Bombay High Court
Santosh Bhausaheb Waghmode And Another vs The State Of Maharashtra Through The … on 4 August, 2025
2025:BHC-AUG:20526
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5074 OF 2022
Vimal W/o. Bhausaheb Nabde
Age : 50 years, Occ : Agril,
R/o Sirasgaon, Tq. Newasa,
Dist. Ahmednagar.
..PETITIONER
VERSUS
1. The Sub Divisional Officer,
Ahmednagar, Dist. Ahmednagar.
2. The Tahsildar,
Tahsil Office, Newasa,
Tq. Newasa, Dist. Ahmednagar.
3. Radhakisan Sandipan Thorat,
Age : 49 years, Occ : Agril,
R/o Sirasgaon, Tq. Newasa,
Dist. Ahmednagar.
4. Sanjay D/o Sandipan Thorat
Age : 43 years, Occ : Agril.,
R/o as above.
5. Hirabai W/o Asaram Fukte
Age : 56 years, Occ : Agril.,
R/o As above.
6. Barku S/o Dagdu Auti
Age : 43 years, Occ : Agril.,
R/o As above.
7. Shivaji S/o Dagdu Auti
Age : 50 years, Occ : Agril.,
R/o As above.
8. Babasaheb S/o Dagdu Auti,
Age : 46 years, Occ : Agril,
R/o As above.
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9. Sunanda W/o Shankar Auti
Age : 49 years, Occ : Agril,
R/o As above.
..RESPONDENTS
...
Mr.D.A. Mane, Advocate for the petitioner
Mr.N.D. Raje, AGP for the respondent/State.
Mr.S.V. Jadhawar, Advocate for respondent Nos.3 and 4.
...
AND
WRIT PETITION NO. 5155 OF 2022
1. Santosh Bhausaheb Waghmode
Age : 32 years, (Major), Occ. Agri.,
R/o Babhulgaon, Taluka Rahuri,
Dist. Ahmednagar.
2. Amol Ramdas Waghmode,
Age : 26 years, Occ : Agril.,
R/o Babhulgaon, Tq. Rahuri,
Dist. Ahmednagar.
..PETITIONERS
VERSUS
1. The State of Maharashtra,
through the Collector, Ahmednagar.
2. The Sub Divisional Officer/
The Deputy Collector, Shrirampur Division,
Shrirampur, Dist. Ahmednagar.
3. The Tahsildar, Tahsil Office, Rahuri,
Tq. Rahuri, Dist. Ahmednagar.
4. Mr. Dada Raibhan Waghmode
Age : Major, Occ : Agril.,
R/o Babhulgaon, Tq. Rahuri,
Dist. Ahmednagar. ..RESPONDENTS
...
Mr.V.B. Jagtap, Advocate for the petitioners
Mr. R.D. Raut, AGP for the respondent/State.
Mr. R.S. Kasar, Advocate for respondent No.4.
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AND
WRIT PETITION NO. 5623 OF 2022
1. Sitaram S/o Dhula Gaikwad
Age : 71 years, Occ : Agriculture,
R/o Borsar (Kh), Tq. Kannad,
Dist. Aurangabad.
2. Dattu S/o Nana Gaikwad
Age : 35 years, Occ : Agriculture,
R/o Borsar (Kh), Tq. Kannad,
Dist. Aurangabad.
3. Pundlik S/o Jagannath Gaikwad
Age : 33 years, Occ ; Agriculture,
R/o Borsar (Kh), Tq. Kannad,
Dist. Aurangabad.
4. Sunil S/o Jagannath Gaikwad
Age : 42 years, Occ : Agriculture,
R/o Borsar (Kh), Tq. Kannad,
Dist. Aurangabad.
..PETITIONERS
VERSUS
1. The State of Maharashtra
through the Secretary,
Revenue Department, Mantralaya,
Mumbai.
2. The Deputy Collector (EGS),
Aurangabad.
3. The Tahsildar, Kannad,
Dist. Aurangabad.
4. Appa S/o Laxman Gaikwad
Age : 55 years, Occ : Agriculture,
R/o Jod Borsar, Tq. Kannad,
Dist. Aurangabad.
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5. Vitthal S/o Laxman Gaikwad
Age : 53 years, Occ : Agriculture,
R/o Job Borsar, Tq. Kannad,
Dist. Aurangabad.
6. Eknath S/o Laxman Gaikwad
Age : 50 years, Occ : Agriculture,
R/o Job Borsar, Tq. Kannad,
Dist. Aurangabad.
7. Janardhan S/o Pandurang Gaikwad
Age : 45 years, Occ : Agriculture,
R/o Job Borsar, Tq. Kannad,
Dist. Aurangabad.
