Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Online)(Bom) 5707

HIGH COURT OF BOMBAY
Rohit W. Joshi, J
Vimal W/o. Bhausaheb Nabde – Appellant
Versus
The Sub Divisional Officer, Ahmednagar – Respondent
Writ Petition No. 5074 of 2022 | Writ Petition No. 5155 of 2022 | Writ Petition No. 5623 of 2022 | Writ Petition No. 6895 of 2022 | Writ Petition No. 7499 of 2022 | Writ Petition No. 7526 of 2022 | Writ Petition No. 8819 of 2022 | Writ Petition No. 8920 of 2022 | Writ Petition No. 3270 of 2022 | Writ Petition No. 11246 of 2022 | Writ Petition No. 3623 of 2024

Advocates:
For the Appellants/Petitioners: Mr.D.A. Mane, Mr.V.B. Jagtap, Mr.K.F. Shingare, Mr.P.M. Borde h/f Mr.Shailesh S. Chapalgaonkar, Mr.A.M. Hajare, Mr.Swapnil S. Patunkar for J.P. Legal Associates, Mr.Sanket S. Kulkarni h/f Mr. D.B. Pookale, Mr.M.V. Salunke
For the Respondents: Mr.N.D. Raje, Mr.S.V. Jadhawar, Mr.R.D. Raut, Mr.V.S. Badakh, Mr.N.D. Sonavane, Mr.A.D. Sonkawade, Dr. Kalpnata Patil Bharaswadkar, Mr.R.D. Raut, Mr.R.V. Gore

Civil courts can challenge and adjudicate orders made under the Mamlatdars' Courts Act, despite alternate remedies available.

Headnote:Statutory provisions under the Mamlatdars' Courts Act, 1906, particularly Section 5(2) and Section 23(2), guide the jurisdiction and powers of Mamlatdar concerning the removal of obstructions on roads. The petitioners contested orders against them directed by the Mamlatdar, claiming procedural flaws and jurisdictional excess. The Court’s findings determined that orders under the Act are subject to subsequent civil court adjudication for finality. The decisions emphasized the necessity of civil remedies where statutory procedures were inadequately followed. The issue of jurisdiction of civil courts to override orders made under the Act was clearly affirmed. Notably, the petitions were dismissed, indicating the alternative remedy available. The petitioners were granted liberty to file substantive civil suits, and time spent in these petitions was excluded for limitation.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

The orders passed under the Mamlatdars’ Courts Act, 1906, particularly those under Section 5(2), are not final and can be challenged and adjudicated by civil courts. The proceedings before the Mamlatdar are summary in nature, and the jurisdiction of civil courts remains intact unless explicitly barred (!) (!) .
Civil courts have the authority to examine the correctness and legality of orders issued under the Act, and such orders are subject to review in civil proceedings. The orders are not immune from challenge, especially if procedural requirements are not followed or if principles of natural justice are violated (!) (!) .
The Act does not provide for finality or exclusive jurisdiction to the Mamlatdar or the Collector, and the scheme of the Act indicates that civil rights and disputes can be independently adjudicated in civil courts. The civil courts can decide disputes on merits, and their decisions can override orders passed under the Act (!) (!) .
The availability of an alternative civil remedy, such as filing a civil suit, is an important consideration. The courts have held that filing a civil suit is a more comprehensive and effective remedy for resolving disputes related to land, easements, and obstructions, and that such remedies should be pursued before approaching the High Court under Articles 226 or 227 (!) (!) .
Challenges based on procedural lapses, jurisdictional excess, or violations of principles of natural justice can be raised in civil suits. Issues related to disputed facts are better suited for determination in civil courts, which have the power to lead evidence and decide factual questions conclusively (!) (!) .
Even if finality is attached to orders under the Act, such orders can be tested in civil courts if there has been non-compliance with procedural requirements, violations of natural justice, or ultra vires acts. The doctrine that statutory orders are immune from challenge is not absolute and does not exclude civil court jurisdiction in such cases (!) (!) .
The law recognizes that civil courts can independently examine the merits of a dispute, including the correctness of orders passed by authorities under the Act, and can grant declaratory relief or issue injunctions to address emergent or urgent situations (!) (!) .
The jurisdiction of the civil court is not barred by the provisions of the Act, and the doctrine of finality does not apply where procedural irregularities, violations of principles of natural justice, or jurisdictional errors are involved. The civil court's power to decide the correctness of orders passed under the Act remains preserved (!) (!) .
The courts have emphasized that the remedy of civil suit is not only efficacious but also essential for a fair and comprehensive resolution of land disputes and rights related to easements. The civil courts' jurisdiction includes deciding the substantive rights and the correctness of orders passed by authorities under the Act (!) (!) .
The courts have dismissed the petitions challenging orders under the Mamlatdars’ Courts Act, directing petitioners to pursue civil remedies. The period spent in litigating the petitions is to be excluded from the limitation period for filing civil suits (!) .

