Tahsildar is vested to pass an order for removal of the impediment created in a flow of water or way/road/access available to the cultivators so far as cultivation of agricultural land is concerned. Power of granting injunction either perpetual or mandatory and also temporary was thus conferred by sub section 2 of section 5. Thus vesting such powers for addressing the grievance of the agrarian community was felt necessary.
7. Over the years the need to unify and amend the law relating to land and revenue was felt necessary. Accordingly Code was brought in. It is called as Maharashtra Land Revenue Code, 1966 (herein after referred to as Code, 1966). In this code also problem of access to the agricultural lands for cultivation faced by the aggrieved agrarian community was considered and section 143 has been brought on statute book. Marginal note for section 143 is right of way over boundaries. There are around 5 sub sections in section 143. Power has been vested with the Tahsildar to inquire into and decide claims by the persons holding land in surrey number, to a right of way, over the boundaries of other survey number.
Bombay High Court
Lala Dagadu Kale vs 5- Sukhdeo S/O Shankar Kale on 10 March, 2010
Bench: S.B. Deshmukh
1. Heard learned counsel for the parties.
2. Rule. Rule returnable forthwith. Heard finally with the consent of the parties.
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3. Petitioner challenges the judgment and order passed by the learned Additional Commissioner, Nashik Division Nashik in revision RTS application No.194/2008 passed on December 31, 2008.
4. The present writ petitioner was the petitioner before the learned Additional Commissioner, Nashik. Relevant facts and proceedings, I am listing in this writ petition which are necessary for disposal of the petition. a] Agricultural land bearing gat No.173 admeasuring 7 H 7 R and non cultivable land to the extent of 34R is situated at village Paritwadi Tq. Karjat, Dist. Ahmednagar.
b] Respondent No.5 in this revision petition is the owner of the said land gat No.173. He made an application to the Tahsildar, Karjat under section 5 of the Mamlatdars' Courts Act, 1906 (herein after referred to Act of 1906). This application was registered as case No.7/2001 by the Tahsildar Karjat. This application was heard and Tahsildar, Karjat passed an order on 29.11.2001. Annexure 'B is the copy of the order. Tahsildar, Karjat by this order has directed removal of the impediment allegedly created in the way mentioned in the operative part of the order by the petitioner. Petitioner and others were also injuncted permanently by the Tahsildar, Karjat from obstructing or creating any impediment in the road/access/way, by this order passed by the Tahsildar, Karjat. c] Order passed by the Tahsildar, Karjat in case No.7/2001 dated 29.11.2001 was challenged by filing Review Application annexure c (page 23). Copy of the review application filed on 12.12.2001 by the present petitioner before Tahsildar, Karjat is on record. In other words opponents in case No.7/2001 had sought review of the order dated 29.11.2001 passed by the Tahsildar, Karjat by this application before the same authority i.e. before Tahsildar, Karjat. This 3
review application was entertained by Tahsildar, Karjat. He passed an order Exh.D is copy on record. Tahsildar, Karjat has referred the status of respondent Sukhdeo Kale as original applicant (applicant in original case No.7/2001). Present petitioner is shown as respondent. Here the review application is numbered as 1/2001. Annexure 'C' makes the reference of number of the proceeding Wahiwat Case No.7/2001. While parting from this part of the order, it is necessary to be observed that Tahsildar, Karjat has received probably application for review from the writ petitioner on 12.12.2001. On that day said application was not registered as review application, no number was given but then proceeding was titled as case No.7/2001. Exh. C there is an order or endorsement in margin passed by the authority whose designation is not mentioned. This order is in vernacular. By this order temporary injunction is granted. Exh.D is final order in review application which subsequently appears to have been registered as review application No.1/2001. Operative part of this order in review application No.1/2001 dated 21.02.2002 makes it clear that said review application has been allowed by the Tahsildar, Karjat. Order passed in case No.7/2001 dated 29.11.2001 is vacated, cancelled and set aside. d] Order passed by the Tahsildar, Karjat in review application dated 21.02.2001 was challenged by the respondent No.5 by filing RTS Appeal No. 15/2002 annexure 'E (page 28) is copy of the judgment. This was under section 257 of the Maharashtra Land Revenue Code. Learned Sub Divisional Officer, Karjat by this order dismissed the appeal filed by the respondent No.5, confirmed the order passed by the Tahsildar in review application No.1/2001. e] Order passed by the learned Sub Divisional Officer, Karjat in RTS Appeal No.15/2002 was challenged by respondent No.5 by filing Second RTS 4
Appeal No.253/2002 before the learned Additional Collector, Ahmednagar. Additional Collector, Ahmednagar decided and allowed Second RTS Appeal No. 253/2002 by judgment and order dated 08.05.2003 (annexure 'F') is copy of judgment on record. Appeal was allowed. Order of the Sub Divisional Officer, Sub Division Karjat in RTS Appeal No.15/2002 was quashed and set aside. Order passed by Tahsildar Karjat in case NO.7/2001 dated 29.11.2001 was restored and status quo was vacated.
