Bombay High Court
Anusaya Shivaji Fattepure And Others vs Raosaheb Anandrao Ingale And Others on 3 January, 2024
2024:BHC-AUG:278
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11136 OF 2021
Anusaya Shivaji Fattepure And Others
VERSUS
Raosaheb Anandrao Ingale And Others
...
Advocate for the Petitioner : Mr. Sujit A. Patil
AGP for Respondent/State : Mr. A.S. Shinde
Advocate for Respondent Nos.1 to 20 : Mr. Laxman H. Kawale h/f Mr.
D.J. Patil
...
CORAM : S.G. MEHARE, J.
DATED : JANUARY 03, 2024
PER COURT :-
1. Heard learned counsel for the petitioners and learned
counsel for the respondents.
2. The petitioners have impugned the order of the Naib
Tahsildar, Omerga passed in case no.2021/Mah/Jama/Kavi-213 dated
22.03.2021 granting an injunction under Section 5 of the Mamlatdar's
Court Act and the order of Sub-Divisional Officer, Omerga in case
No.2021/ROR/CR-31 dated 22.07.2021.
3. The petitioners were the respondents to those petitions. The
respondents had a case that the petitioners had closed the way to
reach their field by digging the ditch. They had filed a petition under
Section 5 of the Mamlatdar's Court Act. Holding an enquiry, the
Mamlatdar passed the impugned order of injunction, and the Sub-
Divisional Officer also confirmed the said order.
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4. Learned counsel for the petitioners would submit that a
simple application was filed before the Tahsildar, which was
considered a plaint under Section 5 of the Mamlatdar's Court Act.
However, the provisions of Sections 7, 8, 9, 10 and 11 of the said Act
were not followed. Since it was not in a prescribed form, it could not
be treated as a plaint under Section 7 of the Mamlatdar's Court Act.
The compliance required under Section 7 was also not disclosed
therein. It was simply an application signed by various people. The
plaint was not subscribed, or verified, and the Mamlatdar did not
endorse the plaint that it was duly subscribed and verified. He, relying
on the two cases of this Court, prayed that since it was not the plaint
and not in compliance with the above provisions of the Mamlatdar's
Court Act, both orders were bad in law and liable to be set aside.
5. Learned counsel for the contesting respondents has
vehemently argued that an opportunity was granted to the
petitioners. They have contested the petition on merit. They never
raised serious objections about format as required under Section 7 of
the Mamlatdar's Court Act. Due to the Act of a single petitioner, many
agriculturist have suffered a loss to use and enjoy their agricultural
fields. For mere technicalities, the respondents may not be deprived of
their right to use and enjoy their fields. He would submit that since
there were no illegalities in material finding on the fact and exercising
powers, the petition is liable to be dismissed.
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6. Admittedly, the application dated 11.09.2020 filed before
the Tahsildar claiming the relief by way of injunction against the
petitioners was not in the form as provided under Section 7 of the
Mamlatdar's Court Act, nor a plaint or petition presented that may be
considered as a plaint. There is no endorsement that Mamlatdar has
examined the plaintiff on oath as provided under Section 9 of the said
Act. There is nothing to show that the Mamlatdar required the
plaintiff to subscribe and verify the plaint in his presence in open
Court, nor did the Mamlatdar endorse to that effect. The Mamlatdar's
Court Act is a self-contained Act that confers the powers on the
Mamlatdar to exercise the power of injunction. The said Act itself has
prescribed a procedure for presenting the plaint. It requires
contention, verification and endorsement of the Tahsildar. This has
not been done. Exercising the powers restraining someone from doing
and not doing something cannot be exercised mechanically. This
Court, in the case of Tarabai w/o Sopan Tathe Vs. Vandana w/o
Gajanan Tikare and others in Writ Petition No.3266 of 2022 dated
22.03.2022 and Purushottam Umrao Chavan Vs. The State of
Maharashtra and others in Civil Revision Application No.187 of 2009,
dated 16.11.2010, took a view that compliance with Sections 7 to 11
of the Mamlatdar's Court Act is essential. If the applications presented
do not confer with those provisions, the Tahsildar cannot exercise the
power under the Mamlatdar's Court Act. Similar is the fact before the
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Court. There was no compliance with the above provisions at all. On
this legal point, both orders impugned before this Court were legally
defective and incorrect. Hence, the following order :
ORDER
I) The petition is allowed.
II) The order of Naib Tahsildar, Omerga passed in case
no.2021/Mah/Jama/Kavi-213 dated 22.03.2021 and the order of Sub-Divisional Officer, Omerga in case No.2021/ROR/CR-31 dated 22.07.2021 stands set aside.
III) No order as to costs.
IV) The observations of this Court will not deprive the parties from
seeking the remedy under the Mamlatdar's Court Act as required therein.
(S.G. MEHARE, J.) Mujaheed// Signed by: Syed Mujaheed Naseer Designation: PA To Honourable Judge Date: 09/01/2024 15:17:31