The certificate in question does not appear to be one issued after due enquiry on the basis of plaint presented to Mamlatdar by any of the parties. More over, Section 5(2) empowers the Mamlatdars to issue orders of injunction and not declarations regarding the customary rights. Thus, the action of Mamlatdar in issuing such a certificate is ex-facie illegal and beyond the scope of his powers as conferred by relevant provision. In fact, on reference to Proviso to Section 5(1), it can be seen that Mamlatdar, instead of issuing injunction or directing removal of impediment and obstruction, has powers, for the reasons to be recorded by him, to refuse to interfere in the matter and leave the parties to approach the Civil Court. There is nothing in this provision enabling the Mamlatdar to certify and thereby declare the rights of parties of customary routes/ways. The trial Court, therefore, committed material irregularity in relying upon a piece of evidence, which was ex-facie illegal.
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Bombay High Court
Union Of India (Uoi) And Ors. vs Maruti Madhav Kerulkar And Ors. on 6 February, 2002
Equivalent citations: 2003 (2) BomCR 177, 2002 (4) MhLj 73
Bench: N Dabholkar
