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2020 DIGILAW 1177 (BOM)

Sunil v. State Of Maharashtra

2020-10-14

MANISH PITALE

body2020
JUDGMENT Manish Pitale, J. - Heard. 2. Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the rival parties. 3. In this writ petition, the question that arises for consideration is, as to whether a fresh suit or proceeding would lie before the Mamlatdar under the provisions of the Mamlatdars" Courts Act, 1906 (hereinafter referred to as "Act of 1906") when an earlier suit/proceedings on the same cause of action has been rejected for non-compliance of specific requirements of the Act of 1906. 4. The facts giving rise to the present petition are that respondent Nos.4 and 5 in the present petition, filed an application on 19/05/2018 before the Tahsildar, exercising the powers of Mamlatdar under the provisions of the Act of 1906. In this application, it was claimed that the petitioner had blocked a way that was being used by the said respondents through the field of the petitioner to access their fields. This application was signed not only by the said respondents, but some other agriculturists also. 5. The respondent No.3-Tahsildar treated this application as a suit/proceeding under section 5 of the Act of 1906 and called upon the petitioner to respond to the said application/ suit. The petitioner filed his reply, inter alia, stating that the application/suit initiated by the said respondents and others did not divulge any cause of action in terms of the provisions of the Act of 1906 and that the proceedings deserved to be dismissed. On 19/06/2018 a spot inspection was undertaken by respondent No.3-Tahsildar and thereafter the matter was kept for further proceedings. 6. On 02/07/2018, respondent No.3-Tahsildar passed an order directing that the application submitted by respondent Nos.4 and 5 and others, was required to be placed on record in terms of the format expected under section 5 of the Act of 1906 and a direction was given that the parties may lead their evidence in the matter. Thereafter, on 18/07/2018 the application/suit was dismissed by respondent No.3-Tahsildar for the reason that respondent Nos.4 and 5 failed to comply with the direction given for placing on record the application/suit in the expected format. 7. Thereafter, on 24/07/2018 respondent Nos.4 and 5 filed a fresh application/suit under section 5 of the Act of 1906, again claiming that the petitioner had obstructed the way that they were allegedly using to access their fields. 7. Thereafter, on 24/07/2018 respondent Nos.4 and 5 filed a fresh application/suit under section 5 of the Act of 1906, again claiming that the petitioner had obstructed the way that they were allegedly using to access their fields. In this application a specific date i.e. 18/05/2018 was mentioned as the day on which such an obstruction had been created by the petitioner. In para-4 of the said application, respondent Nos.4 and 5 specifically mentioned that they had indeed filed an earlier proceeding before respondent No.3-Tahsildar, but the same was rejected on 18/07/2018, on the ground that direction to file proper application under format of section 5 of the Act of 1906, was not complied with. 8. On 19/09/2018, the petitioner filed an objection to the said fresh application filed by respondent Nos.4 and 5. In this objection/reply, the petitioner specifically stated that once the earlier application had been rejected on 18/07/2018, respondent Nos.4 and 5 could not have filed a fresh application under the provisions of the Act of 1906 for the same cause of action before respondent No.3-Tahsildar. Apart from this, the petitioner also responded on the merits of the matter. 9. Thereafter, respondent No.3 proceeded with the matter and on 17/10/2018 passed an order allowing the application of respondent Nos.4 and 5, thereby directing the petitioner to remove the obstruction and to make available the way claimed by the said respondents for access to their fields. There was no reference to the preliminary objection regarding maintainability of the second application, specifically raised on behalf of the petitioner. 10. Aggrieved by the aforesaid order of respondent No.3- Tahsildar, on 01/11/2018, the petitioner filed revision application before respondent No.2-Sub-Divisional Officer (S.D.O.) under section 23 of the Act of 1906. In this revision application, the petitioner raised specific ground of challenge with respect to maintainability of the second application filed by respondent Nos.4 and 5 on the very same cause of action, despite the fact that earlier application had been rejected. It was mentioned on behalf of the petitioner that the principle of res judicata applied in the facts of the present case. 11. On 13/12/2018, respondent No.2-S.D.O. granted stay to the order of respondent No.3-Tahsildar, during the pendency of the revision application filed by the petitioner. 12. Thereafter, on 18/11/2019 respondent No.2-S.D.O. dismissed the revision application filed by the petitioner. It was mentioned on behalf of the petitioner that the principle of res judicata applied in the facts of the present case. 11. On 13/12/2018, respondent No.2-S.D.O. granted stay to the order of respondent No.3-Tahsildar, during the pendency of the revision application filed by the petitioner. 