Bombay High Court
Dinkar Kisan Khedkar vs The State Of Maharasthra And Others on 22 August, 2025
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7727 OF 2020
Dinkar s/o Kisan Khedkar .. Petitioner
versus
The State of Maharashtra & others .. Respondents
Mr. Y. V. Kakade, Advocate for the Petitioner.
Mr. S. K. Shirse, AGP for the State.
Mr. G. J. Pahilwan, Advocate for Respondent No. 5.
WITH
WRIT PETITION NO. 7734 OF 2020
Dinkar s/o Kisan Khedkar .. Petitioner
versus
The State of Maharashtra & others .. Respondents
Mr. Y. V. Kakade, Advocate for the Petitioner.
Mr. S. K. Shirse, AGP for the State.
Mr. G. J. Pahilwan, Advocate for Respondent No. 5.
WITH
WRIT PETITION NO. 8499 OF 2020
Rajendra s/o Babasheb Pawar & another .. Petitioners
versus
The State of Maharashtra & others .. Respondents
Mr. S. B. Gorde Patil, Advocate for the Petitioners.
Mr. S. N. Kendre, AGP for the State.
Mr. A. S. Gandhi, Advocate for Respondent No. 2.
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CORAM : R. M. JOSHI, J.
RESERVED ON : 14th AUGUST, 2025.
PRONOUNCED ON : 22nd AUGUST, 2025.
ORDER :
1. These Petitions take exception to the order passed by
Tahasildar under Section 5(2) of the Mamlatdars' Courts Act, 1906
and before hearing the same on merit, relying upon the judgment of
the Co-ordinate Bench of this Court in Writ Petition No. 5074/2022
and others dated 04.08.2025, it is contended that filing of civil suit is
alternate efficacious remedy for challenge to the order passed by the
Mamlatdar under Section 5 of the Mamlatdars' Courts Act, 1906 and
the order of revisional authority thereon. In view of the said
judgment, the present Petitions are sought to be dismissed or are
sought to be withdrawn for filing suit.
2. The basis of these submissions is the following
observation made by the learned Judge in the above Petitions :
"This judgment/order should not be interpreted to
mean that jurisdiction of High Court under Article 226
and/or 227 of the Constitution of India cannot be
invoked in order to challenge orders passed under the
provisions of Mamlatdar's Court Act. It is merely held
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that remedy of civil suit is available in order to
challenge orders passed by the authorities under the
Mamlatdars' Courts Act and that the said remedy is
more meaningful and effective remedy."
3. At the outset, this Court would like to take into
consideration the judgment of the Coordinate Bench and findings
recorded therein in order to draw the above conclusions. The learned
Judge has taken into consideration the judgments cited before him
on behalf of the rival parties in the said proceeding. Reference is
made to the judgment of the Hon'ble Supreme Court in case of
Dhulabai etc. vs. State of Madhya Pradesh and another, AIR 1959 SC
78 to observe that whether the Statute give finality to the orders of
the special tribunals the civil Court's jurisdiction must be held to be
excluded if there is adequate remedy to do what the Civil Courts
would normally do in a suit. It is further observed that such
provisions however, does not exclude those cases where the
provisions of the particular Act have not been complied with or the
statutory tribunal has not acted in conformity with the fundamental
principles of judicial procedure. It is also held that where there is an
express bar of the jurisdiction of the Court, an examination of the
scheme of the particular Act to find the adequacy or the sufficiency of
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the remedies provided may be relevant but is not decisive to sustain
the jurisdiction of the Civil Court. Where there is no express
exclusion the examination of the remedies and the scheme of the
particular Act to find out the intendment becomes necessary and the
result of the inquiry may be decisive. In the later case, it is necessary
to see if the statute creates a special right or a liability and provides
for the determination of the right or liability and further lays down
that all questions about the said right and liability shall be
determined by the tribunals so constituted, and whether remedies
normally associated with actions in Civil Courts are prescribed by
the said statue or not. Finally, it is held that an exclusion of the
jurisdiction of the Civil Court is not readily to be inferred unless the
conditions above set down apply. The learned Judge has also taken
into consideration the judgment of Division Bench of this court in
case of Huseinmiya Dosumiya vs. Desai Khandubhai Jethabhai, AIR
1954 Bom 239 wherein the order passed by the Tahsildar under the
provisions of the Bombay Tenancy and Agricultural Lands Act, 1948,
was challenged as ultra vires of the Act by filing a civil suit rather
than the remedy of filing appeal under the said Act. Section 85(2) of
the said Act provides that the order passed by Mamlatdar or other
authorities under the Act shall not be questioned in any Civil Court.
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Section 74 provides for an appeal against the order passed under
Section 29 of the Act wherein the Mamlatdar can direct delivery of
possession of the land. In this case, irrespective of these provisions,
the Division Bench has held that the suit is maintainable with
following observations :
"The other matter that has got to be considered
is, what is the effect of s. 74 of the Act which provides
for an appeal against the order of the Mamlatdar. It
was open to the opponents to prefer an appeal against
the decision of the Mamlatdar because s. 74 in terms
provides for an appeal to the Collector against an order
made by the Mamlatdar under s. 29. Instead of
preferring an appeal the opponents have filed this suit
in a Civil Court.
Now, does the fact that a statute provides for a
right of appeal against an order made by an authority
set up under that statute make any difference to the
position when the order made by the authority is an
invalid or ultra vires order ? It is clear that if the order
itself is ultra vires it is a nullity and there is no
obligation upon a party against whom the order is
made to prefer an appeal against that order. The
appeals that are provided for under s. 74 are strictly
appeals against valid orders made by the Mamlatdar
and orders made with jurisdiction. It may be that the
Collector could have corrected the Mamlatdar and could
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have held that the order of the Mamlatdar was ultra
vires. But the question is not whether the opponents
could have appealed to the Collector and could have got
the necessary relief. The question is whether the
opponents are bound to appeal and are prevented or
precluded from going to a Civil Court. In our opinion,
on principle it is erroneous to argue that merely
because a statute provides for a right of appeal,
the party against whom the order is made is
bound to appeal although the order made is a
nullity. If the order is a nullity, the party is
entitled to ignore it, to treat it as waste paper,
and to go to a civil Court for a declaration that
the order is a nullity and no action should be
taken against the party under the order which
would prejudice his rights. See for this purpose the
decision of a Full Bench of this Court in Abdullamiyan
Abdulrehman v. The Government of Bombay. Therefore,
in our opinion, the learned Judge below was right in
coming to the conclusion that he did that the Court had
jurisdiction to try this suit."
4. This judgment is said to be followed by the learned Single
Judge of this Court in case of Meerabai Madhav Kossambe vs. Laxmi
Narayan Naik, 2024 SCC OnLine Bom 1212 wherein the suit was
filed seeking declaration that the order passed by the Mamlatdar was
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a nullity under the Goa Agricultural Tenancy Act which is pari
materia with the Bombay Tenancy Act. In the said judgment, the
learned Single Judge has held that the breach of principles of natural
justice resulted in violation of one of the foundational principles of
judicial procedure and therefore, it was held that the suit was
maintainable in view of the first principle laid down in case of
Dhulabai (supra). Reference is also made therein in respect of the
judgment in case of State Bank of Patiala and others vs. S. K. Sharma,
(1996) 3 SCC 364 wherein it was held that the order passed by the
authority without opportunity of hearing would be invalid and also
be termed to be void or nullity.
5. Before the learned Single Judge, judgments in case of
Mangalabai Vitthal Jadhav and another vs. Manisha Gokul Jadhav
and others (Second Appeal (ST) No. 25760/2018-Bombay Civil
Appellate Jurisdiction) and Baban @ Nainsukh Dagadu Kurandale
and another vs. Dattu Sadashiv Kurandale and others (Writ Petition
No. 4425/2021-Bombay Civil Appellate Jurisdiction) were relied
upon by the other side and they were held to be running contrary to
the ratio in case of Dhulabai (supra) and also ratio of Division Bench
judgment in case of Huseinmiya (supra) and without considering
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previous judgments in case of Rajendra Sahebrao Shendge vs.
Shobhatai Shrirao Ravate and another, AIR 2007 Bom 90 and Mohd.
