Bombay High Court
Kanifnath Gangadhar Sawashe And ... vs The State Of Maharashtra And ... on 2 September, 2021
Bench: Mangesh S. Patil
955.WP.7145.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7145 OF 2016
Indubai w/o Haribhau Ghule,
Age : 61 years, Occ: Agri.,
R/o. Atharewasti, Rupewadi,
Tq. Pathardi, Dist. Ahmednagar. ... PETITIONER
VERSUS
1. The States of Maharashtra
through its District Collector,
Ahmednagar.
2. The Sub Divisional Officer,
Pathardi Division, Pathardi,
Dist. Ahmednagar.
3. The Tahsildar,
Pathardi, Tq. Pathardi,
Dist. Ahmednagar.
4. Sarjerao s/o. Gangadhar Solat,
Age : Major, Occu: Agri,
5. Balasaheb s/o. Muktaji Athare
Age : Major, Occu: Agri.,
6. Shivaji s/o. Kanifnath Athare,
Age : Major, Occ: Agri.,
7. Vijaya Nilkanth Mali,
Age : Major, Occu: Agri.,
8. Balasaheb s/o. Bhausaheb Chobhare
Age : Major, Occu: Agri.,
9. Baban s/o. Bhausaheb Chobhare,
Age : Major, Occu: Agri.,
10. Bahirnath s/o. Nivrutti Kapase,
Age : Major, Occu: Agri.,
11. Jalindar s/o. Haribhau Kapase,
Age : Major, Occu: Agri.,
12. Changdeo s/o. Natha Bhalke,
Age : Major, Occu: Agri.,
Resp. Nos. 4 to 12 are R/o. Rupewadi,
Tq. Pathardi, Dist. Ahmednagar ... RESPONDENTS
(Resp. Nos. 4 to 12
Org. Plaintiffs)
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955.WP.7145.16.odt
...
Advocate for Petitioners : Mr. Ajay T. Kanawade
AGP for the respondent Nos.1 to 3 : Mr. P.N. Kutti
Advocate for Respondent Nos. 4 to 12 : Mr. Narayan B. Narwade
...
WITH
WRIT PETITION NO.10763 OF 2015
1. Kanifnath S/o. Gangadhar Sawashe,
Age : Major, Occu: Agri.,
R/o. Rupewadi, Tq. Pathardi,
Dist. Ahmednagar.
2. Karbhari S/o. Gangadhar Sawashe
Age : Major, Occ: Agri
R/o. Rupewadi, Tq. Pathardi,
Dist. Ahmednagar.
3. Laxman S/o. Nana Ghule
Age : Major, Occ: Agri
R/o. Rupewadi, Tq. Pathardi,
Dist. Ahmednagar.
4. Haribhau S/o Khandu Ghule
Age : Major, Occ: Agri
R/o. Rupewadi, Tq. Pathardi,
Dist. Ahmednagar. ... PETITIONERS
(Org. Defendants)
VERSUS
1. The States of Maharashtra
through its District Collector,
Ahmednagar.
2. The Sub Divisional Officer,
Pathardi Division, Pathardi,
Dist. Ahmednagar.
3. The Tahsildar,
Pathardi, Tq. Pathardi,
Dist. Ahmednagar.
4. Sarjerao s/o. Gangadhar Solat,
Age : Major, Occu: Agri,
5. Balasaheb s/o. Muktaji Athare
Age : Major, Occu: Agri.,
6. Shivaji s/o. Kanifnath Athare,
Age : Major, Occ: Agri.,
7. Vijaya Nilkanth Mali,
Age : Major, Occu: Agri.,
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955.WP.7145.16.odt
8. Balasaheb s/o. Bhausaheb Chobhare
Age : Major, Occu: Agri.,
9. Baban s/o. Bhausaheb Chobhare,
Age : Major, Occu: Agri.,
10. Bahirnath s/o. Nivrutti Kapase,
Age : Major, Occu: Agri.,
11. Jalindar s/o. Haribhau Kapase,
Age : Major, Occu: Agri.,
12. Changdeo s/o. Natha Bhalke,
Age : Major, Occu: Agri.,
Resp. Nos. 4 to 12 are R/o. Rupewadi,
Tq. Pathardi, Dist. Ahmednagar ... RESPONDENTS
(Org. Plaintiffs)
...
Advocate for Petitioners : Mr. Arvind G. Ambetkar
AGP for the respondent Nos. 1 to 3 : Mr. P.N. Kutti
Advocate for Respondent Nos. 4 to 12 : Mr. Narayan B. Narwade
...
