Bombay High Court
Laxman Suryabhan Dohar ... vs Pramod Madhukar Modashe on 19 September, 2017
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.4819/2016
Laxman Suryabhan Dhohar (Sawarkar),
aged about 75 Yrs., Occu. Agriculturist,
R/o Umra, Tq. Akot, Distt. Akola. ..Petitioner.
..Vs..
1. Pramod Madhukar Modashe,
aged about 52 Yrs., R/o at Post Umra,
Tq. Akot, Distt. Akola.
2. Collector, Akola. ..Respondents.
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Smt. S.W. Deshpande, Advocate for the petitioner.
Shri Vipul B. Bhise, Advocate for respondent No.1.
Shri S.P. Deshpande, Addl. G.P. for respondent No.2.
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CORAM : S.C. GUPTE, J.
DATE : 19.9.2017.
ORAL JUDGMENT
Heard the learned counsel for the parties.
2. Rule. Taken up for hearing with the consent of counsel.
3. The subject matter of challenge in the present petition is an order
passed by the Additional Collector of Akola on 6th May, 2016 refusing to grant
stay applied for by the petitioner (appellant before the Additional Collector) in
respect of an order passed by the Lower Appellate Authority, namely, Sub-
Divisional Officer, Akot. By his order, the Sub-Divisional Officer rejected the
order passed by the Tahsildar in favour of the petitioner herein allowing him
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right of way through Gat No.19 for access to the petitioner's field, Gat No.20,
by bullock-cart. A spot inspection panchanama in this behalf indicates that a
right of cart way is used by the owner of Gat No.21 which passes on the
northern edge of the respondent's field Gat No.19. This right of way touches
the petitioner's field Gat No.20. The petitioner has been actually using this right
of way after the order of the Tahsildar for the last over 5 years. The petitioner's
field is otherwise land-locked and the only right of way used by the petitioner
was through the edge of field Gat No.19. The record of the case does indicate
that even earlier a right of way was used by the petitioner for entry and exist to
Gat No.20 is from edge of Gat No.19. One of the reasons which weighed with
the Tahsildar whilst issuing the order of right of way in favour of the petitioner
was that the same right of way, which is a cartable road, was used by the
owner of Gat No.21 and that right of way touches, and passes by, field Gat
No.20 owned by the petitioner.
4. The Sub-Divisional Officer, who heard the respondent's appeal from
the impugned order of the Tahsildar, allowed the respondent's appeal. One of
the reasons used by the Sub-Divisional Officer for allowing the appeal and
setting aside the order of the Tahsildar is that the civil Court has rejected the
counter claim filed by the petitioner claiming easementary right of way over
the respondent's field. An easementary right claimed by a plaintiff before a
civil Court clearly stands on a separate footing from a right of way claimed
under Section 143 of the Maharashtra Land Revenue Code by a land-locked
cultivator for accessing his field. The Tahsildar's power to enquire into and
decide the claim by a person holding land not accessible from a public way,
seeking a right of way over the boundaries of other survey numbers, is to be
exercised to cater to the needs of cultivators for reasonable access to their
fields. This is different from the easementary right, which is claimed as a civil
right by an applicant cultivator. A land-locked cultivator has a right of
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reasonable access to his field and such reasonable access would include a
cartable access, that is to say, an access through which bullock-carts can pass.
5. In these facts, it was really imperative and in the interest of justice
that the Additional Collector whilst hearing appeal from the Sub-Divisional
Officer's order had to grant adequate interim relief to the petitioner.
Considering the fact that the particular access allowed by the Tahsildar was
actually used by the owner of Gat No.21 (though at this stage this can be
termed merely as a prima facie observation, since it is a part of the contest
between the parties), the Collector ought to have granted this access as an
interim access till the appeal was disposed of. The impugned order of the
Collector is on the footing that there is no case for a temporary stay of the
order appealed from. There is hardly any reason worth the mention in the
impugned order passed by the Additional Collector in support of this
conclusion. In the premises, the impugned order of the Additional Collector
cannot be sustained.
6. It is necessary and in the interest of justice that pending the hearing
and final disposal of the appeal before the Additional Collector the petitioner's
access from the edge of field Gat No.19 ought to be protected.
7. Accordingly, the impugned order of the Additional Collector is
quashed and set aside and the interim application of the petitioner is allowed
by permitting him to use the access described in the spot inspection
panchanama from the northern edge of Gat No.19 in accordance with order
passed by the Tahsidlar on 1st April, 2011.
8. The Additional Collector shall dispose of the appeal, being Appeal
No.B.N.D.56/Umra/1/2015-2016, as expeditiously as possible and in any
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event, within a period of 3 months from today.
9. It is made clear that these observations are for the purpose of
deciding the present writ petition. The Additional Collector shall dispose of the
appeal on its own merits in accordance with law without being influenced by
this order.
10. Rule made absolute and petition disposed of in the above terms.
11. In the circumstances of the case, there shall be no order as to costs.
JUDGE
Tambaskar.
