1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 2193 OF 2010. Mahadeo Sheshraoji Bhuskade -: VERSUS :- Sub Divisional Officer, Achalpur 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 : OCTOBER 11, 2010. Heard learned counsel for parties. Writ Petition was dismissed on 13.08.2010 and then Misc. Civil Application No.890/2010 came to be filed. On that Misc. Civil Application on 20.09.2010 this Court directed the parties to argue the matter on merits, as the matters is argued today on merits, prayers made in Misc. Civil Application are granted. Writ Petition is accordingly restored back to file. …...... 2 Notice has been issued for final disposal and accordingly I have heard Shri A.V. Gawande, learned Counsel for Petitioner, Shri Joshi, learned A.G.P. for respondent no.1 and Shri P.S. Patil, learned Counsel for respondent nos. 2 and 3. Rule returnable forthwith, heard finally by consent of parties. Application allegedly under Section 5 of the Mamlatdar Courts Act, filed by the petitioner was allowed by the Mamlatdar (Tahsildar) on 30.01.2009. Respondent nos. 2 and 3 thereafter filed revision, and that revision has been allowed by respondent no.1 Sub Divisional Officer on 19.04.2010. Shri Gawande, learned Counsel contends that the Revisional Authority has not considered the challenge on merits and only because of the finding, that the application under Section 5 was filed 15 days after the expiry of 6 months, it has been rejected. According to him first representation in this respect was made on 12.05.2004 and cognizance thereof was taken by Mamlatdar with direction to the Registrar and to issue notice to the respondents/objectors. The application filed on 16.11.2004 by the petitioner is only by way of rejoinder. He has invited attention to the provisions of Sections 8 and 9 of the 3 Mamlatdar Courts Act to urge that the course of action and procedure is expected to be adopted by Mamlatdar in such situation. According to him, respondent no.1 has taken undue technical view of the matter and has allowed the revision. Shri Patil, learned Counsel on the other hand has contended that copy of the application dated 16.11.2004 was not received by the respondents, hence they could not raise the contention that the application. as filed was barred by limitation. The learned Counsel further states that the respondents received only copy of alleged representation dated 12.05.2004 and matter was contested on its strength. As no leave to either amend the representation as filed, or to file proper application as required by Section 5 of the Act, was obtained from the Mamlatdar, the Mamlatdar could not have taken cognizance of that application dated 16.11.2004. He has relied upon the provisions of Section 5 to urge that the fulfillment of ingredients specified therein is mandatory and there is no provision for condonation of delay. Lastly, the learned Counsel states that the story of alleged obstruction is based upon plantation of trees by respondent nos. 2 and 3 and hence, the obstruction by itself may not constitute a legal and valid cause of action. 4 After haring the respective Counsel, I find that neither the Mamlatdar nor the Sub Divisional Officer has looked into all these arguments and various questions which arise in the matter. The basic question was, whether the application as filed was within the limitation and then for said purpose the other question was, whether the representation dated 12.05.2004 has been or could not have been treated as application under Section 5; compliance with the procedure prescribed by Sections 5, 8 and 9 also should have been verified. The provisions of Sections 10 and 11 and compliance therewith or absence thereof and with further provision of the Act also needed scrutiny. Before this Court, it appears that on the representation filed by the petitioner on 12.05.2004 an endorsement was made by the Mamlatdar to register it and to issue notice to other side. It appears that the because of this endorsement the proceedings began and later on i.e. on 16.11.2004 the petitioner placed an application styled as application under Section 5 of the Mamlatdar Courts Act for removal of obstruction. The endorsement in its margin shown that the copy was received by the defendants Advocate on 12.12.2005. 5 In this situation, I find that interest of justice can be met with by directing the Mamlatdar to hold fresh enquiry into the matter in accordance with the provisions of law and in the light of the observations made above. I find the inquiry essential because of the grievance made by the petitioners on 12.05.2004 is already on record. Whether the cognizance of that grievance can be taken within the forcorners of the Mamlatdars Court Act, 1906 is the question which needs to be enquired into by the Mamlatdar, after due opportunity to all sides. For said purpose the impugned order passed by the Sub Divisional Officer dated 19.05.2010 as also the order dated 30.01.2009 passed by the Naib Tahsildar, Chandur Bazar (Mamlatdar) are quashed and set aside. The proceedings in Revenue Case No.2/MCA-5/ Mouza – Sarfabad 2003-04 are restored back to the file of Mamlatdar to take fresh decision in accordance with the law. Parties are directed to appear before the Mamlatdar on 15.11.2010 and to abide by his directions in the matter. Writ Petition is allowed. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE Rgd.