Khan vs. Shankar Maroti Dhage, 2017(3) Mh.L.J. 135. In case of
Mangalabai and Baban, the learned Single Judge of this Court has
held that the Civil Court cannot sit in an appeal over the decision
taken by the Mamlatdar though it can certainly take a decision on
merit of the matter contrary to the decision of the Mamlatdar so also
the Sub-Divisional Officer and any adjudication in the matter on
merit done by the Civil Court will have an effect of rendering orders
impugned to be nugatory.
6. By referring to the judgments cited before it, the learned
Single Judge has held that the controversy involved in the matters in
the Mamlatdars' Courts Act essentially involves the scrutiny of
disputed facts and the issue for consideration pertains to the
existence of easementary right and obstruction thereof. It is
observed that the a Court exercising jurisdiction under Article 226 or
227 of the Constitution of India should not venture into an inquiry
with respect to disputed questions of facts. Although in cases of
perversity or findings being based on conjectures and not on
evidence, and such other limited grounds, interference with findings
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of fact is permissible. It is further observed that Civil Court however,
is the Court of facts and law both. It can permit parties to lead
evidence and adjudicate disputed questions of facts in a full-dressed
trial. Thus, it is observed that having regard to the nature of
controversy, it is desirable that the dispute between the parties is
trashed out once and for all before a Civil Court. The remedy of filing
a civil suit is not only an equally efficacious remedy but it is rather a
more appropriate and effective remedy.
7. Learned Judge, thereafter, went on to make observations
that number of Petitions are found coming up before this Court
arising out of the provisions of Mamlatdars' Courts Act. It is
observed that the procedural requirements of the Act are seldom
followed. As a consequence of this, whenever a challenge to the
orders passed under the Act is brought before this court,
submissions are advanced with respect of technical aspects regarding
non-compliance of statutory provisions relating to procedure. It is
further held that even when submissions with respect of merit of the
rival claims are made and since these are essentially disputed
questions of facts, this Court is unable to make a venture to rule on
disputed questions of facts and most of the times the matters are
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required to be remanded back to decide the case by following
procedural formalities which are held to be mandatory. It is observed
that the litigants are farmers coming from villages and are forced
through repeated rounds of litigation. But if the matter goes to the
Civil Court, the controversy between the parties can be adjudicated
on merits and can be set at rest once and for all. Reference is also
made to the provisions of Section 143 of the Maharashtra Land
Revenue Code to observe that the jurisdiction under the said
provision is not for removal of obstruction over the existing roads but
it is for grant of new way over the boundaries of the agricultural
lands. With these observations, it is held that though writ
jurisdiction can be invoked to challenge the order passed under the
Mamlatdars' Courts Act, the remedy of civil suit is available to
challenge the orders passed by the authority under the Act and that
the said remedy is more meaningful and effective.
8. With utmost respect to the view taken by the learned
Judge, this Court wishes to disagree with the said findings recorded
in this judgment to the effect that the remedy of civil suit is available
in order to challenge the orders passed by the authorities under the
Mamlatdars' Courts Act for following reasons.
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9. Needless to say that the Mamlatdars' Courts Act is a self-
contained code which provides powers, jurisdiction and a detailed
procedure of the Court under the Act. Thus, there is a complete
frame work provided for functioning of Courts. It covers all aspects of
litigation, including cause of action, grant of injunction, transfer of
proceeding, format of plaint, procedure in case of non compliance of
format, challenge to order passed, execution of orders etc. It would
be relevant to take into consideration the aim and object of the Act
and the essential object of the said act is to provide for quick remedy
to the agriculturists whose customary way has been obstructed or
impediment to natural flow of water, possession of agricultural land,
dispossession and other matters. The scheme of the Act
contemplates that it is a summary nature of proceeding and meaning
thereby the strict rule of pleadings and evidence as contemplated in a
civil suit would not be applicable. The said intention of the
legislature can be seen from the relevant provisions of the Act. It
would be fruitful to take note of some of the provisions in short.
