Shri. Gopal Bhiwa Sawant vs Shri. Shankar Bhojraj Bhoir And ...
2021 Latest Caselaw 7890 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION

            REVIEW PETITION (STAMP) NO.96023 OF 2020
                              IN
                 WRIT PETITION NO.13037 OF 2019

Shri. Gopal Bhiwa Sawant                           ...       Petitioner
       Versus
Shri. Shankar Bhojraj Bhoir & Ors.                 ...       Respondents

Mr. Abhijeet Rane, Advocate for the Petitioner.
Dr. Kirti Kulkarni, AGP for the Respondent Nos.5 to 9 - State.

                                       CORAM : UJJAL BHUYAN, J.

                                       DATE :      15th JUNE, 2021
P.C.

Heard Mr. Abhijeet Rane, learned counsel for the review petitioner and Dr. Kirti Kulkarni, learned AGP for the respondent - State.

2. We have perused our order dated 18.12.2020 as well as the affidavit of service filed by the review petitioner which is accepted. Review petitioner who is the original writ petitioner seeks review of the order dated December 20, 2019 passed in Writ Petition No.13037 of 2019 which is extracted hereunder :-

"1. Heard Mr. Abhijeet Rane, learned counsel for the petitioner; and Mr. Sameer Patil, learned counsel for the respondent Nos.1 and 2; also heard Mr. S. L. Babar, learned AGP for respondent Nos.5 to 9.

2. After hearing the matter at some length, learned counsel for the petitioner seeks leave to withdraw the writ petition to avail his remedy under the Mamlatdar Courts Act, 1906.

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3. Leave as sought for is granted.

4. No opinion is expressed on merit and all contentions are kept open.

5. Writ Petition is disposed of on withdrawal."

3. From a perusal of the order dated December 20, 2019, it is seen that it was learned counsel for the review petitioner (original writ petitioner) who had sought leave to withdraw the writ petition to avail his remedy under the Mamlatdar Courts Act, 1906. Accordingly leave was granted by the Court without expressing any opinion on merit.

4. However, review has been sought for on the following grounds:-

"1) That this Hon'ble Court failed to consider that the Petitioner had filed his first application before Tahsildar Ambernath vide Dt. 02nd August, 2003. The said application already annex as Exhibit "F" with the Petition.

2) This Hon'ble Court failed to consider that this is only a technical aspect where the said application has been rejected by SDO Ulhasnagar. In the Petitioner's view the SDO Ulhasnagar could have considered the said application and passed an order to reconsider the said application as a fresh are under provision of Mamlatdar Courts Act, 1906 section

5. In-spite of this SDO Ulhasnagar passed an order in favour of Respondent. The Petitioner further states that because of this Petitioner's right of way was blocked for so many years and till today there is no right of way for approaching petitioner's own land for Survey No.264/2 at Village Badlapur, Taluka Ambarnath. The Petitioner states that in this matter Petitioner may not be without any kind of remedy for access to his own farm land and it is found to be "procedural impropriety" to the Petitioner.

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3) The Hon'ble High Court failed to consider that there is an inspection report carried out by Mandal Adhikari, Badlapur on Dt. 08.03.2013 which is submitted to the Tehsildar Ambernath. It is submitted in that report, that the right of way to the Petitioner land was blocked by Respondent No.1 and 2 who are holding adjacent survey No.265/3 and 265/4 respectively. The Petitioner states that Respondent 1 & 2 had put iron gate at Survey No.94(3) and 87b(5)(7) at the middle of the road which has access to Petitioner's land of Survey No.264(2). The Petitioner hereby annex as the above-mentioned letter written by Circle Officer, Badlapur which is addressed to Tehsildar Ambernath having No.MAB/Outward 23/13 as Exhibit "E".

The statement of the Petitioner has been taken by Circle Officer Badlapur Taluka Ambernath which is also annex herewith Exhibit "F". The said statement of the Petitioner was taken before Circle Officer Badlapur on Dt. 22.02.2013. In the said statement the Petitioner mentioned that Respondent No.1 had made obstruction to the right of way which was used for long period of time towards the Petitioner's agricultural land was blocked by putting iron gate. Petitioner like to point out that in that letter the Petitioner mentioned that he had submitted a letter Dt. 06.02.2009 to Tahsildar Ambernath pertain to the same grievance. The said letter having No. R.No./TE-4/V- 168/2008.

4) The Hon'ble High Court also failed to consider that the said inspection report was already considered by Tehsildar Ambernath in his order Dt. 12.08.2013.

5) This Hon'ble High Court failed to consider that the Petitioner has been pursuing his matter since Dt. 02.08.2003 through his first application which was undecided by Tehsildar Ambernath. Pursuant to the said application the Petitioner had made his second application on 19.01.2013 where he duly point out his previous application Dt.

