2002 Supreme(Bom) 128

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Dabholkar N.V., J.
Union of India others.... Petitioners.
Versus
Maruti Madhav Kerulkar others.... Respondents.
Civil Revision Application No. 1327 of 2001, decided on 6-2-2002.
Advocates appeared :
P.G. Godhamgaonkar, for petitioners.
D.A. Gursahani holding for D.K. Kulkarni, for respondents Nos. 1 to 7.
J.N. Bargaje, for respondents Nos. 8 to 10.
S.R. Palnitkar, for respondent No. 11.

Headnote:Civil Procedure Code, 1908 - Order XXXIX, Rule 1 - Injunction against use of road - Road alleged to be public road - No evidence shown to prove said road as a public road - Certain pre-requisites under Section 20 of Land Revenue Code not fulfilled - Possession of road by State not proved - Trial Court was wrong in taking it as a public road - Plea of no alternate route found to be against records - Order set aside. - So far as balance of convenience is concerned, observing that there is no alternate route, the Courts have arrived at a conclusion that the same stands in favour of plaintiffs. In fact, when plaintiffs have failed to establish prima facie case of enforceable right, favourable finding on issue of balance of convenience is not sufficient to persuade the Court to pass an order in their favour. Map Exhibit A is provided by the Advocate of plaintiffs. The same, when compared with map Exhibit A in the paper book at page 20, it is evident that from villages Burhanagar, Bhingar and even properties of plaintiffs abutting the eastern boundary of property held by defence authorities, there are approach roads by which one can reach the junction of Ahmednagar-Aurangabad road and Manmad road. These roads are partly visible in the map provided by Counsel for plaintiffs and their terminal part is available at paper book page 20. There is a road starting from Gut No. 324 owned by plaintiffs going to the south and joining Bhingar road at the end of Gut No. 351. This Bhingar road, on crossing Ahmednagar- Aurangabad Road is named as "Manmad Road" in the map at page 20.

       On reference to report of the Court Commissioner that is filed before the trial Court, and especially the concluding part, it is evident that defendants and their Advocate informed the Court Commissioner that alternate route was available to the plaintiffs. Commissioner asked them to show the same and Commissioner has described this road in the last paragraph. However, the plaintiffs and their representative refused to accompany the Commissioner to see this road, saying that inspection of such a road was beyond the scope of Commission work. This conduct on the part of plaintiffs invites adverse inference against them, that they are conscious of existence of alternate route.

       In this context, the allegation levelled by defendants cannot be ignored. It is contended by the defendants that plaintiffs are desirous of bringing the properties under non-agricultural use and for its convenience a shortcut is being tried to be created over the land held by defence authorities. In the light of existence of alternate route, lower Courts could not have held the issue of balance of convenience to be in favour of plaintiffs.