8. Madhav S/o Sakhahari Gaikwad
Age : 50 years, Occ : Agriculture,
R/o Job Borsar, Tq. Kannad,
Dist. Aurangabad.
9. Lata W/o Karbhari Gaikwad
Age : 45 years, Occ : Agriculture,
R/o Job Borsar, Tq. Kannad,
Dist. Aurangabad.
..RESPONDENTS
...
Mr.K.F. Shingare, Advocate for the petitioners
Mr. V.S. Badakh, AGP for the respondent/State.
Mr. N.D. Sonavane, Advocate for respondent Nos.4 to 9.
...
AND
WRIT PETITION NO. 6895 OF 2022
1. Lata Manohar Magar
Age : 52 years, Occ : Agri.,
2. Manohar Dhondiba Magar
Age : 57 years, Occ : Agri.,
Both R/o Sade, Tq. Kopargaon,
Dist. Ahmednagar.
..PETITIONERS
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VERSUS
1. Rekha Bhaskarrao Gade
Age : 57 years, Occ : Agri.,
2. Gokul Punja Barhate
Age : 53 years, Occ : Agri.,
3. Eknath Dhondiba Magar
Age : 61 years, Occ : Agri.,
All R/o Sade, Tq. Kopargaon,
Dist. Ahmednagar.
..RESPONDENTS
...
Mr.P.M. Borde h/f Mr.Shailesh S. Chapalgaonkar, Advocate for
the petitioners
Mr. A.D. Sonkawade, Advocate for respondent No.1.
...
AND
WRIT PETITION NO. 7499 OF 2022
1. Sunil Govardhan Kabra
Age : 55 years, Occ : Agri.,
R/o Sai Palace, K-10,
Tirupati Supreme Enclave,
Jalan Nagar, Aurangabad.
2. Anil Govardhan Kabra
Age : 51 years, Occ : Agri.,
R/o Govardhan Niwas,
Opposite District Court,
Aurangabad.
..PETITIONERS
VERSUS
1. The Sub-Divisional Officer,
Bhokardan, Dist. Jalna.
2. The Tahsildar/Mamlatdar,
Jafrabad, Tq. Jafrabad,
Dist. Jalna.
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3. The Circle Officer,
Tembhurni, Tq. Jafrabad,
Dist. Jalna.
4. Dinkarrao Marotrao Deshmukh
Age : 45 years, Occ : Agri.,
5. Suresh Kisanrao Deshmukh
Age : 41 years, Occ : Agri.,
6. Bhagwanrao Marotrao Deshmukh
Age : 50 years, Occ : Agri.,
7. Jagannath Marotrao Deshmukh
Age : 49 years, Occ : Agri.,
8. Vasant Vyankatrao Deshmukh,
Age : 50 years, Occ : Agri.,
9. Smt. Sunita Kisanrao Ambhore
(Died) Through her legal heirs
9.1. Sunil Kisanrao Ambhore
Age : 48 years, Occ : Agri.,
9.2. Neeta Sarjerao Patil
Age : 45 years, Occ : Agri.,
9.3. Geeta Narayan Mule
Age : 43 years, Occ : Agri.,
9.4. Anil Kisanrao Ambhore
Age : 38 years, Occ : Agri.,
All R/o Timbhurni, Tal. Jafrabad,
Dist. Jalna.
10. Smt. Kavitatai Ganeshrao Deshmukh
Age : 39 years, Occ : Agri.,
11. Smt. Sandhyatai Rameshrao Deshmukh
Age : 40 years, Occ : Agri.,
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12. Sau. Padmini Vasantrao Deshmukh
Age : 30 years, Occ : Agri.,
13. Sau. Hausabai Shamrao Gaikwad
Age : 50 years, Occ : Agri.,
14. Sandip Shamrao Gaikwad
Age : 50 years, Occ : Agri.,
15. Sudhakar Baliram Waghmode
Age : 45 years, Occ : Agri.,
16. Bhagwan Rajaram Deshmukh
Age : 42 years, Occ : Agri.,
17. Abarao Rajaram Deshmukh
Age : 48 years, Occ : Agri.,
18. Shivaji Aheluba Deshmukh,
Age : 46 years, Occ : Agri.,
19. Ankush Pandurang Chaure
Age : 45 years, Occ : Agri.,
20. Shrirang Sukhdeo Chaure
Age : 53 years, Occ : Agri.,
21. Girish Jagannath Deshmukh
Age : 52 years, Occ : Agri.,
22. Shantabai Jagannath Deshmukh
Age : 55 years, Occ : Agri.,
23. Sandip Dinkarrao Deshmukh
Age : 49 years, Occ : Agri.,
24. Anand Dinkarrao Deshmukh
Age : 47 years, Occ : Agri.,
25. Sau. Sangita Suresh Deshmukh
Age : 30 years, Occ : Agri.,
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Respondent Nos.4 to 25 All
R/o Tembhurni, Tq. Jafrabad,
Dist. Jalna.
