1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. L.P.A. No. 448/2009 in WRIT PETITION NO.1054/2009 (D) (Sakharam Bhojaji Nadhe .vs. Additional Collector, Akola and others. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders CORAM : B.P.DHARMADHIKARI & P.D. KODE, JJ. DATED : JULY 22, 2011 Heard Advocate Shri A.S. Mardikar for appellant, learned AGP Shri J.B. Jaiswal for respondents no.1 and 2 and Advocate Shri A.J. Thakkar holding for Advocate Shri C.A. Joshi for respondent no.3. Perused earlier order of this Court dated 3.5.2007 in Writ Petition No. 1909/2007. There this Court permitted the present petitioner to file an application under Section 49 of the Maharashtra Land Revenue Code to Tahasildar and directed Tahsildar to decide it expeditiously. Accordingly the petitioner moved application and that application was rejected on 30.9.2008 by Tahasildar. That rejection was then questioned in revision and the Additional Collector on 28.11.2008 dismissed the revision. The learned Single Judge in Writ Petition No. 1054/2009 on 17.4.2009 maintained these concurrent orders. 2 In this background, Advocate Shri Mardikar has contended that pipeline which was laid admittedly in the year 2000 and is in existence even today, has been found to be laid without consent and said finding, therefore, cannot be accepted. He further argues that in 2006, it became necessary to repair that pipeline and as repairs were obstructed, the application to Tahasildar was required to be filed. He points out that field Gat No. 33 of present petitioner has a well in it and from that well through underground pipeline since year 2000, water is being taken to another field of petitioner i.e. Gat no.48. In the process, pipeline has to pass through Gat Nos.36 and 37 of present respondent no.3. According to learned counsel, pipeline is underground and it does not in any way cause any inconvenience or prejudice to respondent no.3. Advocate Shri Thakkar for respondent no.3 points out that the controversy had reached finality when this Court disposed of writ petition earlier on 3.5.2007. Thereafter leave to file the application under Section 49 was given and though application styled as under Section 49 was filed, effort was to have earlier pipeline already laid regularized. The Authorities as also the learned Single Judge of this Court have accordingly applied the mind. Learned AGP as also Advocate Shri Thakkar pointed out that as the pipeline though underground passes not by the boundary but under the crops in field Gat No.36 and 37, its repairs and maintenance causes inconvenience to respondent no.3 and his standing crops. The learned counsel for respondent no.3 states that there was in fact no 3 consent given by respondent no.3 at any point of time. The right of the petitioner to have water to his field is recognized by law and for that he can also have a pipeline by adopting nearest possible course. Here if a straight line is drawn from field Gat No.33 to 48, the pipeline has to pass under the crops standing in field Gat No.36 and 37. It is, therefore, obvious that it causes the inconvenience on each occasion when pipeline is required to be repaired or when maintenance operation is required to be carried out. Facts also show that pipeline existed without any express objection from respondent no.3 from the year 2000 at lest till the year 2006. We, therefore, cannot accept the contention of respondent no.3 that it was laid without his consent. Facts also show that lateron maintenance and repairs to that pipeline has resulted in some inconvenience and might have damaged standing crops of respondent no.3. In this situation, we permit petitioner to move fresh application under Section 49 of the Maharashtra Land Revenue Code to carry pipeline along the boundaries between Gat Nos. 36, 37 and thereafter of Gat No.36 and Gat No.38 in accordance with law by keeping in mind the shortest possible course available in this respect. The petitioner to move such application within a period of four weeks from today and if such an application is moved, the Tahasildar shall adjudicate the same in accordance with law, as an application for laying down a fresh pipeline, within further period of three months after hearing all concerned. 4 If shifting of already existing underground pipeline becomes essential, the same shall be undertaken by the petitioner with consent of the respondent no.3 and under the orders of the respondent no.2 taking all precaution that in process no damage is caused to standing crops of the respondent no.3. With said liberty and observation, the present L.P.A. is disposed of. No costs. JUDGE JUDGE halwai