1. Dispute over obstruction on a customary road — Relief under Section 5, Mamlatdars' Courts Act, 1906. (Para 1 )
Back
Next 
HIGH COURT OF BOMBAY
Nitin B. Suryawanshi, J
Pawan Dayanad More – Appellant
Versus
Divisional Commissioner, Aurangabad – Respondent
WRIT PETITION NO.3532 OF 2022
Advocates:
For the Appellants/Petitioners: Sushant B. Choudhari
For the Respondents: P. N. Kutti, Manoj Shinde
For the Appellants/Petitioners: Sushant B. Choudhari
For the Respondents: P. N. Kutti, Manoj Shinde
The court upheld the Collector's decision to deny a claim for a customary road that caused significant hardship to the landowner, directing parties to seek boundary road access under Section 143 of the Maharashtra Land Revenue Code.
Headnote:(A) Mamlatdars' Courts Act, 1906 - Removal of Obstruction - Customary Road - Where official maps show conflicting data regarding the existence of a road and the claimed road runs through the middle of a land causing hardship to the owner, the Collector is justified in setting aside the Tahsildar's order for removal of obstruction. (Para 2, 3)
(B) Maharashtra Land Revenue Code, 1966 - Right of Way - Provision for seeking road from the boundary of agricultural lands - Parties seeking access to fields may approach the Tahsildar under Section 143 to determine boundary access. (Para 4, 5)
Issues: Whether the Collector was justified in setting aside the Tahsildar's order for removal of obstruction on a customary road.
Legal Category Hierarchy
- administrative law
- property law
- practice and procedure
Table of Contents
2. Petitioner claimed right to use customary road; respondent opposed citing maps and potential financial loss. (Para 2 )
3. Collector's reasoned order set aside Tahsildar's decision as road went through middle of land causing hardship. (Para 3 )
4. Customary road claim must not cause serious hardship or financial loss; alternative remedy under Section 143, MLRC. (Para 2 , 3 )
5. Parties directed to approach Tahsildar under Section 143 for road along boundary; petitioner to use boundary till decision. (Para 5 , 6 )
6. Under what circumstances can a claim for customary road be denied?
A claim for customary road may be denied if the road passes through the middle of land causing serious hardship and financial loss to the owner. (Para 3 )
7. What is the alternative remedy when a customary road claim is denied due to hardship?
The parties may approach the Tahsildar under Section 143 of the Maharashtra Land Revenue Code, 1966 for a road along the boundary. (Para 4 , 5 )
8. Does the absence of a road in an older map affect a customary road claim?
Yes, absence of a road in an older map (1329 Fasali) while shown in a later map (1954) is a relevant factor in assessing the claim. (Para 2 , 3 )
PER COURT :
1. The petitioner is aggrieved by the order passed by respondent No.2 Collector, thereby allowing the revision application filed by respondent No.6, under Section 23(2) of the Mamlatdars' Courts Act, 1906 (for short ‘the Act of 1906’). The petitioner filed plaint under Section 5 of the Act of 1906 before respondent No.5 Tahsildar seeking relief of removal of obstruction on the customary road passing through Gut No.8 which is owned by respondent No.6. The Tahsildar allowed the said application and directed the respondents that they should not object the use of the customary road by petitioner for approaching his field. The obstruction on the said road is directed to be removed within a period of 7 days.
2. Being aggrieved by this order, respondent No.6 approached the Collector, Osmanabad by filing revision under Section 23(2) of the Act of 1906. The revision is allowed on the ground that, in village map prepared in 1329 Fasali the road claimed by the petitioner is not shown, whereas in the map prepared in 1954 the road passing through Gut No.8 is shown. The road shown in 1954 map goes almost from the middle of Gut No.8, because of which respondent No.6 is likely to suffer financial loss. The Collector, therefore, set aside the order passed by the Tahsildar by observing that if the petitioner and respondents want a new road the said can be sought from the boundary/Bandh of the respective agricultural lands and for that purpose they have to approach the Tahsildar under Section 143 of the Maharashtra Land Revenue Code, 1966.
3. Perusal of the record reveals that the Collector has passed a reasoned order. Admittedly, the map of 1329 Fasali does not show existence of road, whereas the road is shown in the village map of 1954. It is also admitted position on record that the road claimed by the petitioner goes almost from middle of the land Gut No.8, owned by respondent No.6. If the said road is permitted to be used, respondent No.6 is likely to suffer serious hardship and financial loss. In that view of the matter, the Collector is justified in passing the impugned order.
4. The interest of the parties is protected by the Collector by observing that the parties may approach the Tahsildar under Section 143 of the Maharashtra Land Revenue Code, 1966.
5. Taking into consideration the peculiar facts of the present case, it would be appropriate to ask the parties to approach the Tahsildar by filing proceeding under Section 143 seeking road from the boundary of Gut Nos. 7 and 8 or Gut Nos. 8 and 9. By granting such liberty to the respective parties, the writ petition is disposed off.
6. If such application is filed by either of the parties the same shall be decided within a period of six weeks from the date of filing of such application. Till the decision of such application the petitioner shall be entitled to use the boundary to approach his agricultural field.
7. It is made clear that the observations in this order are prima facie and shall not influence the Tahsildar, while deciding the proceedings under Section 143 .