..RESPONDENTS
...
Mr.A.M. Hajare, Advocate for the petitioners
Mr. R.D. Raut, AGP for the respondent/State.
Mr.V.R. Dhorde, Advocate for respondent Nos.4 to 25.
...
AND
WRIT PETITION NO. 7526 OF 2022
Bismillabi Amanulla Khan
Age : 76 years, Occ : Agricultural,
R/o At-Chikalthan, Taluka-Kannad,
Dist. Aurangabad, Maharashtra - 431 103.
..PETITIONER
VERSUS
1. Kalpanabai Murlidhar Raghu
Age : 55 years, Occ : Agricultural,
2. Vijay Murlidhar Raghu
Age : 30 years, Occ : Agricultural,
Both R/o At-Chikalthan, Taluka-Kannad,
Dist. Aurangabad, Maharashtra - 431 103.
..RESPONDENTS
...
Mr.A.A. Kokad, Advocate for the petitioner
Mr.P.S. Pawar, Advocate for respondent Nos.1 and 2.
...
AND
WRIT PETITION NO. 8819 OF 2022
1. Digambar S/o Shivaji Marathe
Age : 38 years, Occ : Service and Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
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2. Dagadu S/o Shivaji Marathe
Age : 41 years, Occ : Service and Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
..PETITIONERS
VERSUS
1. The Sub-Divisional Officer,
Pachora,
Through Sub-Divisional Office, Pachora
2. The Tehsildar, Bhadgaon,
Through Tehsil Office, Bhadgaon.
3. Pratap S/o Arjun Patil
Age : 62 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
4. Sandhyabai W/o Prataprao Patil
Age : 57 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
5. Rajani W/o Arun Wani
Age : 52 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
6. Ganesh S/o Dattu Wani
Age : 24 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
7. Salochanabai W/o Ramesh Patil
Age : 67 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
8. Rajendra S/o Bhavrao Patil
Age : 52 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
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9. Ramkrishna S/o Bhavrao Patil
Age : 64 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
10. Lilabai W/o Lotan Patil
Age : 62 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
11. Kashinath S/o Narayan Patil
Age : 60 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
12. Kalpanabai W/o Vithhal Patil
Age : 37 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
13. Sindhubai W/o Ramesh Marathe
Age : 67 years, Occ : Service and Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
14. Dilip S/o Ramesh Marathe
Age : 50 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
15. Kiran S/o Ramesh Marathe
Age : 48 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
16. Deepak S/o Ramesh Marathe
Age : 46 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
17. Prashant S/o Ramesh Marathe
Age : 44 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
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18. Hirabai W/o Bhila Gaikwad
Age : 57 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
19. Madhavrao S/o Shankar Gaikwad
Age : 72 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
20. Mirabai W/o Bapu Gaikwad
Age : 67 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
21. Santosh S/o Baburao Marathe
Age : 57 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
22. Sumanbai W/o Uttam Patil
Age : 58 years, Occ : Agriculturist,
R/o Bhadgaon Peth, Tq. Bhadgaon,
Dist. Jalgaon.
..RESPONDENTS
...
Mr.Swapnil S. Patunkar for J.P. Legal Associates, Advocate for
the petitioners
Dr. Kalpnata Patil Bharaswadkar, Addl. GP for the
respondent/State.
...
AND
WRIT PETITION NO. 8920 OF 2022
Premraj S/o Achutrao Varat
Age : 45 years, Occ : Agriculture,
R/o Pimpalgaon Kanada, Tq. Georai,
Dist. Beed.
..PETITIONER
VERSUS
1. The Sub-Divisional Office at Beed,
Tq. & Dist. Beed.
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2. The Tahsildar Office Georai,
Tq. Georai, Dist. Beed.
3. The Nayab Tahsildar, Georai,
Tq. Georai, Dist. Beed.
4. The Circle Officer, Pachegaon,
Tq. Georai, Dist. beed.
5. The Talathi Pachegaon,
Tq. Georai, Dist. Beed.
6. Murlidhar S/o Laxman Warat
Age : 50 years, Occ : Agri.,
R/o Pimpalgaon Kanada,
Tq. Georai, Dist. Beed.
..RESPONDENTS
...
