Bombay High Court
Shri. Appasaheb Ramgonda Patil ... vs The State Of Maharashtra And Ors on 17 November, 2016
Bench: R.M. Savant
45-WP-8064-16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8064 OF 2016
Shri Appasaheb Ramgonda Patil
Since deceased through heir and
legal representative
a) Smt. Anandi Appasaheb Patil
aged about adult, Occupation Housewife and
agri. Residing at Hanimnal,
Taluka: Gadhinglaj, Dist: Kolhapur.
b) Shri Damodar Appasaheb Patil
aged adult, Occupation Agri.
Residing at Hanimnal, Taluka Gadhinglaj,
District: Kolhapur.
2 Shri Tukaram Ramgonda Patil, aged
adult, Occupation Agri. Residing at
Hanimnal, Taluka: Gadhinglaj,
District: Kolhapur. ..Petitioners
Versus
1 The State of Maharashtra
2 Shri Rayagoda Krishna Pati, aged
68 years, Occupation Pensioner,
R/oHanimnal, Taluka: Gadhinglaj,
District: Kolhapur.
3 Shri Appasaheb Dundappa Patil, aged
about 62 years, Occupation Agriculture,
R/oHanimnal, Taluka: Gadhinglaj,
District: Kolhapur.
4 Shri Shivaji Balu Patil, aged 44 years,
Occupation Agriculture,
R/oHanimnal, Taluka: Gadhinglaj,
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District: Kolhapur.
5 Shri Anandrao Rajaram Nalawade, aged
64 years, Occupation Agriculture,
R/oHanimnal, Taluka: Gadhinglaj,
District: Kolhapur.
6 Shri Dilip Dinkar Nalawade, Age 42
years, Occupation Agriculture,
R/oHanimnal, Taluka: Gadhinglaj,
District: Kolhapur.
7 Shri Algonda Balgonda Patil, aged 70
years, Occupation Agriculture
(Deleted as per order dated
8 The Learned Tahsildar Ajara,
ig 17.11.2016)
Taluka Ajara, District: Kolhapur.
9 The Asstt. District Collector,
Gadhinglaj, Division Gadhinglaj,
District: Kolhapur ..Respondents
Mr. G.N.Salunke , Advocate for the Petitioners.
Mrs. V.S.Nimbalkar, AGP for the State-Respondent Nos.1,8 and 9.
Mr. D.B.Patil, Advocate for Respondent Nos.2 to 6.
Coram : R.M.SAVANT, J.
Date : 17th November, 2016.
Oral Judgment :
At the outset, the learned counsel for the Petitioners, Shri
Salunke seeks deletion of the Respondent No.7 as in the context of the
challenge raised, the Respondent No.7 is a formal party. The said
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Respondent No.7 is, accordingly, deleted at the risk of the Petitioners.
2 Rule with consent of the learned counsel for the Parties,
made returnable forthwith and heard. The writ jurisdiction of this Court
is invoked against the order dated 27.4.2016 passed by the Sub-
Divisional Officer, Gadhinglaj Division, Gadhinglaj, District: Kolhapur. By
the said order, the Revision Application filed by the Petitioners against
the order dated 2.6.2007 passed by the Tehsildar, Ajra came to be
dismissed.
3 It is not necessary to burden this order with unnecessary
details having regard to the final order that is required to be passed in
the above Petition. Suffice it would be to state that the Respondent
Nos.2 to 6 herein are the Applicants who filed an application invoking
Section 5 of the Mamlatdar's Court Act, 1906 on the ground that their
right of way going through the bandh of Gat No.426 was obstructed by
the Petitioners herein who are the Respondents in the said Application.
The said Application was replied to on behalf of the Petitioners herein.
In terms of the procedure, which is required to be followed whilst
considering an Application filed under Section 5 of the said Act. The
Tehsildar directed spot inspection to be carried out pursuant to which
the said spot inspection was carried out and the panchanama came to
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be recorded by the concerned panchas. In the said panchanama, it was
recorded that there was a foot way on the bandh of Gat No.426.
However, there was no road seen in terms of the dotted line which is
depicted in the village map prepared prior to the consolidation scheme
being implemented. In view of some discrepancy in the said
panchanama as regards the dates, the Tehsildar directed re-inspection
of the site in question. Accordingly, a second panchanama was recorded
in which panchanama, the ground reality was the same as recorded in
the first panchanama. The Tehsildar having regard to the material on
record which included the panchanama allowed the said application
filed by the Respondent Nos.2 to 6 and directed the Petitioners to permit
the Responden56t Nos.2 to 6 herein to use the foot way admeasuring 8
feet 3 inches on the bandh of Gat No.426. This was done by the
Tehsildar as indicated above by the order dated 2.6.2007.
