1464.97wp

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.1464 OF 1997

BHASKAR TULSHIRAM BHANGALE and ANOTHER.

VERSUS

THE STATE OF MAHARASHTRA and ANOTHER

...

Ms R. S. Navandar, Advocate h/f Mr P. P. Chavan, Advocate for

petitioners;

Mr K. B. Jadhavar, A.G.P. for respondent No.1

CORAM : SMT. BHARATI DANGRE, J.

DATE : 13th January, 2022

PER COURT:

1.

Heard the learned counsel for the petitioners and the learned

AGP for the State.

2.

The proceedings arise out of a right of way, but it is not

clear whether they could be classified as the one initiated under

the Mamlatdars Courts Act, 1906 or under the provisions of

Maharashtra Land Revenue Code, since it is noted that respondent

No.2 – Tulshiram Raoji Dhande filed an application before the

Tahasildar by invoking Section 143 of the Maharashtra Land

Revenue Code, 1966, which provide for an enquiry into a claim

by a person holding the land, to a right of way over the

boundaries of other survey numbers. However, when the

application is perused, the contention of Tulshiram against the

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present petitioners is that the access road to his house has been

blocked and in fact the proceedings ought to have been instituted

under Section 5 of the Mamlatdars Courts Act. However, the

application came to be rejected and being aggrieved by the said

order, he approached the Additional Collector, now this time by

invoking Section 23 of the Mamlatdars Court Act. The appeal

came to be allowed by the Additional Collector on 12/02/1997,

under which the present petitioners have been directed to remove

the obstruction.

Thereafter, the present petitioners approached the

Additional Revenue Commissioner, and perusal of the application

reveal that it was in form of revision application filed under

Section 257 of Maharashtra Land Revenue Code, against the

order passed by the Additional Collector. This revision

application is rejected by the Additional Revenue Commissioner

on 06/03/1997, recording that this revision is filed under Section

23 of the Mamlatdars Court Act and no revision is maintainable.

All the concerned authorities have clearly missed out to the

conspectus of the dispute and randomly proceeded under the

provision of Mamlatdars Court Act and under the Maharashtra

Land Revenue Code. In fact the order passed by the Additional

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Commissioner, rejecting the revision filed against the order of the

Collector by the present petitioners, presuming it to be under

Section 23 of the Mamlatdars Court Act, is also an erroneous

order since the revision was filed under Section 257 of the

Maharashtra Land Revenue Code and rightly presented against

the order passed by the Collector, but the Commissioner has

passed an order by entertaining the appeal presuming that appeal

is filed under Section 23 of the Mamlatdars Court Act, whereas

the original proceedings are initiated under Section 143 of the

Maharashtra Land Revenue Code. This facts reveal that entire

proceedings are filed and entertained, without having due

reference to the provisions contained and focusing on the dispute

arising between the parties. However. this is not the stage when

the matter can be remanded back, since it can be seen that the

petitioner was directed to be removed obstructions by the

competent Court, long back in the year 1996, and it is presumed

that order has now been implemented. The change in

circumstance itself is a good ground for rejection of the petition.

Writ Petition is, therefore, dismissed.

(SMT. BHARATI DANGRE, J.)

sjk