Bombay High Court
Balasaheb Bhanudas Pawar And ... vs The State Of Maharashtra And ... on 15 March, 2021
Bench: V.K. Jadhav
{1}
wp1558519.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.15585 OF 2019
Balasaheb Bhanudas Pawar & another Petitioners
Versus
The State of Maharashtra & others Respondents
Mr.V.S.Undre, advocate for the Petitioners.
Mr.S.P.Deshmukh, AGP for the Respondents No.1 & 4.
Mr.V.M.Vibhute, advocate for Respondents No.2 & 3.
CORAM : V.K.JADHAV, J.
DATE : 15th March, 2021.
PC :
1 Heard fnalll, at the stage of admission, bl the consent
of learned Counsel for respective parties.
2 Petitioners, who are the original plaintiffs, have
instituted a suit for decree of perpetual injunction bearing RCS
No.01/2019. According to the petitioners - original plaintiffs, thel
are the owners and possessors of land S.Nos.175/A, 176/A, 177/A,
178/A, 181/A with the specifc area as detailed in para 1 of the
plaint. According to them, there is one path-wal towards the
western side of the said lands. The defendants, having no concern
with the suit lands, are trling to create a road from the western
side. There is no road from the lands of the plaintiffs.
{2}
wp1558519.odt
3 It is the case of the defendants - Zilla Parishad that
there is existing road known as Mahaldarpuri to Washi towards the
western side of the lands owned and possessed bl the plaintiffs
and the said road is under the Road Development Scheme of the
lear 1981-2001. Even the said road is numbered as District Road
No.19. It was previousll numbered as Rural road no.31. It was not
a tar road and it was prepared onll with the help of stones and
mud. It is 2.500 kms in length initialll. However, under the said
Road Development scheme, it was extended to Tandulwadi to
Kavadewadi to the extent of 4.500 kms. Thereafter the District
Planning Committee has approved the construction of the said
road as tar road and accordingll sanctioned Rs.15 lakhs for the
said work. Ultimatell, tender was issued for the said work and the
work has been started.
4 The learned Judge of the trial Court, considering the
maps, observed that there is existing road and the defendants are
not creating anl new road. The trial Court has rejected the said
application Exhibit-5 seeking issuance of order of temporarl
injunction.
{3}
wp1558519.odt
5 Being aggrieved bl the same, petitioners have preferred
Misc. Civil Appeal No.05 of 2019. The learned District Judge-1,
Bhoom, in para no.13 of the judgment, has observed that there is
no evidence about the existence of path-wal from the suit propertl.
The lower appellate Court has also come to the same conclusion
and accordingll dismissed the appeal.
6 The learned Counsel for the petitioners - original
plaintiffs submits that the Respondent-Zilla Parishad, under the
garb of widening of the said road, literalll encroached upon the
portion of the suit lands owned and possessed bl the petitioners -
original plaintiffs. The learned Counsel submits that there is no
acquisition of the suit lands in respect of so called widening of the
said road nor anl compensation is awarded to the petitioners. The
learned Counsel submits that the defendants are trling to create
road from the western side of the suit lands under the directions of
local leaders. There is no road from the lands of the petitioners -
original plaintiffs, however, defendants are trling to construct a
new road from the lands, as shown in the map.
7 The learned Counsel for the Respondents submits that
the writ petition has now become infructuous because the work
{4}
wp1558519.odt
has now been completed and at present it is a fulll constructed tar
road. The learned Counsel submits that the said road is verl
much in existence known as Mahaldarpuri to Washi created under
the Road Development Scheme of the lear 1981-2001. It is also
part of the record that at the time of constructing the said road,
petitioners - original plaintiffs have given no objection bl fling an
affdavit to that effect. The learned Counsel submits that the trial
Court as well as frst appellate Court have rightll considered
factual aspects of the matter and rejected the application Exhibit-5
seeking order of issuance of temporarl injunction.
8 I have carefulll gone through the orders passed bl the
Courts below. There is no dispute that the plaintiffs are the
owners of land S. Nos. 175/A, 176/A, 177/A, 178/A, 181/A.
Furthermore, as per the reference given bl the Courts below and
on perusal of the documents placed on record, it is also clear that
there was road from Mahaldarpuri to Washi constructed under the
Road Development Scheme of the lear 1981-2001. It is also part of
the record that the said road is extended from Mahaldarpuri to
Tandulwadi and Kavadewadi and it is renumbered as Rural Road
No.31. Furthermore, the lower appellate Court has also made
reference to the map drawn bl the Court Commissioner dated
{5}
wp1558519.odt
27th June, 2019, pending appeal. As per the map submitted bl the
Court Commissioner, those lands bearing S. Nos.175, 176, 177,
178, 181 and 182 were measured bl the offce of T.I.L.R., Washi.
The frst appellate Court has observed that from this map, at this
stage, no inference can be drawn that there was a path-wal and
defendants have constructed a new road. Prima facie, there is
evidence about the repair work of the said road and even the frst
appellate Court has observed that the work has been completed.
The First Appellate Court has, therefore, rightll observed that the
plaintiffs have to establish existence of the path-wal during the
course of the trial.
9 In view of this, I fnd that no prima facie case, in
favour of the petitioners - original plaintiffs, is made out. Both the
Courts below have not made anl error in rejecting the application
Exhibit-5. I do not fnd anl substance in this petition.
10 Hence, the following order:
Writ Petition is herebl dismissed.
(V.K.JADHAV)
JUDGE
adb
