Eknath Punjaji Ghube And Another vs Deputy Collector/Sub Divisional ...
2021 Latest Caselaw 15218 Bom

                                                                              wp1130.20.odt
                                              1


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH AT NAGPUR

                      WRIT PETITION NO. 1130 OF 2020

PETITIONERs: 1]                   Eknath Punjaji Ghube,
                                  aged 67 years, Occ. Agriculturist,
                                  R/o. Deulgaon-Ghube,
                                  Tq.Chikhali, Dist. Buldhana.

                      2]          Dnyaneshwar Eknath Ghube,
                                  aged 28 years, Occ. Agriculturist,
                                  R/o. Deulgaon-Ghube,
                                  Tq.Chikhali, Dist. Buldhana.


                                        ...VERSUS...


RESPONDENTS:1]                    Deputy Collector/Sub Divisional Officer,
                                  Buldhana, Tq. And Dist. Buldhana.

                       2]         Tahsildar/Mamlatdar, Chikhali,
                                  Dist. Buldhana.

                       3]          Shenfad Vithoba Ghube,
                                   aged 64 years, Occ. Agriculturist,
                                   R/o. Deulgaon-Ghube,
                                   Tq.Chikhali, Dist. Buldhana.
----------------------------------------------------------------------------------------------
Shri D.R.Khapre, Advocate for petitioners
Shri A.A.Madiwale, Advocate for Respondent Nos. 1 and 2
Shri P.B.Patil, Advocate for Respondent No. 3
----------------------------------------------------------------------------------------------

                                     CORAM : AVINASH G. GHAROTE, J.

DATE : 25/10/2021.

wp1130.20.odt

ORAL JUDGMENT

1] Heard Mr. D.R.Khapre, learned counsel for the

petitioners, Mr. Madiwale, learned AGP for Respondent Nos. 1 and 2

and Mr. Patil, learned counsel for Respondent No. 3.

2] Rule. Rule made returnable forthwith. Heard finally by

consent of the learned counsels appearing for the parties.

3] The contention of Mr. Khapre, learned counsel for the

petitioners is that the learned Mamlatdar instead of conducting the

spot inspection himself, as required under Section 19(2) of the

Mamlatdars Courts Act, deputed the Naib Tahsildar to conduct the

spot inpsection, in view of which, the status of the Naib Tahsildar

would be that of a Court Commissioner and therefore, it was

necessary for the learned Mamlatdar to permit the defendants to

cross-examine the Court Commissioner, as the provisions of the

Evidence Act would be attracted, reliance for which is placed upon

Sudhir Yashwant Dhangade vrs. Ankush Kashiram Bole and others,

2019 (1) ALL MR 825 and Sudam Namdeo Madke vr. State of

Maharashtra, AIR Online 2021 Bom 2769. He therefore submits that wp1130.20.odt

the denial by the learned Mamlatdar in this regard is clearly denial of

the rights available to the petitioners /org. Defendants under the

provisions of the Mamlatdars Courts Act.

4] The learned Sub Divisinal Officer, in revision, has also

not considered this position, according to him, and therefore he

submits that both the orders should go and the matter be remanded

back to the learned Mamlatdar for permitting the defendants to

cross-examine the Court Commisisoner, who has preapred the map

of the spot inspection and submitted his report.

5] Mr. Patil, learned counsel for Respondent No.3/Org.

Plaintiff does not dipsute the legal proposition that in case the

Mamlatdar appoints someone else to conduct the spot inspection,

the status of such a person would be that of a Court Commissioner

and therefore, it would be permissible for the otherside to cross-

examine such Court Commissioner. He however submits that the

petitioners have also filed a suit bearing Regular Civil Suit No.

75/2015, in which the question about the existence of the road, is

also raised and would be decided, in view of which, since the said wp1130.20.odt

suit is at the stage of evidence of the defendants, the impugned

order ought not to be interefered, as the respondent/org. Plaintiffs

are using the road from the eastern side of Gat No. 512 to approach

the land of Gat No. 551.

6] In Sudhir Dhangade (supra), considering the

provisions of Sections 15, 16 and 19 of the Mamlatdars Courts Act,

which confer power upon the Mamlatdar to summon and examine

witness, it has been held that a party will have a right of cross-

examine the other party or his witness, which position even

otherwise on general principles, where the evidence is to be tested

on the anvil of cross examination, would hold true. Similar is the

position as held in Sudam Madke (supra).

7] It cannot be disputed, that any person other than the

Mamlatdar, who conducts the spot inspection, the status of such

person would be that of a Court Commissioner, thereby making him

open for cross examination and such opportunity has not been

granted by the Mamlatdar, in view of which, the judgment of the

Mamlatdar as well as that of the Sub Divisonal Officer cannot be wp1130.20.odt

sustained on this ground alone. The same are therefore, quashed

and set aside and the matter is remanded back to the learned

Mamlatdar, with a direction to permit the defendants to cross-

examine the Naib Tahsildar, who has preapred the map and the spot

inspection report and thereafter decide the matter on its own merits.

8] The parties shall appear before the learned Mamlatdar

on 09.11.2021, who shall thereafter permit the cross-examination as

indicated above to be conducted and thereafter decide the matter on

its own merits, which shall be done by 30.11.2021. It is also made

clear that if the Naib Tahsildar, who has conducted the spot

inspection dated 5.12.2015, is not avaiable, then in order to

expedite the proceedings, it would be permissible for the learned

Mamlatdar to himself visit the spot and inspect the same in view of

the mandate of Section 19(2) of the Mamlatdars Courts Act and

therafter decide the matter on its own merits. It is however made

clear that till such time, the original plaitniffs shall be permitted to

use the road from the boundary between Gat No. 512 and 598 to

appraoch the land of Gat No. 551.

wp1130.20.odt

9] The petitoin is accordingly disposed of in above terms.

No costs.

JUDGE

Rvjalit

Digitally sign byRAJESH VASANTRAO JALIT Location:

Signing Date:26.10.2021 17:15