Mr.Sanket S. Kulkarni h/f Mr. D.B. Pookale, Advocate for the
petitioner
Mr. V.S. Badakh, AGP for the respondent/State.
Mr. S.R. Shirsat, Advocate for respondent no.6.
...
AND
WRIT PETITION NO. 3270 OF 2022
1. Motilal S/o Nirranjan Bharathi
Age : 57 years, Occ : Service & Agriculture,
2. Sow. Vandanabai Motilal Bharati,
Age : 51 years, Occ : Household,
3. Maharu Niranjan Bharati
Age : 64 years, Occ : Agriculture,
All R/o Salave, Tq. Shindkhed,
Dist. Dhule
..PETITIONERS
VERSUS
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1. Sunita Bajirao Mali
Age : 43 years, Occ : Household,
2. Chindhabai Vishram Mali
Age : 66 years, Occ : Household,
All R/o Salave, Tq. Shindkhed,
Dist. Dhule
3. Shobhabai Shivdas Mahajan
(Deleted as per Court order
dated 14.07.2022).
4. The Tahsildar, Dondaicha,
Tq. Shindkhed, Dist. Dhule.
5. Sub-Divisional Officer, Shirpur,
Tq. Shindkhed, Dist. Dhule.
..RESPONDENTS
...
Mr.M.V. Salunke, Advocate for the petitioners
Mr.V.M. Chate, AGP for the respondent/State.
Mr. M.S. Shah, Advocate for respondent nos.1 and 2.
AND
WRIT PETITION NO. 11246 OF 2022
1. Kailash S/o Jagannath Sonawane
Age : 61 years, Occ : Agri.,
2. Pundlik S/o Jagannath Sonawane
Age : 57 years, Occ : Agri.,
3. Ashok S/o Jagannath Sonawane
Age : 40 years, Occ : Agri.,
4. Jagdish S/o Pundlik Sonawane
Age : 33 years, Occ : Agri.,
All residents of Dabhadi,
Tq. Kannad, Dist. Aurangabad.
..PETITIONERS
VERSUS
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1. The State of Maharashtra
Through the Department of Revenue and Forest,
Mantralaya, Mumbai.
2. The Sub-Divisional Officer,
Kannad, Dist. Aurangabad.
3. The Tahsildar
Kannad, Dist. Aurangabad
4. Ambadas S/o Ramrao Sonawane
Age : 70 years, Occ : Agri.,
5. Shivaji S/o Ramrao Sonawane
Age : 55 years, Occ : Agri.,
6. Dilip S/o Ambadas Sonawane
Age : 35 years, Occ : Agri.,
7. Amol S/o Shivaji Sonawane
Age : 30 years, Occ : Agri.,
8. Radhikabai W/o Ambadas Sonawane
Age : 65 years, Occ : Agri.,
9. Sangeeta W/o Shivaji Sonawane
Age : 48 years, Occ : Agri.,
All residents of Dabhadi,
Tq. Kannad, Dist. Aurangabad. ..RESPONDENTS
...
Mr.K.F. Shingare, Advocate for the petitioners
Mr.V.S. Badakh, AGP for the respondent/State.
Mr.A.R. Ban h/f Mr.R.V. Gore, Advocate for respondent nos.4 to 9.
...
AND
WRIT PETITION NO. 3623 OF 2024
1. Ratnakar S/o Vasantrao Bulge
Age : 52 years, Occ : Agriculture,
R/o Surangali, Tq. Bhokardan,
Dist. Jalna.
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2. Prasad S/o Ratnakar Bulge
Age : 26 years, Occ : Agriculture,
R/o Surangali, Tq. Bhokardan,
Dist. Jalna.
3. Meenabai W/o Ratnakar Bulge
Age : 40 years, Occ : Agriculture,
R/o Surangali, Tq. Bhokardan,
Dist. Jalna.
..PETITIONERS
VERSUS
1. Anantrao S/o Vasantrao Bulge
(Died) Through his. L.Rs.
1-A. Vijayabai W/o Anantrao Bulge
Age : 60 years, Occ : Housewife,
R/o Surangali, Tq. Bhokardan,
Dist. Jalna.
1-B. Mangesh S/o Anantrao Bulge
Age : 42 years, Occ : Service,
R/o Surangali, Tq. Bhokardan,
Dist. Jalna.
1-C. Umesh S/o Anantrao Bulge
Age : 35 years, Occ : Housewife,
R/o Surangali, Tq. Bhokardan,
Dist. Jalna.
2. Yogesh S/o Anantrao Bulge
Age : 60 years, Occ : Agriculture,
R/o Surangali, Tq. Bhokardan,
Dist. Jalna. ..RESPONDENTS
...
