Saheb Khan vs Sub-Divisional Officer & Ors.

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

The present petition challenges order dated 12.9.2022, passed by the respondent No.1/Sub-Divisional Officer, Darwha in Revision bearing Revenue Case No.5/MCA-5/2020-21. It also prays for setting aside the order dated 31.12.2020, passed by the respondent No.2/Tahsildar Darwha in the Revenue Case No.jk-ek-dz-@1@,e-lh-,-5@2019-20] ekStk nq/kxko] rk- nkjOgk.

The facts which are more or less undisputed can less be narrated as under :

That the respondent No.3 is the owner of Gat Survey No.14 while the respondent No.4 is the owner of Gat Survey No.14 at village Dudhgav, Tahsil Darwha, District Yavatmal. It is also an admitted fact on record that the petitioner is the owner of field Gat No.16. As can be seen from the facts in the petition, the respondent Nos.3 and 4 filed separate applications stating that there is a way to reach to the said field from the field of the petitioner i.e. Gat Survey No.16. It was their contention that since the way is obstructed, they filed an application under Section 5 of the Mamlatdar Court’s Act.

In pursuance to the notices issued, a spot panchanama was conducted by the Mandal Adhikari, which is at Page 44 of the petition. As can be seen from the said Page 44, all the parties i.e. stakeholders were present. Thereafter, for the reasons best known to the Authority, Tahsildar was again directed to conduct the spot inspection. Thereafter, the Sub-Divisional Officer proceeded on the basis of the second spot inspection report and arrived at a finding that there was a way which was obstructed and, therefore, directed the petitioner herein not to obstruct and to clear the right of way. The petitioner being aggrieved challenged the said order in Revision. However, the Revisional Authority also did not find favour with the petitioner and dismissed the Revision.

Both these orders are subject matter of challenge in the present petitioner.

I have heard Mr. S.O. Ahmed, learned counsel for the petitioner.

Mr. S.O. Ahmed points me out the spot inspection report which was conducted on 27.12.2019. As can be seen from the said spot inspection report, all the stakeholders were present including the petitioner. In the said spot inspection report there is a categorical finding that there was no alternate way found on the site and the petitioner herein contended that till Gat No.10 there was a bullockcart way. Thus, the said report was in favour of the petitioner. However, the learned counsel for the petitioner submits that in spite of their being no occasion to conduct a second spot inspection it was conducted and an exactly contrary report was submitted. He, therefore, submits that the earlier spot inspection report has not been relied on by the Authority. He, therefore, prays that the order being perverse in nature is liable to be quashed and set aside.

Per contra, Mr. V.D. Darne, learned counsel appearing for legal heirs of respondent No.3 and respondent no.4 supports the impugned order. He submits that a categorical finding has been recorded by both the authorities below which by any stretch of imagination cannot be said to be perverse. He further submits that the Tahsildar has inspected the spot thoroughly and only because the petitioner was not present on the said site cannot be ipso facto said to be a fact which would act against the petitioner. Learned Assistant Government Pleader for the respondent Nos.1 and 2 also supports the impugned order.

Having gone through the record it is amply clear that there are two contrary spot inspection reports. However, the first Authority i.e. the Sub-Divisional Officer has not even taken care to refer to and rely upon the earlier spot inspection report and seems to have proceeded on the subsequent spot inspection report done by the Tahsildar. The Revisional Authority has concurred with the order of the Sub-Divisional Authority. In my view, looking to the fact that there are contrary spot inspection reports and secondly, looking to the fact that admittedly the second spot inspection report which is not in favour of the petitioner is not at least prima facie shown to be done in his presence, the interest of justice will be served by passing the following order.