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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

908 WRIT PETITION NO.3923 OF 2021

SHRIRAM ABHIMAN NAFADE AND OTHERS

VERSUS

THE STATE OF MAHARASHTRA AND OTHERS

...

Advocate for Petitioners : Mr. Mahesh Bhosale h/f Adv.

Mr. A. M. Salok

AGP for Respondent nos. 1 to 4: Mr. Kiran B. Jadhavar

Advocate for Respondent nos.1 to 4 : Mr. Dhananjay Mane h/f

Mr. D. M. Pingale

…

CORAM : AVINASH G. GHAROTE, J.

DATED : 14^th JULY, 2021.

...

PER COURT :

1.

Heard Mr. Amol Salok for the petitioners, Mr. Dhananjay

Mane, holding for Mr. Pingale, learned counsel for respondent no.7 and

learned AGP for respondent nos. 1 to 4.

2.

The learned counsel for the petitioners takes exception to

the order passed by the revisional authority dated 27/11/2020,

contending that it is based upon total mis-appreciation of the factual

position on record as reflected from the order of Mamlatdar dated

21/07/2020. He points out to page 16, para 6 in which, the evidence on

behalf of witnesses of the petitioners and respondents, have been

discussed, as well as the availability of alternate way as claimed has also

been considered and so also para 3 of the reasoning which indicates that

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on 8/8/2019 a spot inspection was conducted by the Mamlatdar

personally. He further submits, that the property in respect of which the

road was sought is clearly described and considered by the Mamlatdar,

which is evident from the perusal of the impugned order, which indicates

that the petitioner was the owner of Gut Nos. 62 and 63 and was

requiring a road between the boundary of Gut Nos.58 and 59.

3.

Learned AGP appearing for respondent Nos. 1 to 4 supports

the impugned order passed by the Sub-Divisional Officer in revision.

None appears for respondent Nos. 5 & 6 though they are served. Even

otherwise learned counsel for respondent No.7 submits, that the

respondent Nos. 5 & 6 are formal parties as they are supporting the

petitioners.

4.

Advocate Mr. Dhananjay Mane, learned counsel holding for

Mr. Pingale, learned counsel for respondent No.7 submits, that the

application under Section 5 (2) of the Mamlatdar Courts Act, itself was

infirm as it did not comply with the requirements of Section 7 and also did

not disclose the cause of action, due to which the same ought to have

been returned back. He further submits, that though no ground in this

regard was raised before the Mamlatdar in his reply or otherwise, till the

decision of the proceedings under Section 5 (2) of the Mamlatdar Courts

Act, however, ground in this regard was raised in the Revision before the

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Sub-Divisional Officer, which is considered by the Sub-Divisional Officer,

as reflected from record page 35. Learned counsel therefore, submits

that the order of Sub-Divisional Officer, on this count, is correct. He has

further tried to justify the observations made in paragraphs 2 and 3 at

page 36. Learned counsel however, seeks sometime to place judgments

on record in support of his contention, that the application as filed by the

petitioner, itself was not maintainable.

5.

List the Matter at 2.30 p.m.

6.

Mr. Mane, learned Counsel for the petitioner, contends that

the position as to absence of cause of action, has been raised in ground

No.10 of the memo of revision and therefore the same has rightly been

considered by the Revisional Court. He further submits, that in case a

pathway is claimed over the boundaries of two surveys, then the remedy,

is under Section 143 of MLR Code before the Tahsildar and not

otherwise. He further raises a grievance, that Section 19 (2) of the

Mamlatdar Courts Act requires a notice to be given prior to spot

inspection, however the same