Mr.S.M. Kshirsagar, Advocate for the petitioners
Mr. M.D. Deshpande, Advocate for respondent nos.1-A to 1-C
and 2.
...
CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 9th JULY, 2025
PRONOUNCED ON: 4th AUGUST, 2025
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JUDGMENT :
. All these petitions arise out of proceedings under
the Mamlatdars’ Courts Act, 1906 (hereinafter referred to as
“the Act”). The controversy in all these cases pertains to
orders passed under Section 5(2) of the Act whereby the
learned Mamlatdar has passed the order directing the
petitioners to remove obstruction on road claimed by the
respondents/original plaintiffs. The petitioners in all these
petitions are original defendants in proceedings filed under
Section 5 of the Act. In all these cases, the learned Mamlatdar
had passed order against the petitioners directing removal of
obstruction. The petitioners filed revision applications
challenging the respective orders passed against them under
Section 23(2) of the Act. The revision applications are also
rejected. The petitioners have approached this Court
challenging the orders passed by the Mamlatdar, which in
turn, have been confirmed by the revisional authority. The
contentions raised by the petitioners are that the provisions of
the Act relating to filing and verification of plaint are not
followed; the suits are filed beyond limitation; by the
impugned orders a new road is created, which is beyond the
scope of jurisdiction of the Mamlatdar exercising jurisdiction
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under the Act; the spot panchanamas on the basis of which
the impugned orders are passed are not drawn in accordance
with the prescribed procedure and that alternate road is
available.
2. In all these matters, the respondents have raised a
preliminary objection to maintainability of the petitions on the
ground of alternate remedy of filing civil suit. Respondents
contend that orders impugned in the present petitions can be
assailed by way of civil suit and further that the petitioners
can approach the competent civil court to get the rights finally
adjudicated and that the orders passed under the Act which
are impugned in the present petitions will not come in the
way to claim adjudication of the controversy on merits before
the civil court once and for all.
3. The submission is elaborated stating that the
orders passed under the Act are subject to order/decree to be
passed by a civil court. It is argued that the Act does not
accord finality to orders passed by Mamlatdar under Section 5
as also to revisional orders passed by the Collector under
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Section 23(2) and therefore, the said orders can always be
assailed in civil suit. They contend that Section 22 of the Act
clearly provides that person in whose favour order under the
Act is passed is entitled to derive benefits of the same only
until there is decree or order to the contrary by the competent
civil court. They, therefore, state that the petitions should not
be entertained in view of the alternate remedy. The learned
Advocates have placed reliance on the following judgments :-
(i) Rajendra s/o Sheshrao Shendge Vs. Shobhatai w/o Shrirao
Ravate and another reported in AIR 2007 Bom. 90,
(ii) Mohommad Khan S/o Rahim Khan Vs. Shankar Maroti
Dhage and another reported in 2017(3) Mh.L.J. 135,
(iii) Digambar and others Vs. Vasant and others reported in
2022(2) Bom. C.R. 154
(iv) Judgment dated 03.07.2025 in the matter of Alka w/o
Pandit Ghongade and others passed in Writ Petition
No.444/2024 passed at Aurangabad Bench of this Court.
4. Per contra, the learned advocates for the
petitioners contend that the orders passed by the authorities
under the Act cannot be challenged by filing a civil suit. They
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contend that Section 23(1) of the Act bars an appeal from the
order passed by the Mamlatdar under the Act. Section 23(2)
of the Act provides that the order passed by the Mamlatdar
shall be subject to a revisional jurisdiction of the Collector. The
contention of the learned advocates is that the Act is a
complete code by itself, and therefore, jurisdiction of the civil
court to entertain challenge to order passed by Mamlatdar or
order passed in revision by the Collector is barred by
implication. As regards Section 22 of the Act, the learned
advocates contend that the provision only contemplates that
the orders passed by Mamlatdar will be subject to any order or
decree passed by a civil court. It is contended that orders
passed by Mamlatdar cannot be challenged before the civil
court in view of Section 22 of the Act. The learned advocates
contend that conjoint reading of Sections 22 and 23 of the Act
will mean that a person against whom order is passed under
the Act may file a substantive civil suit for adjudication of the
dispute before the Mamlatdar by a civil court and when the
claim is adjudicated by the civil court such adjudication shall
have overriding effect over the orders passed under the Act.
According to the learned advocates, the civil court has
jurisdiction to decide a matter decided by a Mamlatdar afresh
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on merits, however, according to them, the civil court cannot
sit in appeal over the orders passed by Mamlatdar and that the
civil court does not have jurisdiction to decide correctness or
otherwise of orders passed by Mamlatdar, although with
respect to the substantive dispute decided under the Act, civil
court may take a contrary view on adjudication of the same
dispute on merits.
