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2026:BHC-AUG:5397

corrected-CrWP1235-18.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1235 OF 2018

Datta Sundarrao Pawar ... Petitioner

Age Major, Occu: Advocate

R/o Kallam, District Osmanabad

VERSUS

1. The State of Maharashtra,

Through the Sub Divisional Magistrate,

Kallam, Dist. Osmanabad

2. Kallam Taluka Shetkari Kharedi Vikri Sangh, ... Respondents

Through its Manager

3. The Secretary,

Agricultural Produce Market Committee,

Kallam, Dist. Osmanabad

4. The Chief Officer,

Nagar Parishad, Kallam, Dist. Osmanabad

5. Taiyyab Sayyed Gaus,

Age Major, Occu: Business

R/o Kallam, Dist. Osmanabad

Mr. S. J.Salunke, Advocate for the Petitioner

Mr. S. S. Dande, APP for Respondent No.1-State

Mr. A. T. Jadhavar, Advocate for Respondent Nos. 2 and 3

Mr. Akhilesh Anarse h/for Mr. A.S. Barlota, Advocate for Respondent No.5

CORAM : Y. G. KHOBRAGADE, J.

DATE : 30.01.2026

ORAL JUDGMENT:-

1. Rule. Rule is made returnable forthwith and with consent of

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

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2. By the present petition filed under Article 226 of the

Constitution of India, read with Section 482 of the Code of Criminal

Procedure, the petitioner takes exception to the order dated 27.06.2018

passed by the Sub-Divisional Magistrate, Kallam, District Osmanabad,

under Section 133 of the Cr.P.C., whereby the application filed by the

petitioner seeking removal of obstruction to the shop’s way came to be

rejected.

3. Heard learned counsel for the respective parties. Having regard to

the submissions canvassed on behalf of both the parties, I have gone

through the record.

4. It is a matter of record that Respondent No.3 Agricultural Produce

Market Committee (APMC) is the owner of the land admeasuring 70 X

105 sq. ft. at Kallamb. The said land was allotted to the Respondent No.2

Kallam Taluka Shetkari Kharedi Vikri Sangh, for construction of a

commercial complex. The construction of said complex was carried out as

per the sanctioned plan. On 14.12.2017, the petitioner along with 17

other persons, submitted an application before the Sub-Divisional

Magistrate, Kallamb, District Osmanabad alleging that, after completion of

the construction in accordance with the approved plan, the shop’s in the

commercial complex/shopping centre were leased out to traders.

According to the petitioner, in the said shopping centre there is passage

towards east–west between Shop Nos. 4 and 5, for access to the owners of

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Shop Nos. 9 to 25. the staircase was constructed to provide access to Shop

Nos. 26 to 33 situated on the first floor. However, on 08.12.2017, some

unknown persons, with mala fide intention, obstructed the said passage by

placing an iron box with a shutter in the way, abutting the steps of Shop

Nos. 4 and 5. Therefore, a prayer was made for removal of the said iron

shutter and for keeping the said public way open.

5. Accordingly, the Sub-Divisional Magistrate issued notices to the

concerned parties. After the respective parties filed their written

submissions, the learned Sub-Divisional Magistrate, on 27.06.2018, passed

the impugned order and rejected the application holding that, Shop No.

17 was allotted to the present Respondent No.5 and possession was given

to him by Respondent No.3 APMC. However, on 22.07.2017, Respondent

No.3 APMC submitted an application to Respondent No.4 seeking

permission for removal of the staircase and to construction a shop block.

Accordingly, on 19.08.2017, Respondent No.4 declined to grant such

permission, but Respondent No.3 illegally constructed shop block after

removing staircase. Therefore, shop was allegedly constructed by

encroaching upon a portion of the shopping complex, and removal of

said obstruction it does not fall within the ambit of Section 133 of the

Cr.P.C.

6. The learned counsel appearing for the petitioner canvassed that the

Sub-Divisional Magistrate, Kallamb, failed to appreciate the fact that

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c