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2016 DIGILAW 1846 (BOM)

Vishnu Sukhdev Ghanvat v. Collector, Ahmednagar

2016-09-30

T.V.NALAWADE

body2016
JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard both sides by consent for final disposal. 2. The petition is filed to challenge the decision given by the learned Sub Divisional Officer Pathardi in Revision No.261/2013 and also the decision given by the Mamlatdar, Shevgaon in Rasta Case No.42/2011. The application was made by present respondent Nos.4 to 7 under section 5 of the Mamlatdars' Courts Act, 1906 for removal of obstruction created on the alleged way in Survey No.176 of village Babhalgaon, Tahsil Shevgaon. It was contended that they are the owners of Survey No.174 and they are required to go through Survey No.176 for approaching Survey No.174 and the defendants of the proceeding had created obstruction on this way and so they were not able to approach their land for cultivation purpose. In the past, order was made in favour of these respondents but ultimately this Court in Writ Petition No.8665/2012 had remanded the matter back and direction was given to follow the procedure given under the aforesaid Act before making the order. The new Mamlatdar, Tahsildar made inquiry and after visiting the spot, he made the order on 30-6-2013. This decision is confirmed by the Sub Divisional Officer by dismissing the revision. 3. Learned counsel for the petitioners argued that proper procedure was not followed this time also and the points which are required to be decided were not considered by the Mamlatdar. He submitted that the proceeding under section 5 of the Mamlatdars' Courts Act, 1906 (for short, "the Act") can be entertained only if following things are established. (i) In the past there was such way, road in existence. (ii) Obstruction was created on the road. (iii) The way, road was in use of the plaintiffs and the obstruction was created within six months prior to the date of filing of the plaint. 4. Copy of the plaint filed under section 5 of the Act is on the record. This plaint does not show as to when the cause of action took place. Vague contentions are made that in the past there was cart way in existence but the exact location of the cart way was also not mentioned and it was mentioned that the cart way was passing through Survey No.176. This plaint does not show as to when the cause of action took place. Vague contentions are made that in the past there was cart way in existence but the exact location of the cart way was also not mentioned and it was mentioned that the cart way was passing through Survey No.176. Thus, it was not specifically contended that the cause of action had taken place within six months prior to the date of filing of the plaint. 5. The panchanama dated 16-5-2013 prepared by the Tahsildar shows that he examined the northern bandh of Survey No.176/1/1 and portion situated on the western side of this bandh. On the western side of Survey No.176/1/1 there is brook which is North-South in direction. He found that there were marks of use of cart in the brook. He noticed that East-West bandh of Survey No.176/1/1 was ploughed and it was brought under cultivation. He noticed that at the west end of this bandh portion there was heap of stones and due to that there was no possibility of use of this bandh also. Thus, he noticed that portion of brook situated between Survey Nos.174 and 176/1/1 was used in the past. It is surprising that when the proceeding was filed in the year 2011 and it can be said that prior to 2011 itself the obstruction was created and so from that time the bandh was not being used as way much less as cart way and so there was no question of existence of marks of bullock cart used in the brook leading towards Survey No.176/1/1. The order made by the Tahsildar shows that he did not make inquiry with adjacent owners to ascertain as to whether all of them were using the cart way as alleged by the plaintiffs. The order shows that the natural flow of water from the brook was also changed due to creation of the obstruction and in that regard Regular Civil Suit No.88/2012 was pending in the Court of Shevgaon. This circumstance could not have been ignored by the revenue authority as the decision given by the revenue authority in that regard is subject to the decision of the Civil Court in view of the provision of Section 22 of the Act. Whenever there is civil dispute pending, it is advisable for the authority like Tahsildar not to make orders under the Act. 6. Whenever there is civil dispute pending, it is advisable for the authority like Tahsildar not to make orders under the Act. 6. The provisions of sections 19 and 5(3) of the Act show that suit needs to be brought within six months from the date of cause of action and this is mandatory in nature. If it is not established that the cause of action took place within six months of the date of the plaint then the Mamlatdar is bound to dismiss the plaint. In the present matter even when there was no specific cause of action given at least by giving the month, this circumstance is not considered and the Mamlatdar has given the order under section 5 of the Act. For this single reason also the order made by the Mamlatdar cannot sustain in law. 7. There is one more circumstance in the present matter. The order of the Mamlatdar shows that he had given direction to remove the obstruction and he had allowed the plaintiffs to use common bandh situated between Gat No.176 on one side and Gat Nos.171, 172 and 173 on the other side as way. It was not specifically mentioned that this common bandh was to be used as cart way. The width of the way was not mentioned if it was to be used only as a way as per his order. Though there is such order, the contention made in the plaint and the submissions made for the plaintiffs in this proceeding show that the plaintiffs want to use the common bandh as cart way and they want to take bullock cart on that portion. In the plaint it was not mentioned that there was cart way in existence on the common bandh but such order is made. For this reason also the order cannot sustain in law. The direction is given against owners of Gat Nos.171, 172 and 173 also, when they were not made parties to the proceeding. For that reason also the order cannot sustain in law. However, it needs to be kept in mind that under Maharashtra Land Revenue (Boundaries and Boundary Marks) Rules, 1969 framed under the Maharashtra Land Revenue Code, 1966 the common bandh situated between Gat No.176 on one side and Gat Nos.171, 172, 173 on the other side cannot be destroyed. For that reason also the order cannot sustain in law. However, it needs to be kept in mind that under Maharashtra Land Revenue (Boundaries and Boundary Marks) Rules, 1969 framed under the Maharashtra Land Revenue Code, 1966 the common bandh situated between Gat No.176 on one side and Gat Nos.171, 172, 173 on the other side cannot be destroyed. There is customary way and the farmers of that locality have right to use the common bandhs as foot path by way of custom. The width and height of dhura, common bandh are described in the Rules, 1969 made for fixing and maintenance of boundaries and boundary marks. Apparently the act of the petitioners of the creation of obstruction on the common bandh and destroying the common bandh is against the said Rules. Such obstruction needs to be removed by revenue authority so that the farmers can use common bandh as foot path. Even criminal action can be taken for such acts of the petitioners. If the common bandhs are not allowed to be used as foot path, the farmers of the other side lands like the plaintiffs may not be able to approach their lands for cultivation purpose. The farmers are entitled to approach the main road, public road from the shortest distance and for that they are entitled to use the common bandh as foot path. So, to that extent the authority is entitled to take action against the petitioners. In the result, following order is made. 8. The petition is allowed. The orders made by the learned Tahsildar and the learned Sub Divisional Officer are hereby set aside. However, it is made clear that the petitioners cannot create obstruction in the common bandh lying between lands Survey No.176 on one side and Survey Nos.171, 172, 173 on the other side as the common bandh can be used by the farmers in that area as the customary foot path. If obstruction is created, even criminal action can be taken against present petitioners as provided under the relevant rules of Rules 1969. Rule made absolute in above terms.