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Judgment
Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the parties.
The petitioner challenges the order rendered by respondent No.1 – the Sub-Divisional Officer, Bhusawal, in Revision Application No.10 of 2012, endorsing the order of the respondent No.2 -Tahsildar under Section 5(2) of the Mamlatdars' Courts Act, 1906 (for short, “the said Act”).
By the order dated 25.07.2011, the petitioner was directed to clear/remove the ancestral way from the subject land and further restrained from obstructing the same. Aggrieved by the same, the petitioner preferred a revision application before the SDO, Bhusawal, same has been rejected by the order dated 15.03.2013. As such, the petitioner is before this Court.
Mr. Patil, learned counsel for the petitioner, submits that the order under challenge is bad in law. The necessary opportunity for hearing was not conferred to the petitioner. The notice so affixed at the house of the Petitioner was in contravention to the procedure under the said Act. Nevertheless, the application was not in conformity with the provisions of law, and while entertaining the application, the authorities have abdicated statutory obligation.
In support of submissions, the learned counsel for the petitioner relies upon the judgments passed in Writ Petition No. 10346 of 2012 (Bhagwat Namdeo Nirmal and another versus Babasaheb Namdeo Nirmal) dated 18.03.2012 and Writ Petition No.702 of 2017 (Bhimrao s/o. Namdeo Dole versus The Sub-Divisional Officer, Darwha and others) dated 16.10.2010.
Per contra, the learned AGP for the State and the learned counsel for the contesting respondents have supported the orders under challenge and opposed the petition, submitting that considering the concurrent findings recorded by the authorities below, interference under Article 227 of the Constitution of India, is not warranted. It is further submitted that the petitioner was not diligent in prosecuting the proceedings after the order was rendered by the Sub-Divisional Officer and, therefore, prayed for the dismissal of the petition.
Having considered the rival submissions and perused the material on record with the assistance of learned counsel for the litigating sides, an application presented before the Mamlatdar under Section Section 5(2) of the said Act must satisfy the essential ingredients laid down in Section 7 of the said Act. In the wake of Section 8 of the said Act, the Mamlatdar has to explain the person who presented the application, the nature of reliefs and shall inquire whether the applicants desire to press the reliefs. Upon such verification, the Mamlatdar has to endorse the petition, which shall thereupon be deemed to be a plaint presented of the said Act. In case, the plaint does not contain the particulars specified in Section 7, the Tahasildar shall examine the person on oath and ascertain such of the particulars as contemplated under Section 7 of the Act, those are unequivocally stated in the plaint, and shall reduce the examination to writing in the form of an endorsement or annexure to the plaint which shall thereupon be deemed to be a part of the plaint. A perusal of the application submitted by the respondents No.3 to 10, it is evident that the application is in absence of particulars, those are required under Section 7 of the said Act. The absence of cause of action and failure to present the plaint within six months after accrual of cause of action entails the rejection of the plaint.
Apart from the aforesaid aspect, perusal of Section 9 of said Act shall an obligation upon the Mamlatdar to confer opportunity to the applicants to rectify the defect and examine on oath. The record reveals that the Mamlatdar has utterly failed in complying mandate of Sections 8 and 9 of the said Act. This aspect is also overlooked by the Sub-Divisional while deciding the revision.
In the peculiar facts and circumstances of the case, the orders under challenge are found to be bad in law and, therefore, liable to be set aside.
However, in the interest of justice, since the statute permits the rectification of the application, the parties are relegated before the Mamlatdar. The parties shall appear before the Mamlatdar on 04.09.2026. The contesting respondent may rectify the defect in the application. The Tahsildar shall decide the application strictly in accordance with the provisions of the Mamlatdars' Courts Act, 1906. The parties are at liberty to lead the additional evidence as they deem it appropriate. The Mamlatdar, thereafter, decide the case expeditiously, and in any event, within four months.
Needless to state, the parties shall maintain status quo as on today till the disposal of the application.
With the aforesaid directions, the Writ Petition stands disposed of.
Rule is made absolute in above terms.
Pending civil application/s, if any, stand/s disposed of.
No order as to costs.