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2019 DIGILAW 1142 (BOM)

Gaurakshan Sansthan v. State of Maharashtra

2019-04-25

A.S.CHANDURKAR

body2019
JUDGMENT : A.S. CHANDURKAR, J. 1. Rule. Heard finally with the consent of the parties. 2. The petitioner - Trust through its power of attorney holder has challenged the order dated 10-8-2017 as passed by the Naib Tahasildar that has been confirmed by the Additional Collector by his order dated 6-11-2017. By that order the application filed by the respondent No.3 herein under Section 7 of the Mamlatdar's Courts Act, 1906 (for short, the said Act) has been allowed and the petitioner has been directed to remove the obstruction as caused. 3. Shri N.R. Tekade, learned Counsel for the petitioner submitted that the application dated 25-4-2017 as filed by the respondent No.3 was not supported by any affidavit as required by provisions of Section 7 of the said Act. According to him, it was a mandatory requirement that proceedings under the said Act had to be commenced by way of a plaint and though this specific objection was raised in the reply filed before the Naib Tahasildar, the same had not been considered. Moreover, the cause of action had been vaguely stated and further without any evidence on record the said application has been allowed. He referred to the reply filed in the said proceedings as well as the revision application filed before the Additional Collector raising these grounds. According to him, these aspects go to the root of the matter and without considering the same the impugned order has been passed. 4. On the other hand, Ms. M. Naik, learned Assistant Government Pleader for respondent Nos.1 and 2 and Shri D. S. Patil, learned Counsel for the respondent No.3 supported the impugned order. It was submitted by Shri D. S. Patil, learned Counsel for the respondent no.3 that under Section 8 of the said Act when an application is not in the form of a plaint, the Mamlatdar has to explain to such person presenting the petition as to whether the petitioner desires to obtain necessary relief. It was therefore not necessary to file affidavit in that regard. He further submitted that on the basis of the report of the Talathi, the obstruction caused by the petitioner had been duly proved and hence it was rightly directed to be removed by the Naib Tahasildar. There was no reason to interfere with the impugned order as confirmed by the Additional Collector. 5. Heard learned Counsel. He further submitted that on the basis of the report of the Talathi, the obstruction caused by the petitioner had been duly proved and hence it was rightly directed to be removed by the Naib Tahasildar. There was no reason to interfere with the impugned order as confirmed by the Additional Collector. 5. Heard learned Counsel. The provisions of Section 7 of the said Act require the proceedings to be commenced by way of a plaint. The particulars to be stated therein have been stipulated in Section 7. Under Section 9 of the said Act when the plaint does not contain the particulars specified in Section 7 then the Mamlatdar has to examine the plaintiff on oath and ascertain from him whether the particulars stated are correct. These aspects have to be reduced in writing in the form of an endorsement on or annexure to the plaint. Under Section 10 of the said Act, the Mamlatdar has to require the plaintiff to subscribe and verify the plaint in his presence in the manner specified. Section 12 thereafter empowers the Mamlatdar to reject the plaint if the plaintiff fails to furnish particulars as required by Section 7 within the time fixed under Section 9 of the said Act. These provisions therefore indicate the mandatory nature of the compliance to be done as stipulated by Section 7 of the said Act. It is only when the plaint is found to be admissible that the Mamlatdar can proceed with the adjudication on merits. 6. Though the learned Counsel for the respondent No.3 sought to rely upon the provisions of Section 8 of the said Act, the procedure prescribed therein requiring the Mamlatdar to explain to the person presenting the petition the nature of reliefs that could be granted and the option given to the petitioner to express such desire has to be endorsed on the petition has not been shown to have been followed. There is no such endorsement as required under Section 8 of the said Act. In the reply filed by the petitioner before the Naib Tahasildar these objections were specifically raised but they have not been considered by both the Authorities. It is thus clear that the impugned orders are not sustainable on the ground that the necessary compliance with the provisions of Sections 7 and 9 of the said Act has not been done. In the reply filed by the petitioner before the Naib Tahasildar these objections were specifically raised but they have not been considered by both the Authorities. It is thus clear that the impugned orders are not sustainable on the ground that the necessary compliance with the provisions of Sections 7 and 9 of the said Act has not been done. Accordingly, the following order is passed: (1) The order dated 10-8-2017 passed by the Naib Tahasildar and the order dated 6-11-2017 passed by the Additional Collector is set aside. (2) The respondent No.3 is at liberty to file fresh application on the same cause of action by complying with provisions of Section 7 of the said Act. The report of the Talathi which is already on record can also be considered in such proceedings. By observing that the fresh proceedings if filed be decided on its own merits and in accordance with law expeditiously, the writ petition is allowed in aforesaid terms. Rule is made absolute with no order as to costs.