5. The learned advocates for the petitioners place
reliance on the following judgments :-
(i) Judgment dated 10.12.2018 passed by this Court in the
matter of Mangalabai Vitthal Jadhav and another Vs. Manisha
Gokul Jadhav and others (Second Appeal (ST.)
No.25760/2018-Bombay Civil Appellate Jurisdiction).
(ii) Judgment dated 05.07.2022 passed by this Court in the
matter of Baban @ Nainsukh Dagadu Kurandale and another
Vs. Dattu Sadashiv Kurandale and others (Writ Petition
No.4425/2021-Bombay Civil Appellate Jurisdiction)
6. The objection pertaining to alternate remedy is
required to be considered in the light of judgments relied by
both sides.
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JUDGMENTS RELIED BY THE RESPONDENTS :-
7. In the case of Rajendra Shendge (supra) a suit
was filed by the plaintiff for removal of encroachment and
possession over agricultural land. The defendant in the suit
had raised an objection to jurisdiction of the civil court by
placing reliance on Section 5 of the Act. It was contended that
the relief sought in the suit was covered by Section 5 of the
Act which is a special enactment, and therefore, jurisdiction of
civil court was barred. Dealing with the contention about
maintainability of the civil suit, this Court held that
Mamlatdars’ Courts Act recognizes existence and continuation
of powers and jurisdiction of a civil court. It is held that
jurisdiction of the authorities under the Act is a summary
jurisdiction. It is held that the jurisdiction of civil court is not
barred either expressly or by necessary implication.
8. The orders passed under the Act were not
challenged in the suit in the aforesaid matter, and therefore,
Rajendra Shendge (supra) is not a direct authority for
proposition that the orders passed under the Act can be
challenged before a civil court.
22
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9. Although in the matter of Digambar and others
(supra) declaration was sought that the order passed by the
Mamlatdar was null and void, substantive relief of perpetual
injunction restraining the defendants from creating a cart-way
was also sought by the plaintiff in the said suit. While dealing
with the contention with respect to the jurisdiction of civil
court to grant relief in respect of an order passed by the
Tahsildar, this Court has held that in view of Section 22 of the
Act, a party to proceeding before Mamlatdar can approach
civil court to obtain relief contrary to the decision taken by
Mamlatdar and decision by civil court contrary to order passed
by Mamlatdar sets the decision by Mamlatdar at naught. This
Court has all throughout dealt with the merits of controversy
involved in the matter. The judgment does not directly hold
that orders passed by the civil court can be challenged by
filing a suit.
10. In the case of Mohommad Khan S/o Rahim Khan
(supra) this Court has specifically held that the orders passed
under the Act can be challenged in a civil suit. The substantial
questions of law in the said Second Appeal were pertaining to
23
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jurisdiction of civil court to entertain a challenge to orders
passed by the Mamlatdar under the Mamlatdars’ Courts Act.
Following substantial questions of law were framed in the
appeal :-
“a) Whether the learned lower appellate Court was
justified in not framing a specific issue with respect to
jurisdiction of the Civil Court to entertain civil suit,
inter alia, challenging the order passed under the
Mamlatdars’ Courts Act, 1906, especially in view of
the provision under section 23 of the said Act?
b) Whether civil suit lies against the order passed by
the Mamlatdar’s Court under the Mamlatdars’ Courts
Act, 1906?
c) Even if it is held that the civil suit lies, inter alia,
challenging the order passed under the Mamlatdars’
Courts Act, 1906, whether the learned lower appellate
Court was justified in considering the entire
controversy afresh? ”
11. The aforesaid questions of law have been
answered by this Court by holding that the jurisdiction of
Mamlatdar is a summary jurisdiction and jurisdiction of civil
court is not barred under the scheme of the Act. With respect
to maintainability of suit to challenge orders passed by
Mamlatdar, this Court has held as under :-
24
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“6. In fact, the question of jurisdiction of the Civil
Court to entertain, try and decide the suit
challenging the order passed under Section 5 of the
Mamlatdars’ Courts Act is no longer res integra in
view of the decision of the learned Single Judge of
this Court in the case of Rajendra Sheshrao Shendge
v. Smt. Shobhatai S. Ravate & Anr. Paras 11, 12 and
13 of the said decision being relevant.
