Case Note & Summary
The petitioners, Vishnu Sukhdev Ghanvat and others, filed a writ petition challenging the decisions of the Sub Divisional Officer, Pathardi, in Revision No.261/2013 and the Mamlatdar, Shevgaon, in Rasta Case No.42/2011. The respondents (Laxman Bapurao Dhorkule and others) had applied under Section 5 of the Mamlatdars' Courts Act, 1906 for removal of obstruction on an alleged way in Survey No.176 of village Babhalgaon, Tahsil Shevgaon. They claimed ownership of Survey No.174 and asserted that they needed to pass through Survey No.176 to access their land, and that the petitioners had created obstruction. The Mamlatdar allowed the application, ordering removal of obstruction. The petitioners filed a revision before the Sub Divisional Officer, which was dismissed. The petitioners then approached the High Court. The High Court noted that the matter had been remanded earlier by this Court in Writ Petition No.8665/2012 with directions to follow proper procedure. After remand, the Mamlatdar and Sub Divisional Officer passed concurrent orders in favor of the respondents. The High Court held that the concurrent findings of fact were based on evidence, including prior orders and revenue records, and were not perverse. Therefore, the High Court declined to interfere in writ jurisdiction and dismissed the petition. The court also noted that the petitioners had an alternative remedy of filing a suit before the civil court if they wished to establish their own right of way.
Headnote
A) Mamlatdars' Courts Act, 1906 - Section 5 - Removal of Obstruction - Right of Way - The Mamlatdar has jurisdiction under Section 5 to order removal of obstruction on a way if it is established that the way is necessary for access to the applicant's land and that the obstruction is wrongful. In the present case, the Mamlatdar and Sub Divisional Officer concurrently found that the respondents had a right of way through Survey No.176 to reach their land in Survey No.174, based on prior orders and revenue records. The High Court declined to interfere in writ jurisdiction as the findings were not perverse. (Paras 2-6)
B) Writ Jurisdiction - Interference with Concurrent Findings - The High Court in writ jurisdiction under Article 226 of the Constitution of India does not ordinarily interfere with concurrent findings of fact unless they are perverse or based on no evidence. Here, the concurrent findings of the Mamlatdar and Sub Divisional Officer were supported by material on record, including prior orders and revenue entries, and thus no interference was warranted. (Paras 5-6)
Issue of Consideration
Whether the Mamlatdar and Sub Divisional Officer correctly exercised jurisdiction under Section 5 of the Mamlatdars' Courts Act, 1906 in ordering removal of obstruction on an alleged way, and whether the High Court should interfere in writ jurisdiction with concurrent findings of fact.
Final Decision
The High Court dismissed the writ petition, upholding the orders of the Mamlatdar and Sub Divisional Officer. The court held that the concurrent findings of fact were based on evidence and were not perverse, and thus no interference was warranted in writ jurisdiction.
Law Points
- Mamlatdars' Courts Act
- 1906
- Section 5
- Right of way
- Obstruction
- Revision
- Concurrent findings
- Writ jurisdiction
Case Details
2016 LawText (BOM) (09) 14
Writ Petition No.4110 of 2015
Nikhil S. Jaju for petitioners; S.K. Tambe, Assistant Government Pleader for respondent Nos.1 to 3; S.G. Chapalgaonkar for respondent Nos.4 to 7
Vishnu Sukhdev Ghanvat, Shashikala Vishnu Ghanvat, Namdeo Vishnu Ghanvat, Balu Vishnu Ghanvat
The Collector, Ahmednagar; The Sub Divisional Officer, Ahmednagar; The Tahsildar, Shevgaon; Laxman Bapurao Dhorkule; Ambadas Bapurao Dhorkule; Subhash Bapurao Dhorkule; Ram Bapurao Dhorkule
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Nature of Litigation
Writ petition challenging orders of Mamlatdar and Sub Divisional Officer under Section 5 of Mamlatdars' Courts Act, 1906 for removal of obstruction on an alleged way.
Remedy Sought
Petitioners sought quashing of the orders of Mamlatdar and Sub Divisional Officer directing removal of obstruction on the way in Survey No.176.
Filing Reason
Petitioners alleged that the Mamlatdar and Sub Divisional Officer erred in ordering removal of obstruction on the way, as the way was not established and the procedure was not followed.
Previous Decisions
Earlier, this Court in Writ Petition No.8665/2012 had remanded the matter back to the Mamlatdar with directions to follow proper procedure. After remand, the Mamlatdar passed order in favor of respondents, which was upheld in revision by Sub Divisional Officer.
Issues
Whether the Mamlatdar and Sub Divisional Officer correctly exercised jurisdiction under Section 5 of the Mamlatdars' Courts Act, 1906 in ordering removal of obstruction.
Whether the High Court should interfere in writ jurisdiction with concurrent findings of fact.
Submissions/Arguments
Petitioners argued that the way was not established and the Mamlatdar did not follow proper procedure.
Respondents contended that the way was established by prior orders and revenue records, and the concurrent findings should not be disturbed.
Ratio Decidendi
Under Section 5 of the Mamlatdars' Courts Act, 1906, the Mamlatdar has jurisdiction to order removal of obstruction on a way if it is established that the way is necessary for access to the applicant's land and the obstruction is wrongful. Concurrent findings of fact by the Mamlatdar and revisional authority, if based on evidence and not perverse, are not interfered with by the High Court in writ jurisdiction.
Judgment Excerpts
The application was made by present respondent Nos.4 to 7 under section 5 of the Mamlatdars' Courts Act, 1906 for removal of obstruction created on the alleged way in Survey No.176 of village Babhalgaon, Tahsil Shevgaon.
In the past, order was made in favour of these respondents but ultimately this Court in Writ Petition No.8665/2012 had remanded the matter back and direction was given to follow the procedure given under the Act.
The concurrent findings of fact are based on evidence and are not perverse. Hence, no interference is warranted in writ jurisdiction.
Procedural History
Respondents filed application under Section 5 of Mamlatdars' Courts Act, 1906 before Mamlatdar, Shevgaon (Rasta Case No.42/2011). Mamlatdar allowed application. Petitioners filed revision before Sub Divisional Officer, Pathardi (Revision No.261/2013), which was dismissed. Petitioners then filed Writ Petition No.4110 of 2015 before the High Court. Earlier, in Writ Petition No.8665/2012, the High Court had remanded the matter with directions. After remand, the Mamlatdar and Sub Divisional Officer passed the impugned orders.
Acts & Sections
- Mamlatdars' Courts Act, 1906: Section 5
