Bombay High Court
Uddhavsingh Sahebsingh Pawar And ... vs The State Of Maharashtra And ... on 14 September, 2017
Bench: R.V. Ghuge
WP/1330/2017
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1330 OF 2017
1. Uddhavsingh Sahebsingh Pawar,
Age 50 years, Occ. Agriculture
R/o Ghugarde Hadgaon, Taluka
Ambad, District Jalna.
2. Janardhansingh Bhagujisingh Pawar,
Age 61 years, Occ. Agriculture
R/o Ghugarde Hadgaon, Taluka
Ambad, District Jalna. ..Petitioners
Versus
1. The State of Maharashtra
Through the Collector, Jalna.
2. The Tahsildar-cum-Mamlatdar,
Ambad, Dist. Jalna.
3. Badalsingh Narayansingh Pawar,
Age 47 years, Occ. Agriculture
R/o Ghugarde Hadgaon, Taluka
Ambad, District Jalna. ..Respondents
...
Advocate for Petitioners : Dr. Tawshikar Swapnil D.
AGP for Respondents 1 & 2 : Shri Bhagat N.T.
Advocate for Respondent 3 : Shri Salunke Sudarshan J.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: September 14, 2017
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties.
WP/1330/2017
2. Rule.
3. By consent, Rule is made returnable forthwith and the
petition is taken up for final disposal.
4. The petitioners are aggrieved by the order dated
29.12.2016, by which, the Mamlatdar has decided the case
under Section 5(2) of the Mamlatdar Cours Act, 1906, initiated
by respondent No.3 - Badalsingh and has directed that the
obstruction on a particular way should be removed and the said
way, said to be existing for years, should be made available for
the residents of the village.
5. I have considered the strenuous submissions of the
learned Advocates for the respective sides and the learned AGP
on behalf of the State authorities. With their assistance, I have
gone through the record available.
6. Considering the order that I intend to pass, I am not
adverting to the entire submissions of the litigating sides.
7. Suffice it to say that these petitioners were earlier before
this Court in Writ Petition No.5840 of 2016. By order dated
WP/1330/2017
1.10.2016 this Court permitted the petitioners to withdraw the
said petition and lead evidence before the Mamlatdar in the
matter under Section 5(2) of the Mamlatdar Courts Act, 1906.
8. The abovesaid matter has taken a curious turn. Whenever
the notice was issued by the said Mamlatdar (Tahsildar, Ambad),
after remand, some of these petitioners used not to be found in
the village. The proceedings initiated by respondent No.3 were
stuck since, on two occasions, the notice dated 9.9.2015 and
7.12.2016 could not be served upon two petitioners for the
reason that they were not found in the village, when the
concerned Bailiff reached the village to serve the notice. The
witnesses by name Ambarsingh Parihar and Govind were
common witnesses on both the occasions, who have stated that
Dnyaneshwar Sahebsingh Pawar with relation to the notice dated
9.9.2015 and petitioner No.1 - Udhawsingh Sahebsingh Pawar in
relation to the notice dated 7.12.2016, were not in the village.
These are the two persons, who are claiming that they were not
aware about the proceedings progressing before the said
Mamlatdar.
9. It is not a matter of coincidence that Govardhan
Sahebsingh and Sharad Sahebsingh are the real brothers of
WP/1330/2017
Uddhavsingh and the second petitioner Janardhan Bhagusingh
were already served with the summons from the Tahsildar. As
such, prima facie, it appears that Uddhavsingh claiming to be
unserved is a pretense as both his brothers in the same matter
were served and it is improbable he did not know about the
proceedings. In so far as petitioner No.2 Janardhansingh
Bhagusingh is concerned, no document is placed on record to
indicate that he was not served.
10. In the above fact situation, the fact that petitioner No.1
had not appeared before the Mamlatdar, despite remand from
this Court, this is a fit case for imposing costs on the petitioners,
though I am giving them one last opportunity to participate in
the proceedings before the Mamlatdar.
11. Learned Advocate for the petitioners fairly states that the
petitioners henceforth would not seek adjournments, if they are
given one last opportunity and would abide by all the dates of
hearing before the Mamlatdar. It is, however, prayed that the
ad-interim relief granted by this Court (Coram : S.B.Shukre, J.)
on 2.2.2017 may be continued for a limited period during which
the Mamlatdar could permit the petitioners to lead evidence in
the matter. Though Shri Salunke, learned Advocate opposes the
WP/1330/2017
said request, in order to balance the equities, I would be granting
some protection to these petitioners, but by imposing costs for
their conduct.
12. This Writ Petition is partly allowed and the proceeding
No. Ja.Kr.2015/Jama-1/Kavi-958/CR-7/2015 is remitted back to
the Mamlatdar. The petitioners shall deposit costs of Rs.5,000/-
each with the Mamlatdar, Ambad within a period of three weeks
from today and the said amount shall be withdrawn by
respondent No.3 without conditions. If the said amount is not
deposited, the impugned order dated 29.12.2016 shall stand
restored.
13. Considering the above, the impugned order dated
29.12.2016 is set aside and petitioners Nos. 1 and 2 shall appear
before respondent No.2 along with respondent No.3 on
26.9.2017 at 2.00 pm. Formal notices shall not be issued by the
Mamlatdar.
14. It is made clear that the liberty to lead evidence is granted
only to petitioner Nos.1 and 2, who are before this Court. It is
also made clear that petitioner No.1 shall lead evidence first,
followed by petitioner No.2 and both shall not seek
WP/1330/2017
adjournments for the said purpose. In the event, an adjournment
is sought, the Mamlatdar would be justified in rejecting such
application and closing the evidence of the petitioners.
15. The Mamlatdar shall decide the proceedings as
expeditiously as possible and in any case on/or before
18.11.2017.
16. Rule is made partly absolute in above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