12. Thereafter, on 18/11/2019 respondent No.2-S.D.O. dismissed the revision application filed by the petitioner. The said respondent No.2 confirmed the findings rendered by respondent No.3-Tahsildar on merits. On the question of maintainability of the second application filed by respondent Nos.4 and 5 under the provisions of the Act of 1906, respondent No.2-S.D.O. merely observed that the earlier application of the said respondents was rejected on technical grounds. Aggrieved by the said orders passed by respondent Nos.2 and 3, the petitioner filed the present writ petition before this Court. On 13/12/2019, this Court issued notice on the writ petition, recording the contention raised on behalf of the petitioner that earlier application filed by respondent Nos.4 and 5 under section 5 of the Act of 1906, having been rejected and no leave for filing fresh application being sought, the subsequent proceedings were without jurisdiction. Ad interim relief was granted in favour of the petitioner. 13. Upon notice being issued, the contesting respondent Nos.4 and 5 appeared through counsel and filed their reply. The respondent Nos.2 and 3 also filed their reply before this Court. 14. Mr.R.D.Bhuibhar, learned counsel appearing for the petitioner invited attention of this Court to the provisions of the Act of 1906 and by relying upon section 12 thereof, submitted that respondent No.3-Tahsildar acting as Mamlatdar in the present case had rejected the application/plaint of respondent Nos.4 and 5, as they had failed to comply with the requirements of the Act of 1906, particularly section 7 thereof. It was submitted that record indicated that when the earlier application was listed on 02/07/2018 before respondent No.3-Tahsildar, respondent Nos.4 and 5 were present and a clear direction was given by respondent No.3-Tahsildar that the application be filed as per expected format under section 5 of the Act of 1906. As respondent Nos.4 and 5 failed to comply with the said requirement, on 18/07/2018, the earlier application stood rejected. As respondent Nos.4 and 5 failed to comply with the said requirement, on 18/07/2018, the earlier application stood rejected. It was submitted that no proceedings either in the form of revision application under section 23 of the Act of 1906 or otherwise were taken by respondent Nos.4 and 5 in spite of the order dated 18/07/2018 rejecting the earlier application. 15. In the face of these admitted facts, according to the learned counsel for the petitioner, the subsequent application filed on 24/07/2018, also under section 5 of the Act of 1906, for the same alleged cause of action was clearly not maintainable. It was submitted that when a specific objection regarding maintainability of the subsequent application was raised in the objection/reply filed on behalf of the petitioner, respondent No.3-Tahsildar was expected to deal with the same. But, respondent No.3 failed to do so while passing the order dated 17/12/2018, erroneously allowing the application of respondent Nos.4 and 5. It was submitted that respondent No.2-S.D.O. merely referred to the contentions regarding maintainability raised by the petitioner and observed that the earlier application had been rejected on a technicality. The learned counsel for the petitioner submitted that respondent Nos.2 and 3 completely failed to appreciate the mandatory nature of section 12 of the Act of 1906 and the fact that the subsequent fresh application filed by respondent Nos.4 and 5 on the very same cause of action was clearly not maintainable. On this basis, it was submitted that the writ petition deserved to be allowed and the impugned orders deserved to be quashed and set aside. 16. On the other hand, Mrs. R. S. Sirpurkar, learned counsel appearing for respondent Nos.4 and 5 submitted that the contentions raised on behalf of the petitioner were hyper technical in nature, particularly in the backdrop of the fact that the Act of 1906 dealt with grievances of agriculturists, who were and are not expected to be aware of the niceties of law. Attention of this Court was invited to sections 8, 9, 10 and 11 of the Act of 1906, to contend that it was the duty of respondent No.3-Tahsildar to ensure that applications filed informally be treated as plaints and emphasis be placed on the merits of the grievance of the agriculturists. Attention of this Court was invited to sections 8, 9, 10 and 11 of the Act of 1906, to contend that it was the duty of respondent No.3-Tahsildar to ensure that applications filed informally be treated as plaints and emphasis be placed on the merits of the grievance of the agriculturists. It was submitted that procedural rigors of Civil Law were sought to be imported on behalf of the petitioner to non-suit respondent Nos.4 and 5, which ought not to be permitted. It was submitted that if the contentions raised on behalf of the petitioners were to be accepted, despite a good case on merits, respondent Nos.4 and 5 would stand to lose due to hyper technical and pedantic approach, as canvassed on behalf of the petitioner. 