Bombay High Court
Modku S/O. Themaji Bhagat vs Tahsildar, Tumsar And Others on 3 May, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1679 OF 2016
Modku s/o Themaji Bhagat
aged 65 yrs., Occp. Agriculturist,
r/o Lohara, Tah. Tumsar,
Distt. Bhandara
(Maharashtra State) :: .... PETITIONER
ig // VERSUS //
1. Tahsildar, Tumsar,
Tahsil Tumsar, Distt. Bhandara.
2. Talathi, Lohara, Tah. Tumsar,
Distt. Bhadara.
3. Police Station Officer, Andhalgaon,
Tah. Tumsar, Distt. Bhandara.
4. Tant Mukti Samiti, Lohara,
Tah. Tumsar, Distt. Bhandara.
5. Bhaurao s/o Namaji Bhagat,
aged Major, r/o Lohara, Tah. Tumsar,
Distt. Bhandara
(Maharashtra State). .... RESPONDENTS
______________________________________________________________
Shri A. N. Ansari, Advocate for Petitioner.
Smt. T. H. Udeshi, A.G.P. for respondent Nos. 1 and 3.
Shri S. D. Zoting, Advocate for respondent No.5.
______________________________________________________________
CORAM : S. B. SHUKRE, J.
DATED : 03 MAY, 2016
ORAL JUDGMENT :
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Heard. Rule, made returnable forthwith. Heard finally by
consent.
2. Respondent No.4 is however yet to be served, it not being
a contesting respondent, the notice to respondent No.4 is dispensed
with.
3.
What is challenged in this petition is legality and
correctness of the order dated 16/02/2016 passed by Tahsildar cum
Taluka Magistrate, Tumsar, thereby withdrawing permission granted to
the petitioner on 14/12/2015 for drawing of water from nallah
situated near to his agricultural field. It is found by the learned
Tahsildar that the petitioner has committed breach of conditions 1 and
5 of the said permission dated 14/12/2015 and, therefore, he
withdrew the permission and directed the petitioner to remove the
motor-pump installed at the well in the said nallah.
4. According to the learned Counsel for the petitioner, the
impugned order is based upon non-existing fact. He submits that the
petitioner has not committed any breach of the conditions of
permission. According to him, the petitioner has been drawing water
from the nallah and not from the well.
5. Learned A.G.P. for respondent Nos. 1 and 3 submits that
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the impugned order is legal and correct.
6. Learned Counsel for respondent No.5 maintains the same
stand. He submits that there is spot inspection report submitted by
Police Hawaldar Santoshsingh Ramsingh Solanki of Police Station
Aandhalgaon, which clearly mentions the fact that the petitioner is
withdrawing water from the same well from which respondent No.5 is
also taking water.
7. Upon going through the impugned order, I find that the
order is based upon the facts elicited during the course of enquiry
conducted by the learned Tahsildar and these facts has brought on
record through the spot inspection report of Police Hawaldar
Santoshsingh Solanki, which sufficiently establish that the petitioner
has been drawing water from the same well from which respondent
No.5 is also taking water. The permission has been granted to the
respondent for taking water from nallah and not from the well.
8. Obviously, there is prima facie material showing
commission of breach of conditions of the permission by the petitioner.
If the petitioner has any grievance about these findings of fact, which
have been recorded on the basis of the material before the learned
Tahsildar, the petitioner may avail of such remedy as may be available
in law. In the limited writ jurisdiction of this Court, the petitioner
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cannot raise a challenge seeking to prove the disputed facts. At the
most, the petitioner could have shown that the findings recorded by
the learned Tahsildar are not at all based upon the evidence or are
based upon some extraneous material but, he could not. There is
neither any illegality nor any perversity in the impugned order and I do
not see any reason for interference. There is no merit in the writ
petition and it deserves to be dismissed.
9. At this stage, learned Counsel for the petitioner states that
the petitioner has been compelled to draw water from the well because
there is no water left in the nallah and, therefore, he seeks liberty for
the petitioner to approach the Tahsildar for modifying the permission
already granted by praying for drawing of the well water.
10. The liberty as prayed for is granted and if any such
application for modification of permission is made by the petitioner,
same shall be decided by the Tahsildar, in accordance with law taking
into consideration the rights of respondent No.5.
Writ petition stands dismissed. No costs.
Rule is discharged.
JUDGE
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