4 The Petitioners aggrieved by the said order dated 2.6.2007,
filed a Revision before the Sub-Divisional Officer, Gadhinglaj under
Section 23 of the said Act. The said revision application came to be
allowed by the Sub-Divisional Officer, Gadhinglaj by the order dated
15.4.2008. This resulted in Petitioners' filing Writ Petition No.5632 of
2008. The said Writ Petition came to be disposed of by a learned Single
Judge of this Court by order dated 26.11.2015 and the matter came to
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be remanded back to the Revisionary Authority in terms of the
directions issued in the said order.
5 The remand was on the basis that it would have to be
determined whether on account of post consolidation, survey numbers
have undergone change and also to determine as to whether there was
any public road in existence at the site.
6 On remand, the Assistant Collector, Gadhinglaj Division,
Gadhinglaj has by the impugned order dated 27.4.2016 has rejected the
Revision Application. However, though the Revision Application has been
rejected, the Assistant Collector has directed that the road shown by the
dotted line in Gat No.426, 434/1, 434/3 should be made available by the
concerned land holders by removing obstruction if any, on the said road.
In the impugned order, the consequences for non-removal of the
obstruction have also been mentioned which are to the effect that
penalty would have to be levied on the persons who have caused
obstruction under Section 50 of the Maharashtra Land Revenue Code,
1966. Hence, though the Tehsildar, Ajra by his order dated 2.6.2007 had
directed the foot way on the bandh of Survey No.426 to be made
available for the use of the applicants, i.e., Respondent Nos.2 to 6
herein, the revisionary authority, i.e., the Assistant Collector has directed
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road as depicted by the dotted line in Gat Nos.426, 434/1, 434/3 to be
made available to the Applicants i.e. Respondent Nos.2 to 6 herein. The
Petitioners, who were opponents in the original application under
Section 5 of the said Act have filed the above petition challenging the
said order dated 27.4.2016 in so far as it grants road passing through
their land.
7 The learned counsel for the Parties, i.e. Shri Salunke
appearing for the Petitioners and Shri Patil appearing for the
Respondent Nos.2 to 6 sought to raise various contentions for and
against the challenge to the impugned order dated 27.4.2016. However,
during the course of hearing of the above Petition, the learned counsel
appearing for the Respondent Nos.2 to 6, i.e. the proponents of the
application filed under Section 5 of the said Act showed the inclination of
the said Respondents to accept the foot way admeasuring 8 feet 3 inches
as a permanent road for accessing their lands. It was sought to be
submitted by Shri Patil that Respondent Nos.2 to 6 cannot be losers both
ways, i.e. , they cannot be denied access through foot way, as also
through the road as depicted by the dotted line. Upon this, the learned
counsel for the Petitioners Shri Salunke submitted that the Petitioners
herein who are heirs of Original Opponent Shri Appasaheb Ramgonda
Patil have no objection for the use of the said foot way admeasuring 8
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feet 3 inches width being used as permanent access by the Respondent
Nos.2 to 6 and that the Petitioners would not obstruct the Respondents
from using the same which is a fact recorded in the order passed by the
Tehsildar dated 2.6.2007. The said statement is accepted. In view of
acceptance of the said foot way of 8 feet 3 inches by the Respondent
Nos.2 to 6 as a permanent arrangement, the directions as contained in
the impugned order are set aside and substituted by the following:
(1) The Respondent Nos.2 to 6 would be entitled to
use the foot way having width of 8 feet 3 inches
on the bandh of Gat No.426 as an access to the
land in question, which is the road covered by
the order passed by the Tehsildar dated
2.6.2007.
(2) In terms of the statement made by the learned
counsel appearing for the Petitioners, the
Petitioners would not obstruct or put any
impediment in the way of the Respondents from
using the 8 feet 3 inches foot way as an access
to their lands as and by way of permanent
arrangement.
8 Petition to stand disposed of in terms of the above directions.
9 Rule, also to accordingly, stand disposed of in the above
terms.
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10 This Court hopes and trusts that the Petitioners would abide
by statement made by their learned counsel and would not precipitate
the matter on site.
[R.M.SAVANT, J.]
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