Baburao Maruti Sawant vs Hanumant Yada Naik And Ors
2017 Latest Caselaw 4199 Bom

                                        1                       WP 2086 of 2013

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                         Writ Petition No.2086 of 2013

     *       Baburao s/o Maruti Sawant.
             Age 54 years,
             Occupation : Agriculture,
             R/o Walwad, Taluka Bhoom,
             District Osmanabad.                           ..    Petitioner.

                      Versus

     1)      Hanumant s/o Yada Naik,
             Age 50 years,
             Occupation : Agriculture,
             R/o Walwad, Taluka Bhoom,
             District Osmanabad.

     2)      The Tahsildar, Bhoom,
             District Osmanabad.

     3)      The Sub Divisional Officer,
             Bhoom, District Osmanabad.

     4)      The Additional Collector,
             Osmanabad, District Osmanabad. .. Respondents.

                                        ----

     Shri. Prashant K. Deshmukh, Advocate, for petitioner.

     Shri. V.G. Sakolkar, Advocate, for respondent No.1.

     Shri. S.B. Pulkundwar, Assistant Government Pleader, for
     respondent Nos.2 to 4.

                                        ----

                                Coram:         T.V. NALAWADE, J.

                                Date:          7 July 2017.





                                                 2                  WP 2086 of 2013

     ORAL JUDGMENT:



     1)               Rule,       rule   made       returnable        forthwith.         By

consent heard both the sides for final disposal.

2) The proceeding is filed to challenge the order

made by the learned Tahsildar Bhoom in proceeding

No.2008/Jama/Kawi/2933 and also the order made by the

learned Sub Divisional Officer Bhoom in File No.2011-

ROR-CR-102. Both the sides are heard.

3) It appears that some villagers of village

Walwad, Tahsil Bhoom had made application before the

Tahsildar and they had requested to create cart way

through agricultural land Survey Nos.18, 28, 31, 32, 37,

26, 38, 36, 27, 42, 49, 57, 56, 55 by contending that they

are the owners of these lands. The Tahsildar prepared

panchnama for ascertaining the things and then made

order on 17-2-2009 which is as follows :

"For going to the fields and houses of Patule, Mane, Shelke, Mali, Mohite, Vibhute and Dudhal of village Walwad, cart way of permanent nature was opened."

                                        3                WP 2086 of 2013

     4)               The petitioner is the owner of Gat No.16/2

admeasuring 1 Hectare and 25 R and it is his contention

that the Tahsildar had no power under the Mamlatdar's

Courts Act, 1906 to create such new cart way. It is also

the contention that the procedure given for hearing

matters filed under section 5 of this Act was not followed.

The learned counsel for the petitioner submitted that the

order of the Tahsildar does not show that road was

created as per provision of section 143 of the Maharashtra

Land Revenue Code as there is specific mention of the

provisions of the Mamlatdar's Courts Act in his order.

5) There is no record that summonses as required

under the Mamlatdar's Courts Act were issued to the

persons like present petitioner. The procedure given

under the Act which is similar to the procedure given for

deciding a suit, is required to be followed. Unless that

procedure is followed, the application under this Act,

which is treated as a plaint, cannot be allowed. Even the

provision of section 143 of the Maharashtra Land Revenue

Code shows that the power of the Tahsildar is only to

decide as to whether the adjoining land holders have right

4 WP 2086 of 2013

of way over the boundaries of other survey numbers. In

the present matter, the order of the Tahsildar does not

show that the road was created on the boundaries.

Further it was the contention that in the past, some space

was used as footpath. The provision of section 5 of

Mamlatdar's Courts Act does not show that the Tahsildar

has the power to create cart way. Similarly, provision of

Section 143 of the Maharashtra Land Revenue Code does

not show that the way can be created by Tahsildar on any

other portion than mentioned in section 143. Thus it can

be said that the Tahsildar has exceeded his jurisdiction.

Such order deprives farmer of his property as the portion

which is used as cart-way cannot be brought under

cultivation. It is not the case of the respondents that cart

way was acquired as easement. In view of these

circumstances this Court holds that the order made by the

Tahsildar cannot sustain in law.

6) In the result, the petition is allowed. The order

of the Tahsildar and the order of the Sub Divisional Officer

are set aside and the proceeding filed before the Tahsildar

stands dismissed. It is made clear that the adjoining land

5 WP 2086 of 2013

holders can use common bandh of the land of the

petitioner as foot path and the width and height of this

bandh will be as per the Survey Rules framed under the

Maharashtra Land Revenue Code. Rule is made absolute

in those terms.

Sd/-

(T.V. NALAWADE, J.)

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