CORAM : MANGESH S. PATIL, J.
DATE : 02.09.2021
ORAL JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. With the
consent of both the sides, the matter is heard finally at the stage of
admission.
2. The petitioners are impugning the judgment and order passed
by the learned Mamlatdar in a suit initiated by the contesting respondents
under Section 5(2) of the Mamlatdars' Courts Act, 1906 (herein after the
Act) and the judgment and order passed by the learned SDO whereby he
dismissed the Revision preferred by the petitioners under Section 23(2) of
the Act.
3. The facts leading to the filing of this Writ Petition are to the effect that
955.WP.7145.16.odt
initially some villagers and members of the Grampanchayat filed a
proceeding which was registered as Rasta Case No.71/2014 on 05.11.2014
asserting that the disputed way has been in existence but was being
obstructed by the petitioners in W.P. No.10763/2015. A Panchanama was
conducted on 20.11.2014 mentioning that there were no signs of existence
of any way at the disputed site. It appears that another Panchanama was
conducted again around the same time showing that the way was in
existence and was obstructed by dumping some thorny bushes and some
portion was destroyed by ploughing it. It appears that later on the
contesting respondents filed another Rasta Case which was registered as
Rasta Case No.1/2015 on 05.02.2015. Pertinently they raised the similar
objections about the petitioners in W.P. No.10763/2015 having obstructed
the way. These petitioners appeared in the matter and contested the
proceeding by filing their written statement. Subsequently one more
Panchanama was conducted. By the impugned order the Mamlatdar
allowed the second Rasta Case No.1/2015.
4. In the meantime, the first Rasta Case No.71/2014 was sought
to, and the self same Mamlatdar allowed it to be withdrawn. The order of
Mamlatdar was challenged before the SDO who by the impugned order
dismissed the Revision of the petitioners in W.P. No.10763/2015.
5. The learned advocate Mr. Ambedkar for the petitioners in Writ
Petition No.10763/2015 submits that both the authorities have given a
complete go by to the procedure required to be followed while conducting a
955.WP.7145.16.odt
proceeding under Section 5(2) of the Act. He would submit that it is
required to be treated and decided as a suit and all the powers of Civil Court
are conferred upon the Mamlatdar by statutory provisions. Besides, there is
a limitation of six months to file a proceeding from the date of obstruction
but the plaint filed in Rasta Case No.1/2015 conspicuously omits to disclose
the date of such obstruction. Since it was in the form of a continuation of
the earlier Rasta Case No.71/2014, there is every room to believe that the
cause of action was intentionally omitted to be stated while filing the Suit in
the matter on 05.02.2015.
6. The learned advocate Mr. Ambetkar would further submit that
there is absolutely no whisper in the impugned orders about the earlier
Panchanamas, about their correctness or otherwise, particularly when the
first Panchanama never revealed existence of any signs of the disputed way.
7. The learned advocate would further submit that ignoring all the
aforementioned facts and circumstances and without there being absolutely
any material to reveal and identify existence of the disputed way, the
authorities below, as if they were granting a new road to obviate any
inconvenience being caused to the respondents have granted a new way. He
would submit that there is distinction between the power to be exercised by
a Mamlatdar/Tahsildar under Section 5 of the Act and under Section 143 of
the Maharashtra Land Revenue Code. He would therefore submit that both
the authorities below have grossly erred in allowing/approving the case of
the respondents regarding existence of the way and its obstructions.
955.WP.7145.16.odt
8. The learned advocate Mr. Kanawade for the petitioner in Writ
Petition No.7145/2016 would submit that the petitioner therein is the owner
of land Gat No.364 and is in all probability likely to be affected if the way in
dispute is allowed to be used as is being claimed by the respondents. In
spite of such state of affairs she was not arrayed as a defendant in the Rasta
Case and that has deprived her of putting forth her own grievance. She is
being affected by the impugned judgments and orders and that is why she is
impugning it by way of the separate Writ Petition.
9. The learned AGP subscribes to both the orders.
10. The learned advocate Mr. Narwade for the contesting
respondents would submit that the whole purpose of providing for the
powers to the Mamlatdar under Section 5(2) of the Act is to see to it that
the agriculturist are not affected by the obstruction created to the customary
ways without which lands cannot be cultivated. He would further submit
that the very fact that the petitioners are objecting to the respondents' claim
reveals that they are bent upon to create. There is no alternate way for the
use of the respondents. All these facts have been taken into consideration.
