1 WP NO.138/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.138 OF 2011 1. Dayanand s/o Marutirao Birajdar, Age: 52 years, occ: Advocate And agriculture r/o Samarth Nagar, Osmanabad, Tq. & Dist. Osmanabad. 2. Vijaykumar Ganpatrao Jambale, Age: 35 years, Occ: Agriculture r/o Ujani Tq. Ausa, Dist. Latur. ...PETITIONERS VERSUS 1. Khurban Mahebub Sherikar, Age 67 years, Occ: Agriculture, r/o Ujani, Tq. Ausa, Dist. Latur. 2. A.Reman Mehebub Sherikar, Age: 60 years, Occ: Agriculture, r/o Ujani, Tq. Ausa, Dist. Latur. 3. Shivaji Vishwanath Kharade, Age: 51 years, occ: Agriculture, r/o Ujani, Tq. Ausa, Dist. Latur. 4. Kalidas Tukaram Dhavan, Age: 53 years, occ: Agriculture r/o Ujani, Tq. Ausa, Dist. Latur. 5. Vithal Govindrao Dhavan, Age: 75 years, occ: Agriculture, r/o Ujani, Tq. Ausa, Dist. Latur. 2 WP NO.138/2011 6. Baburao Limbraj Dhavan, Age: 50 years, occ: Agriculture r/o Ujani, Tq. Ausa, Dist. Latur. 7. Yogiraj Nivrati Dhavan, Age: 30 years, occ: Agriculture r/o Ujani, Tq. Ausa, Dist. Latur. 8. Bibhishan Dnyandeo Dhavan, Age: 40 years, occ: Agriculture, r/o Ujani, Tq. Ausa, Dist. Latur. 9. Vijayabai Rameshwar Chavan, Age: 35 years, occ: Agriculture r/o Ujani, Tq. Ausa, Dist. Latur. 10. Pandurang Mahadeo Dhavan, Age: 45 years, occ: Agriculture r/o Ujani, Tq. Ausa, Dist. Latur. 11. Kadappa Ranba Kokane, Age.80 years, occ: Agriculture r/o Ujani, Tq. Ausa, Dist. Latur. 12. Chotumiya Mehebub Sherikar Age: 60 years, occ: Agriculture r/o Ujani, Tq. Ausa, Dist. Latur. 13. The Tahsildar, Ausa, Tq. Ausa, Dist. Latur. 14. The Sub Divisional Officer, Ausa, Tq. Ausa, Dist. Latur. ...RESPONDENTS ... 3 WP NO.138/2011 Mr. V.D.Salunke, Advocate, for the petiitoners. Mr. V.D.Hon, Advocate, for respondent nos. 1 to 12. Mr.K.J.Ghute Patil, AGP for respondent nos. 13 and 14. ... CORAM: K.U.CHANDIWAL, J. Date: 29.11.2011 ... ORAL JUDGMENT:- 1. Heard finally. Rule. Rule made returnable and heard forthwith with consent of learned Counsel for the parties. 2. The petitioners feel aggrieved by the orders of learned Mamlatdar ( Tehsildar), Ausa, dated 29.5.2010 and also the order passed by the learned Sub Divisional Officer, Ausa, dated 19.10.2010, confirming the order of the learned Mamlatdar dated 29.5.2010. 3. The respondents before the learned Mamlatdar/Tehsildar claimed obstruction to their customary rights from the agricultural field from area abutting the agricultural field Gat No.303 and 302 and prayed that the customary access flowing in East-West direction need not be obstructed to, and whatever impediments created by the defendant therein ( petitioners herein) should be removed. An inquiry was caused by the 4 WP NO.138/2011 office of the Tehsildar at Ausa in the capacity as a Mamlatdar, and the inquiry report along with panchnama demonstrated that there was a heap of rubble raised at the said site, and thereby, access was attempted to be blocked. The panchnama also illustrated that the block at the site of the petitioners herein is, however, cleared and is free from obstruction from the fields of other agricultural field owners or the access flowing from other agriculturists. 4. Learned Counsel for the writ petitioners submits that the action initiated before the learned Mamlatdar under Mamlatdar's Courts Act, 1906, is not maintainable as earlier RCS No. 223/2003 filed by the respondent and it has been dismissed for want of prosecution on 29.9.2006. Learned Counsel submits that Scheme under Section 5, read as a whole, will not provide remedies to respondents by way of new road/access from the agricultural field of the petitioners. He also reiterates that the limitation provided under sub-clause (3) of Section 5 also will be an impediment for asserting rights by the respondents. He submits that the law does not contemplate providing a new way, cart-track under Section 5 of the Mamlatdar's Courts Act, as has been done by the learned Mamlatdar, and confirmed by the Sub Divisional Officer. According to him, it is only to remove the obstruction, the effect 5 WP NO.138/2011 of Section 5 can be put in acceleration. Learned Counsel, in order to stress his points, has placed reliance on the judgments of this Court in the matters of Union of India and others Vs. Maruti Madhav Kerulkar and others ( 2003 (2) Bom.C.R. 177), Shalini Laxman Wadnerkar Vs. Bank of Baroda Employees Cooperative Housing Society Ltd. & anr (2006(5) Bom.C.R. 292) and, Rama V. Megha and others ( AIR 2002 Rajasthan 309). 5. With due respect, the latter two judgments, either of this Court or of the Rajasthan High Court, deal with a situation under the provisions of Easement Act. Section 13 of the said Act incorporates easement of necessity claimed for and Courts have recorded that easementary right of necessity cannot be claimed if alternate road is available in a suit or proceedings under the Easement Act. No such eventuality surfaced to take crutches of these two judgments put in acceleration. 