Balasaheb Dhanaji Jadhav And ANR. v. Tanaji Jairam Jadhav And ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3681 OF 2016 Balasaheb Dhanaji Jadhav and anr.

: Petitioners.

versus Tanaji Jairam Jadhav and ors.

: Respondents.

Mr. M B Deshmukh for the Petitioners.

Mr. P M Patil for the Respondent No.1.

Mr. S D Rayrikar, AGP, for the Respondent No.5 and 6 CORAM :

R. M. SAVANT, J.

DATE :

01st December 2016 P.C.

The writ jurisdiction of this Court is invoked against the order dated 18/12/2015 passed by the Sub Divisional Officer, Sub Division, Vita by which order the Revision Application filed by the Petitioners came to be rejected and resultantly the order dated 10/09/2015 passed by the Tahsildar, Khanapur, Vita came to be confirmed.

The Respondent No.1 herein holds lands bearing Gat Nos.290, 291 and 292. The Respondent No.1 invoked Section 5 of the Mamaltdar's Court Act, 1908 (for short "the said Act") on the ground that the Petitioner herein has obstructed the road coming to his land through Gat No.296 that is the land owned by the Petitioner. The said road is the only available access to the land of the Respondent No.1 as also for the villagers to approach the Mahadev Temple as well as the lake. The said Application was replied to on behalf of

the Petitioner by contending that the road which was passing through the lands of the Petitioner bearing Gat Nos.296, 298 and 300 had been specifically kept for the use of his family members who were the owners of the adjacent lands. As is the practice whilst dealing with an Application filed under Section 5 of the said Act, the Tahsildar directed the Circle Officer to submit a report. The Circle Officer accordingly conducted site inspection on two dates and the pachanamas of the site inspection were accordingly drawn on 18/11/2014 and 22/05/2014. It has been recorded in the said panchanamas that the road is in existence half way through Gat No.296 and thereafter has been obstructed by the Petitioner. It seems that the statement of some of the villagers was also recorded including the statement of one Shivaji Jotiram Jadhav who also stated to the same effect. After the aforesaid material had come on record, the Tahsildar by a cryptic one paragraph order dated 03/01/2015 had allowed the said Application.

Aggrieved by the said order dated 03/01/2015 the Petitioner herein filed a Revision before the Sub Divisional Officer, Vita. The Sub Divisional Officer having regard to the nature of the proceedings that is one for removal of obstruction on the existing road was of the view that the matter was not dealt with satisfactorily by the Tahsildar whilst passing the order dated 03/01/2015. The Sub Divisional Officer accordingly by his order dated

29/04/2015 set aside the order dated 03/01/2015 passed by the Tahsildar and remanded the matter back to the Tahsildar for a de-novo consideration in terms of the directions as contained in the said order dated 29/04/2015. The Tahsildar was directed to consider the evidence which was on record in respect of the existence of the road, as also to consider as to when the obstruction was caused and whether there was any alternate road in existence for the Respondent No.1.

On remand the Tahsildar by his order dated 01/09/2015 has allowed the Application filed by the Respondent No.1 under Section 5 of the said Act. The gist of the reasoning of the Tahsildar as can be seen from the impugned order is that from the material on record it is disclosed that the road has been obstructed in Gat No.296 after it is in existence in part of Gat No.296. The Tahsildar has also adverted to the statements made on behalf of the holders of Gat Nos.884, 885 and 295 wherein they have stated that they are ready and willing to give 5 ft. of land which is in their possession for the road which would enure to the benefit of all the villagers. The Tahsildar also adverted to the fact that in view of the remand which was directed by the Sub Divisional Officer, the Petitioner herein who was the Respondent in the said Application was requested to make a temporary arrangement for the Respondent No.1 herein, but the Petitioner herein has refused to do so. The Tahsildar recorded a finding that the panchanamas and other material on

record disclose that the Petitioner herein has caused obstruction in so far as the road passing through Gat No.296 is concerned. The Tahsildar accordingly directed the Petitioner herein to remove the said obstruction and if he fails to do so, the action in accordance with law would be taken against the Petitioner. The said order dated 10/09/2015 was taken exception to by way of a Revision filed by the Petitioner under Section 23 of the said Act. The Sub Divisional Officer as indicated above by the impugned order dated 18/12/2015 dismissed the said Revision Application. The Sub Divisional Officer has confirmed the findings recorded by the Tahsildar. The Sub Divisional Officer has also adverted to the finding that the road has been obstructed midway in Gat No.296 and the owners of the adjoining Gat Nos.

