963-Judg-WP-2780-2022.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.2780 OF 2022

1.

Karbhari Raibhan Thete

]

Age : 65 Years, Occu. : Agricultural,

]

R/o Jehur, Tq. Kannad,

]

Dist. Aurangabad.

]

2.

Dnyaneshwar Karbhari Thete

]

Age : 40 Years, Occu. : Agricultural,

]

R/o Jehur, Tq. Kanand

]

Dist. Aurangabad

]

3.

Balu Karbhari Thete

]

Age 45 Years, Occu. : Agricultural,

]

R/o Jehur, Tq. Kanand,

]

Dist. Aurangabad

]

4.

Gorak Yadav Kusher

]

Age : 45 Years, Occu. : Agricultural,

]

R/o Jehur, Tq. Kanand,

]

Dist. Aurangabad.

]

… Petitioner

Versus

1.

The Additional Collector,

]

Aurangabad.

]

2.

The Tahasildar Kanand,

]

Dist. Aurangabad.

]

3.

Chandrakalabai Sarangdhar Pawar,

]

Age : 50 Years, Occu. : Housewife,

]

R/o Jehur, Tq. Kanand,

]

Dist. Aurangabad.

] … Respondents.

. . .

Mr. Kachru A. Ingle, Advocate for Petitioners.

Mr. K. B. Jadhavar, AGP for Respondent Nos.1 and 2-State.

. . .

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CORAM : MANGESH S. PATIL, J.

RESERVED ON : 07 JUNE 2022.

PRONOUNCED ON : 24 JUNE 2022.

JUDGMENT :

.

Heard.

2.

Rule. Rule is made returnable forthwith. At the joint request of

the parties, the matter is heard finally at the stage of admission.

3.

The petitioners are challenging the judgment and order passed by

the learned Sub Divisional Officer, dismissing their revision preferred under

section 23(2) of the Mamlatdars’ Courts Act, 1906 (for short, “the Act”),

whereby the learned Sub Divisional Magistrate confirmed the order passed by

the Mamlatdar under section 5(2) of that Act in a suit instituted by the

respondent no.3, holding that there has been a customary way along with

common boundary of the petitioners’ land gut nos.43 and 44 to have access to

her land in gut no. 45 of village Chinchwad, Tq. Kannad, Dist. Aurangabad.

4.

Learned advocate for the petitioners would submit that both the

authorities have rendered the decisions overlooking the scheme of the Act. The

scheme contemplates that it should take the shape of a suit before a civil court,

by lodging a plaint. There are elaborate provisions regarding contents of the

plaint, statement on verification, examination of the plaintiff on oath, powers

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for rejection of the plaint, return of plaint, attendance of witnesses, passing of

the orders ex parte, setting aside of the orders passed ex parte on sufficient

cause being shown, withdrawal of the suit, adjournments, power to add

parties, procedure to be followed in case of death of a party, points to be

decided by the Mamlatdar, finality to the orders passed by the Mamlatdar and

the Collectors power to call for and examine the record of the suit. If such is

the scheme of the Act, the authorities below ought to have followed the

procedure as prescribed therein. They have simply called for the written

statement, conducted the punchnama and took the decision after hearing both

the sides. In the absence of such procedure having been followed neither of

the orders is sustainable in law.

5.

The learned AGP supports the orders.

6.

The respondent no.3 has been served with a notice for final

disposal, but has not turned up.

7.

Time and again, this court has reflected on the scheme of the Act.

Without indulging into the history the precedents, suffice for the purpose to

observe that when an authority is empowered to exercise quasi judicial

function, to be exercised in the manner provided by the statute, it is

imperative for it to exercise that power strictly in accordance with law. This is

precisely where the authorities below seem to have ignored the basic tenets of

law.

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8.

The power conferred upon on a Mamlatdar under the Act

elaborately proceeds to lay down the procedure to be followed by him as has

been submitted by the learned advocate for the petitioners. He has to

undertake the inquiry into the alleged obstruction under section 5(2) of the

Act, as if it is