In summary, the legal position as per the document affirms that orders under the Mamlatdars’ Courts Act are subject to civil court review, and civil remedies are available and preferable for challenging procedural flaws, jurisdictional issues, or factual disputes. The courts advocate for the use of civil suits as a more comprehensive and effective means of resolution, while also recognizing the jurisdiction of the High Court under constitutional provisions.

CORAM : ROHIT W. JOSHI, J.

RESERVED ON : 9^th JULY, 2025 PRONOUNCED ON: 4^th AUGUST, 2025 JUDGMENT :

. All these petitions arise out of proceedings under the Mamlatdars' Courts Act , 1906 (hereinafter referred to as "the Act"). The controversy in all these cases pertains to orders passed under Section 5 (2) of the Act whereby the learned Mamlatdar has passed the order directing the petitioners to remove obstruction on road claimed by the respondents/original plaintiffs. The petitioners in all these petitions are original defendants in proceedings filed under Section 5 of the Act. In all these cases, the learned Mamlatdar had passed order against the petitioners directing removal of obstruction. The petitioners filed revision applications challenging the respective orders passed against them under Section 23 (2) of the Act. The revision applications are also rejected. The petitioners have approached this Court challenging the orders passed by the Mamlatdar, which in turn, have been confirmed by the revisional authority. The contentions raised by the petitioners are that the provisions of the Act relating to filing and verification of plaint are not followed; the suits are filed beyond limitation; by the impugned orders a new road is created, which is beyond the scope of jurisdiction of the Mamlatdar exercising jurisdiction under the Act; the spot panchanamas on the basis of which the impugned orders are passed are not drawn in accordance with the prescribed procedure and that alternate road is available.

2. In all these matters, the respondents have raised a preliminary objection to maintainability of the petitions on the ground of alternate remedy of filing civil suit. Respondents contend that orders impugned in the present petitions can be assailed by way of civil suit and further that the petitioners can approach the competent civil court to get the rights finally adjudicated and that the orders passed under the Act which are impugned in the present petitions will not come in the way to claim adjudication of the controversy on merits before the civil court once and for all.

3. The submission is elaborated stating that the orders passed under the Act are subject to order/decree to be passed by a civil court. It is argued that the Act does not accord finality to orders passed by Mamlatdar under Section 5 as also to revisional orders passed by the Collector under Section 23 (2) and therefore, the said orders can always be assailed in civil suit. They contend that Section 22 of the Act clearly provides that person in whose favour order under the Act is passed is entitled to derive benefits of the same only until there is decree or order to the contrary by the competent civil court. They, therefore, state that the petitions should not be entertained in view of the alternate remedy. The learned Advocates have placed reliance on the following judgments :-

(i) Rajendra s/o Sheshrao Shendge Vs. Shobhatai w/o Shrirao Ravate and another reported in AIR 2007 Bom. 90, (ii) Mohommad Khan S/o Rahim Khan Vs. Shankar Maroti Dhage and another reported in 2017(3) Mh.L.J. 135, (iii) Digambar and others Vs. Vasant and others reported in

2022(2) Bom. C.R. 154 (iv) Judgment dated 03.07.2025 in the matter of Alka w/o Pandit Ghongade and others passed in Writ Petition No.444/2024 passed at Aurangabad Bench of this Court.

4. Per contra, the learned advocates for the petitioners contend that the orders passed by the authorities under the Act cannot be challenged by filing a civil suit. They contend that Section 23 (1) of the Act bars an appeal from the order passed by the Mamlatdar under the Act. Section 23 (2) of the Act provides that the order passed by the Mamlatdar shall be subject to a revisional jurisdiction of the Collector. The contention of the learned advocates is that the Act is a complete code by itself, and therefore, jurisdiction of the civil court to entertain challenge to order passed by Mamlatdar or order passed in revision by the Collec

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