1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Writ Petition No.4618/2010 Raju Wamanrao Bahadare Vs. The S.D.O. and others. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. A. I. Sheikh, Adv. for the petitioner. Mr. Thakre, AGP for respondent nos. 1 and 2. CORAM ; B. P. DHARMADHIKRI, J. DATED : 21st October, 2010. Heard Advocate Sheikh for the petitioner and Advocate Vyas for respondent no.3 and AGP Thakre for respondents 1 and 2. Challenge is to order dated 13.7.2010 passed in an appeal filed by respondent no.3 challenging directions issued by Mamlatdar to remove encroachment on a way. Respondent no.1-Sub Divisional Officer after treating it as an appeal under Section 247 of Maharashtra Land Revenue Code, allowed it. Contention of Adv. Sheikh is that order passed by Mamlatdar was under Section 5 of Mamlatdar Courts Act and direction to remove encroachment on way is also under that provision reference to Section 53 of Maharashtra Land 2 Revenue Code by Mamlatdar in operative part of order is erroneous. Hence, he contends that proceedings before S.D.O. ought to have been treated as revision under Section 23 of Mamlatdar Courts Act. Learned AGP as also Advocate Vyas have pointed out that proceedings before the Tahsildar cannot be viewed as proceedings under Section 5 of the Mamlatdar Courts Act. Advocate Vyas has tried to demonstrate that material ingredients required in such application are lacking in application as moved or then application for stay as moved. With the assistance of both counsel I have perused both the applications. The application dated 15.2.2010 complaints of encroachment on way and prays for its removal. It does not give any date of cause of action and other particulars. Other application is dated 3.3.2010 and it is filed for grant of interim stay. Again it does not mention any particular date on which cause of action first accrued. Perusal of paragraph 4 thereof shows that even on that date the work of offending construction was going on. Advocate Vyas has urged that no witnesses were examined before Tahsildar and only affidavits were filed. Those persons were not made available for cross- examination. S.D.O has found that application as filed could not have been entertained even under Mamlatdar Courts Act. 3 In this situation, without observing anything more the petitioner is permitted to file appropriate proceedings in accordance with law. It is made clear that observations made in the impugned orders shall not operate to anybody's prejudice, if any such proceeding is filed. With this observation, the petition is disposed of. No costs. JUDGE ambulkar