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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AURANGABAD BENCH
V. S. Choudhari, J.
Subhash & Ors. - Appellants
Versus
Suresh & Ors. - Respondents
Writ Petition No. 2974 of 2014
Decided On : 31-01-2022
Section 143 - Maharashtra Land Revenue Code, 1966 - The court considered the provisions of Section 143 of the MLR Code, which grants the Tahsildar the power to inquire into and decide claims to a right of way over the boundaries of survey numbers, taking into consideration the needs of cultivators for reasonable access to their fields. The court emphasized that the Tahsildar's decision should be based on the needs of the petitioners for reasonable access to their fields, and in this case, the Tahsildar was justified in granting the right of way to the petitioners from the common boundary of the respondent's gut numbers.
Fact of the Case:
The petitioners sought removal of obstruction to a cart way passing from the boundary of the respondents' lands. The Tahsildar initially rejected the application, but after subsequent inquiries and appeals, granted the petitioners a cart way. The respondents challenged these orders, leading to the present petition.
Finding of the Court:
The court found that the Tahsildar's decision to grant the right of way to the petitioners was justified, as it was based on the needs of the petitioners for reasonable access to their fields. The additional Collector and the additional Commissioner failed to consider the inconvenience and longer distance the petitioners would have to cover using the alternate road, and thus their orders were quashed and set aside.
Issues: The main issue was whether the petitioners were entitled to a cart way for reasonable access to their fields, and whether the decisions of the additional Collector and the additional Commissioner were justified.
Ratio Decidendi: The court held that the Tahsildar's decision to grant the right of way to the petitioners was justified, as it was based on the needs of the petitioners for reasonable access to their fields. The additional Collector and the additional Commissioner failed to consider the inconvenience and longer distance the petitioners would have to cover using the alternate road, and thus their orders were quashed and set aside.
Final Decision: The writ petition was allowed, and the impugned orders were quashed and set aside.
Key Points: - The Tahsildar may inquire into and decide claims to a right of way over boundaries of survey numbers, considering the needs of cultivators for reasonable access to their fields. (!) (!) - The Tahsildar’s decision under Section 143 should be based on the needs of the petitioners for reasonable access and consider inconvenience and longer distances of alternate routes. (!) [4000679760012] - If a Tahsildar awards a right of way, higher authorities’ orders (Additional Collector/Additional Commissioner) may be quashed if they fail to consider the petitioners’ access needs and the impracticality of alternate routes. [4000679760012][4000679760013][4000679760015] - Preference may be given to a cart way from the common boundary when alternate routes are longer or inconvenient for the petitioners. [4000679760012] - The petitioners’ writ petition was allowed, and the impugned orders were quashed and set aside. [4000679760015]
JUDGMENT
Nitin B. Suryawanshi, J. - RULE. Rule made returnable forthwith. Heard finally with the consent of the learned advocates for the respective parties.
2. This petition challenges the order dated 16/02/2006 passed by the additional Collector, Latur in appeal No.2005/ROR/a-137, and the judgment and order dated 17/11/2012 passed by the additional Commissioner, aurangabad Division, aurangabad in Revision No.198/2006.
3. The petitioners are the owners of land gut Nos.58, 59, 60 & 61 and respondent Nos.1 & 2 are the owners of land Gut Nos.54, 55, 56 & 57 of village Bhoisamudraga Taluka & District Latur. On 30/10/1995, the petitioners filed an application before the Tahsildar, Latur under Section 143 of the Maharashtra Land Revenue Code, 1966 (for short 'the MLR Code') contending that, for approaching the lands of the petitioners, there is a cart way, which passes from the boundary of lands of the respondents. The same is obstructed by the respondents. The petitioners, therefore, sought removal of obstruction.
4. Pursuant to the application of the petitioners, the Tahsildar visited spot and has drawn a panchnama on 17/09/2000. The Tahsildar rejected the application holding that, there is a pathway from the respondent's gut numbers. The gut numbers belong to the
respondents and people have only easementary way to use the pathway.
5. Being aggrieved by the said order of Tahsildar, the petitioners filed an appeal before the Sub-Divisional Officer, Latur. The appeal was allowed on the ground that as per panchanama dated 12/09/2002, the petitioners are accessing their lands from government gairan land and the panchnama dated 22/04/2003 does not bear the signature of the petitioners. Hence, the Sub-Divisional Officer, Latur remanded the matter back to the Tahsildar, Latur for fresh inquiry.
6. after the remand, again site inspection was carried out on 24/08/2004 in presence of the petitioners and respondents. The Tahsildar considered a village map of Bhiosamudraga. at the time of panchanama, the respondents have contended that, the petitioners should use the road from northern boundary towards west from Bhoisamudraga - Tandulwadi Shiv or akkarwadi Bhoisamudra Shiv. The Tahsildar, after considering the rival contentions and the records came to the conclusion that for approaching gut No.61 of the petitioners, the road available is a longer way, which passes from Bhiosamudraga village till akkarwadi Shiv and from akkarwadi - Shiv, the road is upto southern boundary of gut No.60. The Tahsildar, after considering both the alternate ways, has come to a conclusion that, both the roads are of a longer distance and inconvenient. Therefore, there is substance in the prayer of the petitioners that they should be given a cart way from the common boundary of gut Nos.55-56, 54 & 56 to access their gut Nos.58, 59, 60 & 61. Hence, Tahsildar allowed the application filed by the petitioners by order dated 29/8/2005.
7. The respondents unsuccessfully challenged the order of Tahsildar by filing proceedings No.2005/ROR/a-72 before the Sub-Divisional Officer, Latur. The respondents, thereafter, challenged both the orders of Tahsildar and Sub-Divisional Officer by filing proceedings No. 2005/ROR/a-137 before the additional Collector, Latur. The additional Collector allowed the appeal by order dated 16/02/2006. The petitioners challenged the order of the additional Collector by filing revision No.ROR/Rev/198/2006 before the additional Commissioner, aurangabad, who dismissed the revision. The petitioners are aggrieved by the orders passed by the additional Collector, Latur and the additional Commissioner, aurangabad.
8. Heard the learned advocate for the petitioners and the learned advocate for the respondents.
9. The learned advocate for the petitioners assailed the impugned orders contending that, the road, which is taken into consideration by the additional Collector, the petitioners have to cross a distance of 10 kilometers, whereas the road claimed by the petiti
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