884, 885 and 295 were ready and willing to give 5 ft. of land which is in their possession for the road which would enure to the benefit of all the villagers. The Sub Divisional Officer held that the Tahsildar having decided the matter on the basis of the material on record, the said order does not merit any interference in the revisionary jurisdiction of the said authority under Section 23 of the said Act and accordingly dismissed the Revision Application by the impugned order dated 18/12/2015.

The learned counsel appearing on behalf of the Petitioner Shri M B Deshmukh would contend that the said Act contemplates a procedure to be

followed and since the same has not been done, the Application itself could not have been entertained. It was the submission of the learned counsel that the Tahsildar on remand has not followed the mandate of the order passed by the Sub Divisional Officer whereby the Tahsildar was directed to reconsider the Application in terms of the observations made in the said order. It was the submission of the learned counsel for the Petitioner that in the guise of seeking removal of obstruction, a new road is sought to be created in the lands of the Petitioners.

Per contra, the learned counsel appearing on behalf of the Respondent No.1 Shri P M Patil as also the learned AGP appearing for the Respondent Nos.5 and 6 Shri S D Rayrikar would support the impugned order. It was the submission of the learned counsel for the Respondent No.1 that the contention as regards non-compliance of the provisions of the said Act is sought to be raised for the first time in this Court and has not been raised before the Sub Divisional Officer whilst he was considering the Revision Application. It was the submission of the learned counsel for the Respondent No.1 that the material on record unequivocally leads to a conclusion that the road passing through Gat No.296 which is of the ownership of the Petitioner has been obstructed by him.

Having heard the learned counsel for the parties, I have

considered the rival contentions. In so far as the first contention of the learned counsel for the Petitioner is concerned, it is required to be borne in mind that the proceedings under Section 5 of the said Act are in the nature of summary proceedings so as to provide a quick relief to the agriculturists and the villagers in the matter of removing the obstruction to their access. It is required to be noted that in the instant case, as rightly contended by the learned counsel for the Respondent No.1 herein, no such contentions as regards the noncompliance of the provisions of the said Act were raised before the Sub Divisional Officer and are now sought to be raised for the first time in this Court in the above Writ Petition.

The reason is obvious as the intention of the Petitioner is to see to it that the removal of obstruction and making the road available is to be stalled on one pretext or the other. In so far as 2nd contention of the learned counsel for the Petitioner is concerned, it is required to be noted that the spot inspection was carried out and two panchanamas have been recorded on the two dates which have been mentioned herein above. The statements of the local villagers have also been recorded. In so far as the summary proceedings are concerned, they have to be adjudicated on the basis of the aforesaid material as oral evidence cannot be led.

circumstances of the instant case. The Petitioners were also not able to demonstrate that there is any alternate road available to the Respondent No.1. In my view, therefore, exercise of the writ jurisdiction of this Court in the light of the concurrent findings recorded by the two authorities below is not warranted. The above Writ Petition is accordingly dismissed. Since a statement has been made on behalf of the Respondent No.1 herein which is reflected on page No.2 of the impugned order passed by the Sub Divisional Officer that the Respondent No.1 is ready to compensate the Petitioner for the loss if any which would be caused on account of the removal of sugarcane crop, the said aspect is left open and the Petitioner would be at liberty to seek compensation from the Respondent No.1 in that regard, however that cannot be a condition for removal of obstruction from the road in question. [R.M.SAVANT, J]