6. The judgment in the matter of Union of India and others Vs. Maruti Madhav Kerulkar and others (supra), indeed, is under the provisions of Mamlatdars Courts Act, 1906, Sections 5(1), (2) & 7 and it also deals with Maharashtra Land Revenue Code, 1966, Section 20(1) and also provisions of Order 39 Rule 1 of Code of Civil Pocedure. In the said proceedings, a 6 WP NO.138/2011 certificate in the form of declaration, was issued by the Mamlatdar that there exists a road without contemplating inquiry as was expected in terms of Section 5 of the said Act. This Court found, such declaration could not be issued by the Mamlatdar as there did not exist any road. This Court also observed, whatever remedies the State desires to have in respect of the public road, the scheme formulated under Section 20(2) of the Maharashtra Land Revenue Code needs to be complied. Courts found, all the authorities committed an error in declaring the site for Employment Guarantee Scheme, to be a public road and, allowing the Government to lay road therein. This Court found, in absence of proof that particular road as a public road, in terms of Section 20(2) of the Code, such declaration in terms of Section 5 of the Mamlatdars Courts Act will not be available and, it consequently, set aside such certification (Dakhala). No such situation is emerged here, as there is no declaration of a public road. 7. In the present proceedings, it is not only one respondent who is facing brunt of the impediment created by the writ petitioners ( one of whom is Advocate by profession), but before this Court, there are 11 respondents. Panchnama and the affidavit of Naib Tehsildar informs that such an impediment caused by writ petitioners has 7 WP NO.138/2011 obstructed free access to at least 50 agriculturists who all have to pass through disputed area, as access to their respective lands. 8. It is in this scenario, the Gram Panchayat of the village had recorded a resolution. Keeping aside the Resolution of the Gram Panchayat, as it does not fit in the bracket of Mamlatdars Courts Act, concern was also noted by the Gram Panchayat. The Gram Panchayat has no reason to identify itself with the cause of the respondents or rebel against the cause of the writ petitioners. (It was independently made the Gram Panchayat to pass such resolution.) 9. Learned Counsel for the petitioners gave reference to a map to impress that it does not show any access abutting the land owned by the writ petitioners. The map, naturally, will not show such composition. It is the claim and contention of the respondents, as land holders, that they have customary access from the Bandh - boundary mark between the two fields. This has, on verification at the site, prima facie been established to be in existence. The photographs annexed with the affidavit in reply by the respondents in material particulars illustrate existence of a path/access, and an impediment by way of heap of Murum, created at 8 WP NO.138/2011 the instance of the writ petitioners, is projected. This photograph is dated 20th May, 2010. There is no denial of existence of this photograph or position shown therein at Exh.R-2 in the affidavit in reply. 10. Indeed, no declaration is required about customary way, hence in terms of Section 5(2), such order cannot be passed. When the Statute itself takes care for creation of roads or customary ways, law does not contemplate seeking of declaration in Civil Court. The arrangement under Mamlatdars Courts Act is summary in its nature, indeed, to avoid inconvenience faced by the agriculturists. The scheme has to be read in its letter and spirit which also provides limitation in terms of clause 5(2) thereof. The Scheme also illustrate, if there is non compliance, care can be taken in terms of Section 7 thereof. Taking these aspects into consideration, contention of the writ petitioners that there should be declaration from the Civil Court, is contrary to the very scheme of the Act. Customary way is primarily established and it cannot be said that the authorities have hijacked the property belonging to the petitioners to facilitate the claims and contentions of the respondents - adjoining land holders. 9 WP NO.138/2011 11. Learned Counsel for the respondents says, in pleadings Petitioners accept way, he invited my attention to the reply filed by the writ petitioners before the competent authorities. Reading the reply, the overall suggestion that emerges is, the access asserted by the respondents from or near the land Gat No. 303, is of a longer route and not feasible to the land holders as the petitioners have given the measurements of the respective lands. The road on Bandh of Gat No.254, 255, is away at a distance of 270 meters, while the road on Bandh of lands 303, 304 & 306 on land of Kurban is from 1570 meters. Writ Petitioners accept that the access from land survey Nos.303, 305, 304 comes into termination if there is flood to Terna river and, consequently, the use of the said access or customary way is not feasible. In the light of these admissions by respondent about access in the reply before the competent authority, prima facie it indicates, it is clear, he does not dispute the existence of the access, or the customary way. 12. In the result, concurrent findings recorded by the authorities below, do not smack of any mala fides or perversity to interfere. 10 WP NO.138/2011 Rule discharged. Writ Petition lacks merit, dismissed. ( K.U. CHANDIWAL, J. ) ... agp/138-112wp