f] Order passed in Second R.T.S. Appeal No.253/2002 dated 08.05.2003 was challenged by the petitioner by filing Revision Application No. 211/2003 before the Divisional Commissioner, it was filed by the petitioner. This Revision Petition was dismissed as withdrawn. Judgment and order is at Exh.'Z on record dt. 19.12.2003.
g] Annexure 'G' is copy of the order passed by Special Land Acquisition Officer No.7 Ahmednagar. This order is passed in Revision Appeal No. 59/2003 dated 01.10.2005. From the operative part it appears that said Revision Appeal was allowed. Order passed by the Tahsildar Karjat dated 29.11.2001 was canceled, set aside. Matter was remanded to the Tahsildar Karjat for decision according to law.
h] After remand by the Special Land Acquisition Officer No.7 Ahmednagar, proceeding i.e. case No.7/2001 was heard and decided by the Tahsildar under section 5 of the Act, 1906. He passed an order on 21.02.2002. This order was passed on 04.09.2006,since the matter was remanded by the Special Land Acquisition Officer. Operative part of this order page 44 directed the present petitioner to remove the impediment created in the way/road which was available to the respondent No.5 to reach his farm house/vasti. 5
i] Order passed by Tahsildar Karjat after remand in case No.7/2001 dated 04.09.2006 was challenged by the petitioner by filing appeal before S.D.O., Karjat in the year 2007. It was registered as RTS Appeal No.1/2007. Copy of the order is on record page 52 Exh.J. This judgment is dated 11.09.2007. Appeal was dismissed, order passed by the Additional Collector, Ahmednagar in second RTS Appeal No.253/2002 dated 08.05.2003 was directed to be executed/implemented.
j] Being aggrieved by the order passed by the S.D.O. Karjat in second RTS appeal No.1/2007, Second RTS appeal No.211/2007 was filed before the Additional Collector, Ahmednagar. Said appeal was filed by the present petitioner. Copy of the judgment is on record annexure 'L' page 60 of the compilation. This appeal after hearing the parties, came to be dismissed by the Additional Collector, Ahmednagar by judgment and order dated 31.05.2008. k] Order passed by the Additional Collector in Second RTS Appeal No. 211/2007 dated 31.05.2008 was challenged by the petitioner by filing RTS Revision Application No.194/2008. Exh. 'N' is copy of the order passed by Additional Commissioner, Nashik in Revision Application No.194/2008 page 70. This order is dated 31.12.2008. Revision Application is dismissed. Order passed by the learned Additional Collector Ahmednagar in Second RTS appeal No. 211/2007 dated 31.05.2008 is confirmed. This order passed by the revisional authority is challenged in this writ petition by the petitioner, who are opponents in original case No.7/2001.
5. I have referred every happening, every order passed by the authority concerned. Issue involved is serious and important. Importance of the 6
issue is for the reason, majority population of the State is indulged in agriculture. Access/road/way to approach the land owned or to which person is having legal right to cultivate is important facet so far as agrarian community in the State is concerned. Considering the necessity of legislation, Mamlatdars' Courts Act, 1906 was brought in by the then Government. Section 5 of the Mamlatdars Courts Act is important. In the case on hand, we are concerned with the issue of removal of the impediment, allegedly created in the way/road/access and grant of injunction. Said section is quoted herein below :- Section 5 S. (1) :- Every Mamlatdar shall preside over a Court, which shall be called a Mamlatdars' 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 -
Section 5. (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 theeto, 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."
6. Power to remove the impediment and/or obstacles created is significant. Ordinarily grant of injunction either permanent or temporary is a matter for which powers have been vested with the civil court. A decree for perpetual injunction can be issued under section 38 of the Specific Relief Act by 7
the Civil Court. Mandatory injunction also can be granted by civil court under section 38 of the Specific Relief Act. Temporary injunction prayer can be considered by the Civil Court under order 39 Rule 1 and 2 of the Code. Incidentally it may be noticed that code of Civil Procedure was introduced in the year 1908. Experiencing this difficulty, Mamlatdars' Courts Act, 1906 was brought in, power to grant injunction was vested with the Tahsildar under section
5. Tahsildar is vested to pass an order for removal of the impediment created in a flow of water or way/road/access available to the cultivators so far as cultivation of agricultural land is concerned. Power of granting injunction either perpetual or mandatory and also temporary was thus conferred by sub section 2 of section 5. Thus vesting such powers for addressing the grievance of the agrarian community was felt necessary.
