Back
2016 Supreme(Bom) 1806
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
R.K. DESHPANDE, J.
Indrawati Rajndraprasad Gupta and Ors. – Petitioners
Versus
State of Maharashtra, through Ministry of Revenue and Forests and Ors. – Respondents
WRIT PETITION NO. 4227 OF 2016
Decided On : 22-12-2016
For the Petitioner: Shri. Yash Maheshwari
For the Respondent: Ms. Hemlata Jaipurkar, Shri. A.V. Bhide
The main legal point established in the judgment is the interpretation of the jurisdictional provisions under Section 23(2) of the Mamlatdar Courts' Act and the factual findings regarding the existence of a Government road.
Headnote:
Jurisdiction - Revisional Jurisdiction - Government Road - Summary: The court addressed the jurisdiction of the Sub Divisional Officer to entertain, try, and decide the revision under Section 23(2) of the Mamlatdar Courts' Act. The court also considered the existence of a Government road flowing from one field to another and the findings of fact recorded by the Tahsildar and the Deputy Collector. The decision was based on the interpretation of the jurisdictional provisions and the factual findings regarding the Government road.
Fact of the Case:
The petitioners sought the removal of obstruction/opening of a Government road flowing from their land to the land of the respondent. The Tahsildar rejected the application, but the Sub Divisional Officer set aside the Tahsildar's order, directing the petitioners to remove the obstruction.
Finding of the Court:
The court dismissed the writ petition, stating that the Sub Divisional Officer had jurisdiction to decide the revision and that there was no need to remand the matter for rehearing. The court also refused to continue the interim order passed by the court on an earlier occasion.
Issues: Jurisdiction of the Sub Divisional Officer, findings of fact regarding the Government road, and continuation of the interim order.
Ratio Decidendi: The court held that the Sub Divisional Officer had jurisdiction to decide the revision and that there was no need to remand the matter for rehearing. The court also found no reason to continue the interim order.
Final Decision: The writ petition was dismissed, and the court directed the parties to ensure the implementation of the Sub Divisional Officer's order.
1. Rule made returnable forthwith.
Heard the matter finally by consent of the learned counsels appearing for the parties.
2. The petitioners are the owners of land Survey No. 624, whereas respondent No.7 is the owner of land Survey No. 623. It is not in dispute that respondent No.7 has started a school in land Survey No. 623 and the claim before the Tahsildar was in respect of removal of obstruction/opening of Government road flowing from North to South from Survey No. 624 belonging to the petitioners. The Tahsildar rejected this application under Section 5 of the Mamlatdar Courts' Act by an order dated 10.06.2015, whereas in revision under Section 23(2) of the Mamlatdar Coruts' Act, the Sub Divisional Officer, Khamgaon has set aside the order of Tahsildar on 20.06.2016, directing the petitioners to remove the obstruction created in the Government road flowing from his field Survey No. 624. Hence, this writ petition by the original non-applicants.
3. The fact that there existed a Government road flowing from North to South from the field Survey No. 624 is not in dispute and this is also the finding recorded by the Tahsildar, who rejected the application. The Tahsildar in his order further observed that such road stops at the end of Survey No. 624 on the southern side and there is nothing to connect this road to Survey No. 623 belonging to respondent No.7. The finding is based upon the spot inspection conducted on 10.06.2015 by the Naib Tahsildar himself, who passed the order. The Sub Divisional Officer in exercise of his revisional jurisdiction records a finding that the Government road joins field Survey No. 623 belonging to respondent No.7.
4. Shri Maheshwari, the learned counsel appearing for the petitioners submits that the Sub Divisional Officer has no jurisdiction to entertain, try and decide the revision under Section 23(2) (a) of the Mamlatdar Courts' Act and the powers can only be exercised by the Assistant Collector, Deputy Collector or Assistant Commissioner. The reliance is placed upon the decision of this Court in the case of Bija Maroti Hatwar vrs. Kisan Chirkut Padole and another, reported in 2015(1) Mh.L.J. 282. Relying upon this decision, it is urged that in the revisional jurisdiction, the findings of fact recorded by the Tahsildar cannot be set aside.
5. Inviting my attention to the order-sheet in the proceedings before the Sub Divisional Officer, it is urged that the matter was heard on 08.03.2016 on the application for dismissal of the revision, but the revision itself has been finally decided on 20.06.2016 and hence, the matter is required to be remanded back for hearing afresh. He has further invited my attention to the communication issued by the Collector and the Police Report to urge that the Sub Divisional Officer has exercised its jurisdiction under the pressure exerted by the Collector and the Sub Divisional Police Officer.
6. Shri Maheshwari concedes to the position that in the decision rendered by this Court in case of Bija Maroti Hatwar vrs. Kisan Chirkut Padole and another, cited supra, section 2 of subsection 34 of the Maharashtra Land Revenue Code was not brought to the notice of this Court while holding that the Sub Divisional Officer has no jurisdiction to entertain, try and decide the revision application. Apart from this, the order impugned in this petition has been passed by the Deputy Collector, Khamgaon. In view of this, such point urged, no longer subsists.
7. So far as the question of pressure being exerted by the Collector and the Sub Divisional Police Officer is concerned, the only thing which has been brought to the notice of the Sub Divisional Officer is that there exist the Government road, which is also the finding recorded by the Tahsildar. Hence, such communication hardly makes any difference. So far as the question of findings of fact is concerned, once the fact is admitted that there existed a Government road and the inspection having been conducted after creating obstru