       Mamlatdars Court Act, 1906 - Sections 5(1), (2) and 7 - Powers of Mamlatdar s Court - Injunction order - As on customs - Mamlatdar issuing certificate on such issues found to be ex facie illegal as it was beyond jurisdiction of Mamlatdar s Court - Mamlatdar cannot certify and declare rights of parties of customary ways - As regards Section 5(1) Mamlatdar has power to record reasons, refuse to interfere and to refer the matter to civil Court. - It is evident that Mamlatdar has powers to injunct a person, who has caused or attempted to cause any impediment in the use of roads or customary ways. On reference to title cause of Section 5 as also sub-section (3), which prescribes a limitation of six months to entertain such a suit, it can be seen that the Mamlatdar can exercise such powers while deciding a suit instituted for the purpose before his Court. The position is crystal clear, when Court refers to Section 7 of the said Act, which state that all the suits under this Act shall be commenced by a plaint, to be presented to the Mamlatdar in open Court by plaintiff. The certificate in question does not appear to be one issued after due enquiry on the basis of plaint presented to Mamlatdar by any of the parties. Moreover, Section 5(2) empowers the Mamlatdars to issue orders of injunction and not declarations regarding the customary rights. Thus, the action of Mamlatdar in issuing such a certificate is ex facie illegal and beyond the scope of his powers as conferred by relevant provision. In fact, on reference to Proviso to Section 5(1), it can be seen that Mamlatdar, instead of issuing injunction or directing removal of impediment and obstruction, has powers, for the reasons to be recorded by him, to refuse to interfere in the matter and leave the parties to approach the civil Court. There is nothing in this provision enabling the Mamlatdar to certify and thereby declare the rights of parties of customary routes/ways. The trial Court, therefore, committed material irregularity in relying upon a piece of evidence, which was ex facie illegal. Trial Judge has criticised the Collector because his order revoking sanction of EGS Scheme and cancelling/staying the certificate dated 30.6.1992 is not backed by order of Commissioner, as required by Section 20 of Maharashtra Land Revenue Code. On reference to Section 20, it is evident that orders, which are required to be backed by orders of Commissioner or State are those pertaining to disposal of any of the State properties referred in the said section. Such a support is not necessary while exercising revisional jurisdiction under Mamlatdar s Courts Act in the matters not regarding disposal of property. Collector is also criticised for not following procedure prescribed by Section 21 of Maharashtra Land Revenue Code. It must be said that by revoking order sanctioning construction of road under EGS Scheme, the Collector cannot be said to have taken action under Section 21 of extinguishing existing rights of "public road". Even while considering the certificate issued by Mamlatdar in revisional jurisdiction, the same cannot be said to be action of extinguishing rights of public over Government road, because prior to this certificate or sanction of road constructions under EGS Scheme (which according to Collector, was an error) there is nothing to indicate that said road is "Government road" dedicated to people.

       Maharashtra Land Revenue Code, 1966 - Section 20(1) - Declaration of road as public road - Defence staff sought to be restrained - Fundamental right of passage - Held - To prove such right plaintiffs must prove that road was in existence, it was already being used - And fulfils requirements of Section 20 - In absence of such proof this road cannot be held to be a public road - Mere passage of people is not sufficient - It should also be in full possession of state - Road is not held as public road. - In fact, when plaintiffs have failed to establish prima facie case of enforceable right, favourable finding on issue of balance of convenience is not sufficient to persuade the Court to pass an order in their favour. Map Exhibit-A is provided by the Advocate of plaintiffs. The same, when compared with map Exhibit-A in the paper book at page 20, it is evidence that from villages Burhanagar, Bhingar and even properties of plaintiffs abutting the eastern boundary of property held by defence authorities, there are approach roads by which one can reach the junction of Ahmednagar- Aurangabad Road and Manmad Road. These roads are partly visible in the map provided by plaintiffs and their terminal part is available at paper book page 20. There is a road starting from Gut No. 324 owned by plaintiffs going to the south and joining Bhingar Road at the end of Gut No. 351. This Bhingar Road, on crossing Ahmednagar-Aurandabad Road is named as "Manmad Road" in the map at page 20. On reference to report of the Court Commissioner that is filed before the trial Court, and especially the concluding part, it is evident that defendants and their Advocate informed the Court Commissioner that alternate route was available to the plaintiffs. Commissioner asked them to show the same and Commissioner has described this road in the last paragraph. However, the plaintiffs and their representative refused to accompany the Commissioner to see this road, saying that inspection of such a road was beyond the scope of Commissioner work. This conduct on the part of plaintiffs invites adverse inference against them, that they are conscious of existence of alternate route. In this context, the allegation levelled by defendants cannot be ignored. It is contended by the defendants that plaintiffs are desirous of brining the properties under non- agricultural use and for its convenience a shortcut is being tried to be created over the land held by defence authorities. In the light of existence of alternate route, lower Courts could not have held the issue of balance of convenience to be in favour of plaintiffs.