7. Over the years the need to unify and amend the law relating to land and revenue was felt necessary. Accordingly Code was brought in. It is called as Maharashtra Land Revenue Code, 1966 (herein after referred to as Code, 1966). In this code also problem of access to the agricultural lands for cultivation faced by the aggrieved agrarian community was considered and section 143 has been brought on statute book. Marginal note for section 143 is right of way over boundaries. There are around 5 sub sections in section 143. Power has been vested with the Tahsildar to inquire into and decide claims by the persons holding land in surrey number, to a right of way, over the boundaries of other survey number. In the Code of 1966, appeal, revision, review are the remedies provided under various sections. So far as order under section 143 is concerned, two remedies are available one under the code itself and other to approach to civil court with a suit.
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8. In the case on hand, order passed by the Tahsildar Karjat in review application is patently illegal. In fact, order is perverse, without jurisdiction. It appears from the record that Tahsildar concerned has used the powers and jurisdiction which was not vested with him. This order has resulted in continuation of litigation among the petitioner on one hand and respondent No.5 on the other hand for years together. First order passed by the Tahsildar is dated 29.11.2001. Issue has been resolved ultimately by the learned Additional Commissioner by rejecting the revision filed by the present petitioner. Order impugned is dated 31.12.2008.
9. While replying the query, counsel for the petitioner fairly concedes that there is no provision or statutory power with the Tahsildar for review of his own order passed under section 5. Mamlatdars' Courts Act, 1906 ends with section 25. Counsel for the petitioner submits that though there is no provision under the Provisions of Mamlatdars Courts Act, 1906 for review of the order passed by the Tahsildar himself, one can look to the provisions of Maharashtra Land Revenue Code, 1966.
10. I have considered the submissions of learned counsel for the petitioner. A look to the provisions of Maharashtra Land Revenue Code makes it clear that power of review under Code 1966 is vested with the specific authority under section 258. I have seen the entire section 258 of the Code. Power of review is with the State Government. It is also conferred upon the Every Revenue or surveyor Officer. Revenue officer is defined under section 2 (31) of the Code of 1966. Officer of any rank whatsoever appointed under any of the provisions of this Code and employed in or about business of land revenue or the surveys, assessment, accounts or records connected therewith can be said to be 9
Revenue Officer. Survey Officer is also defined. Section 258 if read in its entirety in my view cannot be considered to be a provision empowering the Tahsildar to review his own order passed under section 5 of the Mamlatdars Courts Act, 1906. Section 258 is very carefully drafted and brought on statute. Powers have been conferred upon specific officer like the Collector or Settlement officer i.e. officer who are higher ups in the Revenue and Survey Department. While conferring these powers on the officers concerned, every care and caution is being taken. If, Collector or Settlement Officer feels it necessary to review his own order other than clerical error, has to seek permission from the Commissioner or Settlement Commissioner. Even then he has to follow the mandate and procedure laid down u/s 258 of the Code of 1966. Indisputably, Tahsildar is Subordinate Officer to a Collector. Tahsildar, acting under the provisions of Land Revenue Code, 1966 does not have power and jurisdiction to review his own order without seeking permission from his superior officer in view of section 258 of Code. In this case no such permission was sought or obtained by the Tahsildar, Karjat. This is the reason in earlier paragraph I have observed that order passed by Tahsildar is not only patently illegal and perverse but then it is without authority, power and jurisdiction. This order has made the parties i.e respondent No.5 and present petitioner to suffer a lot.
11. Order passed by the Tahsildar in review which is illegal and perverse, has been quashed and set aside. Ultimately, lawful order has been passed by the higher Ups and order passed by the Tahsildar in review is not in existence.
12. The matter was justifiably considered by the learned Additional Commissioner.
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13. Counsel for the petitioner and learned A.G.P. have pointed out reply-affidavit filed on behalf of the State. Said affidavit is marked by letter 'Y' for identification, taken on record. Along with affidavit, copy of the statement of present petitioner, recorded by the Tahsildar dated 26.09.2001, is on record. Since I have recorded finding that order passed by the Tahsildar in review is illegal, in my view, it is not necessary now to consider the statement recorded by the Tahsildar. Entire exercise undertaken and completed by the Tahsildar is illegal and perverse.
14. This petition needs to be dismissed since order passed by the Additional Commissioner is legal, proper and reasoned.
15. This Writ Petition, therefore, stands dismissed since no case for interference in extra ordinary jurisdiction is established. Judicial Registrar shall send copy of this order to the Secretary, Revenue and Forest Department to do the needful in the matter. Secretary Revenue and Forest Department, shall take necessary steps and inform this Court by filing affidavit of responsible officer on or before 31.12.2010.
16. Writ petition stands dismissed. Rule discharged. No order as to costs.
17. Authentic copy is permitted to the requesting parties. ( S. B. DESHMUKH )
JUDGE.
aaa/3953.09 ...
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