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2019 DIGILAW 1985 (BOM)

Diwakar Namdeo Chavan v. Pandurang Tukaram Mane

2019-08-26

A.S.CHANDURKAR

body2019
JUDGMENT : Rule. Heard finally in view of the short issue involved. 2. The orders passed under the provisions of Mamlatdar Court's Act, 1906 (for short, ‘the said Act’) are the subject matter of challenge in the present writ petition. 3. The petitioners are the owners of the field Gat No.257 while the respondent nos. 1 to 3 are the owners of Gat No.261. Initially the respondent nos. 1 to 3 had filed an application dated 19.02.2014 stating therein that the petitioners nos. 1 and 2 had obstructed the right of way to approach their respective fields. Thereafter on 02.06.2014 the respondent nos. 1 to 3 sought permission to amend the proceedings in view of the requirements of the said Act. This permission was granted on 23.06.2014 by the Naib Tahsildar. On that basis a fresh application came to be filed on 26.06.2014 . In the reply filed by the petitioners an objection was raised that the proceedings as filed were not in accordance with the provisions of the said Act and hence in absence of any affidavit in support of the application, it was not liable to be entertained. The Naib Tahsildar however despite noting that objection did not consider the same. The application as filed was allowed. The Revisional Authority has also failed to consider that aspect of the matter and dismissed the revision application. 4. Shri A.R.Deshpande, learned counsel for the petitioners submitted that in the reply filed before the Naib Tahsildar a specific objection was raised that the application moved by the respondent nos. 1 to 3 was not in accordance with the provisions of the said Act. There was no affidavit filed in support of the plaint. He submitted that in such a situation the Mamlatdar ought to have either rejected the plaint or ought to have called upon the respondent nos. 1 to 3 to rectify the said application. In support of his submissions, he placed reliance on the decision in Gaurakshan Sansthan, Murtizapur Vs. State of Maharashtra and others, 2019 (3) All M R 849. Even otherwise, it was submitted that the impugned order as passed was ignoring the factual material on record. He thus submitted that the impugned orders were liable to be set aside. Shri A.V.Palshikar, learned Assistant Government Pleader for the respondent nos. 4 and 5 has produced the records for inspection. 5. Even otherwise, it was submitted that the impugned order as passed was ignoring the factual material on record. He thus submitted that the impugned orders were liable to be set aside. Shri A.V.Palshikar, learned Assistant Government Pleader for the respondent nos. 4 and 5 has produced the records for inspection. 5. Shri S.A.Saoji, learned counsel for the respondent nos. 1 to 3 supported the impugned orders. According to him, the objections raised by the petitioners were merely technical in nature and the same did not warrant consideration. The spot inspection report indicated that the way in question was not being used for considerable period and as per the spot inspection report the way had been obstructed by putting various sticks and thorns. As a result of this obstruction, the respondent nos. 1 to 3 could not approach their fields. He therefore submitted that both the Authorities having considered all relevant material, there was no reason to interfere with the impugned orders. 6. I have perused the records of the case and I have given due consideration to the respective submissions. It can be seen that initially the respondent nos. 1 to 3 had filed an application dated 19.02.2014. The Mamlatdar granted permission to amend the said application. Even the amended application was not supported by any affidavit. In the reply filed by the petitioners an objection was specifically raised that the requirements of the said Act has not been met. The same has however not been considered by the Authorities. 7. In Gourakshan Sansthan (supra), it has been held that the provisions of Section 10 of the said Act read with other provisions indicate the mandatory nature of compliance which is required to be made under the provisions of said Act. It is only when the plaint is found to be satisfying the requirements can the Mamlatdar proceed with the adjudication on merits. In the present case, though leave to amend the proceedings was granted to the respondent nos. 1 to 3, the application was not supported by any affidavit. An objection was specifically raised by the petitioners in reply dated 16.10.2014. Despite that the requirements have not been satisfied. It is found that in view of the ratio of the aforesaid decision such compliance was required to be made. Failure to do so has vitiated the impugned order. 1 to 3, the application was not supported by any affidavit. An objection was specifically raised by the petitioners in reply dated 16.10.2014. Despite that the requirements have not been satisfied. It is found that in view of the ratio of the aforesaid decision such compliance was required to be made. Failure to do so has vitiated the impugned order. It is also noted that the order passed by the Sub-Divisional Officer was stayed by the same Authority on 15.07.2015 and this Court has continued that interim order. In view of the mandatory nature of requirements of the provisions of the said Act, the course as followed in the aforesaid decision deserves to be so followed. 8. Accordingly the order dated 07.01.2015 passed by the Mamlatdar and the order dated 29.02.2016 passed by the Deputy Collector are set aside. The respondent nos. 1 to 3 are at liberty to file a fresh application under Section 7 of the said Act on the same cause of action by complying with all necessary requirements. The report of the Talathi which is already placed on record can also be taken into consideration in such proceedings, if filed. The said proceedings be decided on their own merits and in accordance with law as expeditiously as possible and preferably within six months from the service of notice on the petitioners herein. Rule is made absolute in aforesaid terms. No costs.