The portion where from the way is being claimed is a boundary of two
villages where from disputed way originates. He would also submit that
there are specific rules framed under the Maharashtra Land Revenue Code
and Government Circulars regulating the manner in which the boundary
marks and boundaries are to be maintained by the Revenue Authorities.
Even otherwise, therefore, this Court should take cognizance that the
955.WP.7145.16.odt
dispute is arising out of such maintenance of the boundaries which should
always be kept open for the use by the farmers. He would therefore submit
that a similar view taken by this Court in the Case of Bapu Khelu Sapte Vs.
The State of Maharashtra and Ors. ; (W.P. No. 7023/2016) decided on
17.02.2020 should be followed. Though the authorities have not come out
with all the reasoning which was available for them, this Court should look
into the matter from the over all perspective and by taking into account the
nature of the dispute dismiss the Writ Petitions.
11. I have carefully considered the rival submissions and the
papers. Needless to state that the legislature in its wisdom having conferred
power on a Mamlatdar under Section 5 of the Act to decide a dispute
pertaining to obstructions created in the customary ways, it was expected of
the Mamlatdar to have conducted the proceeding strictly in accordance with
the mandate of the law.
12. Though the initial representation by the villagers and the
members of the Grampanchayat dated 05.11.2014 was not in the nature of a
plaint, still it was registered as Rasta Case No.71/2014. Couple of
panchanamas were conducted soon thereafter in the first of which dated
20.11.2014, it was specifically noted that there were no signs of existence of
any way at the disputed site. Soon thereafter or may be on the same day
another Panchanama is conducted by the self same Mamlatdar. There is a
clear overwriting in the date under his signature. One cannot, therefore,
make out as to if it was conducted on the very same day on which the first
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Panchanama was conducted or on some other day. Some of the respondents
herein were also present at this second panchanama and it is in this second
Panchanama that it has been mentioned that some signs of existence of a
way were noticed and there was some obstruction created over it. Both the
authorities are absolutely silent in their impugned orders as to in what
manner they had taken cognizance of these two panchanamas and
particularly the inherent inconsistency.
13. It appears that a third Panahcnama was conducted on
10.07.2015. Pertinently, it demonstrates not only the District Road but it
also demonstrates existence of some way originating from the District Road.
The portion where from the respondents are claiming a way is shown
specifically as a portion where from the respondents indeed are claiming a
way. It does not conspicuously mention that such a way was in existence at
the time of Panchanama and that there was some obstruction created over
it. On the contrary it has been mentioned that few trees were found to be in
existence on that site which were aged more than 5 to 10 years. Although
the Panchanama also reads that there is no alternate way for the
respondents to use, that cannot be a reason or ground to be considered
while deciding a proceeding under Section 5(2) of the Act.
14. Further, it is to be borne in mind that Section 5(2) lays down a
limitation for filing a suit which has to be filed within six months of creation
of the obstruction. The plaint filed by the respondents clearly omits to state
the exact date or even any date by way of approximation as to when the
955.WP.7145.16.odt
obstruction was created, even if it is assumed that it was so created. If that
be so, the lower authorities ought to have considered this aspect as well.
They are not supposed to step in and exercise the Jurisdiction unless the
Suit was filed within the period of limitation prescribed. Needless to state
that the question of limitation goes to the root of the Jurisdiction.
15. Besides, as is mentioned earlier, this Rasta Case No.1/2015 was
initiated by way of a correction and continuation of the earlier Rasta Case
No.71/2014. That is why the respondents had passed a pursis and got the
earlier Rasta Case withdrawn while lodging the present Rasta Case. It is in
these peculiar state of affairs, it was important for them to have disclosed as
to when for the first time the obstruction was created in the use of the
disputed way. They having conspicuously omitted to do that one cannot
readily infer that the obstruction was created within six months before filing
of the Suit. Since both the authorities have omitted to consider even this
factual aspect, they have grossly erred in entertaining the Suit and granting/
confirming the relief.
16. So far as the Writ Petition No.7145/2016, no dispute is raised
by the contesting respondents about her assertion of being owner of the land
Gat No.364 and that the disputed way affects her land as well. If that be so,
it was indeed imperative for the contesting respondents to have arrayed her
as a defendant in the Suit. That being the case certainly she was a necessary
party to the Suit and the judgments and orders of the lower authorities
would not bind her.
955.WP.7145.16.odt
17. In view of such state of affairs, the Writ Petitions deserve to be
allowed.
18. The Writ Petitions are allowed. The impugned judgments and
orders are quashed and set aside. The Rule is confirmed in both the Writ
Petitions.
(MANGESH S. PATIL, J.)
habeeb