10. Section 5 of the Act provides for the powers of the
Mamlatdars' Court. Every Mamlatdar/Tahsildar presiding over the
Court has powers within his territorial limits which are subject to the
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provisions of Sections 6 to 26 of the Act. In exercise of the said
powers he can direct removal of any impediment, erected otherwise
than under due authority of law to the natural flow in a defined
channel or otherwise of any surface water naturally rising in or
falling on any land used for agriculture, grazing or to restore use of
water from any well, tank etc. Sub-section (2) provides for the powers
to issue injunction, when any person is otherwise than by due course
of law disturbed or obstructed in the possession of any land or
premises or any use of rights customary way thereto. Sub-section (4)
makes a deeming provision that the cause of action shall be deemed
to have arisen on the date on which the impediment/obstruction first
commenced. Sub-section (3) provides for period of limitation of six
months from the date on which the cause of action arose. Section 7
of the Act speaks about all suits under this Act shall be commenced
by a plaint which shall contain particulars as set out in Clause Nos.
(a) to (f). However, at the same time, Section 8 permits the Tahsildar
to treat informal petitions as plaints. In such case, under Section 9
of the Act, examination of plaintiff on oath is necessary. Section 11
even provides for the procedure where the plaintiff cannot write.
These provisions clearly indicate that the Act does not contemplate
application of strict rule of pleadings unlike in a civil suit.
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11. Section 11 of the Act requires the Mamlatdar to decide
the points at the time of hearing. Thus, framing of issues and then
leading formal evidence upon them etc. is dispensed with. It however
permits the Tahsildar to call upon the parties to make submissions
including examination of the spot. Sub-Section (4) of Section 19
limits the Tahsildar's powers to make any order in excess of the
powers vested in him by Section 5. Section 21 of the Act provides for
the procedure for execution of Mamlatdar's decision. Thus, the order
passed by Mamlatdar is not executable by the Civil Court but would
have to be executed by the Mamlatdar/Tahsildar himself. In this
regard it would be fruitful to make a reference to the judgment of the
Supreme Court in case of Uttam Namdeo Mahale vs. Vithal Deo and
others, AIR 1997 SC 2695 wherein while upholding the decision of
the High Court it is held that in absence of any specific limitation
provided under the Act, necessary implication is that the general law
of limitation provided under the Limitation Act stands excluded and
it is held that such order can be executed at any time. This judgment
confirms the position that the Act is self contained code.
12. Most importantly, passing of the order under this Act and
execution thereof does not preclude the party against whom such
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order is passed to get his rights determined by filing a suit before the
Civil Court. It would be relevant to take note of Section 22 of the Act
which reads thus :-
22. Possession to be given without prejudice to
rights of parties :
Subject to the provisions of Section 23, sub-
section (2), the party in favour of whom the Mamlatdar
issues an order for removal of an impediment or the
party to whom, the Mamlatdar gives possession or
restores a use, or in whose favour an injunction is
granted, shall continue to have the surface water upon
his land flow unimpeded on to adjacent land or
continue in possession or use, as the case may be,
until otherwise decreed or ordered, or until ousted, by
a competent Civil Court :
Provided firstly, that nothing in this section shall
prevent the party against whom the Mamlatdars'
decision is passed from recovering by a suit in a
competent Civil Court mesne profits for the time he
has been kept out of possession of any property or out
of enjoyment of any use :
Provided secondly, that in any subsequent suit
or other proceeding in any Civil Court between the
same parties, or other persons claiming under them
the Mamlatdars' decision respecting the possession of
any property or the enjoyment of any use or respecting
the title to or valuation of any crop dealt with under
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the proviso to sub-section (1) of Section 21, shall not
be held to be conclusive.
13. Thus this provision indicates that the order of removal of
any impediment or possession or restoration of use or any injunction
granted shall continue until otherwise decreed or ordered or until
ousted by a competent Civil Court. First proviso clarifies that
nothing in this section provides a party against whom Mamlatdar's
decision is passed from recovering by a suit in a competent Civil
Court mesne profits for the time he has been kept out of possession
of any property or out of enjoyment of any use. Second proviso
indicates that in any subsequent suit or other proceedings in any
Civil Court between the same parties, the decision of Mamlatdar
shall not be held to be conclusive. It is thus clear that in case of a
suit filed between the parties, irrespective of the order passed by the
Mamlatdar, it is open for the Civil Court to adjudicate upon and
determine the rights of the parties independently. This provision
becomes necessary on the rights of parties are not adjudicated upon
in view of summary nature of proceeding.
