Mamlatdar proceedings for way of necessity invalid without notice for panchnama, independent Panchas' findings on site, specific obstruction date, and proof of prior obstructed way; orders quashed for procedural defects. (28 words)

JUDGMENT :

Ajit B. Kadethankar, J.

1. Rule. Rule made returnable forthwith.

2. Heard finally with consent of Mr. Vikram L. Bhange h/f Mr. K. D. Jadhav, Advocate for the petitioners, Mrs. B. B. Gunjal, learned AGP and Mr. U. A. Bhadgaonkar, Advocate for respondent nos.4 and 5.

3. The controversy is regarding the proceedings and orders passed by the respondent nos.2 and 3 under the provisions of Mamlatdar’s Courts Act, 1906 (hereinafter referred to as “the Act of 1906” for sake of brevity). Considering the nature of controversy in the Writ Petition, I have heard the parties for final disposal.

4. The facts in the case are not disputed by either parties. The petitioners are the owners and possessors of their respective lands situated in gut no.166 and 168 of village Adgaon Khurd, Post Pimpriraja Taluka and District Chhatrapati Sambhajinagar.

5. Respondent no.5 filed an application on 26.06.2018 before the respondent no.3 contending that she be given a Vahivat Rasta to access her land situated in gut no.166 as per Section 143 of the Maharashtra Land Revenue Code. She further submitted that the petitioner no.1 had obstructed her way, and therefore requested that by conducting a spot panchnama, a way be provided to enable her to access her field.

6. It appears that consequent to the application, the concerned Tahsildar arranged a spot panchnama. Accordingly, a panchnama was prepared on 24.12.2018. Pertinent to note that there is nothing to indicate that the notice of panchnama was given to the petitioner no.1.

7. On 04.08.2021, an application came to be filed by the respondent nos.4 to 7 that the petitioner no.1 Ramesh Kedare has sold his land to the petitioner no.2 Sanjay Thombre, who does not permit the applicants to pass through his field. As such, the respondent nos.4 to 7 filed an application seeking spot panchnama and order against the petitioners to give way to the applicants. It appears that pursuant to the application dated 04.08.2021 filed by the respondent nos.4 to 7, a spot panchnama was conducted on 24.12.2021. The petitioners contend that no notice of such panchnama was given to the petitioners. Thereafter, hearing was conducted by the Tahsildar, Chhatrapati Sambhajinagar under Section 5 of the Act of 1906 and vide order dated 30.12.2022, applications filed by the respondent nos.4 to 7 was allowed.

8. As against the order passed by the Tahsildar under Section 5(1)(2) of the Act of 1906, the petitioners preferred a Revision Application under Section 23(2) of the Act of 1906 before the Sub Divisional Officer, Chhatrapati Sambhajinagar. Vide order dated 15.01.2024, the Sub Divisional Officer, Chhatrapati Sambhajinagar rejected the Revision Application filed by the petitioners. As such, the petitioners are before this Court.

9. I have heard the learned Counsels for the respective parties extensively. Learned Counsel for the respondents has argued the matter through video conferencing. With able assistance of the learned Counsels for the parties, I have gone through the Writ Petition paper book. It is pertinent to note that both the authorities have predominantly placed reliance on the panchnama, and has then passed the impugned order. If panchnamas dated 24.12.2018 And 24.12.2021 seen meticulously, there is not a single word of the finding or the noting which is to be recorded by the Panchas in the panchnama. What is scribed in the panchnama is merely the contentions of the applicants i.e. respondent nos.4 to 7 respectively. What Tahsildar has done is also at par with what the panchnama says. The Tahsildar merely r