Bombay High Court
Sheshrao S/O Jagannath Ghatod And ... vs The State Of Maharashtra Thr. ... on 5 January, 2018
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2544/2017
1. Sheshrao S/o Jagannath Ghatod,
age 77 Yrs., Occu. Agriculturist.
2. Bhayya S/o Jagannath Ghatod,
age 70 Yrs., Occu. Agriculturist.
3. Bhaurao S/o Jagannath Ghatod,
age 75 Yrs., Occu. Agriculturist.
4. Vasanta S/o Jagannath Ghatod,
age 67 Yrs., Occu. Agriculturist.
All R/o Lonkhairi, Tah. Kamptee,
Distt. Nagpur. ..Petitioners.
..Vs..
1. The State of Maharashtra,
through Revenue Department,
Mantralaya, Mumbai.
2. Additional Divisional Commissioner,
Nagpur Division, Nagpur.
3. Nayab Tahasildar, Kamptee (Koradi
Mandal) Kamptee, Tah. Kamptee,
Distt. Nagpur.
4. Devidas S/o Deoman Bhoyar,
aged 58 Yrs., Occu. Agriculturist,
R/o Lonkhairi, Tah. Kamptee,
Distt. Nagpur. ..Respondents.
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Shri A.A. Sonak, Advocate for the petitioners.
Ms. Mrunal Naik, A.G.P. for respondent Nos.1 to 3.
Ms. S.D. Anjankar, Advocate for respondent No.4.
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CORAM : Z.A. HAQ, J.
DATE : 5.1.2018.
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ORAL JUDGMENT
1. Heard Shri A.A. Sonak, Advocate for the petitioners, Ms. Mrunal
Naik, A.G.P. for respondent Nos.1 to 3 and Ms. S.D. Anjankar, Advocate for
respondent No.4.
2. Rule. Rule made returnable forthwith.
3. The petitioners have challenged the orders passed by the Additional
Commissioner by which the revision application and review application filed by
the petitioners are dismissed.
4. The petitioners had filed an application under Section 143 of the
Maharashtra Land Revenue Code which was allowed by the Tahsildar by order
dated 30th March, 2001 and the respondent No.4 was directed to make
available 12 feet wide way from the dhura between Survey No.253 and Survey
No.254. This order was challenged by the respondent No.4 before
Sub-Divisional Officer in appeal which was dismissed. Further appeal was
filed by the respondent No.4 before the Deputy Collector which was also
dismissed. The respondent No.4 then approached Additional Commissioner
under Section 257 of the Maharashtra Land Revenue Code and this revision
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was allowed by order dated 27th March, 2012. The Additional Commissioner
recorded that respondent No.4 was not served with notice of the proceedings
before the Tahsildar and, therefore, the order passed by the Tahsildar was
unsustainable and the subsequent orders passed by the Sub-Divisional Officer
and Deputy Collector by which the order passed by the Tahsildar was
maintained, were also bad in law. The petitioners approached the Additional
Commissioner for review of the order dated 27th March, 2012. The review
application filed by the petitioners is dismissed by the impugned order. Being
aggrieved by the order passed by the Additional Commissioner by which the
revision application filed by the respondent No.4 is allowed and by the order
passed by the Additional Commissioner dismissing the review application filed
by the petitioners, this writ petition is filed.
5. The learned Advocate for the respondent No.4 has submitted that
though the Additional Commissioner has recorded that notice of proceedings
before Tahsildar was not served on the respondent No.4 and, therefore, the
order passed by the Tahsildar is bad in law, the order passed by the Tahsildar is
otherwise sustainable as the claim of the petitioners for right of way is rejected
by the civil Court in Regular Civil Suit No.166/1999.
6. The submission made by the learned Advocate for the respondent
No.4 cannot be considered as the copy of the judgment passed in Regular Civil
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Suit No.166/1999 is not placed on record of this petition. The Additional
Commissioner has not set aside the orders passed by the subordinate
Authorities on the ground that the claim of the petitioners for way is negatived
by the civil Court. The orders passed by the subordinate Authorities are set
aside by the learned Additional Commissioner only on the ground that the
notice of proceedings before Tahsildar was not served on the respondent No.4.
7. However, in the above facts, I am of the view that the matter should
be remanded to the Tahsildar for deciding the application filed by the
petitioners under Section 143 of the Maharashtra Land Revenue Code, afresh.
8. Hence, the following order:
(i) The matter is remanded to the Tahsildar, Kamptee for deciding the
application filed by the petitioners under Section 143 of the Maharashtra Land
Revenue Code afresh.
(ii) The Tahsildar, Kamptee shall decide the proceedings according to
law after issuing notices to the concerned parties.
(iii) The impugned orders are modified in the above terms.
(iv) The petitioners and the respondent No.4 shall appear before the
Tahsildar, Kamptee on 12th March, 2018 at 11 a.m. and abide by further
orders / instructions in the matter.
(v) The parties are at liberty to file additional pleadings and documents.
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(vi) The Advocate for the petitioners and the Advocate for the
respondent No.4 have submitted that the way in question is not in use by the
petitioners. This position will continue till the Tahsildar, Kamptee passes
appropriate orders after hearing the parties in the matter.
The petition is disposed in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
