1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5217/2009. ( Sharad S. Devkar -: versus :- The S.D.O. Buldhana and others ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : FEBRUARY 4, 2010. Heard finally by consent of Shri A.S. Jaiswal with Shri N.H. Joshi, learned counsel for petitioner, Shri Patel, learned A.G.P. for respondent nos. 1 and 2 and Shri A.S. Kilor, learned counsel for respondent no.3. Respondent no.3 approached Tahsildar under Section 5 of Mamlatdar Courts Act for removal of obstruction in way to reach his field. Petitioner did not appear before the Tahsildar. On the basis of the material which came before the Tahsildar, Tahsildar has passed order on 28.10.2008 and opened the way for respondent no.3 from Gut No.16 to Gut Nos. 24, 25, and 26. This order was questioned by the petitioner by filing Revision under section 23, before the Sub Divisional Officer and Sub Divisional Officer has maintained that order on 29.06.2009, thereafter petitioner has approached this Court. It is not in dispute that though Sub Divisional 2 Officer has mentioned that the order is passed under Section 247 of the M.L.R. Code, the order is under Section 23. The learned counsel for petitioner contends that the way was not found in existence at all and only because of the government map showing the existence of way, inference of way has been drawn. Learned counsel for respondent no.3 on the other hand states that not only on the basis of the government record, but also on the basis of affidavits filed by respondent no.3 the inference of way has been drawn. With the assistance of both the learned counsel I have perused the papers. Though the order of Tahsildar is not containing all reasons, the Tahsildar has mentioned that the affidavits of two persons were filed by respondent no.3 to prove the existence of way. He has looked into the map also and he has also considered the report which reveal that there was no mark or indication of any way in Gut No.16. Before the Revisional Authority, the present petitioner took stand that the spot inspection report showing the non existence of way was not considered by the Tahsildar. He has also contended that he was not given liberty to cross examine the witnesses whose affidavits were filed by respondent no.3. The Sub Divisional Officer has not considered all this and the material, but has reproduced the rival contentions and then has suddenly concluded that the order of Tahsildar does not call for any interference. Shri Kilor, learned counsel has contended that opportunity was given to the petitioner to contest the matter and they have not participated in the matter, and hence no leniency can be shown in their favour. He has further states 3 that the petitioner is a Police Patil and hence the interference by this Court in any would deny to respondent no.3 the user for further indefinite period. As already noticed above, I find the order of Sub Divisional Officer in revision is cryptic and unreasoned. Not only this, the Tahsildar also has not mentioned exactly what was the affidavit filed and there is no specific finding recorded about the existence of right. In this situation, merely because the petitioner did not participate in the matter, such orders cannot be allowed to stand. Respondent no.3 has in his application under Section 5 not pointed out the date on which he was obstructed or the mode and manner in which the way was obstructed. The spot inspection report prima facie show that there was no way found in gut no.16 and no such user could to be detected. It appears from the pleadings of present respondent no.3 that way was brought under cultivation by petitioner. This aspect and its impact also has not been looked into. Shri Kilor, learned counsel has argued that this is the only way for respondent no.3 to approach his field. This contention also does not find any mention in the matter. In this situation, the impugned order dated 29.06.2009 passed by the Sub Divisional Officer and also the order passed by the Tahsildar dated 28.10.2008 are quashed and set aside. Petitioners are given opportunity to appear before the Tahsildar and contest the matter, however, the same shall be subject to payment of cost of Rs. 5000/- by petitioner to respondent no.3 within a period of four weeks from today. Respondent no.3 has contended that he is using the way because of the concurrent orders. Petitioner is 4 disputing this. The revenue authorities namely respondent nos. 1 and 2 are aware of the factual situation on the spot. If the respondent no.3 is already using the way because of interim order, such user can be provisionally permitted during the pendency of the proceedings. The proceedings are expedited and the Tahsildar is directed to decide the issue as early as possible and in any case by 30.04.2010. Parties to appear before the respondent no.2 Tahsildar on 25.02.2010 and to abide by its further instructions in the matter. Rule accordingly. No cost. JUDGE Rgd.