Tahsildar exceeds jurisdiction under Section 5 of Mamlatdar’s Courts Act by issuing directions affecting third party's property rights without notice or hearing in right of way obstruction proceedings.

JUDGMENT :

AJIT B. KADETHANKAR, J.

1. Rule. Rule made returnable forthwith.

2. Heard finally by consent of Ms. M. S. Dalve, learned Counsel for the petitioners, Mrs. B. B. Gunjal, learned AGP for the respondents-State, Ms. P. C. Kale, learned Counsel for the respondent no.4 and Mr. Y. H. Lagad, learned Counsel for respondent nos.5 to 11.

3. Rasta Case no.54 of 2020 was instituted by the present respondent no.4 against the present petitioners before the Tahsildar, Parner under Section 5 of the Mamlatdar’s Courts Act, 1906. It was the contention of the respondent no.4 that he owes an agricultural land in gut no.1327 located at Loni Mavla Tq. Parner, District Ahmednagar. He submits that the petitioner nos.1 to 4 have caused obstruction to his Vahivat rasta, and hence he was constrained to file application. Pursuant to the application, the Tahsildar arranged Panchnama, and visited the spot for inspection. The panchnama was conducted on 16.01.2023. In the panchnama, it is observed thus:

4. After hearing the parties, the Tahsildar concluded the hearing and dismissed the application filed by the respondent no.4. However, while dismissing the application, the Tahsildar issued additional unwarranted directions at clause nos.2 and 3, which reads as follows:

5. These unwarranted observations and directions constrained the present respondent no.11 to file Revision Application no.362 of 2023 before the Sub Divisional Commissioner, Srigonda. It was the contention of the Revisional petitioner that clause nos.2 and 3 of the order dated 29.03.2023 passed by the Tahsildar has caused serious prejudice to the rights of the revisional petitioner. It is his contention that he is the owner and possessors of gut no.1234. He further contended that particularly clause no.2 has in fact allowed respondent no.4 to use the property owned by the revisional petitioner. He further submitted that he was never made party to the main Rasta Case nor he was made party to the panchnama. As such, he sought dismissal of the order passed by the Tahsildar dated 29.03.2023.

6. Notices were issued by the Sub Divisional Officer to all the concerned parties who are also parties to the present Writ Petition. After hearing all the parties, the Sub Divisional Officer concluded that clause no.2 of the order dated 29.03.2023 passed by the Tahsildar has indeed caused serious prejudice to the revisional petitioner. It is further observed that the Tahsildar was not authorized to issue such directions. It is further observed that the Tahsildar has exceeded his jurisdiction under the Mamlatdar’s Courts Act. As such, the revision petition came to be allowed.

7. As against that, the present petitioners against whom the original application under Section 5 was filed by the respondent no.4 are before this Court in the present Writ Petition.

8. I have heard respective learned Counsels for the parties. The record shows that the application under Section 5 was filed by the respondent no.4 against the present petitioners. The Tahsildar has held that the applicants failed to make out a case under Section 5 of the Act of 1906. The Tahsildar also referred to the panchnama. However, while dismissing the application of respondent no.4, the directions at clause nos.2 and 3 as observed supra are issued by the Tahsildar. The record speaks that the directions/liberty was given to the original applicants to use the land gut no.1234 owned by the respondent no.11/the revisional petitioner. It is a matter of fact that the revisional petitioner was not given any opportunity of hearing or notice during the proceedings conducted by the Tahsildar.

9. In view of this, I find that there is no infirmity recorded by the Sub Divisional Officer, Sri