02.08.2003 then reminder on Dt. 29.05.2004 which was undecided. Therefore, a ground of rejection of the order of Tehsildar by SDO on the issue of Petitioner had made

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application more than 6 months after his right of way was blocked by the Respondent No.1 and 2 is not appropriate ground.

6) This Hon'ble Court failed to consider that the Petitioner had already availed his right before SDO Ulhasnagar in above-said Revision Application and same has been challenged by the Petitioner already in Writ Petition No.7304/2014. Therefore, again going back to SDO is not applicable remedy for the Petitioner.

7) The procedure involved for aggrieved person whose application/complaint pertain to the obstruction which was put on right of way to agricultural land by adjacent land owner or any other person then such aggrieved person can adopt following legal procedures to put his grievance by way of application/complaint before Tehsildar/Mamlatdar of the concerned jurisdiction are as follows:

Aggrieved person may put his grievance when his right of way is block to his own agricultural land by adjacent land owner or any other person then by way of application/complaint as prescribe the legal procedure mentioned in Mamlatdar Courts Act, 1906.

i. The aggrieved person may make application under section 5 of Mamlatdar Courts Act, 1906 for removing obstruction of his right of way to his agricultural land.

ii. The aggrieved person may make appeal before the Subdivision Officer who holds the power of Collector under section 23(2)(A) of the Mamlatdar Courts Act, 1906 if his application before Ld. Mamlatdar/Tehsildar refused.

iii. If SDO Ulhasnagar who is holding the power of Collector to reject application of the said aggrieved person then there is no appeal lies and said aggrieved person may avail the remedy of Writ Petition before Hon'ble High Court.

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The Hon'ble Court failed to consider that in this particular case the Petitioner can't go again before Tehsildar/Mamlatdar Ambernath because said Mamlatdar do not have any power to quash the Sub-Division's order, who is Appellate Authority of him under the provision of Mamlatdar Courts Act, 1906 as well as the Petitioner can not avail the remedy to go before SDO again for getting any kind of relief because there is no provision of Mamlatdar Courts Act, 1906 to have a revision or any review against his (SDO) own order.

This Hon'ble Court failed to consider that a technical aspect which is ignored by Sub-division officer Ulhasnagar, while deciding the Appeal No.01/2013, that he could have given a direction to Tehsildar Ambernath to allow the Petitioner to make his application/complaint before Tehsildar, Ambernath again under Section 5 of Mamlatdar Court Act, 1906 as well as condonation of delay application if any and may also given direction considering all aspects on merit as well as any new merit available to the Petitioner. Instead of this, Sub-division Officer, Ulhasnagar quashed the order passed by Tahsildar, Ambernath in Reg. No./TE-4/RTS 03/2013. The Petitioner further like to point out that Sub-division Officer, Ulhasnagar rejected above-mentioned Tehsidar, Ambernath's order only on ground that the Petitioner had made his application under Section 143 of Maharashtra Land Revenue Code, 1966 and Tehsildar Ambernath passed an order as per the provision under section 5(2) of Mamlatdar Courts Act, 1906.

8) This Hon'ble Court failed to consider that the Petitioner should not be remediless and also Petitioner not getting access to his own suit property therefore the Petitioner came before this Hon'ble Court to file review.

9) That the impugned judgment and order suffer serious damage to Petitioner and is required to re-examining on the basis of subsequent record of found to be the petitioner in respect of the subject land.

10) That the impugned judgment and order failed to

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consider that the Petitioner cannot approach Tehsildar, Ambernath because subdivision officer Ulhasnagar is already binding on the Petitioner which is still exist. This fact have not been considered by this Hon'ble Court while passing the said impugned order.

11) That the Petitioner has a very good case on merit and no opportunity given to the Petitioner to considering his first application Dt. 02.08.2003, in view of Mamlatdar Courts Act provision and also consider all the facts on the merit which was previously ignored which subject to suffer to irreparable loss and great prejudice to the Petitioner. Therefore, it will be just and proper to recall and review the impugned judgment and order. If the order is recalled then it will not cause any hardship and prejudice to the Respondent."

5. On going through the grounds, it is seen that instead of pleading that on erroneous or mistaken understanding of the law leave was sought to withdraw the writ petition what is sought to be argued is that the writ court had failed to consider various aspects of the matter for which availing the remedy under the Mamlatdar Courts Act, 1906 would be an exercise in futility. Contention that writ court failed to consider anything simply does not arise as only leave to withdraw the writ petition was sought for and granted.

6. Nonetheless, after hearing learned counsel for the review petitioner, two weeks' time is granted to amend the grounds of review. After amendment application is filed, the review petition may be taken up for consideration.

7. Stand over to 30.06.2021.

                                                     UJJAL BHUYAN, J

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