Namdeo S/o Bhanudas Dhadage & Ors. vs The State Of Maharashtra & Ors.

. Placing reliance on Sub Section 3 and 4 of Section 5 of the Mamlatdar’s Courts Act, 1906 (“the Act of 1906” for brevity), the petitioners have assailed the orders passed by the Tahsildar/Mamlatdar under Section 5 which is confirmed by the Sub Divisional Officer under Section 23 of the Act of 1906.

Mr. V. V. Deshmukh, learned Advocate for the petitioners would submit that the application dated 20.07.2021 at Exhibit-A filed by respondent no.4/original applicant clearly demonstrates that the original applicant has mentioned the cause of action for initiating the proceedings under the Act as 10.01.2018. He would submit that in view thereof, it was incumbent on the part of the authority not to entertain the proceedings as it was filed beyond the limitation as prescribed under Sub-Sections 3 and 4 of Section 5 of the Act of 1906.

He would further submit that panchnama was drawn on 14.06.2022 and that the impugned order passed by the Mamlatdar is based solely upon the said panchnama. From recitals of the panchnama, nothing is disclosed except that the Panchas visited the spot, the applicant claimed existence of the way, and the petitioner disputed the way.

Mr. Deshmukh, learned Advocate further submits that it is a trite law that the limitation prescribed under Section 5(3) of the Act is mandatory in nature. He would submit that the duty is casted upon the authority to examine whether the proceedings have been instituted within the prescribed period of limitation. He further submits that there is no provision for delay condonation in the Act. Mr. Deshmukh then submits that the authorities have not undertaken any deeper investigation or inquiry into the matter and have proceeded solely on the basis of the pleadings in the application dated 20.07.2021 and the panchnama drawn on 14.06.2022, while passing the impugned order.

Revision preferred under Section 23 of the Act of 1906 also came to be disposed of by the Sub Divisional Officer by merely reiterating the observations recorded by the Mamlatdar. The Sub Divisional Officer has failed to independently apply his mind to the issues arising for consideration, as was incumbent upon him while exercising revisional jurisdiction. With this Mr. Deshmukh prays to allow the petition and to quash and set aside both the orders.

Adv. D. S. Patil h/f Ms. S. R. Shinde, learned Advocate for respondent no.4/original applicant would vehemently oppose this petition. He would submit that the authorities have exercised their jurisdiction and power meticulously within the meaning of the Act. He would submit that in Writ Petition No.4850 of 2019 (Namdeo s/o Bhanudas Dhadage Vs. Ambadas s/o Bansi Sable & Others), in which he was an intervenor, this Court has had granted him liberty to initiate fresh proceedings. He would therefore submit that in view of the said liberty, the proceedings initiated by his client are well within the prescribed period of limitation. He further submits that his application itself is self explanatory and clearly demonstrates that the cause of action arose in favour of his client within the meaning of Section 5(3) of the Act.

I have heard both the learned Advocates and learned AGP at length. It is no more res-integra that Section 5(3) is of mandatory nature. It was for the authority i.e. Mamlatdar to verify as to whether the proceedings had been filed within a period of six months from the date of cause of action. From the recitals of the application filed before the Mamlatdar, it is apparent that the original applicant has expressly stated the date of accrual of the cause of action as 10.01.2018, whereas the application was filed on 20.07.2021. Thus ex facie, the proceedings were not instituted within the prescribed period of limitation. In view of the provisions of Section 5(4) of the Act, the cause of action is required to be disclosed in the application, and in the present case, the same has been expressly stated in the application.

As regards the reliance place by respondent upon the order dated 15.02.2021 passed in Writ Petition No.4850 of 2019, it needs to be noted that this Court had also observed that the respondent has already filed one application and that was not considered by the authorities. Merely, grant of leave does not create a fresh cause of action for the respondents to institute the proceedings under Section 5 of the Mamlatdar’s Courts Act.

With due respect, the judgment and order dated 03.09.2021, passed by this Court in Writ Petition No.6240 of 2021, relied upon by learned Advocate for respondent would not be applicable to the facts of the present case. In paragraph no.18 of the said judgment and order, it is clearly mentioned that in the said case, the proceedings presented by the respondents were not containing particulars as to when the cause of action arose. In the present case, however, the application filed before the Mamlatdar expressly and unequivocally states that the cause of action arose on 10.01.2018.

In view of the above, I am of the considered opinion that both the authorities have failed to appreciate the provisions of Section 5(3) and 5(4) of the Act and also erred in not holding that the proceedings instituted by the respondents were hopelessly time barred by limitation. Resultantly, the petition must succeed. Accordingly, I pass the following order:

a. Writ Petition stands allowed.

b. The order dated 09.03.2023, passed by Mamlatdar/Tahsildar, Vaijapur in the file Outward No.2021/Jama-1/RASTA/Kavi-23 and the order dated 03.09.2024, passed by the Sub Divisional Officer, Vaijapur in Revision No.10 of 2023 are quashed and set aside.

c. Civil Application if any, stands disposed of.