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24.WP.20.2022. Judgment..odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR.

WRIT PETITION N O.20 OF 2022

PETITIONERS

: 1. Shankar Bhaurao Zade, aged 40,

Occ. Agriculturist, R/o. Bodad,

Tah. Wani, Dist. Yavatmal.

2. Mrs. Sunita Natthu Zade,

aged 50 years,

Both, occupation farmers,

R/o. Village Bodad, Tq. Wani,

Dist. Yavatmal.

//VERSUS//

RESPONDENT :

Vinod Shrihari Zade

Age 45 years, Occ. Agriculturist,

R/o. Bodad, Tah. Wani, Dist. Yavatmal.

**************************************************************

Mr. Nihalsing B. Rathod, Advocate for the Petitioners.

Mr. Saurabh A. Chaudhari, Advocate for the Respondent.

**************************************************************

CORAM :

MANISH PITALE, J

.

DATE :

4 ^th JULY

, 2022.

ORAL

JUDGMENT

Rule. Rule made returnable forthwith. The writ

petition is heard finally with the consent of the learned counsel

appearing for the parties.

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24.WP.20.2022. Judgment..odt

02]

By this writ petition, the petitioners have challenged

concurrent orders passed by the Tahsildar (Mamlatdar) and Sub-

Divisional Officer under the provisions of Mamlatdars’ Courts

Act, 1906. By an order dated 13.11.2020, the Tahsildar allowed an

application filed by the respondent under the provisions of the

said Act and directed that the respondent be granted access way

from the dhura of Gat Nos.12, 13, 15 and 16 to access his

agricultural field in Gat No.14. The Sub-Divisional Officer

dismissed the revision application filed by the petitioners and

thereby, confirmed the order passed by the Tahsildar.

03]

Mr. Rathod, learned counsel appearing for the

petitioners submitted that the orders passed by the Tahsildar as

well as the Sub-Divisional Officer, are without jurisdiction, for the

reason that the nature of relief sought by the respondent in the

facts of the present case, could not be said to be relatable to the

provisions of the said Act. It was submitted that a proper

appreciation of the application filed by the respondent would

show that, in real terms, the respondent was seeking direction for

a new access way to be granted to him in view of the fact that the

earlier access, which he was using to reach his agricultural field,

was blocked, due to certain events. It was submitted that under

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24.WP.20.2022. Judgment..odt

the provisions of the said Act, the applicant was necessarily

required to prove that there was an existing access way, which was

blocked by the non-applicants before the Tahsildar (Mamlatdar),

so that the said Authority could exercise the power of injuncting

such non-applicant from creating obstruction. In the present case,

according to the learned counsel for the petitioners, the admitted

facts did not demonstrate such a situation and that, therefore,

notwithstanding the spot inspection report on record, the

Authorities under the said Act ought not to have exercised

jurisdiction.

04]

On the other hand, Mr. Chaudhari, learned counsel

appearing for the respondent, submitted that if the contents of the

application filed by the respondent, were to be appreciated in a

holistic manner, it would be clear that there was a reference to an

existing way and in the event the respondent was not to be

granted relief in the said application, he would not be able to

access his agricultural field at all. Therefore, according to the

learned counsel for the respondent, particularly, when spot

inspection report was clearly in favour of the respondent, the

Tahsildar as well as Sub-Divisional Officer were justified in

passing the order in favour of the respondent. On that basis, it was

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24.WP.20.2022. Judgment..odt

submitted that this Court may not exercise jurisdiction in favour

of the petitioners.

05]

Heard learned counsel appearing for the parties and

perused the material on record.

06]

A perusal of the proviso to the aforesaid A