Sanjay Keshav Bhoite And Others vs The Collector And Others
2022 Latest Caselaw 6022 Bom

                                                                          948.wp.6640.22.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.6640 OF 2022

1.       Sanjay s/o. Keshav Bhoite
         Age : 51 years, Occ: Agri
2.       Hausabai w/o Raosaheb Bhoite
         Age : 61 years, Occu: Agri
3.       Atmaram S/o. Bansi Bhoite
         Age : 46 years, Occu: Agri
4.       Balasaheb s/o. Ravsaheb Bhoite
         Age : 48 years, Occu: Agri
5.       Sambhaji Murlidhar Kolte
         Age: 52 years, Occ: Agri
6.       Ramesh S/o. Changdeo Bhoite
         Age : 54 years, Occu: Agri

         All R/o Mali Bhabhulgaon, Tq. Pathrdi
         Dist. Ahmednagar.                                    ...        PETITIONERS

         VERSUS

1.       The Collector,
         Collector Office, Ahmednagar.
2.       The Sub Divisional Officer,
         Pathardi, Tq. Pathardi, Dist. Ahmednagar.
3.       The Tahasildar,
         Pathardi, Tq. Pathardi, Dist. Ahmednagar.
4.       Sudhakar s/o. Bhaguji Waikar,
         Age: 55 years, Occ: Agri
5.       Sunita s/o. Babasaheb Waikar
         Age : 52, Occ: Agri
6.       Jagannath s/o Narayan Bhoite
         Age: 62, Occ: Agri

         Res. Nos.4 to 6 R/o Mali Bhabulgaon,
         Tq. Pathardi, Dist. Ahmednagar                       ... RESPONDENTS

                                       ...
                 Advocate for Petitioners : Mr. Mahesh S. Taur
               AGP for Respondent Nos.1 to 3 : Mr. P.G. Borade
       Advocate for Respondent Nos.4 to 6 : Mr. Aniruddha A. Nimbalkar
                                       ...



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                                    CORAM       :   MANGESH S. PATIL, J.


                                    DATE        :   29.06.2022
JUDGMENT :

Heard. Rule. The Rule is made returnable forthwith. Learned

AGP waives service for the respondent Nos.1 to 3. Learned advocate Mr.

Nimbalkar waives service for the respondent Nos.4 to 6. At the joint request

of the parties, the matter is heard finally at the stage of admission.

2. The respondent Nos.4 to 6 had filed a suit under Section 5(2) of

the Mamlatdars' Courts Act, 1906 (herein after 'the Act') asserting that there

was a customary way to reach to their lands Gut Nos.578 and 579 through

the petitioners' lands Gut Nos.596, 598 etc. They were added as defendants.

After conducting some hearing, by the order dated 26.10.2021 he dismissed

the suit holding on the basis of a Panchanama that there were no signs at

the spot indicating existence of any way. He also concluded that the suit

was not filed within six months from the date of first cause of action.

3. Aggrieved by dismissal of the suit the respondent Nos.4 to 6

preferred a revision under Section 23(2) of the Act before the Sub Divisional

Officer. By the judgment and order under challenge the Revision was

allowed. The order of Mamlatdar was quashed and set aside also directed a

road to be laid along the bund.

4. I have carefully considered the rival submissions and perused

the record.

5. In order to appreciate the matter in controversy it is necessary

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to bear in mind the entire scheme of the Act. The scheme contemplates that

it should take the shape of a suit before a civil court, by lodging a plaint.

There are elaborate provisions regarding contents of the plaint, statement on

verification, examination of the plaintiff on oath, powers for rejection of the

plaint, return of plaint, attendance of witnesses, passing of the orders

ex parte, setting aside of the orders passed ex parte on sufficient cause being

shown, withdrawal of the suit, adjournments, power to add parties,

procedure to be followed in case of death of a party, points to be decided by

the Mamlatdar, finality to the orders passed by the Mamlatdar and

the Collectors power to call for and examine the record of the suit.

6. In spite of such elaborate provisions, both the authorities seem

to have proceeded to decide the matter under the Act oblivious of the

procedure to be followed. Except undertaking a Panchanama the

Mamlatdar does not seem to have called upon the parties to lead evidence

by framing issues and has readily drawn some inference on the basis of the

Panchanama. No evidence was permitted to be led which could have

enabled him to reach some objective conclusion. Instead of resorting to

such a procedure, by drawing some subjective conclusion simply on the basis

of the Panchanama, the Mamlatdar had dismissed the Suit.

7. Pertinently, in spite of the fact that in the suit it was specifically

averred that the way was in existence but the petitioners had created some

obstructions on 09.11.2020 and though the suit was filed on 28.12.2020

within a period of six months as contemplated under Section 5(3) the

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Mamlatdar had gone to the extent of even recording a finding that the suit

was barred by limitation. Interestingly he had drawn such conclusion by

referring to the contents of the Panchanama. One cannot understand as to

how the Panchanama would have been of any helpful in deciding as to when

the obstruction was raised for the first time muchless to draw an inference

that it was created beyond six months next before filing of the suit, that too

without seeking any evidence from the parties.

8. Apart from the fact that the Mamlatdar had miserably failed to

undertake the inquiry in accordance with law and had reached a conclusion

that the suit was barred by limitation which observation and the conclusion

was clearly arbitrary and capricious, by the self same order he had even

exceeded the jurisdiction in directing the respondent Nos.4 to 6 who were

the plaintiffs not to create obstruction to the petitioners possession over

their lands. All in all, the decision by Mamlatdar was clearly perverse,

arbitrary and illegal.

9. Interestingly, instead of rectifying the lapses committed by the

Mamlatdar, the learned Sub Divisional Officer who decided the Revision by

the order under challenge in this Writ Petition has perpetuated the lapses.

In a cryptic and sans sound and cogent reasons, relying upon the very same

panchanama which was refused to be relied upon by the Mamlatdar, the

learned Sub Divisional Officer has reached a conclusion that the way has

been in existence but was obstructed by the Petitioners. Even this finding is

not emphatic. Instead, he has proceeded to declare that the farmers have a

948.wp.6640.22.odt

right to claim a way to reach to their lands and that the Mamlatdar should/

ought to have inquired into and decided need of the farmers to reach to

their lands. However, instead of passing any order as contemplated under

Section 5(2) of the Act he has expressed need to lay down a road and has

specifically directed to lay a road about which he even does not give the

particulars as to along the boundaries of which lands the road is to be laid.

Needless to state that no such power to lay down a new road or way vests

with the authorities under the Mamlatdar's Courts Act. The order passed by

the learned Sub Divisional Officer is clearly sans sound reasons besides

being beyond his jurisdiction. It clearly demonstrates utter lack of

application of mind.

10. To conclude, both the authorities, the Mamlatdar and the Sub

Divisional Officer, have clearly overlooked the provisions of the Act, the

scope and purport of the provisions and the limitations on their powers in

deciding the matters under that Act. They have exercised the jurisdiction

that was not conferred upon them under the Act and consequently it

becomes imperative to quash and set aside both the orders and relegate the

parties to the Mamlatdar for deciding the suit afresh.

11. The Writ Petition is partly allowed.

12. The orders passed by the Mamlatdar as also by the learned Sub

Divisional Officer are quashed and set aside. The suit is remanded to the

Mamlatdar for decision afresh in tune with the provisions of the Act and the

observations made herein above. The parties shall appear before the

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Mamlatdar on 22.07.2022 and there shall be no need for the Mamlatdar to

direct any notice to be issued to them.

13. The Rule is made absolute.

(MANGESH S. PATIL, J.)

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