Ramchandra Damodar Ahire v. The Tahsildar And ORS

Ajay IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 316 OF 2024 Ramchandra Damodar Ahire Applicant (Orig. Plaintiff)

Versus

Tahsildar and Ors.

.. Respondents ..

....................

 Mr. Khushnood Akhtar a/w. Mr. Vinay Kanodia and Mr. Bhikaji R. Palav, Advocates i/by MR. Shivaji Nirmale for the Applicant.  Mr. Sanjay P. Shinde, Advocate for Respondent Nos.6 to 19. ...................

CORAM

: MILIND N. JADHAV, J.

DATE : JUNE 18, 2024.

P.C.:

1.

Heard Mr. Akhtar, learned Advocate for Applicant and Mr. Shinde, learned Advocate for contesting Respondent Nos.6 to 19. 2.

The immediate concern and urgency expressed by the learned Advocate for the Applicant is that Applicant has received a notice dated 10.06.2024 which calls upon the Applicant to remain present as also all other parties alongwith police protection to implement the orders for establishment of the road. Learned Advocate for Applicant would submit that by virtue of the impending action enumerated in the notice dated 10.06.2024, it is apprehended that the Suit property of the Applicant which Applicant had purchased by virtue of the registered agreement dated 16.02.2016 shall be breached and

the authorities will carve out road through property belonging to the Applicant. He would submit that there is a precursor and history to the issue at hand. He would candidly inform the Court that there are two concurrent orders passed below Exhibit "5" rejecting the injunction Application of the Applicant / Plaintiff and this Court should consider the previous orders passed and pass appropriate directions and orders. He has placed before me the notice dated 10.06.2024 issued by the Circle Officer, inter alia, giving reference to an order passed in Vahivat Case No.41 of 2021 dated 05.12.2023 and the twin Exhibit "5" orders dated 10.11.2023 and 21.03.2024 which are the subject matter of challenge in the present Civil Revision Application. The said notice states that on the basis of the above order and the previous order passed by the Tahsildar in the Vahivat Case, the directions contained therein are required to be impleaded and therefore date and time namely 19.06.2024 at 11:00 a.m. has been fixed by the Circle Officer. 3.

Mr. Akhtar, learned Advocate for Applicant has drawn my attention to the pleadings in the present Civil Revision Application. He would submit that as far back as on 13.08.2021, Application filed by Sarpanch on behalf of Respondent Nos.5 to 7 seeking a road through the Suit property was rejected by the Tahsildar by returning a finding that there was no road in existence. He would submit that some of the private Respondents thereafter filed proceedings under Section 5 of the Mamlatdar's Courts Act, 1906 (for short "the said Act") before the

Competent Authority / Tahsildar. The said Exhibit "5" Application was determined by the order dated 20.05.2022, inter alia, holding that there was no existing road through the property belonging to the Applicant / Plaintiff, but the road did exist through a nala adjacent to the said property and hence directions were given in that order for creation of the road through the nala as argued by the learned Advocate.

4.

Thereafter revision proceedings were filed under Section 23 of the said Act before the Revision Authority by the Applicant, but Applicant withdrew the same. Applicant filed the Civil Suit before the Trial Court namely, Regular Civil Suit No.880 of 2023. The principal prayer in the Suit pertains to seeking an injunction with respect to the Defendants' right determined in Vahivat Case No.41 of 2021 and for seeking an injunction for non implementation of any order passed therein. Apart from other reliefs which are for injunction, Applicant / Plaintiff also prayed for damages of Rs.1,00,000/- in the Suit proceedings. Be that as it may, Exhibit "5" was heard by the learned Trial Court. Exhibit "5" order dated 10.11.2023 is at Exhibit "F" - page No.89 of the Civil Revision Application.

5.

By virtue of the said order, learned Trial Court, prima facie, came to the conclusion that the private Respondents require a road to have access to their properties and the said road has to pass through the property belonging to the Applicant / Plaintiff. Appropriate

reference was also made to the natural nala which was shown in existence from the south to the north, adjacent to the Suit property. Reference is also made to the earlier proceedings filed by the Sarpanch on behalf of some of the private Respondents in the year 2021 in the said order. Thereafter referring to the order passed under Section 5 proceedings under the said Act, learned Trial Court rejected the Exhibit "5" Application by making a prima facie observation that in view of existence of the nala since from and on taking inspection of the same, no road can be made possible through the said nala and therefore the road sought for by the private Respondents would have to be carved out from the property of the Applicant / Plaintiff which is adjacent to the nala.

6.

Mr. Akhtar would also argue that it is not the case of private Respondents that they do not have access road available. He would submit that there is a separate access available to them 100 meters away from the existing nala. However, private Respondents are seeking a second access through Vahivat road which was the subject matter of Vahivat Case No.41 of 2021. Be that as it may, perusal of the order dated 10.11.2023 reveals one thing and that is conclusion which has been arrived and the reasons which have been given in paragraph Nos.9 to 13 by the learned Trial Court are purely on the basis of earlier Vahivat case and are to be considered as prima facie observations.

7.

By virtue of the impugned order dated 21.03.2024 passed in MCA, the learned District Court has upheld the order passed by the learned Trial Court. Prima facie, it is seen that the copy of the order of the learned District Court is nothing but an english translation of the order passed by the learned Trial Court and nothing more. It is a pure english translation.

8.

Learned Advocate appearing for the Applicant is directed to serve a copy of the Civil Revision Application and this order on the unrepresented Respondents.

9.

Mr. Shinde, learned Advocate for contesting Respondent Nos.6 to 19 is directed to file Affidavit-in-Reply within a period of two weeks from today. Copy of the same shall be served on all the parties in advance.

10.

Unrepresented Respondents are directed to remain present in Court on the next adjourned date either by themselves or through Advocates.

11.

Respondents are directed to take cognizance of this order. 12.

Respondent Nos.1 to 5 are the State. Learned Chief Government Pleader shall take appropriate instructions from the concerned authorities and accordingly apprise the Court of the same and file appropriate Affidavit showing necessary need and status and

availability of the road to be passed through the property belonging to the Applicant / Plaintiff. Notice for impending action as evident from the notice dated 10.06.2024 shall stand stayed. 13.

Respondent Nos.1 to 5 - State are directed not to take any coercive steps on 19.06.2024 at 11:00 a.m. as stated in the notice dated 10.06.2024.

14.

Applicant is directed to serve a copy of Civil Revision Application, this order and notice dated 10.06.2024 on the Government Pleader's office, Appellate Side today itself. 15.

Chief Government Pleader is directed to appoint a responsible Assistant Government Pleader to appear in the present case.

16.

Learned AGP shall take immediate cognizance of this order and ensure that the concerned authorities who have issued notice dated 10.06.2024 is informed immediately that the said order has been stayed.

17.

Stand over to 02nd July, 2024.

[ MILIND N. JADHAV, J. ] Ajay AJAY TRAMBAK UGALMUGALE Date: 2024.06.18 16:21:04 +0530 AJAY TRAMBAK UGALMUGALE