Gajanan S/o Pandharinath Shivankar & Ors. vs The Learned Sub Divisional Officer & Ors.

Heard. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties.

The present Petition is filed challenging order dated 25.08.2022 passed by the Sub-Divisional Officer, Sindhkhed Raja and the order dated 13.05.2021 passed by the Naib Tahsildar, Deulgaon Raja. By way of the said orders, the application filed by Respondent No. 4 is allowed, and it has been directed that the non-applicant therein, i.e. the Petitioner, should remove the obstruction with respect to the survey numbers mentioned in the order.

The facts which are more or less undisputed are as under:

The Respondent No. 4 filed an application under Section 5 of the Mamlatdars’ Courts Act, 1906, alleging that the Petitioners have closed the road at Mouje Singaon, Gut No. 215, 216, 217, and 218 towards the eastern side, and 219. In the said application, notice was issued to the Petitioners herein, and after hearing the parties, the Tahsildar, Deulgaon Raja, passed an order, thereby directing the Petitioners to remove the obstruction. The said order was passed in pursuance to Section 5 of the Mamlatdars’ Courts Act. Being aggrieved, the Petitioners preferred a revision under Section 23 of the Mamlatdars’ Courts Act before the Respondent No. 1. The Respondent No. 1 maintained the order of the Tahsildar and dismissed the appeal/revision of the Petitioners. Both the said orders are the subject matter of challenge in the present Petition.

I have heard Shri V.S. Giramkar, learned Counsel for the Petitioners, Shri. Ghiramkar submits that both the authorities have grossly erred in passing the impugned order, thereby directing the Petitioners to remove the obstruction.

He submits that no notice was issued, nor the Petitioners were heard, before passing the impugned order. By taking me through the order of the Tahsildar, the learned Counsel for the Petitioners submits that the only material document which has weighed with the Tahsildar is a Spot Inspection Report, wherein obstruction is allegedly shown. He further submits that he has filed the affidavits of Samadhan Shriram Doifode and Govinda Tukaram Shivankar, who are witnesses to the fact that there is an alternative way. As far as order of the Revisional Authority is concerned, the learned Counsel for the Petitioners submits that there is no application of mind, and the said order has been mechanically passed by the Revisional Authority.

Per contra, Shri R.N. Ghuge, learned Counsel appearing for Respondent No. 4, as also the learned Assistant Government Pleader support the impugned order.

Shri R.N. Ghuge, appearing for Respondent No. 4, has taken me through the reply filed by Respondent No. 4. By drawing my attention to Annexure R4-1, which is the proceedings register of Mahatma Gandhi Tantamukta Gaon Samiti, Shri R.N. Ghuge submits that the Petitioners herein have admitted that they have obstructed the way and have further undertaken to remove the said obstruction. He also submits that the Naib Tahsildar, as also the Sub-Divisional Officer have properly appreciated the contentions raised in the application and have passed a reasoned order. He further submits that the Spot Inspection Report was a pointer to the fact that there was, in fact, an obstruction and no alternative way was available.

He also submits that there is a suppression of the fact that the Petitioners herein had earlier filed a proceeding, which came to be dismissed for default on account of non-prosecution.

In rejoinder argument, Shri Giramkar, the learned Counsel for the Petitioners submits that he has already disclosed all the facts, and a condonation of delay application was filed, which emphatically stated that there were earlier proceedings which were disposed due to non-prosecution.

I have considered the contentions canvassed by the learned Counsel for the respective parties and have also gone through the impugned orders. As can be seen from the order of the Naib Tehsildar, there is no finding regarding the veracity of the affidavits filed by the Petitioners of the adjoining owners. The only material on which the Naib Tehsildar has relied is the Spot Inspection Report. True it is that neither the Petitioners nor the Respondent No. 4 sought permission to cross-examine the concerned persons who have made Spot Inspection Report or the persons who have filed affidavits. However, by virtue of Section 19 of the Mamlatdars’ Courts Act, 1906, a procedure is prescribed for determination of application filed under Section 5 of the said Act. In the present matter, neither the spot inspection report nor the affidavits have been subjected to cross-examination and, therefore, in my considered opinion, it would be a fit case to remand the matter to the Naib Tehsildar, Deulgaon Raja, to decide it afresh by affording opportunity of cross-examination to both of the parties.

In view of the fact that the matter is being remanded, the various judgments as relied by the Petitioners are not discussed except judgment of this Court passed in WP No. 5896 of 2018, decided by the Principal Seat, Sudhir Yashwant Dhangade vs. Ankush Kashiram Bhole and Others, wherein in Paragraph No. 11, this Court, while considering the scheme of the Mamlatdars’ Courts Act, 1906, has stated that “in view of the applicability of the provisions of Section 135, 136, 137 and 138 of the Indian Evidence Act, 1872, to the proceedings under Section 5 of the Mamlatdars’ Courts Act, 1906, the petitioner had a right to cross-examine the respondent no. 1 and his witnesses.”

In that view of the matter, the following order is passed :

The Writ Petition is allowed.

ii) The order dated 25.08.2022 passed by the learned Sub Divisional Officer, Sindakhed Raja in Case No. Ra.Ma.Kra./M.C.A-5/Singaon Jaha/09/2021-22 (in the matter of Gajanan Pandharinath Shivankar and others Vs. Limbaji Rama Shivankar (Annexure-1) and impugned order dated 13/05/2021 passed by the learned Naib Tahsildar, Deulgaon Raja in Case No. Ra.Pra.Kra.M.C.A.5/Singaon Jahangir/18/2020-21 (in the matter of Limbaji Rama Shivankar Vs. Gajanan Pandharinath Shivankar and others (Annexure-2), are quashed and set aside.

iii) The matter is relegated to Naib Tehsildar, Deulgaon Raja, to decide it afresh by affording an opportunity of cross-examination to the Petitioners, as also the Respondents and to decide the same in accordance with law.

iv) Since the matter pertains to the year 2021, the Tahsildar, Deulgaon Raja, is directed to decide the same, as stated supra, within a period of four months from the date of receipt of the order.

Rule is made absolute in the above terms. The Writ Petition is disposed of.