17. Mr.A.M.Kadukar, learned A.G.P. appeared on behalf of respondent Nos.1 to 3 and supported the impugned orders passed by respondent Nos.2 and 3. 18. As noted above, the question of maintainability of the subsequent application filed by respondent Nos.4 and 5 arises in the facts and circumstances of the present case. The admitted facts on record show that the first application filed on behalf of respondent Nos.4 and 5 was rejected on 18/07/2018, due to non-compliance of directions given by respondent No.3-Tahsildar to place the application in the expected format in terms of the provisions of the Act of 1906. The record of the said proceeding was called by this Court, which indicated that when the specific direction for complying with the format was given by respondent No.3-Tahsildar, respondent Nos.4 and 5 were present. Therefore, there cannot be any dispute about the fact that the first application filed by respondent Nos.4 and 5 stood rejected on 18/07/2018. This Court finds that there is no substance in the contention sought to be raised on behalf of respondent Nos.4 and 5 that there was no order of rejection, which could have been made subject matter of challenge in any proceeding under the Act of 1906 by the said respondents. 19. In fact, a perusal of the subsequent fresh application dated 24/07/2018 filed on behalf of respondent Nos.4 and 5 shows that in para-4thereof, the fact regarding rejection of the earlier application on 18/07/2018 on the ground of non-compliance of specific direction of respondent No.3-Tahsildar is mentioned. 19. In fact, a perusal of the subsequent fresh application dated 24/07/2018 filed on behalf of respondent Nos.4 and 5 shows that in para-4thereof, the fact regarding rejection of the earlier application on 18/07/2018 on the ground of non-compliance of specific direction of respondent No.3-Tahsildar is mentioned. It is also relevant that while in the first application filed on behalf of respondent Nos.4 and 5 and some other agriculturists, no specific date regarding accrual of cause of action was mentioned, in the subsequent fresh application the date of accrual of cause of action was mentioned as 18/05/2018. This has significance because section 3 of the Act of 1906, specifically provides that application or suit under the provisions of the Act of 1906, can be entertained by the Mamlatdar only if it is brought within six months from the date on which the cause of action arises. It appears that respondent Nos.4 and 5 filed the subsequent fresh application before respondent No.3-Tahsildar by stating in detail, not only about the date of accrual of cause of action for the first time, but about the other aspects also. 20. In this backdrop, the real question that arises is, whether such a subsequent fresh application/proceeding/suit could have been filed by respondent Nos.4 and 5 before respondent No.3-Tahsildar under section 5 of the Act of 1906, without taking any remedial action in respect of rejection of their earlier application for the same cause of action by order dated 18/07/2018. It is significant that the petitioner had raised specific objection regarding maintainability of the subsequent fresh application before respondent No.3-Tahsildar, but the said respondent did not even refer to the same, while allowing the subsequent application of respondent Nos.4 and 5. 21. As noted above, respondent No.2-S.D.O., while dismissing the revision application filed by the petitioner merely observed that the earlier application of respondent Nos.4 and 5 had been rejected on a technicality. A perusal of section 12 of the Act of 1906 shows that it pertains to rejection of plaint and it is mandatory in nature. Section 12(b) of the Act of 1906 requires the Mamlatdar to reject the plaint where the plaintiff is willing to make a statement or has made a statement on oath, but fails to furnish the particulars specified in section 7 of the Act of 1906. Section 12(b) of the Act of 1906 requires the Mamlatdar to reject the plaint where the plaintiff is willing to make a statement or has made a statement on oath, but fails to furnish the particulars specified in section 7 of the Act of 1906. Section 7 of the Act of 1906 pertains to contents of the application/plaint before the Mamlatdar. Although sections 8 to 11 of the Act of 1906 do indicate that even informal petition can be treated as plaint, but these provisions require the party approaching the Mamlatdar to comply with certain specific requirements so that informal petitions are treated as plaints after detailed particulars, expected under section 7 of the Act of 1906, are furnished. 