14. Section 23 creates a bar of appeal against the order
passed by the Mamlatdar and Sub-section (2) thereof provides for
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Collector's power to revise the Mamlatdar's proceedings. Such power
could be delegated by the Collector. Thus, legislative intent is clear
that the order passed under Section 5 cannot be taken in an appeal
but only in a limited revisional jurisdiction, which requires only to
consider that there is no excessive exercise or non-exercise of
jurisdiction. Re-appreciation of evidence is not permissible. The
legislative intent therefore must be respected and given desired
meaning.
15. Finally, provisions of Section 26 bars the Mamlatdar to
undertake any proceeding in respect of the matter which is filed first
in time before the Civil Court. Thus, pendency of civil proceeding
existing previously creates a bar to exercise of jurisdiction of
Mamlatdar.
16. In the light of the aforestated provisions of the Act,
coming to the findings recorded by the learned Judge that a remedy
of civil suit is available in order to challenge the orders passed by the
authority under the Mamlatdars' Courts Act, with utmost respect,
this Court differs with the said view. In order to draw such
conclusion reliance is placed by learned Judge on judgment of
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Supreme Court in case of Dhulabai and judgment of Division Bench
in case of Huseinmiya (supra). In order to appreciate the effect of
said judgment, it would be relevant to take into consideration the
nature of proceedings before the Mamlatdars Court. The nature of
proceeding before the Mamlatdars Court is summary and practically
it is in the form of an emergent/interim orders till the dispute is got
adjudicated from the Civil Court. As observed herein above that
strict rule of pleadings and also evidence would have no application
to the proceedings before the Mamlatdars Court, in such
circumstances, by holding that the order passed by the Mamlatdars
Court could be challenged in a Civil Court will not enable the Civil
Court to exercise its powers under the Code of Civil Procedure and to
apply strict rules of pleadings and evidence, which is sine qua non
for complete adjudication of a dispute, in order to attach finality
thereto. In this regard, reference can be made to Section 107 of Code
of Civil Procedure which requires Appellate Court to perform nearly
same duties and have same power of Court of original jurisdiction.
By applying same analogy, Civil Court if is allowed to undertake the
exercise of deciding correctness or otherwise of the order passed by
Mamlatdar under Section 5(2) will have to restrict itself to the
procedure contemplated by Act itself. What was not permissible to be
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done by the Court at the first instance cannot be allowed to be done
by the Court before which the order passed therein is challenged.
Ultimately, the Civil Court also would not be in a position to
determine/adjudicate upon the right of the parties which could
attain finality and bind parties to the dispute.
17. In case of Dhulabai (supra) what has been held is that
where there is utter disregard to the principles of natural justice, or
non-compliance of mandatory provisions of law, it may be open for
the parties to file a suit seeking declaration of such order to be
nullity. Similar is the view of Division Bench of this Court in case of
Huseinmiya. In considered view of this Court, a distinction will have
to be drawn in respect of the cases which involve an order to be
nullity and challenge to the order on merits of the case. There
cannot be any two opinions with regard to the preposition that if
order is nullity it is open for the Civil Court to issue declaration to
that effect. The question arises as to whether there could be a
challenge to the order passed by the Mamlatdars Court before the
Civil Court when such challenge is not provided by the Act explicitly
or even impliedly.
