Bombay High Court
Bhavsing Harchand Paradeshi And Others vs The State Of Maharashtra Through Its ... on 20 August, 2024
2024:BHC-AUG:18805
(1) 957-wp-4168-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4168 OF 2024
BHAVSING HARCHAND PARADESHI AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL
SECRETARY AND OTHERS
...
Mr. Ravindra V. Gore h/f Mr. Bhushan Mahajan, Advocate for the
Petitioners.
Mr. S. B. Jadhav, AGP for Respondents-State.
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 20th AUGUST, 2024.
P.C.:-
1. The petitioners impugn order dated 16.01.2024 passed in
Revision No.49/2023 by Sub Divisional Officer, Pachora, by which
proceeding under Section 5 of the Mamlatdar's Courts Act has been
remanded back to the Mamlatdar for fresh decision.
2. Mr. Gore, learned Advocate appearing for the petitioners
submits that petitioners had made an application under Section 5
of the Mamlatdar's Courts Act before the Tahsildar, Bhadgaon. In
pursuance of the said application spot panchanama was carried,
the parties laid their evidence and submitted relevant documents.
After considering the pleadings and evidence, learned Mamlatdar
was pleased to allow the application, thereby directing that
respondents shall not obstruct customary way used by the
petitioners from Gut No.161 and 162/2. The respondents preferred
Revision No.49/2023 before Sub Divisional Officer, Pachora. The
learned Sub Divisional Officer after hearing parties, remanded
matter back to the Mamlatdar without recording adequate reasons
requiring such remand. He would submit that entire material was
available before the Sub Divisional Officer, who could have taken
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decision based on the same. He would submit that casual remand
would not be permissible under law.
3. The learned Advocate appearing for the respondents however
supports the order of remand and submits that there are glaring
contradiction in observations made by the Mamlatdar. The
Mamlatdar was expected to record clear findings of fact. Therefore,
remand was absolutely necessary in the facts of the case.
4. Having considered submissions advanced, it is apparent that
Mamlatdar had passed detailed order accepting case of the
petitioners. The learned Sub Divisional Officer in exercise of
powers under Section 23 of the Mamlatdar's Courts Act was
expected to examine legality, propriety and correctness of such
order within parameters of his revisional jurisdiction. As rightly
pointed out by Mr. Gore first twelve pages of the order are devoted
to discuss pleadings of the parties and material on record.
However, in last paragraph the observation is made that there is
inconsistency in findings recorded by the Mamlatdar and evidence
on record or the findings recorded by Mamlatdar was not in
conformity with the evidence tendered into service.
5. It is well settled that matter can be remanded back for
specific purpose. The casual remand of the matter is not
permissible. The analogy under Order 41 Rule 23 of the Civil
Procedure Code needs to be applied and reasons are required to be
recorded. Even while remanding matter back to any Authority,
specific points for consideration on remand are required to be
indicated so that concerned Authority shall take further steps in
compliance with the directions under remand order. At this stage,
reference can be given to the judgment of this Court in case of
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Gangaram s/o Rajaram Ingole Vs. Malkarjun s/o.
Gangadhar Hundekar and Ors1.
6. In the present case, apparently entire material relied upon by
the parties and submitted during the proceeding was before Sub
Divisional Officer, who could have rendered conclusive decision on
merit. No specific reasons are given by him as to why he felt
remand is necessary. Further no specific directions are given to
Mamlatdar to either cause enquiry on specific point or record
evidence of the parties. In absence of any such contingency, order
of remand cannot be justified. In that view of the matter, it would
be appropriate to quash and set aside the impugned order and
direct Sub Divisional Officer to decide Revision on its own merits
on the basis of material already tendered by the parties. Hence,
following order:
ORDER
a. Writ Petition is partly allowed.
b. The impugned order dated 16.01.2024 passed in Revision
No.49/2023 by Sub Divisional Officer, Pachora, is hereby quashed
and set aside.
c. The learned Sub Divisional Officer is directed to decide
Revision on merit on the basis of material already tendered into
service by the parties.
d. Parties shall appear before Sub Divisional Officer, Pachora
on 30.08.2024. After appearance of the parties, they shall be at
liberty to tender written notes of arguments, if any, and also make
oral submissions.
1 2011 (1) ALL MR 874.
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e. The learned Sub Divisional Officer shall decide Revision
Application within a period of four months from the date of
appearance of the parties on its own merits.
f. Writ Petition is disposed of.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/August-2024
