Case Note & Summary
The petitioner, Vijay Jagannath Pophale, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 30 December 2010 passed by the Additional Commissioner, which dismissed his revision application. The dispute concerned the petitioner's claim for a right of way through Gat Nos. 187 and 189 in village Janefal, District Buldhana. The petitioner owned part of Gat No. 188, purchased from Kamlakar Badame by registered sale deed dated 14 May 2004. Since there was no approach to his land, he applied under Section 143 of the Maharashtra Land Revenue Code for a right of way through the respondents' lands. The Tahsildar allowed the application on 22 May 2008, granting a way through Janefal-Savatra Pandhan. The respondents appealed to the Sub-Divisional Officer, who allowed the appeal on 21 October 2008, setting aside the Tahsildar's order. The respondents then filed a revision before the Additional Collector, Buldhana, which was allowed on 23 December 2009, confirming the setting aside of the right of way. The ground for setting aside was that the petitioner's brother, a co-occupant of Gat No. 188, had already been granted a right of way under the Mamlatdars' Courts Act, 1906. The petitioner filed a further revision before the Additional Commissioner, which was dismissed on 30 December 2010. The High Court, after hearing both sides, found that the concurrent findings of the lower authorities were based on the fact that the petitioner's brother had already obtained a right of way, and the petitioner could not claim a separate one. The court held that no interference was warranted under Article 227 and dismissed the petition.
Headnote
A) Right of Way - Section 143 Maharashtra Land Revenue Code - Concurrent Findings - The petitioner sought a right of way through respondents' lands under Section 143 of the Maharashtra Land Revenue Code. The Tahsildar initially granted the way, but the Sub-Divisional Officer and Additional Collector set it aside on the ground that the petitioner's brother, a co-occupant of the same land, had already been granted a right of way under the Mamlatdars' Courts Act, 1906. The Additional Commissioner dismissed the revision. The High Court upheld the concurrent findings, holding that the petitioner cannot claim a separate right of way when his brother already has one, and dismissed the writ petition. (Paras 1-6)
Issue of Consideration
Whether the petitioner is entitled to a right of way through Gat Nos.187 and 189 under Section 143 of the Maharashtra Land Revenue Code when his brother, a co-occupant, had already been granted a right of way under the Mamlatdars' Courts Act, 1906.
Final Decision
The High Court dismissed the writ petition, upholding the concurrent findings of the lower authorities that the petitioner's brother already had a right of way, and no interference was warranted under Article 227.
Law Points
- Right of way
- Section 143 Maharashtra Land Revenue Code
- Mamlatdars' Courts Act 1906
- Revision
- Concurrent findings
Case Details
2011 LawText (BOM) (06) 106
Writ Petition No.543 of 2011
Mr. P.S. Kshirsagar for the petitioner, Mr. A.J. Pathak for the respondents
Narayan Kashinath Saraf, Bhanudas Kashinath Saraf, Ramdas Kashinath Saraf
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging the order of the Additional Commissioner dismissing the revision application.
Remedy Sought
The petitioner sought to quash the order dated 30 December 2010 and restore the right of way granted by the Tahsildar.
Filing Reason
The petitioner claimed a right of way through Gat Nos. 187 and 189 to approach his land in Gat No. 188, which was denied by the appellate and revisional authorities.
Previous Decisions
Tahsildar allowed the application on 22 May 2008; Sub-Divisional Officer allowed appeal on 21 October 2008; Additional Collector allowed revision on 23 December 2009; Additional Commissioner dismissed revision on 30 December 2010.
Issues
Whether the petitioner is entitled to a right of way under Section 143 of the Maharashtra Land Revenue Code when his brother, a co-occupant, already has a right of way under the Mamlatdars' Courts Act, 1906.
Submissions/Arguments
Petitioner argued that he has no other way to approach his land and is entitled to a right of way under Section 143 of the Maharashtra Land Revenue Code.
Respondents contended that the petitioner's brother already has a right of way, and the petitioner cannot claim a separate one.
Ratio Decidendi
When a co-occupant of a land has already been granted a right of way under the Mamlatdars' Courts Act, 1906, another co-occupant cannot claim a separate right of way under Section 143 of the Maharashtra Land Revenue Code. Concurrent findings of fact by lower authorities should not be interfered with under Article 227 unless there is a grave error or perversity.
Judgment Excerpts
The issue involved in the above petition is as regards the petitioner’s right of a way through Gat No.187 and 189 of village Janefal, Tq.Mehkar, Distt.Buldhana.
The ground for setting aside the order of Tahsildar was – that the brother of the petitioner, who was also a part occupant of Gat No. 188, was granted right of a way in the proceedings which he had adopted under the Mamlatdars’ Courts Act, 1906.
Procedural History
The petitioner filed an application under Section 143 of the Maharashtra Land Revenue Code before the Tahsildar, who allowed it on 22 May 2008. The respondents appealed to the Sub-Divisional Officer, who allowed the appeal on 21 October 2008. The respondents then filed a revision before the Additional Collector, Buldhana, which was allowed on 23 December 2009. The petitioner filed a further revision before the Additional Commissioner, which was dismissed on 30 December 2010. The petitioner then filed the present writ petition under Articles 226 and 227 of the Constitution of India.
Acts & Sections
- Constitution of India: Articles 226, 227
- Maharashtra Land Revenue Code: Section 143
- Mamlatdars' Courts Act, 1906:
