Bombay High Court
Vitthal Gopalrao Munde vs The State Of Maharashtra And Others on 3 September, 2025
2025:BHC-AUG:23632
WP 10026/17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
945 WRIT PETITION NO. 10026 OF 2017
VITTHAL GOPALRAO MUNDE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for the Petitioner : Mr. D.J. Choudhary
AGP for Respondents 1 to 4 : Mr. P.D. Patil
Advocate for Respondent 5 : Ms. Madhu More h/f. Mr. S.T. Veer
...
CORAM : ARUN R. PEDNEKER, J.
Dated : September 03, 2025
PER COURT :-
1. Heard.
2. The application is filed by the present petitioner before the Tahsildar/
Mamlatdar under section 5 of the Mamlatdars' Courts Act stating therein
that there is common pathway between the fields of the petitioner and the
respondent No. 5 going from Pradhansangwi to Bandi village. It is the case
of the petitioner that there is passage between the aforesaid lands and
the petitioner had been accessing through road/passage for long period of
time. It is the case of the petitioner that respondent No. 5 obstructed the
said road going from Pradhansangwi to Bandi village. On such application
being filed, panchanama was conducted and accordingly the order under
section 5 of the Mamlatdars' Courts Act was passed, directing the
respondent No. 5 to open the road and to remove the obstruction.
3. The said proceedings were challenged in appeal under the
Maharashtra Land Revenue Code before Sub Divisional Officer in which
Sub Divisional Officer has observed that under the provisions of
Maharashtra Land Revenue Code, the appeal is not maintainable and that
only revision petition under Mamlatdars' Courts Act would be maintainable.
The order of S.D.O. was taken further in appeal before the Additional
Collector wherein he has remanded the matter back for reconsideration to
the Tahsildar.
4. After remand, another panchanama was conducted on 31.1.2016
and statements of some persons were recorded by the
Tahsildar/Mamlatdar under the Mamlatdars' Courts Act and thereafter, the
Tahsildar passed order on 28.10.2016 holding that there was road in
existence from Pradhansawangi to Bandi village and the respondent shall
not obstruct the road and directions were issued to respondent No. 5 to
open the road and to remove the obstruction. The said order of Tahsildar
was challenged before the Additional Collector/revisional authority. The
revisional authority by the impugned order has observed at para No. 3 that
there is some doubt as regards existence of the road and there are
multiple maps of the place available and the maps would not indicate the
existence of road. The revisional authority has further observed that it is
not certain whether only one road is left to reach the field of the petitioner.
Thereafter, the revisional authority has directed that from common
embankment between the land of the petitioner and respondent No. 5,
new road can be made reach the filed of the petitioner and as such,
grievance of the petitioner would be redressed in the matter.
5. Mr. D.J. Choudhary, learned counsel for the petitioner submits that
material on record particularly the panchanama and statements of the
persons recorded while conducting panchanama by the Tahsildar would
indicate the existence of road and that there is obstruction created by
respondent No. 5. The learned counsel submits that although there is
overwhelming evidence to show the existence of road, the revisional
authority has wrongly held that there is no road in existence and further in
exercise of the the powers conferred under MLRC directed to open the
road. The learned counsel particularly relies upon para 6 of the judgment
of this court passed in Writ Petition No. 13351/2022 dated 4.7.2024 in the
case of Prabhakar s/o. Bankatrao Mokase (Jahagirdar) and Anr. Vs. The
State of Maharashtra. The said para is as under :-
"6. Although, entire proceeding was moved under the
Act of 1906, the learned Tahsildar appears to have passed
an order invoking provisions under Section 143 of the
MLRC, 1966 and granted new cart road in favour of
respondent no.5. Apparently, the learned Tahsildar has
wrongly exercised jurisdiction under Section 143 of the
MLRC, 1966, when proceeding before him was instituted
under the Act of 1906. The provisions under Section 143 of
the MLRC, 1966 operate in independent sphere and takes
care of a different situation than as contemplated under
Section 5 of the Act of 1906. In the present case,
respondent no.5 specifically pleaded existence of customary
way and alleged obstructions at the hands of the
petitioners. In that view of the matter, there was no reason
for Tahsildar to invoke his jurisdiction under Section 143 of
the MLRC, 1966 and grant new cart road in favour of
respondent no.5. Unfortunately, the challenge to this order
was not entertained in Revision."
6. The learned counsel for the petitioner submits that assessment of
the evidence by the revisional authority is perverse and accordingly, he
prays for setting aside the impugned order passed by the revisional
authority. In alternate, the learned counsel prays that matter be remanded
back to the concerned authority on the ground that evidence on record is
not properly appreciated.
7. Per contra, Ms. Madhu More holding for Mr. S.T. Veer, learned
counsel for respondent No. 5 submits that there is no evidence to indicate
that there is existence of road between the field of the petitioner and
respondent No. 5. The learned counsel submits that the order passed by
the Mamlatdar under section 5 is erroneous and the revisional authority
has rightly held that there is no road in existence. The learned counsel
submits that the proceedings were initiated by the petitioner under section
143 of MLRC and not under section 5 of Mamlatdars' Courts Act and the
proceedings are converted into appeal. The learned counsel submits that
reasonable order is passed by the revisional authority and has exercised
the equitable jurisdiction vested in it and prays for dismissal of the writ
petition.
8. Having considered the rival submissions, it is to be seen that there is
material available in respect of enquiry conducted. Spot inspection has
been conducted and panchanama has been drawn. Statements of various
persons have been recorded and finding is given by the Mamlatdar that
there is existence of road. However, while reversing the findings the
revisional authority ought to have discussed the evidence on record.
However, the revisional authority has not discussed the evidence on record
and held that there is no map indicating existence of road and has
discarded the evidence on merits. Further, the revisional authority has
exercised powers under MLRC to give direction to open the road from the
boundary of the fields of petitioner and the respondent and the same
creates prejudice to the petitioner. The learned counsel for the petitioner
has pointed out that there is evidence indicating that the road was in
existence and that the evidence ought to have been discussed by the
revisional authority while holding that there is road or there is no road.
Considering this aspect of the matter and considering that the SDO has
exercised the powers under MLRC, I deem it appropriate to quash and set
aside the impugned order and to remand the matter back to the revisional
authority for reconsideration.
9. With the above observations, the impugned order passed by the
learned Additional Collector is quashed and set aside and the matter is
remanded back to the S.D.O. to decide the revision afresh in accordance
with law within a period of three months from the date of receipt of this
order. The parties to appear before S.D.O. on 15.9.2025 so as to enable to
S.D.O. to give further date in the matter.
10. The writ petition is disposed of accordingly.
( ARUN R. PEDNEKER, J. )
ssc/
