Bombay High Court
Shri. Dhondappa Satappa Alure vs Shri. Mahadev Gurappa Alure And ... on 17 March, 2017
Bench: R.M. Savant
(912) wp-2336.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2336 OF 2016
Shri Dhondappa Satappa Alure ]
Age 60 yrs. Occu. Agri. ]
r/a Post : Gholasgaon ]
Tal. Akkalkot. Dist. Solapur ]..... Petitioner.
Versus
1] Shri Mahadev Gurappa Alure ]
Age - adult, Occu. Agri. ]
r/a Post : Gholasgaon, ]
Tal. Akkalkot, Dist. Solapur ]
]
2] Shri Tinappa Satappa Alure ]
Age - adult, Occu. Agri. ]
r/a Post : Gholasgaon ]
Tal : Akkalkot, Dist. Solapur ]
]
3] Dist. Collector, Solapur. ]
]
4] The State ]..... Respondents.
Mr. Samir Kumbhakoni for the Petitioner.
Mr. R S Alange for the Respondent No.1.
Mr. S D Rayrikar, AGP for the Respondent Nos.3 and 4.
CORAM : R. M. SAVANT, J.
DATE : 17th March 2017
ORAL JUDGMENT :-
1 The learned counsel for the Petitioner to carry out the amendment
in terms of the order dated 23/02/2016 forthwith.
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2 Rule, considering the challenge raised made returnable forthwith
and heard.
3 The writ jurisdiction of this Court is invoked against the order
dated 17/12/2014 passed by the Sub Divisional Officer No.2, Solapur, by
which order the Revision Application filed by the Respondent No.1 herein came
to be allowed and resultantly the order dated 05/07/2014 passed by the
Tahsildar, Akkalkot, Dist. Solapur came to be set aside.
4 It is not necessary to burden this Order with unnecessary details.
Suffice it would be to state that the Petitioner herein has invoked Section 5 of
the Mamlatdar's Court Act 1908 on the ground that his right of way to
approach his land bearing Gat No.229/2 was obstructed by the Respondent
No.1. The parties are closely related being real brothers. The original land
being Gat No.229 was partitioned between the Petitioner and the Respondent
No.1 and as a result of the partition two Gat numbers came to be formed i.e.
Gat No.229/1 which is of the Respondent No.1 and Gat No.229/2 which is of
the Petitioner. It was the case of the Petitioner in the said application that the
road which is on the boundary of the original Gat No.229 has been obstructed
by the Respondent No.1.
5 Having regard to the said dispute which was raised by virtue of the
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said application filed by the Petitioner, the Tahsildar directed a spot inspection
to be carried out in the presence of the parties. Pursuant to the spot
inspection, a panchanama was prepared and was made part of the record of
the said proceedings before the Tahsildar. In the said panchanama it has been
recorded that there is a foot-way interspersed with trees on the boundary
(bandh) of the said land bearing Gat No.229. However, the Tahsildar by his
order dated 05/07/2014 restrained the Respondent No.1 from obstructing the
right of way of the Petitioner.
6 The Respondent No.1 aggrieved by the said order dated
05/07/2014 passed by the Tahsildar, Akkalkot allowing the application filed by
the Petitioner challenged the same by way of a Revision under Section 23 of
the said Act.
7 The Revisionary Authority i.e. the Sub Divisional Officer adverted
to the facts which had come on record as also the material which was on
record i.e. the panchanama. However, on the ground that the Petitioner has for
the last 60 years did not seek any road to approach his land being No.229/2
from Gat No.229/1 allowed the said Revision Application filed by the
Respondent No.1 and thereby set aside the order dated 05/07/2014 passed by
the Tahsildar. The Sub Divisional Officer has therefore principally on the
ground that no such right of way was sought by the Petitioner for the last 60
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years deemed it appropriate to set aside the order passed by the Tahsildar. The
Sub Divisional Officer in the said process has not considered the findings
recorded by the Tahsildar and thereby has not considered the material which is
on record.
8 The learned counsel appearing for the Petitioner would seek to
draw this Court's attention to an Agreement between the Petitioner and the
Respondent No.1 executed on 05/12/2000 to contend that the Respondent
No.1 has agreed to the Petitioner using the way on the boundary (bandh) of
the erstwhile Gat No.229.
9 Per contra, the learned counsel appearing for the Respondent No.1
Shri Alange would contend that there is neither mention of any cart way or any
way for heavy vehicles both in the panchanama as well as in the order dated
05/07/2014 passed by the Tahsildar.
10 In my view, it is not necessary for this Court to delve into the said
aspect as this Court is inclined to remand the matter back to the Sub Divisional
Officer, Solapur for a de-novo consideration of the Revision Application. For
the reasons mentioned herein above, the impuned order dated 17/12/2014
passed by the Sub Divisional Officer No.2 Solapur is accordingly quashed and
set aside and the Revision Application is remanded back to the Sub Divisional
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Officer for a de-novo consideration in terms of the observations made herein
above. The contentions of the parties are kept open for being urged before the
Sub Divisional Officer. The Sub Divisional Officer would decide the Revision
Application on its own merits and in accordance with law. The parties to
appear before the Sub Divisional Officer on 29/03/2017. The Sub Divisional
Officer may thereafter decide the Revision Application latest by 31/04/2017.
The above Petition is allowed to the aforesaid extent. Rule is accordingly made
absolute with parties to bear their respective costs.
[R.M.SAVANT, J]
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