
bandh / dhura needs to be created and maintained by the owners of both
the sides. In view of the rules framed under the Maharashtra Land
Revenue (Boundries and Boundary Marks) Rules, 1969 and in particular
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in view of Rule 4, the width of this dhura can be 1.22 meters and height
can be 0.61 meters. This Court holds that present petitioner can use this
dhura at least as footpath though not as cart way. This Court holds that
correction needs to be made in the order made by Tahsildar and decision
given by the S.D.O. needs to be set aside. If it is not done, it will be
practically impossible for the present petitioner to approach her land. In
view of these circumstances, following order :-
Petition is allowed. Decision given by S.D.O. is hereby set
aside. Decision given by Tahsildar is modified. Petitioner is allowed to
use the common bandh situated between Survey No. 207 on one side
( which includes all the stripes created by five brothers ) and Survey Nos.
210, 201 and 202 on the other side as footpath and it will be having
width and height as mentioned above. It is not to be used as cart way. In
those terms the petition is allowed and rule made absolute. There will be
liberty to file another proceeding by making the owners of other side as
party defendants.
( T.V. NALAWADE, J. )
SSD
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