Bombay High Court
Indubai Abhiman Patil And Others vs The Sub Divisional Officer And Others on 22 July, 2024
2024:BHC-AUG:15204
1 wp 5590.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5590 OF 2023
Indubai Abhiman Patil And Others
VERSUS
The Sub Divisional Officer And Others
...
Advocate for the Petitioner : Mr. Y B Bolkar
AGP for Respondents 1, 2 : Mr. A.S. Shinde
Advocate for Respondents 3-8 : Mr. V P Patil
Respondent nos.9, 10A to 10D- deleted
...
CORAM : S. G. CHAPALGAONKAR, J.
Dated : July 22, 2024
ORDER :-
1. The petitioners impugns the orders dated 28.6.2022 passed by the Tahsildar, Pachora in Rasta Case No.31 of 2020 and the order dated 8.5.2023 passed by the Sub Divisional Officer, Pachora Division, District Jalgaon in Revision Application No.71 of 2022, thereby confirming the order of Tahsildar.
2. Mr. Y.B. Bolkar, learned advocate appearing for the petitioners submits that the petitioners are the owners of land bearing gat no.26 admeasuring 1.51 Hectors situated at Kurangi, Tq. Pachora. Respondent Nos.3 to 8 owns agricultural land gat nos.22/1, 15/B, 22/2 and 16/1 at Kurangi. Respondent nos.9 and 10 are the owners of gat no.23/1 and 23/2 situated at Kurangi, Tq. Pachora, 2 wp 5590.2023.odt District Jalgaon. Respondent nos. 3 to 8 filed Rasta Case No.31 of 2020 under section 5 of the Mamlatdar's Courts Act, 1906 contending that they had customary access from the common bandh of gat nos.23 and 26 that has been obstructed by the petitioners and respondent nos.9 and
10. In pursuance of such application, Tahsildar caused spot inspection, spot panchnama was drawn, which stipulated that the customary way is not discernible from common bandh of gat nos.23 and 26 to approach Kurangi Mahaji Tyre road. However, it is further observed that no other road is available for owners of gat nos.15 and 22. The Tahsildar, after hearing parties, concluded that possibility cannot be ruled out that common bandh between gat nos.23 and 26 was used as customary way since alternate way is not available to Kurangi Maheji road from gat nos.15 and 22. Accordingly, vide order dated 28.6.2022 application of respondent nos.3 to 8 came to be allowed thereby granting cart way from the common bandh of gat nos.23 and 26 and petitioners were restrained from causing obstruction to the use of such way.
3. Petitioners then approached the Sub-Divisional Officer vide RTS Revision Application No.71 of 2022 impugning the order of the Tahsildar. Sub Divisional Officer confirmed the order passed by the Tahsildar.
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4. Mr. Bolkar, learned advocate appearing for the petitioners submits that there is absolutely no evidence to indicate existence of cart way from common bandh of gat nos.23 and 26. The very panchnama relied upon by the Tahsildar clearly observes the fact that no such way was discernible during the spot inspection. However, inference is drawn that in absence of any other alternate road, customary way from common bandh of gat nos.23 and 26 must have been existed. Mr. Bolkar would further point out that Tahsildar actually granted new way which is beyond his jurisdiction under section 5 of the Mamlatdar's Courts Act, 1906. According to him, alternate way exists from the northern side. However, false plea is taken about existence of customary way from common bandh of gat nos.23 and 26.
5. Per contra, Mr. V.P. Patil, learned advocate appearing for respondent nos.3 to 8 vehemently submits that the sale-deeds placed on record depicts existence of customary way. Petitioners have destroyed such customary way and sworn the crop. As such, cause of action to file the proceeding arose. He would further points out that the original owner of the land gat no.22 i.e. Shantaram Vana Patil and owner of gat no.15/B namely Nago Zipru Patil have filed affidavits confirming existence of the customary way. As such, there is adequate evidence in support of existence of customary way. He 4 wp 5590.2023.odt would further submit that both the Courts below have concurrently recorded finding based on material that need not be disturbed in writ jurisdiction of this Court.
6. Having considered the submissions advanced and after going through the record tendered before this Court, it can be observed that respondent nos.3 to 8 claims customary way from common bandh of gat nos.23 and 26 to reach the tar road. In pursuance of the application tendered by respondent nos.3 to 8 Tahsildar caused spot inspection, which records that the customary way from common bandh of gat nos.23 and 26 is not discernible to approach Kurangi-Maheji road, however, there is no alternate road for land holders from gat nos.15 to 22. The impugned order dated 28.6.2022 also records similar version and operative part states that cart road from common bandh of gat no.23 and 26 is granted and petitioners shall not obstruct the same. Purport of the observations and operative part of the order passed by the Tahsildar depicts that he exceeded jurisdiction conferred upon him under section 5 of the Mamlatdar's Courts Act, 1906, which bestow power on Mamlatdar's Courts to remove obstruction on existing way. Perusal of the reasoning in the judgment of the Tahsildar indicates that no specific finding is arrived about existence of the customary way and obstruction created by the petitioners. Conversely, order is passed granting cart-way. Such 5 wp 5590.2023.odt jurisdiction is vested under section 143 of the Maharashtra Land Revenue Code. However, respondent nos.3 to 8 had approached the Tahsildar under section 5 of the Mamlatdar's Courts Act. It is, therefore, evident that Tahsildar has completely missed the parameters of jurisdiction under Mamlatdar's Courts Act and granted different relief than claimed. The Sub-Divisional Officer, instead of correcting the jurisdictional error of Tahsildar confirmed the order.
7. Pertinently, this Court had directed the Tahsildar vide order dated 8.9.2023 to find out if any alternate road is available to the owner of the gat no.15 and 22 to approach Moheji-Kurangi tar road. Report of such inspection alongwith a map is placed on record on 12.12.2023. It records that alternate road could not be seen for use of land holders from gat nos.15 and 22. However, there is no clear indication as regards to existence of customary way from bandh of gat nos.23 and
26.
8. In these circumstances, it would be proper to relegate the matter for fresh consideration to the Tahsildar, Pachora, who shall examine the issue as regards to existence of customary way after recording statements of land holders from adjacent gat numbers and pass afresh order either in exercise of jurisdiction under section 5 of the Mamlatdar's Courts Act, 1906 or under section 143 of 6 wp 5590.2023.odt the Maharashtra Land Revenue Code after indicating the parties as to which jurisdiction he proposes to exercise and then pass further orders. In the result following order is passed :-
ORDER i. Writ Petition is partly allowed.
ii. The Judgment and order order dated 28.6.2022 passed by the Tahsildar, Pachora in Rasta Case No.31 of 2020 and the order dated 8.5.2023 passed by the Sub-Divisional Officer, Pachora Division, Pachora, District Jalgaon in Revision Application No.71 of 2022 are hereby quashed and set aside.
iii. The matter is remitted back to the Tahsildar, Pachora for fresh consideration, who shall, after recording statements of adjacent land holders and upon fresh spot inspection indicate the parties as to the jurisdiction proposed to exercise by him either under section 5 of the Mamlatdar's Courts Act, 1906 or Section 143 of the Maharashtra Land Revenue Code.
7 wp 5590.2023.odt iv. Parties shall be given opportunity to put their stand in writing or examine any witness as per their choice and pass further orders in tune with the jurisdiction proposed to be exercised under the provisions of section 143 of the Maharashtra Land Revenue Code or section 5 of the Mamlatdar's Courts Act, 1906.
v. Writ Petition accordingly disposed off.
No costs.
( S. G. CHAPALGAONKAR ) JUDGE ...
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