Case Note & Summary
The petitioners, owners of Gat No.257, challenged orders passed under the Mamlatdar Court's Act, 1906, which granted a right of way to the respondent nos. 1 to 3, owners of Gat No.261. The respondents had initially filed an application on 19.02.2014 alleging obstruction of their right of way by the petitioners. Subsequently, they sought and obtained permission to amend the application on 23.06.2014, and a fresh application was filed on 26.06.2014. The petitioners filed a reply raising a specific objection that the application was not in accordance with the Act as it was not supported by an affidavit. The Naib Tahsildar, however, allowed the application without considering this objection. The Revisional Authority also dismissed the revision petition without addressing the issue. The petitioners approached the High Court contending that the proceedings were invalid due to non-compliance with Section 5 of the Act, which mandates that a plaint be supported by an affidavit. The respondents argued that the objection was merely technical and that the spot inspection report confirmed the obstruction. The High Court, after perusing the records, found that neither the original nor the amended application was supported by an affidavit. The Court held that the requirement of an affidavit under Section 5 is mandatory and that the authorities had erred in not considering the petitioners' objection. Consequently, the impugned orders were set aside, and the matter was remanded to the Naib Tahsildar for fresh consideration after permitting the respondents to file an affidavit in support of their application. The writ petition was allowed in those terms.
Headnote
A) Mamlatdar Court's Act - Right of Way - Affidavit Requirement - Section 5 of Mamlatdar Court's Act, 1906 - The petitioners challenged orders granting right of way on the ground that the application was not supported by an affidavit as required under Section 5 of the Act. The Court held that the requirement of an affidavit is mandatory and the authorities erred in not considering the objection. The impugned orders were set aside and the matter remanded for fresh consideration after permitting the respondents to file an affidavit. (Paras 2-7)
Issue of Consideration
Whether an application under the Mamlatdar Court's Act, 1906 is maintainable without being supported by an affidavit as required under Section 5 of the Act.
Final Decision
The impugned orders are set aside. The matter is remanded to the Naib Tahsildar, Washim, to decide the application afresh after permitting the respondent nos. 1 to 3 to file an affidavit in support of their application. The writ petition is allowed in the aforesaid terms. Rule is made absolute accordingly with no order as to costs.
Law Points
- Mamlatdar Court's Act
- 1906
- Section 5 requires plaint to be supported by affidavit
- Non-compliance renders proceedings invalid
- Technical objections must be considered by authorities
