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Judgment
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. The petition is heard for final disposal with the consent of learned counsel for the parties.
Feeling aggrieved by the judgment and order passed by the Tahsildar under Section 5 of the Mamlatdar’s Courts Act, 1906 (“Act of 1906” for brevity) and the order passed by the revisional authority under Section 23 of the Act of 1906 the petitioners have filed the present petition.
The sum and substance of the petition is that the petitioners own agricultural land in Gut No.153 and 156 of village Malegaon Budruk, Tq. Georai, Dist. Beed. The respondents own agricultural land situated in Gut Nos.151 and 152 of the same village. Contending that the petitioners were obstructing the settled pathway (Vahivat) of the respondents, application below Section 5 of the Act of 1906 was filed by the respondents before the Tahsildar. On 20.06.2020, the petitioners were alleged to have obstructed the respondents/original applicants from usage of the settled pathway.
By expressly mentioning 20.06.2020 as the date of cause of action, proceedings under Section 5 of the Act of 1906 were lodged by the respondents before learned Mamlatdar on 18.06.2021. A Panchnama was conducted. After hearing the parties and considering the panchnama, learned Mamlatdar arrived at a conclusion that the applicants have made out a case for seeking protection under Section 5 of the Act of 1906. Resultantly, learned Mamlatdar allowed the pathway to the present respondents through southern portion of gut no.155 and northern portion of gut no.153 for the purpose of approaching their land in Gut Nos.151 and 152. The petitioners were injuncted from causing any obstruction to the pathway.
The petitioners challenged that order under Section 23 of the Act of 1906 before learned revisional authority – Sub-Divisional Officer, Beed. The revisional authority condoned the delay, however, concurred with the findings recorded by learned Mamlatdar. Resultantly, the revision petition came to be dismissed. As against these two orders, the petitioners are before this court.
Mr.Yogesh Bobade, learned counsel for the petitioners would submit that apparently the proceedings were beyond the purview of Section 5 of the Act of 1906 considering the mandate of limitation. He would submit that the respondents could not take the proceedings as per their convenience and cannot be allowed to take undue advantage of the proceedings. With these submissions, learned counsel prays to allow the petition.
Mr.Aghav, learned counsel for the respondents/original applicants would vehemently oppose the petition. His entire thrust will be on the contents of the panchnama and the findings recorded by both the authorities pursuant to the panchnama. He submits that it is evident from the panchnama that there was existing pathway for the applicants who used to approach their land through the said pathway. He would submit that the proceedings under Section 5 of Act of 1908 were bonafidely lodged to seek protection to the pathway. He would further submit that the applicants have no way to approach their agricultural land except the pathway which was blocked by the present petitioners simply to harass his client. He would submit that in fact, in the given circumstances the petitioners have an alternate remedy to file civil suit to get their civil rights settled. With these submission, learned counsel for the respondents concludes his arguments.
I have heard learned counsel for both the parties extensively. Perused the record placed before the court. The respondents chosen not to file any reply affidavit against the pleadings in the Writ Petition.
The proceedings under Section 5 of the Act of 1908 are of summary in nature and to give immediate protection to the parties for the reasons and the circumstances mentioned in Section 5 of Act of 1908. It would be expedient to go through the Section 5 of 1908 Act which reads thus:-
5.(1) Every Mamlatdar shall preside over a Court, which shall be called a Mamlatdar's Court, and which shall, subject to the provisions of sections 6 and 26, have power, within such territorial limits as may from time to time be [fixed by the State Government,-
(a)to remove or cause to be removed any impediment, erected otherwise than under due authority of law, to the natural flow in a defined channel or otherwise of any surface water naturally rising in or falling on any land used for agriculture, grazing, trees or crops, on to any adjacent land, where such impediment causes or is likely to cause damage to the land used for such purpose or to any such grazing, trees or crops thereon;
(b)to give immediate possession of any lands or premises used for agriculture or grazing, or trees, or crops or fisheries, or to restore the use of water from any well, tank, canal or water-course, whether natural or artificial used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than by due course of law, or who has become entitled to the possession or restoration thereof by reason of the determination of any tenancy or other right of any other person, not being a person who has been a former owner or part-owner, within a period of twelve years before the institution of the suit of the property or use claimed, or who is the legal representative of such former owner or part-owner:
Provided that, if in any case the Mamlatdar considers it inequitable or unduly harsh [to remove or cause to be removed any such impediment or], to give possession of any such property or to restore any such use to a person who has become entitled thereto merely by reason of the determination of any such tenancy or other right, or if it appears to him that such case can be more suitably dealt with by a Civil Court, he may in his discretion refuse to exercise the power aforesaid, but shall record in writing his reasons for such refusal.
(2)The said Court shall also, subject to the same provisions, have power within the said limits, '[where any impediment referred to in sub-section (1) is erected, or an attempt has been made to erect it, or], when any person is otherwise than by due course of law disturbed or obstructed, or when an attempt has been made so to disturb or obstruct any person, in the possession of any lands or premises used for agriculture or grazing or trees or crops or fisheries or in the use of water from any well, tank, canal or water-course, whether natural or artificial used for agricultural purposes or in the use of roads or customary ways thereto, to issue an injunction to the person [erecting or who has attempted to erect such impediment, or causing, or who has attempted to cause, such disturbance or obstruction, requiring him to refrain from erecting or attempting to erect any such impediment or], from causing or attempting to cause any further such disturbance or obstruction.
(3)No suit shall be entertained by a Mamlatdar's Court unless it is brought within six months from the date on which the cause of action arose.
(4)The cause of action shall be deemed to have arisen on the date on which the [impediment to the natural flow of surface water or the] dispossession, deprivation or determination, of tenancy or other right occurred, or which the [impediment,] disturbance or obstruction, or the attempted [impediment or] disturbance or obstruction, first commenced.
For the reasons shown at clauses 1(a) and 1(b), a party can initiate proceedings before learned Mamlatdar under Section 5 whereby learned Mamlatdar is empowered to issue necessary directions as mentioned in the provision together with an injunction to limited extent as per Sub-Section 2 of the Act. The important part of Section 5 of Act of 1908 is Sub-section 3 and Sub-section 4. As could be seen from the text of the provision, the mandate of limitation is a mandatory provision. The wording of sub-section of 3 is an imposition on learned Mamlatdar. The words are used as “no suit shall be entertained by Mamlatdar’s Court unless it is brought within six months from the date on which the cause of action arose”. It is for the Mamlatdar to verify as to whether the proceedings are brought before him/her within six months from the date of cause of action arose to the to the applicants. The next provision of Sub-section 4 provides about cause of action.
In the instant case, it is undisputed fact that the respondents/original applicants have expressly mentioned that on 20.06.2020, cause of action occurred to file the proceedings. So also, indisputably the proceedings are filed almost after one year (four days deficit) after occurrence of cause of action.
The proceedings under the Mamlatdar’s Court’s Act cannot be placed into service to substitute a remedy to be pursued in a civil court. The object behind creating this short mechanism is mentioned in clauses (a) and (b) of sub-section (1) to Section 5. Keeping this object in mind, the legislature has articulated sub-section (3) of Section 5 very cautiously. The text used that “no suit shall be entertained by the Mamlatdar after six months from the date of cause of action” are sufficient to understand the object of the enactment itself. Hence, if an application is moved after six months post date of cause of action, learned Mamlatdar is precluded from entertaining such application. If the Mamlatdar entertains any grievance under Section 5 of the Act of 1908 after the limitation period, the findings becomes non-est.
In the instant case, it is apparent that the application was not within limitation. In view of this, I am of the opinion that the first authority, i.e. learned Mamlatdar erred in entertaining the application of the respondents filed under Section 5 of Act of 1908. I can see that learned Mamlatdar has even not taken efforts to consider this aspect of the matter, actually from which the findings must start. It is also seen that the revisional authority has also not considered the issue of limitation which is a crucial issue for entertaining the grievance of a party under this enactment. In view of this, whatever findings are recorded by both the authorities, those become non-est, as observed supra.
The arguments advanced by Mr. Adhav on the merits of the observations recorded by both the authorities cannot be accepted for the reasons recorded above. The Writ Petition deserves to be. Hence, the following order:
The Writ Petition is allowed;
The impugned order dated 25.12.2022 passed by learned Mamlatder under Section 5 of the Act of 1908; and the order dated 25.12.2022 passed by the revision authority under Section 23 of the Act of 1908 are quashed and set aside.
Rule is made absolute in above terms.