22. In the present case, a perusal of the first application filed by respondent Nos.4 and 5 shows that it was indeed informal in nature and it did not provide the particulars expected under the required format. As noted above, this application did not even state the date when the cause of action arose so as to indicate that it was within the period of limitation of six months provided under section 3 of the Act of 1906. No doubt, such application/plaint filed on behalf of respondent Nos.4 and 5 and some other agriculturists could have been treated as a plaint under the provisions of the Act of 1906, if the requirements of section 7 and onwards of the Act of 1906 had been satisfied. The record shows that respondent No.3-Tahsildar specifically directed respondent Nos.4 and 5 in their presence on 02/07/2018 to comply with the requirements of format for the application to be treated as a plaint under section 5 of the Act of 1906. There is no dispute about the fact that the direction was not complied with and that on 18/07/2018, the application stood rejected due to non-compliance. The learned counsel appearing for the petitioner is justified in contending that the said order rejecting the application of respondent Nos.4 and 5 on 18/07/2018, is clearly referable to section 12 of the Act of 1906. 23. There may be some substance in the contention raised on behalf of respondent Nos.4 and 5 that sections 8 to 11 of the Act of 1906 indicate that since the Act of 1906 pertains to redressal of grievances of agriculturists, some lenient approach ought to be adopted. 23. There may be some substance in the contention raised on behalf of respondent Nos.4 and 5 that sections 8 to 11 of the Act of 1906 indicate that since the Act of 1906 pertains to redressal of grievances of agriculturists, some lenient approach ought to be adopted. But, this cannot lead to a conclusion that an order passed under section 12 of the Act of 1906, rejecting an application for non-compliance of the provisions of the Act of 1906 and a specific direction of the Mamlatdar/Tahsildar, can be ignored and a fresh application before the Mamlatdar/Tahsildar would be maintainable. Such an interpretation will render section 12 of the Act of 1906 meaningless and it would result in a situation where a party claiming to have a grievance under the provisions of the Act of 1906, would be at liberty to file repeated applications within the period of six months from the point in time when cause of action allegedly arose for such a party notwithstanding rejection of earlier similar applications. This Court is unable to accept such an interpretation. 24. In the face of order dated 18/07/2018, rejecting the application of respondent Nos.4 and 5, they were expected to take remedial action against the same, in accordance with law. But, they failed to do so. Instead, they filed a fresh application dated 24/07/2018, purportedly under section 5 of the Act of 1906 before respondent No.3-Tahsildar. The contents of para-4 of the said application clearly show that respondent Nos.4 and 5 were aware about order dated 18/07/2018, rejecting their earlier application and it was not as if they were ignorant about the same. This renders their case on a worst footing. As noted above, specific objection regarding maintainability of the subsequent fresh application was raised on behalf of the petitioner, but respondent Nos.2 and 3 failed to deal with and decide the same. The observation made by respondent No.2-S.D.O. that the earlier application was rejected on a technicality, thereby indicating that the subsequent fresh application was maintainable, is wholly unsustainable. 25. As noted above, specific objection regarding maintainability of the subsequent fresh application was raised on behalf of the petitioner, but respondent Nos.2 and 3 failed to deal with and decide the same. The observation made by respondent No.2-S.D.O. that the earlier application was rejected on a technicality, thereby indicating that the subsequent fresh application was maintainable, is wholly unsustainable. 25. As regards the grievance sought to be raised on behalf of respondent Nos.4 and 5 that they had a good case on merits and that they would be rendered remediless, is also unsustainable, because it has been held repeatedly by this Court that civil suit is not barred despite proceedings having been undertaken under the provisions of the Act of 1906. In the case of Rajendra s/o Sheshrao Shendge v. Shobhatai w/o Shrirao Ravate and another, (2007) 3 MhLJ 431 , this Court after perusing the provisions of the Act of 1906 specifically held that the Act of 1906 presupposes and recognizes existence and continuance of power and jurisdiction of the Civil Court. It was held in this judgment that there was no express bar to a suit by an aggrieved party. The said position of law was reiterated by this Court in it's judgment in the case of Mohommad Khan s/o Rahim Khan v. Shankar s/o Maroti Dhage and another, (2017) 3 MhLJ 135 , wherein it was held as follows :- "7. I have gone through the provision of section 5 of the Mamlatdars' Courts Act. The proviso below sub-section (1) of section 5 of the said Act empowers the Mamlatdar to refuse to exercise the power under the said provision if it appears to him that such a case can be more suitably dealt with by the Civil Court. Though there is a revision provided under section 23 of the said Act to challenge the order passed by the Mamlatdar under section 5, the Act nowhere attaches finality either to the order passed under section 5 by the Mamlatdar on merits or to the order passed in revision