Indrawati Rajendraprasad Gupta ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 7584 Bom

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                     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



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     -------------------------------------------------------------------------------------------
     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

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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

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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

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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

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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