wp3523-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3523 OF 2011 Nitin Nimba Bhadane .. Petitioner versus The State of Maharashtra & Ors .. Respondents Mr.R.B.Raghuwanshi with Ms.Rutuja Ambekar for the petitioner. Mr.R.M.Patne, A.G.P for respondent No.1. Mr.M.N.Sandhyanshiv for respondent No.2. CORAM : S.C.DHARMADHIKARI, J. DATE : 20th JUNE 2011. P.C.: 1] The argument of Mr.Raghuvanshi appearing for petitioner Nitin is that survey No.240 is divided and there are two sharers, viz., Nitin and Prashant. He submits that the confusion occurred because of the fact that Tahsildar Malegaon while taking cognisance of the application of respondent No.2 has in the garb of directing one Nimba Bhadane to make the road available to second respondent, wp3523-11.doc 2 affected vital rights of the parties, who have right, title and interest in Gat No.240. The order passed by the SDO makes a reference to the petitioner's land. However, the petitioner is not party to the original application nor to the revisional proceedings. For all these reasons, the impugned order is ex facie bad in law and deserves to be set aside. 2] The contesting respondent No.2 has been served and his Advocate appears and submits that the factual position as emerging from the panchanama is that common road should be made available near the Bund by the owners of Gat No.240 and 239. However, he fairly submits that neither the petitioner nor the said Prashant have been impleaded as parties. In such circumstances, after the matter was argued for some time, it is agreed that the order of SDO Malegaon dated 30th August 2010 passed in Revision No.73 of 2010 be set aside and the matter be remanded to the SDO for decision afresh in accordance with law. It is also agreed by respondent No.2 that he will implead both the persons who have right, title and interest in Gat No. wp3523-11.doc 3 240 and make fresh application under section 5 of the Mamlatdar Courts Act, 1906. Needless therefore to clarify that if such an application is made, impleading all necessary parties, the same will be decided on merits and in accordance with law. All contentions on the issue of existence of road are kept open. Equally, this order does not conclude the objection to the maintainability of application under Mamlatdar Court's Act 1906. Petition is disposed of accordingly. No costs. (S.C.DHARMADHIKARI, J)