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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.7555 OF 2021

Smt. Laxmibai w/o Vasant Jadhav

Petitioner

Versus

Kashinath s/o Dagdu Wagh

and others

Respondents

Mr.P.N.Sonpethkar, advocate for the petitioner

Mr.Kishor Hoke Patil, AGP for Respondents No.5 & 6.

CORAM : AVINASH G. GHAROTE, J.

DATE : 12^th July, 2021.

PC :

1

Instant petition challenges the order passed by the

Mamlatdar, dated 20.09.2019 granting a right of way to the

respondent, which order has been confrmed by the Respondent

No.6–

the

Deputy

Collector

in

Revision

No.2019/Revision/Mamlatdar/CR-02.

2

The learned Counsel for the petitioner, at the outset,

submits that the Naib Tahsildar, who has passed the order dated

20.09.2019, did not have jurisdiction to do so, as no such power

had been delegated to him.

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3

The learned AGP submits that, there is no requirement

of delegation.

4

A perusal of Section 3(a) of the Mamlatdars’ Courts

Act, 1906, indicates that the word “Mamlatdar”includes any

revenue offcer exercising for the time being the powers of the

Mamlatdar, of a Mahalkari or of a Tahsildar or Naib Tahsildar. It

is, thus, apparent that the Naib Tahsildar, would be included in

the expression “Mamlatdar”as defned in Section 3(a) of the

Mamlatdars Court Act. The delegation of powers, as contemplated

in Section 3(a), is for persons other than those stated above. The

contention, therefore, is rejected.

5

The next contention of the learned Counsel for the

petitioner, is that under Section 5(3) of the Mamlatdars’ Courts

Act, a suit shall not be entertained by the Mamlatdar’s Court

unless it is brought within six months from the date on which the

cause of action arose, which under Section 5(4), is deemed to have

arisen on the date on which the impediment to the natural fow of

surface water or the dispossession, deprivation or determination,

of tenancy or other right occurs, or when the impediment,

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disturbance or obstruction or the attempted impediment or

disturbance or obstruction, frst commenced.

The

learned

Counsel for the petitioner places reliance upon Vïshnu Sukhdeo

Ghanvat & others Vs. The Collector, Ahmednagar & others, 2017

(1) MhLJ 811.

6

The next contention is that in the application dated

17.12.2014, no date is given for the impediment/obstruction and,

therefore, the requirement of Section 5(3) of the Act of 1906, has

not been complied with. The learned Counsel further relies upon

Bhagwat Namdeo Nirmal & another Vs. Sub Divisional Offcer,

Shrirampur Division & others (Writ Petition 10346 of 2012, decided

on 18.03.2013).

7

Insofar as these contentions are concerned, a perusal

of the application dated 17.12.2014, indicates the absence of the

date of obstruction, neither is the application in the proper form,

as required by the provisions of the Mamlatdars’ Courts Act. It,

however, needs to be seen that, the application has been made by

the respondents in-person. Though the application does not

contain the date of obstruction or was not in proper form, however

on that ground alone, the application cannot be rejected, for the

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reason that Sections 8 and 9 of the Mamlatdars’ Courts Act casts a

duty upon the Mamlatdar, where a petition not in the form of a

plaint is presented to him, and the subject matter thereof appears

to fall within the scope of Section 5, for the Mamlatdar to explain

to the person presenting the application, the natu