Bombay High Court
Rakhamaji Genu Markad vs The State Of Maharashtra And Others on 12 August, 2021
Author: M.G. Sewlikar
Bench: M.G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4476 OF 2016
Rakhmaji S/o Genu Markad
Age 70 years, occ. Agri.,
R/o Karhetakali, Tq. Shevgaon
Dist. Ahmednagar Petitioner
Versus
1. The State of Maharashtra
Through its District Collector,
Ahmedngar.
2. The Sub Divisional Offcer,
Pathardi Division, Pathardi
Dist. Ahmednagar.
3. The Tahsildar
Shevgaon, Tq. Pathardi
Dist. Ahmednagar.
4. Shivaji S/o Manikrao Gatkal
Age major, occ. Agri.,
R/o Karhetakali, Tq. Shevgaon
Dist. Ahmednagar.
5. Dattatray S/o Manikrao Gatkal
Age major, occ. Agril.,
R/o Karhetakali, Tq. Shevgaon
Dist. Ahmednagar Respondents
Mr. A.G. Ambetkar, Advocate for the petitioner.
Mr. A.B. Chate, AGP for respondents No. 1 to 3.
Mr. N.B. Narwade, Advocate for respondents No.4 and 5.
CORAM : M.G. SEWLIKAR, J.
DATE : 12th August, 2021.
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. By consent of the parties, heard fnally at the stage of admission.
3. Challenge in this petition under Article 227 of the Constitution of India is to the judgment and order dated 24 th April, 2015, passed by the learned Tahsildar granting 8 ft. way on the bund between the lands of petitioner (original defendant) and respondents No. 4 and 5 in Rasta Case No. 8/2013 confrmed by Sub-Divisional Offcer, Pathardi, Dist. Ahmednagar, in Revision No. 60/2015.
4. Facts leading to this petition can be briefy stated as under :-
Respondents No. 4 and 5 (original plaintiffs) are the owner of lands survey No. 50/2/B, 50/2/A/2/2. Petitioner is the owner of lands survey No. 49/2/A, 50/3/3/, 49/2B and 49/3/A/1. ::: Uploaded on - 18/08/2021 ::: Downloaded on - 26/09/2021 15:05:32 :::
wp4476.16.odt -3- There is a customary way between the lands of petitioner and respondents No. 4 and 5. It is alleged by respondents that it is a cart way. It is further alleged that petitioner obstructed the cart way of the respondents. Petitioner reduced the width of cart way by cresting obstruction on the cart way. Therefore, a small strip of land is available on the common way between the lands of petitioner and respondents No. 4 and 5. For removal of obstruction, respondents No.4 and 5 fled aforesaid Rasta Case before the learned Tahsildar, Shevgaon.
5. Petitioner herein resisted the proceedings by fling written statement. Petitioner admitted ownership of respondents over the property in dispute. It is the contention of petitioner that there is no cart way between the land of petitioner and respondents No. 4 and 5. But it is a footway. Petitioner denied that he caused any obstruction to respondents' use of the said foot way. He, therefore, prayed for dismissal of Rasta Case No. 8/2013.
6. Learned Tahsildar, Shevgaon, conducted spot inspection and drew panchanama. In the panchanama, he found that there was a foot way between the lands of petitioner and respondents No. 4 and ::: Uploaded on - 18/08/2021 ::: Downloaded on - 26/09/2021 15:05:32 ::: wp4476.16.odt -4-
5. After hearing both the parties, he allowed the petition and vide order dated 24th April, 2015, restrained petitioner from obstructing use of 8 ft. road between the lands of petitioner and respondents No. 4 and 5.
7. Petitioner assailed this order in revision before the learned Sub-Divisional Offcer, Pathardi, District Ahmednagar. Learned Sub-Divisional Offcer, Pathardi, dismissed the revision by his judgment and order dated 28th February, 2016. This order is impugned in the instant petition.
8. Heard Shri Ambetkar, learned counsel for the petitioner, Shri Chate, learned AGP for respondents No. 1 to 3 and Shri Narwade, learned counsel for respondents No. 4 and 5.