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18. The limitations as expressed hereinabove in entertaining
such challenge would not permit the Civil Court to record any finding
which will bind the parties and upon which there would be
adjudication of dispute on merits. At the cost of repetition, it is
pertinent to note that Section 22 of the Act provides that the order
passed by the Mamlatdar under the provisions of this Act would
remain in force until the time there is an adjudication of dispute
between the parties by competent Civil Court. Proviso thereto further
indicates that it is even open for the parties to claim mesne profit
during the period he was kept out of possession of any property for
enjoyment or use thereof pursuant to the Mamlatdars' Court's
decision. This provision makes the order passed by the Mamlatdars'
Court to be not conclusive. In such circumstances, if it is allowed for
a party to challenge order passed by the Mamlatdar before the Civil
Court, though the Civil Court will not be in a position to
decide/adjudicate the dispute on merit, it may create a bar of res
judicata against filing of a suit for adjudication in the subject matter,
since it cannot be permitted that the Civil Court decides same issue
between same parties twice, once in a suit challenging the
Mamlatdars' Court's order and secondly when a substantive suit has
been filed for the purpose of seeking decision on their rights by
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adjudication. Needless to emphasize that the right of the parties to
seek independent adjudication of the dispute by filing a suit before
the Civil Court would be frustrated. Thus, it needs to be held that,
by implication, the jurisdiction of the Civil Court for challenge to the
order passed by the Mamlatdars' Court is barred.
19. Since, the provisions of the Act sufficiently provide for
remedy of challenge to the said order by way of a revision and as the
rights of the parties are not decided conclusively and the powers of
Mamlatdar are summary in nature in order to meet the exigencies
and urgent situation, the legislation in its wisdom has barred remedy
of appeal against such order and a limited remedy is provided in
order to ensure that there is no miscarriage of justice. Since the
remedy of revision has been provided, entertainment of writ petition
obviously would be to the extent of considering the perversity of the
findings and it is not expected that re-appreciation of facts should be
done by this Court. In respectful view of this Court, merely because
number of petitions are filed challenging the orders passed under the
Mamlatdars' Courts Act and in many cases proceedings are required
to be relegated back to Tahsildar, a remedy which has not been
allowed by law cannot be permitted to be created by the orders of this
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Court. Needless to say that such orders could only be challenged by
preferring a writ petition under Article 226 or 227 of the Constitution
of India and not by filing suit before a Civil Court, unless it is claimed
that the order passed is nullity.
20. Apart from the fact that this Court wishes to take
different view than the one taken by the learned Single Judge, there
are two contradictory judgments on the same issue in case of
Rajendra s/o Sheshrao Shendge (supra) and Mohd. Khan (supra) on
one side and Mangalbai (supra) and Baban (supra) on the other side.
In Rajendra (supra) though it is held by this Court that exclusion and
bar of jurisdiction cannot be read and inferred just for the sake of
asking in the manner in which petitioner therein wants and that
existence of jurisdiction is to be presumed and not bar. With respect,
perusal of the said judgment shows that general principle of
jurisdiction is discussed, however, in that case there was no issue
before the said Court about maintainability of challenge to order
passed under Section 5 of Mamlatdars' Courts Act. In case of Mohd.
Khan (supra) the view taken in case of Rajendra (supra) was
endorsed.
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21. In case of Baban (supra) learned Single Judge has held
that :
"In my considered view, the courts below have clearly
misdirected themselves in assuming that they were
entitled to sit in appeal over the findings recorded by the
learned Mamlatdar."
Similar is view taken in case of Mangalbai (supra) where
it is held that :-
"12. It is thus evident that the rights claimed before
the authorities under the Act are transitory in nature
and can be finally crystallized only in a civil remedy
before the Civil Court. There can thus be no dispute
that the party approaching the Civil Court is required to
prove his case independently on its own merits and not
use the Civil Court as an Appellate Forum to challenge
the findings rendered by the Mamlatdar, as sought to
be done by the appellants herein."
22. Since this Court respectfully disagrees with the view
taken by the Coordinate Bench of this Court, in view of the settled
position of law, this issue needs to be referred to the Larger Bench for
its decision having regard to the doctrine of 'stare decisis' and to
maintain judicial discipline, it would be necessary to refer the issue
for determination by Larger Bench, in order to settle the controversy.
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Hence, reference is made to the Hon'ble the Chief Justice under Rule
7 Chapter 1 of the Bombay High Court Appellate Side Rules to refer
the following question for determination to the Larger Bench :
"Whether filing of civil suit is a remedy available for
challenge to the merit of orders passed by the
authorities under the Mamlatdars' Courts Act, in case
where the orders passed are not sought to be declared
as nullity ?"
23. Registrar (Judicial) to place the order before the Hon'ble
the Chief Justice for appropriate consideration.
( R. M. JOSHI)
Judge
dyb