under section 23 of the said Act. In the absence of such finality being attached to the order passed under the Act, the jurisdiction of the Civil Court cannot be held to be impliedly barred merely because the Act provides a separate machinery for getting the grievance redressed. In the absence of such finality being attached to the order passed under the Act, the jurisdiction of the Civil Court cannot be held to be impliedly barred merely because the Act provides a separate machinery for getting the grievance redressed. The ouster of the plenary jurisdiction of Civil Court cannot be readily interfered and such jurisdiction remains intact and available to be exercised either against the order under section 5 or against the order of revision under section 23 of the said Act." 26. The said position of law was again reinforced by observations made by this Court in it's judgment in the case of Vasudev Pandharinath Raikar and others v. Manoj Mohan Dalvi and others, (2018) 4 MhLJ 927 . Thus, it becomes clear that respondent Nos.4 and 5 cannot be said to be rendered remediless for seeking redressal of their alleged grievance. 27. Apart from this, in the case of Sadashiv Mahadeo Kumbhar v. Balkrishna Bhikaji Walimbe and another, (2002) 4 BCR 346 , this Court had an occasion to consider the nature of power exercised by the Mamlatdar under the provisions of the Act of 1906. Although, the observations were made in the context of a proceeding under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, since enquiries under section 72 of the said Act were to be made by the Mamlatdar exercising same powers as the Mamlatdar under the Act of 1906, the observations made in the said judgment can also be said to be relevant. In para-5 of the said judgment, it has been observed as follows: "5. Provisions of section 72 of the Act provides that any of the enquiries and proceedings commenced on the presentation of the application under section 71, the Mamlatdar or Tribunal shall exercise the same powers as the Mamlatdar's Court under the Mamlatdars' Court Act, 1906 and shall follow the provisions of the said Act, as if the Mamlatdar or the Tribunal were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under section 7 of the said Act. Every decision of the Mamlatdar or the Tribunal shall be recorded in the form of an order which shall state reasons for such decision. The entire structure of Mamlatdars Court Act 1906 shows that, provisions of C.P.C. are to govern the procedures which are being conducted by Mamlatdars' Court. Every decision of the Mamlatdar or the Tribunal shall be recorded in the form of an order which shall state reasons for such decision. The entire structure of Mamlatdars Court Act 1906 shows that, provisions of C.P.C. are to govern the procedures which are being conducted by Mamlatdars' Court. A specific provision has been made by providing the proviso to section 16 by which the Mamlatdars Court is empowered to set aside the ex-parte judgment and order passed against the opponent if reasonable cause is shown. It is to be noted that every care has been taken to make provisions for equipping Mamlatdars' Court to deal with the applications or lis presented before it in the permissible nature which includes passing of judgment and order and reaching its final goal of implementation or execution. They are parallel to Civil Procedure Code. Therefore, by Rule of ejusdem generis, it will have to be held that Mamlatdars Courts are empowered to exercise the right of review of its order also if it is necessary to do so in the interest of justice." 28. Thus, it becomes clear that when the Mamlatdar as a Court under the provisions of the Act of 1906 could have exercised power of review, this could also be said to be remedy that respondent Nos.4 and 5 could have availed in the context of rejection of their first application on 18/07/2018. This is apart from the fact that the power to exercise revisional jurisdiction under section 23 of the Act of 1906 is also provided. As a consequence, it becomes clear that the contention that respondent Nos.4 and 5 will be rendered remediless if contentions of the petitioner were to be accepted, is without any basis and is accordingly rejected. 29. In view of the above, the writ petition is allowed and it is held that the subsequent application/plaint filed by respondent Nos.4 and 5 on 24/07/2018 before respondent No.3 in the face of rejection of their earlier application on 18/07/2018, was not maintainable and that respondent No.3 committed a grave error in entertaining the same. Consequently, the impugned order passed by respondent No.3-Tahsildar is held to be without jurisdiction and it is quashed and set aside. The order passed in appeal by respondent No.2 is also quashed and set aside. Consequently, the impugned order passed by respondent No.3-Tahsildar is held to be without jurisdiction and it is quashed and set aside. The order passed in appeal by respondent No.2 is also quashed and set aside. The respondent Nos.4 and 5 would be at liberty to seek redressal of their grievances in accordance with law. 30. Rule is made absolute in the above terms. No costs.