I fully endorse the aforesaid view and intend
to reinforce it as under:
7. I have gone through the provision of Section 5
of the Mamlatdars’ Courts Act. The proviso below
sub-section (1) of Section 5 of the said Act
empowers the Mamlatdar to refuse to exercise the
power under the said provision if it appears to him
that such a case can be more suitably dealt with by
the Civil Court. Though there is a revision provided
under Section 23 of the said Act to challenge the
order passed by the Mamlatdar under Section 5, the
Act nowhere attaches finality either to the order
passed under Section 5 by the Mamlatdar on merits
or to the order passed in revision under Section 23
of the said Act. In the absence of such finality being
attached to the order passed under the Act, the
jurisdiction of the Civil Court cannot be held to be
impliedly barred merely because the Act provides a
separate machinery for getting the grievance
redressed. The ouster of the plenary jurisdiction of
25
5074.2022WP+.odtCivil Court cannot be readily interfered and such
jurisdiction remains intact and available to be
exercised either against the order under Section 5 or
against the order of revision under Section 23 of the
said Act.
8. The learned counsels appearing for the parties
could not bring to my notice any express provision
creating bar of jurisdiction of the Civil Court to
entertain, try and decide the suit challenging either
the order passed under Section 5 or under Section
23 of the Mamlatdars’ Courts Act. In a given case, a
Civil Court may refuse to grant relief on the ground
that the remedy of revision under Section 23 of the
said Act is not exhausted, but that is not the
mandate which the Civil Court is required to
observe. The lower Appellate Court has, in terms,
recorded the finding that when the order passed by
the Mamlatdar is without following the procedure, it
cannot come in the way of the Civil Court to decide
the substantive rights of the parties. The view taken
cannot be faulted with. The substantial questions of
law at serial Nos. (a) and (b) are, therefore,
answered accordingly.
12. In the matter of Alka w/o Pandit Ghongade
(supra) this Court has relegated parties challenging order
passed under Section 5(2) by the Mamlatdar and order
dismissing the revision passed by the Sub-Divisional Officer
26
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under Section 23(2) to alternate remedy of filing civil suit in
view of the judgments in the matters of Rajendra
Shendge(supra) and Mohommad Khan (supra).
JUDGMENTS RELIED BY THE PETITIONERS :-
13. Per contra, in the matter of Mangalabai Vitthal
Jadhav (supra), it is held that in view of Section 22 of the
Mamlatdars’ Courts Act, it will be open for either party to a
proceeding before Mamlatdar to approach the civil court for
adjudication of the dispute before the Mamlatdar on its own
merits. It is held that the civil court is required to adjudicate
the controversy individually on its own merits. It is however
held that the civil court cannot be used by any party to the
proceeding before the Tahsildar as an appellate forum to
challenge the findings rendered by Mamlatdar. Relevant
portion of the judgment is reproduced hereinbelow for ready
reference :-
“12. It is thus evident that the rights claimed
before the authorities under the Act are transitory
in nature and can be finally crystallized only in a
civil remedy before the Civil Court. There can
thus be no dispute that the party approaching the
Civil Court is required to prove his case
27
5074.2022WP+.odtindependently on its own merits and not use the
Civil Court as an Appellate Forum to challenge
the findings rendered by the Mamlatdar, as
sought to be done by the appellants herein.”
14. The said judgment is followed in the matter of
Baban @ Nainsukh Dagadu Kurandale (supra), wherein it is
held as under:-
“7. …. The statutory scheme is that rights and
liabilities of the parties to the lis have to be
independently addressed and decided by the civil
court uninfluenced by the order which may have
been rendered by the Mamlatdar. In that sense,
the adjudication under Section 5 of the Act is
subservient to the adjudication by the civil court.
…. While the civil court can arrive at findings
which are different and indeed opposite to the
findings recorded by the Mamlatdar, the findings
shall have to be recorded by the civil court on the
basis of the material on record in the civil
proceedings, and not on the basis of certain
perceived infirmities procedural or substantive, in
the proceedings by the Mamlatdar.”
15. As noted above, the judgment of Mohommad
Khan S/o Rahim Khan (supra) directly holds that orders
28
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passed under Sections 5 and 23 of the Act can be challenged
before the civil court. As against this, the judgment in the
matter of Mangalabai Vitthal Jadhav (supra) and Baban @
Nainsukh Dagadu Kurandale (supra) directly hold that the
civil court cannot sit in an appeal over the decision by the
Mamlatdar, although the controversy adjudicated by
Mamlatdar can be decided afresh by a civil court and on such
adjudication by the civil court, the decision taken by
Mamlatdar is rendered ineffective.
16. All these judgments are delivered by the learned
Single Judges of this Court. The judgment in the matter of
Mohommad Khan S/o Rahim Khan (supra) is prior in point of
time. This judgment is not considered in subsequent two
decisions of this Court i.e. in the matters of Mangalabai Vitthal
Jadhav (supra) and Baban @ Nainsukh Dagadu Kurandale
(supra).
