Jaimin Ramji Maheshwari vs Laxman Damodhar Kulthe And Ors
2016 Latest Caselaw 5403 Bom

                                     1                                   WP-8368-12


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                            BENCH AT AURANGABAD

                             WRIT PETITION NO. 8368 OF 2012




                                                    
     Jaimin Ramji Maheshwari,
     Age : 42 years, occupation : Business,
     R/o :Ranjankhol, taluka Rahata,
     District Ahmednagar                               ...PETITIONER




                                                   
                                                        ( Original opponent )

              versus

     1.       Laxman Damodhar Kulthe,




                                          
              Age: Major,
              R/o Ranjankhol, taluka Rahata,
              District Ahmednagar.
                             
     2.       Ramnath Ramji Dhokechawale,
              Age Major,
                            
              Resident of Ranjankhol, Taluka Rahata,
              District Ahmednagar.

     3.       Vinod Roshanlal Bhalla,
              Age major,
      

              Resident of Ward No. 1 at Shrirampur,
              District : Ahmednagar.               ...RESPONDENTS
   



                                                       ( Original opponent )

                                         .....
     Mr. Sanket S. Kulkarni, Advocate for petitioner
     Mr. Abhijit B. Kale, Advocate for respondent No. 1





                                         .....

                                         CORAM : K.K. SONAWANE, J.

DATED : 20 th SEPTEMBER, 2016.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard learned counsel

for the petitioner. When the matter is called out, neither respondent

No. 1 nor his counsel were present.

2. The petitioner assails order dated 31-08-2012 in Revision

Application No. 34 of 2012 passed by the learned Sub-Divisional

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Officer, Shrirampur thereby refusing to cause interference in the

order dated 2/3-05-2012 in Rasta Case No. 08 of 2012 passed by

the tahsildar, Rahata in regard to the road abutting to land Gut

No. 114 for ingress and egress to present petitioner.

3. According to the petitioner, Sub-Divisional Officer, Shrirampur

has no power to deal with revision petition under section 23 of the

Mamaltdar's Courts Act, 1906. The Collector cannot delegate the

powers to sub-ordinate officer, other than Assistant Collector,

Deputy Collector or Assistant Commissioner. Learned counsel for the

petitioner relying on the decisions of learned Single Judge of this

court bench at Nagpur in writ petition No. 5777 of 2015 (Ambadas Rajaram

Pawar and another Vs. Rameshwar Rajaram More and others ), Writ petition

No. 757 of 2016 (Bachhulal @ Narayandas S/o Rambilas and another Vs. Mohan

Bhagwantrao Thakare and others) and writ petition no. 4609 of 2015 (Narayan

Bhagwan Bholankar and others Vs. Dattatraya Digambar Tayade and others)

contends that the order dated 31-08-2012 in revision application no.

34 of 2012 passed by the Sub-Divisional Officer, Shrirampur

deserves to be quashed and set aside.

4. I have given anxious consideration to the submissions

advanced on behalf of learned counsel for the petitioner. Present

writ petition challenges validity and legality of the impugned order

dated 31-08-2012 in Revision Application no. 34 of 2012 passed by

the Sub-Divisional Officer, Shrirampur. It is settled law that there is

no remedy available against order passed by the Tahsildar, except

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revision before the Collector. Section 23(2A) of the Mamlatdar's

Court Act, 1906 provides delegation of powers of the Collector and

the delegation can be to Assistant Collector, Deputy Collector or

Assistant Commissioner subordinate to the Collector. In the instant

case, learned Sub-Divisional Officer, Shrirampur entertained the

matter by exercising powers under section 23(2) of the Mamlatdar's

Courts Act, 1906. The learned Single Judge of this Court bench at

Nagpur in the case of Bija Maroti Hatwar Vs. Kishan Chirkut Padole and

another reported in 2015(1) Mh.L.J.,282 has categorically delineated

that revisional powers under section 23(2) of the Mamlatdar's

Courts Act, 1906 are required to be exercised by the Collector and

the Sub-Divisional Officer cannot exercise the revisional powers. In

such circumstances, impugned order appears to be illegal and

unsustainable one in the eye of law.

5. In such peculiar circumstances, I do not find any impediment

to allow the petition. The impugned order dated 31-08-2012 in

Revision Application No. 34 of 2012 passed by the Sub-Divisional

Officer, Shrirampur is hereby quashed and set aside and the matter

is relegated back to the Collector Ahmednagar for decision in the

matter afresh. The Collector has to adjudicate the issue on its own

merits by exercising the powers under section 23 of the Mamlatdar's

Courts Act, 1906, after giving an opportunity of hearing to both

parties. The Collector shall take endeavour for decision of revision

application, as expeditiously as possible, preferably within a period

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of six months from the date receipt of writ of this order.

6. It has been submitted on behalf of the petitioner that interim

relief by way of status-quo has been already continued in the

present petition since 5th November, 2015 and same be continued

till decision of the proceedings pending before the Collector.

7. In view of the nature of subject-matter, parties shall maintain

status-quo as was operating during pendancy of the writ petition till

decision of the Revision Application by the the learned Collector,

Ahmednagar.

8. Writ petition is allowed in aforesaid terms. Rule is made

absolute accordingly. There shall be no order as to costs.

Sd/-

[K. K. SONAWANE, J.]

MTK