Magan Baburao Sonawane vs The State Of Maharashtra And ...
2021 Latest Caselaw 15445 Bom

                                       1                           917-ra-89-21.odt



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

             917 REVIEW APPLICATION (CIVIL) NO.89 OF 2021
                          IN WP/1108/2021

                        MAGAN BABURAO SONAWANE
                                 VERSUS
                  THE STATE OF MAHARASHTRA AND OTHERS
                                   ...

                Advocate for Applicant : Mr. V. B. Patil
        Advocate for the Petitioner : Mr. B. S. Deshmukh (in WP)
           AGP for Respondent Nos. 1 to 3 Mr. Y. G. Gujrathi
                                    ...

                               CORAM : MANGESH S. PATIL, J.

DATE : 27.10.2021

PER COURT :-

Heard the learned Advocate Mr. Patil for the review

petitioner. He is seeking review of the judgment and order dated

24.08.2021 whereby the writ petition has been dismissed.

2. A Rasta case under Section 5(2) of the Mamlatdar's Courts

Act, 1906 was decided in favour of the respondent. The

petitioner challenged it before the Sub-Divisional Ofcer in a

Revision under Section 23 (2) of the Act. The Revisional authority

allowed the revision and quashed and set aside the order passed

by the Mamlatdar against which, the petitioner preferred this writ

petition.

3. Learned Advocate Mr. Patil for the petitioner submits that

because of the judgment of this Court, all the avenues have been

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closed for the petitioner. He was claiming that his right of way

was obstructed by the respondent but in view of the decision in

the writ petition, he has no other alternative available for

asserting the right. Since the revisional authority in the

impugned judgment had not given sufcient and cogent reasons

and in a sense had refused to exercise the jurisdiction vested in

him, the matter could have been remanded to the learned Sub-

Divisional Ofcer for the decision afresh. That having not been

done there is a formal defect which needs to be rectifed by

reviewing the judgment and order.

4. The learned Advocate would further submit that a

Mamlatdar is empowered under Section 5(2) to grant remedy,

these powers and the procedure to be followed is regulated by

the subsequent provisions contained in the Act. Since it is in the

nature of a suit, it is expected to record evidence and in the

absence of any such procedure having been followed, the

revisional authority also could have remanded the matter to the

Mamlatdar for decision afresh. In any case, the petitioner is now

helpless and the judgment is coming in his way even for

prosecuting a substantive suit asserting his right to use the way.

5. Having considered the submissions of the learned Advocate

and perusing the judgment under review, as also papers in the

writ petition, irrespective of correctness of otherwise of the

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judgment and order under Review, the submission that the

matter ought to have been remanded either to the Mamlatdar or

to the Sub-Divisional Ofcer, cannot be said to be a formal

defect. The reasons given in the judgment and order under

review demonstrate as to how the revisional authority had not

considered the evidence before the Mamlatdar and the order

passed by the revisional authority was illegal. Convenience or

otherwise of the petitioner and the possibility of his securing any

relief in future in the substantive suit, in my considered view,

would not be a ground to invoke the power of review, which has

its own limitations.

6. There is no merit in this application. Review Application is

dismissed.

( MANGESH S. PATIL ) JUDGE

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