9. Learned counsel Shri Ambetkar submitted that spot panchanama shows that there is a foot way. He invited my attention to Rule 4 of the Maharashtra Land Revenue (Boundaries and Boundary Marks) Rules, 1969. According to him, the width of common way colloquially called as 'dhura' is 1.22 metres. i.e. approximately 4 ft. He submitted that, therefore, it was not ::: Uploaded on - 18/08/2021 ::: Downloaded on - 26/09/2021 15:05:32 ::: wp4476.16.odt -5- permissible for the learned Tahsildar to grant 8 ft. road. There was no evidence before the learned Tahsildar to grant road of this much width. He submitted that learned Sub-Divisional Offcer, Pathardi, also committed the same error and erroneously confrmed the order passed by the learned Tahsildar, Shevgaon.
10. Shri Narwade, learned counsel for respondents No. 4 and 5 submitted that common way is always of 8 ft. The same common way is also used as a cart way. Therefore, the learned Tahsildar has rightly mentioned 8 ft way. Petitioner has been rightly injuncted by learned Tahsildar from obstructing the use of 8 ft. road by respondents No. 4 and 5. He, therefore, submitted that there is no infrmity in the order of learned Tahsildar, Shevgaon, confrmed by the learned Sub-Divisional Offcer, Pathardi.
11. Rule 4 of the Maharashtra Land Revenue (Boundaries and Boundary Marks) Rules, 1969, reads thus :-
4. Maintenance of continuous boundary marks :
The boundary strips, dhuras, or ridges shall not be ploughed up or otherwise injured by cultivation; The minimum width and height of boundary strips and dhuras or sarbandhas shall be as follows, namely:-
Boundary strip - In dry crop lands, 0.46 metre wide and 0.61 metre high. In rice and ::: Uploaded on - 18/08/2021 ::: Downloaded on - 26/09/2021 15:05:32 ::: wp4476.16.odt -6- garden lands 0.23 metre wide 0.61 metre high.
Dhuras or Sarbandhas - 1.22 metres wide and 0.61 metre high:
Provided that,-
(i) where the boundaries of such lands are well defned by banks, hedge or the like, the actual width of he strip covered by such bank, hedges or the like shall be suffcient for the purpose of this rule;
(ii) where the boundary of a survey number also forms the boundary of any adjoining State, the minimum width prescribed above shall be maintained for the portion of the boundary strip on the side of this State; and
(iii) where village boundaries have been defned at the time of survey by double lines of boundary marks, the whole of the intermediate strip shall be maintained as a boundary strip.
12. From this rule, it is evident that the width of common bund shall not exceed 1.22 metres and its height shall not exceed 0.61 metres. 1.22 metres if converted into feet, it comes to around 4 feet. Therefore, the width of common bund between the lands of petitioner and respondents No. 4 and 5 must not be more than 4 feet. On what basis learned Tahsildar has observed in the operative part of the impugned order that width of common way is 8 feet, is not made clear either by learned Tahsildar, Shevgaon or by learned Sub- ::: Uploaded on - 18/08/2021 ::: Downloaded on - 26/09/2021 15:05:32 :::
wp4476.16.odt -7- Divisional Offcer, Pathardi. Therefore, both of them have fallen in error in mentioning the width of the common bund.
13. In addition to this, in the panchanama drawn by the Tahsildar, there is clear mention of foot way existing between the lands of petitioner and respondents No. 4 and 5. This also lends credence to the contention of petitioner that the width of a foot way cannot be of 8 feet. In this view of the matter, the order of learned Tahsildar cannot be sustained in its entirety.
14. In this view of the matter, I deem it ft to issue following directions :-
Respondent No. 3 - Tahsildar, Shevgaon, shall examine the common way within 15 days from the date of receipt of order of this Court. On examination, if it is found that the common way is lesser than 1.22 metres in width, he shall ensure that the same is of 1.22 metres wide i.e. 4 feet approximately.
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15. In view of above, writ petition is allowed with no order as to costs. Rule made absolute in above terms.
( M. G. SEWLIKAR ) Judge dyb ::: Uploaded on - 18/08/2021 ::: Downloaded on - 26/09/2021 15:05:32 :::