Bombay High Court
Jagdish Sheshrao Pawar vs Kiran Jaiprakash Bhagat And 9 ... on 7 August, 2017
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1927 OF 2015
Jagdish Sheshrao Pawar,
Aged about 66 years, Occup-Agriculture,
R/o. Malipura, Surji Anjangaon,
Tah-Anjangao Surji, Dist-Amravati. .....PETITIONER
...V E R S U S...
1] Kiran Jaiprkash Bhagat,
Aged about 45 years, Occup-Agriculturist,
R/o-Dahigaon Recha, Tah-Anjangaon Surji,
Dist - Amravati,
2] Mohammad Nisar Sheikh Habib,
Aged about 65 years, Occup-Agriculturist,
R/o-Shahapura, Anjangaon Surji,
Tah-Anjangaon Surji, Dist-Amravati.
3] Shakirsha Rafiksha,
Aged aboaut 46 years, Occup-Service,
R/o-Qureshi Nagar, Anjangaon Surji,
District - Amravati,
Deleted as
per order 4] Kamal Rajendra Yeul,
dt.08.12.2015. Aged about 50 years. Occur-Agriculturist,
5] Dilip Mahadeorao Awankar,
Aged about 52 years, Occup-Agriculturist,
Respondent Nos.4 to 5 are
R/o-Guljarpura, Anjangaon Surji,
Tah-Anjangaon Surji, Dist-Amravati,
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6] Anil Shamrao Tayade,
Aged about 45 years, Occup-Agriculturist,
R/o- Shanivarpura, Anjangaon Surji,
Tah-Anjangaon Surji, Dist-Amravati,
7] Naib Tahsildar,
Anjangaon Surji, Dist-Amravati,
8] Sub Divisional Officer, Daryapur,
Tah-Daryapur, Dist-Amravati.
9] Additional Collector, Amravati,
Tah and District - Amravati,
10] Additional Commissioner
Amravati Division, Amravati,
Tah and District - Amravati. ...... RESPONDENTS.
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Mr. P. A. Kadu, Advocate for the Petitioner.
Mr. Roshan Dande, Advocate for the Respondent No.1.
Mrs. M. A. Barabde, AGP for Respondent Nos.7 to 10.
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CORAM : S. C. GUPTE, J.
th
DATE : 7
AUGUST, 2017.
ORAL JUDGMENT :
Heard learned counsel for the parties.
2] Rule. Taken up for hearing forthwith by consent of
counsel for the parties.
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3] This Writ Petition challenges orders passed by the
Additional Collector, Amravati in appeal and the Additional
Commissioner, Amravati in a revision under Section 247 of the
Maharashtra Land Revenue Code. The subject matter of the
petition concerns a claim under Section 143 of the Maharashtra
Land Revenue Code for access to a field.
04] The petitioner is the owner of field Survey No.8/2,
whereas respondent No.2 was the original owner of field Survey
No.8/2-A. Respondent No.2 applied to the Tehsildar under Section
143 of the Code for unobstructed access to his field. Initially, the
Tehsildar granted an access or right of way to respondent No.2
passing through the petitioner's field. The access/right of way was
not even claimed by respondent No.2. The order was set aside by
the Additional Collector of Amravati and the matter was remanded
for a fresh having with opportunity to show cause to the petitioner.
The Tehsildar, on remand, once again granted right of way to
respondent No.2 through the petitioner's field. Once again, the
petitioner challenged the order by way of an appeal. The appeal
was allowed by the Sub-Division Officer, granting the traditional
right of way originally claimed by respondent No.2 which did not
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involve the petitioner's field. This right of way passed inter alia
through the field of respondent No.4. After passing of four years,
respondent No.1 herein, who is the owner of field Survey No.8/1
and 8/1-A upon transfer from respondent Nos.4 and 5, filed an
appeal from the Sub-Division Officer's order to the Additional
Collector. He also applied for condonation of delay. The appeal
was allowed by the Additional Collector on merits, holding inter
alia that the period of limitation started from the date of
knowledge of respondent No.1 of the impugned order. The
petitioner, thereafter, referred a revision before the Additional
Commissioner, Amravati Division. The revision was dismissed by
the Additional Commissioner.
05] The main grievance of the petitioner in the present
petition is that the Additional Commissioner merely mechanically
translated the impugned order of the Additional Collector as his
order in revision and did not practically consider the petitioner's
submission that the only reply filed by the petitioner in the
respondent's appeal before the Additional Collector was to the
application for condonation of delay. The Additional Collector not
only condoned the delay but also proceeded to dispose of the
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revision itself on merits. The appeal was, in the premises, disposed
without hearing the petitioner herein on merits.
06] The impugned order of the Additional Collector cannot
be sustained since it is indeed passed without affording an
adequate opportunity to the petitioner to contest the appeal. The
petitioner had simply contested the application of respondent No.1
for condonation of delay. If the Additional Collector were to hold
against the petitioner on the appeal of delay, he had to afford an
opportunity to the petitioner to, thereafter, contest the appeal on
merits. This he evidently did not do. There is consequently a clear
failure of justice. The impugned order of the Additional Collector is
accordingly set aside and appeal No. BND-54/Khelgangaji-3/2011-
2012 is remanded to the Additional Collector, Amravati for a fresh
hearing on merits according to law. The Additional Collector shall
allow the petitioner herein to make written as well as oral
submissions on the appeal.
07] The rule is accordingly made absolute and the Writ
Petition is disposed of in the above terms.
JUDGE
PBP
