Bombay High Court
Ashok S/O Madhavrao Wankhede vs Additional Sub Divisional ... on 22 March, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 3352 OF 2019
Ashok s/o Madhavrao Wankhede
Vs.
Additional Sub-Divisional Officer, Ralegaon, Tah. Ralegaon, Dist. Yavatmal and Ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. S.O. Ahmed, Advocate for petitioner.
Mr. K.L. Dharmadhikari, AGP for respondents/State.
Mr. Virendra D. Darne, Advocate for respondent No.5.
CORAM : MANISH PITALE J.
DATE : 22.03.2022.
By this writ petition, the petitioner has
challenged concurrent orders passed by the Naib
Tahsildar and Sub-Divisional Officer under the
provisions of Mamlatdar's Courts Act, 1906 (for short
'the said Act').
2. The respondent No.5 had moved an
application before Naib Tahsildar claiming that the
petitioner had illegally obstructed access to her
agricultural field. She claimed that such access was
available to her and that the action of the petitioner
attracted the provisions of the aforesaid Act.
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3. The record shows that the respondent No.3-
Naib Tahsildar, acting as the Mamlatdar, permitted the
application moved by the respondent No.5 to be treated
as a plaint under Section 5 of the aforesaid Act.
Thereupon, the petitioner was put to notice and
proceedings were undertaken. On the basis of a report
received from the Circle Officer i.e. respondent No.4 and
spot inspection conducted on 06.04.2016, the Naib
Tahsildar allowed the application filed by respondent
No.5 and directed the petitioner to remove the
obstruction on the access way.
4. Aggrieved by the same, the petitioner filed a
revision application before the Sub-Divisional Officer,
under the provisions of the said Act. It was specifically
contended that there was violation of principles of
natural justice as the petitioner was not granted
opportunity to cross-examine the witnesses who deposed
on behalf of respondent No.5. The Sub-Divisional Officer
dismissed the revision application, confirming the order
passed by the Naib Tahsildar. Aggrieved by the same, the
petitioner filed the present writ petition, wherein notice
was issued and the respondents appeared through
counsel.
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5. Mr. Ahmed, learned counsel appearing for
the petitioner raised a principal ground of challenge to
the concurrent orders passed by the said authorities by
inviting attention of this Court to the spot inspection
report, contending that the petitioner was never put to
notice when such spot inspection was conducted on
06.04.2016. Although adverse inferences were drawn in
the report signed by the Naib Tahsildar and the Talathi,
there was nothing to show that the petitioner was
present at the time of spot inspection. It was also
submitted that the Circle Officer submitted a report
adverse to the interest of the petitioner without there
being anything to show that the petitioner was put to
notice in that regard. Attention of this Court was invited
to orders passed by the Naib Tahsildar as well as Sub-
Divisional Officer to contend that reliance was placed on
the aforesaid spot inspection report to hold against the
petitioner and that the said authorities failed to realize
that the report was prepared behind the back of the
petitioner. It was also contended that the Sub-Divisional
Officer was not justified in holding that sufficient
opportunity was granted to the petitioner to cross-
examine the witnesses of respondent No.5. Reliance was
placed on the judgment of this Court in the case of
Sudhir Yashwant Dhangade Vs. Ankush Kashiram Bole
and Ors. 2019 (1) ALL.M.R.825.
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6. On the other hand, Mr. Darne, learned
counsel appearing for contesting respondent No.5
submitted that the contention regarding violation of
principles of natural justice in the context of the spot
inspection report was never raised before the authorities
below. It was submitted that there was sufficient
material placed on record by respondent No.5 to show
that the access way was available for a number of years
and that the said respondent had made out grounds for
exercise of power by the Mamlatdar under Section 5 of
the aforesaid Act. It was submitted that when the
ground pertaining to violation of principles of natural
justice was not squarely raised before the Authorities
below, it could not be said that the impugned orders
deserved interference. It was submitted that the
observations made by the Circle Officer and the Naib
Tahsildar as well as the Sub-Divisional Officer were in
consonance with the evidence and material on record
and that therefore, no interference with warranted. It
was submitted that since the respondent No.5 had been
using the access way for a long period of time and
orders were passed by the authorities in her favour, it
would be prejudicial to her if the orders are set aside as
it would completely block her access way to the
agricultural field.
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7. Mr. Dharmadhikari, learned AGP appeared
on behalf of respondent Nos. 1 to 4 and defended the
impugned orders.
8. Heard learned counsel for the rival parties
and perused the material placed on record. The principal
ground of challenge raised in the present writ petition
pertains to violation of principles of natural justice. In
order to appreciate the said ground of challenge, this
Court has perused the spot inspection report dated
06.04.2016. It is recorded therein that except the
petitioner none of the other land owners had any
objection to respondent No. 5 using the aforesaid access
way.
9. A perusal of the document shows that while
signatures of the Naib Tahsildar, Talathi, respondent
No.5 and other persons claiming to be adjoining land
owners are found on the spot inspection report, there is
nothing to show that petitioner signed the said
document. There is also nothing on record to show that
the petitioner was put to notice before the spot
inspection was conducted on 06.04.2016. In other
words, observations adverse to the interest of the
petitioner were made in the said report while he was not
put to notice regarding the spot inspection conducted on
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06.04.2016. This clearly violated the principles of
natural justice, as the document prepared behind the
back of the petitioner was the basis for the Naib
Tahsildar as well as Sub-Divisional Officer to reach
findings against the petitioner. The report of the Circle
Officer submitted to the Naib Tahsildar also made
adverse observations against the petitioner. There is
nothing to show that the petitioner was put to notice in
that regard.
10. A perusal of the record shows that the
petitioner had raised a specific ground that he was not
granted sufficient opportunity to cross-examine the
witnesses of respondent No.5. The Sub-Divisional Officer
has observed in the impugned order that when the
proceedings were conducted before the Naib Tahsildar,
the respondent no.5 was present on a number of
occasions, indicating that the petitioner had sufficient
opportunity for cross examination. In this connection the
learned counsel appearing for the petitioner is justified
in relying upon the judgment of this Court in the case of
Sudhir Yashwant Dhangade (supra) wherein it has been
held that opportunity to cross examine has to granted
even if there is no specific request made for the same,
for the reason that the Mamlatdar under the said Act
functions as a Court for the purposes of the Evidence
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Act. The contention raised on behalf of the petitioner in
this regard appears to be justified.
11. In view of above, it is found that the orders
passed by the Naib Tahsildar as well as Sub-Divisional
Officer in the present case stood vitiated due to violation
of principles of natural justice. Both the authorities
failed to appreciate that the documents on which they
placed reliance to render adverse findings against the
petitioner were prepared behind the back of the
petitioner.
12. Accordingly, the writ petition is partly
allowed. The impugned orders passed by the Naib
Tahsildar as well as Sub-Divisional Officer are quashed
and set aside. The matter is remanded back to the Naib
Tahsildar - respondent No.3, to proceed afresh in the
matter. The respondent No.3 shall now proceed on the
application moved by respondent No.5, treating it as a
plaint under Section 5 of the aforesaid Act. The
respondent no.5 shall proceed in consonance with the
principles of natural justice and strictly in accordance
with law.
13. Parties shall remain present before the
respondent No.3 - Naib Tahsildar on 28.03.2022.
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14. The respondent No.3 shall dispose of the
application filed by respondent No.5, within six weeks
from today.
JUDGE
Prity
Digitally signed
by PRITY S
PRITY S GABHANE
GABHANE Date:
2022.03.23
11:01:48 +0530
