Bombay High Court
Pandurang Ramrao Gore And Another vs The State Of Maharashtra And Others on 26 November, 2018
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3154 OF 2017
PANDURANG RAMRAO GORE AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for the Petitioners : Shri Bide Dnyaneshwar A.
AGP for Respondents 1 to 3 : Shri N.T.Bhagat
Advocate for Respondents 4 to 7 : Shri Thorat Chandrakant R..
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 26th November, 2018 Per Court:
1 On 20.06.2018, this Court had heard the learned Advocates for the respective sides and had passed the following order :-
"1. I have heard the learned Advocates for the respective sides and the learned AGP on behalf of respondent Nos. 1, 2 and 3.
2. The petitioners are the original respondent Nos.1 and 2 in Rasta Case No.27/2013 which was decided by the Tahsildar u/s 5(2) of the Mamlatdar's Courts Act, 1906 (For short, M.C.Act, 1906). Being aggrieved by the order, these petitioners preferred a revision under Section 23(2) before the Deputy Collector/Additional Collector. The S.D.O., who is a Deputy Collector for all purposes, has rejected the appeal by the impugned order dated 26/10/2016.
3. The learned AGP submits that this Court has taken a view in the matter of Kashiram Asaram Ghadge and others Vs. Ramdas Bhanudas Pund and another in WP No.7839/2017 with 4 other writ petitions vide order dated 13/10/2017 by which it is observed that the Deputy ::: Uploaded on - 29/11/2018 ::: Downloaded on - 30/12/2018 08:59:22 ::: *2* 10wp3154o17 Collector in the State of Maharashtra is the S.D.O. under the M.L.R. Code and is the Revisional Authority under the M.C.Act, 1906. Though under his signature, it is mentioned as S.D.O. Shirdi, he was in fact exercising powers u/s 23(2). The office of the Revisional Authority has erroneously titled the revision, filed by the petitioners, in the judgment as RTS Appeal No.650/2014. It has to be treated as being a revision of 2014. So also, it is erroneously observed by the Revisional Authority in clause 5 of the order that the petitioners can approach the Additional Collector for challenging the said order. He, therefore, concedes that the said direction in clause 5 is unsustainable.
4. It is, therefore, apparent to this Court that the impugned order is delivered by the Revisional Authority u/s 23(2).
5. Stand over to 16/07/2018 for further hearing. The learned AGP would keep the record available, if not already received. Earlier statement to continue till the next date."
2 I have heard the learned Advocates for the Petitioners and Respondent Nos.4 to 7. None has appeared for Respondent No.8, who has been made a formal party since he is the real brother of the Petitioners. 3 I have perused the impugned concurrent findings of the Tahasildar under Section 5(2) of the Mamlatdars' Courts Act, 1906 and the Revisional Authority under Section 23(2). 4 The original Applicants had moved the Tahasildar since the earlier path that they were using in between six blocks, all falling in Gat No.570, was obstructed by Petitioner No.2 at the junction of Gat No.571 and Gat No.570. For clarity, the earlier path is marked in red ink in the sketch map at page 21 of the petition paper book. It appears from the said ::: Uploaded on - 29/11/2018 ::: Downloaded on - 30/12/2018 08:59:22 ::: *3* 10wp3154o17 map that there are two portions in Gat No.571 owned by Respondent No.4. Petitioner No.2 owns two portions in Gat No.570 adjacent to Gat No.571. Adjacent to his property, two portions in Gat No.570 are owned by Respondent No.8, who has not blocked the said path. Adjacent to the property of Respondent No.8, Petitioner No.1 owns two portions in Gat No.570 and he has also not blocked the said path, which joins the Nandur Shiv Rasta, typed copy of which is at page 23 of the petition paper book. It is only Petitioner No.2, who has dumped excavated material, when he sunk a well, at the corner of Gat No.570 adjoining Gat No.571. 5 The contention of the Petitioners is that Respondent No.4 should turn to the west corner of Gat No.571 and should utilize the path on the border of Gat No.570 on the west side.
6 Respondent No.4 contends that since 40 R land has been sold by him to Respondent No.6, the said land cannot be utilized and hence, they have been utilizing the common path, which is a cart way that runs in the middle of Gat No.571 and Gat No.570 from North to South. At the southern end, it joins the Nandur Shiv Rasta.
7 Considering the above, I do not find that the Petitioners have made out a prima facie case for grant of interim relief. 8 RULE. No interim relief.
9 The learned Advocates appearing for the respective Respondents waive service on rule.
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10 Since Respondent No.8 has chosen to keep away from this
litigation and since he is a formal party, the notice on Rule need not be issued to him.
kps (RAVINDRA V. GHUGE, J.)
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