*1* wp.7094.10.912.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7094 OF 2010 Shivram Mahadu Surude. ..Petitioner -Versus- Harishchandra Dhondu Padmere and others. ..Respondents .......... Mr.Rahul D. Motkari, for the Petitioner. Mr.P.A.Sarwankar i/b G.S.Bhat, for the Respondent Nos.1 to 4. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 11th August, 2011. P.C.: 1 The Petitioner challenges an order passed on the application made under the Mamlatdars’ Courts Act, 1906 and to be precise under section 5 thereof. This application was made by the Respondents to this Writ Petition. On this application, the Tahasildar has passed an order directing the Petitioner to remove the obstruction allegedly caused to the road which passes through Gat No.399. This order has been confirmed by the Sub-Divisional Officer in revision application and that is why this Writ Petition. 2 This Writ Petition was admitted by this Court and was placed before me for confirmation of the ad-interim order. At that stage, I have heard both sides and perused the petition and annexures thereto. 3 In the Writ Petition, a specific contention is raised that no opportunity was given to the Petitioner to lead evidence and that there was no cause of action for the application at all. Further, the panchanama was not drawn in presence of the Tahasildar. The Petitioner has raised a *2* wp.7094.10.912.sxw specific plea that there is no road passing through Gat No.399. The alleged road merely touches the boundary of Gat No.399 and does not pass through it. All pleas were taken before the Tahasildar and in the memo of revision application which was filed before the Sub-Divisional Officer. It is stated that the Petitioner was present on 22.12.2009, but sought adjournment. That adjournment was refused by the Sub-Divisional Officer and the impugned order has been passed. It is on these pleas, that the Writ Petition has been admitted. 4 An affidavit in reply has been filed by the Respondent No.1 and it is stated that the Petitioner is a rich landlord and politically influential, whereas, the Respondents are small land holders and depend upon the agricultural income. The Petitioner has illegally obstructed the road passing through his property. The Respondent No.1 has denied all contentions as raised in the Writ Petition and stated that the Respondents have to walk for more than two hours to reach their fields from the different approaches on account of the obstruction caused by the Petitioner. CTS map and its correctness is also denied. 5 It is on this material that I have heard Mr.Motkari, learned counsel appearing for the Petitioner and Mr.Sarwankar, learned counsel appearing for the Respondents. With their assistance I have perused the petition and relevant material. To my mind, if the grievance of the Petitioner is that there was no road passing through Gat No.399 whereas the Respondents contend that there was existing road which has been obstructed, then, it was incumbent upon the Tahasildar to render a finding as to whether, there was pre-existing road. His finding is that the panchanama shows that in village Ubhade, taluka : Igatpuri, there is a road from Gaothan to Gat Nos.398, 399 and 94 and this road has been repaired by the Gram Panchayat from time to time. According to the *3* wp.7094.10.912.sxw Tahasildar, this road has been blocked by placing the stones in Gat No. 399. This is the very road which passes through this Gat number and thereafter, Gat No.94. The finding that this was the existing road from East to West and therefore, was passing through all these properties, has not been recorded on the basis of cogent and proper material. It is then stated that the Petitioner (Shivram) appeared before the Tahasildar and made a statement that Gat No.399 is standing in his name. There was road, East to West in direction and which passes through Gat No.399. This road exists even today. There is no objection for the Respondents’ using this road and the same has never been obstructed nor the Petitioner intends to do so. 6 In the memo of the revision application, it is stated that no such statement was made and in fact it was for the Tahasildar to have found the existence of the road. If there was no obstruction or objection as stated, then, why the panchanama was prepared and what was the occasion for doing so, has not been clarified at all. 7 To my mind, the matter has not been dealt with by the Tahasildar in accordance with the provisions of the Mamlatdars’ Courts Act, 1906. Whether, there was existing road which has been passing through Gat No.399 and that has been obstructed by the Petitioner or not, is what is required to be decided. That having not been properly decided and that too by assigning satisfactory reasons, so also, relying upon the material which is permissible in law, there is no alternative but to quash and set aside both orders that are impugned in this Writ Petition. 8 Accordingly, the Writ Petition succeeds. Rule is made absolute in terms of prayer clause (b). The matter will now be heard by the Tahasildar, Igatpuri again. He shall endeavour to dispose of Vahivat Case No.5/2004 as expeditiously as possible and within a period of two months *4* wp.7094.10.912.sxw from today. The parties shall now appear before the Tahasildar on 24th August, 2011. All contentions of both sides are kept open. This Court has not expressed any opinion on the rival contentions, but only with a view to impress the authorities as to how the matter needs to be decided in accordance with law, this elaborate order was necessary. The impugned orders being vitiated by non application of mind, so also, by errors apparent on the face of record, this Writ Petition has been allowed. There will be no order as to costs. (S.C. Dharmadhikari, J)