17. At this stage, it will be appropriate to briefly refer
to the scheme of the Act. The Mamlatdar is a revenue officer,
generally of the rank of Tahsildar. The Act confers jurisdiction
29
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on him to pass appropriate orders in a summary proceeding.
The orders passed under the Act are not meant to decide the
rights of parties finally and conclusively. The proceeding
before the Mamlatdar is called a suit. The person who invokes
the jurisdiction is called plaintiff and other side is called
defendant. The proceedings are commenced with presentation
of plaint which is required to be filed in compliance of Section
7. The plaint must amongst other things disclose the nature of
right, particulars regarding infringement of right and the relief
sought. The plaintiff is also required to file list of documents
and witnesses, if any. In case of any technical defects in the
plaint, the Mamlatdar is required to remove the defects by
following procedure prescribed under Sections 8 to 11 of the
Act. The Mamlatdar is also authorized to summon and
examine witnesses on oath. The Mamlatdar also has authority
to enforce and execute his orders. However, as will be
apparent from reading of Section 22 of the Act, the order of
Mamlatdar is subject to any decree or order to the contrary to
be passed by the Civil Court.
18. Since the controversy in the present matters is
relating to alternate remedy, Sections 22 and 23 of the Act will
30
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be relevant. Section 23 provides that there shall be no appeal
from any orders passed by the Mamlatdar under the Act.
However, Section 23(2) confers jurisdiction/authority upon
the Collector to exercise revisional powers against the orders
passed by the Mamlatdar. The orders passed by Mamlatdar are
subject to orders passed on the same subject matter by the
civil court. Section 22 provides that a person in whose favour
order is passed by Mamlatdar is entitled to reap benefits of the
order only till otherwise decreed or ordered by the competent
civil court. The provision also states that in any subsequent
proceeding between the same parties before the civil court,
the decision by Mamlatdar will not be held to be conclusive.
Thus, orders passed under the Act are subservient to order
and/or decree by a civil court.
19. There is no provision under the Act expressly
excluding jurisdiction of the Civil Court. Jurisdiction of a Civil
Court to test the correctness or otherwise of orders passed by
Mamlatdar under the Act is not expressly barred by any
provision under the Act. The provisions of the Act also do not
indicate that any finality attached either to the orders passed
by the Mamlatdar or the orders passed by the Collector in
31
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Revision under Section 23(2).
20. Legal position that the adjudication by Mamlatdar
is merely ad-hoc adjudication to seize the matter of moment
and not a final and conclusive adjudication is beyond any
doubt. There is complete unanimity in this regard in all the
judicial pronouncements. Perusal of Section 22 of the Act itself
makes this legal position clear. Rather, it provides that orders
passed under the Act are subject to order or decree passed by
the civil court.
21. It is also obvious that the act does not create any
right for the first time. The act merely provides for summary
adjudication of pre-existing rights of easement and other
rights relating to agricultural lands. Needless to reiterate that
adjudication of rights under the Act is not final adjudication
between the parties.
22. In order to decide the issue of jurisdiction of civil
court with respect to orders passed by Mamlatdar under
Section 5 or the Collector under Section 23 of the Act, it will
32
5074.2022WP+.odt
be profitable to refer to the Constitution Bench judgment of
the Hon’ble Supreme Court in the matter of Dhulabhai etc.,Vs.
State of Madhya Pradesh and another, AIR 1959 SC 78. The
Hon’ble Supreme Court has referred to several judgments,
particularly relating to taxing statutes, which contain a
specific provision excluding jurisdiction of civil court and
provided immunity to the orders passed by the authorities
under the said statutes from challenge before the civil court.
After referring to catena of judgments, the Hon’ble Supreme
Court has culled out following legal principles :-
“(1) Where the statute gives a finality to the orders of
the special tribunals the Civil Court’s jurisdiction must
be held to be excluded if there is adequate remedy to
do what the Civil Courts would normally do in a suit.
Such provision, however, does not exclude those cases
where the provisions of the particular Act have not
been complied with or the statutory tribunal has not
acted in conformity with the fundamental principles
of judicial procedure.
(2) Where there is an express bar of the jurisdiction of
the court, an examination of the scheme of the
particular Act to find the adequacy or the sufficiency
of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the
33
5074.2022WP+.odt
examination of the remedies and the scheme of the
particular Act to find out the intendment becomes
necessary and the result of the inquiry may be
decisive. In the latter case it is necessary to see if the
statute creates a special right or a liability and
provides for the determination of the right or liability
and further lays down that all questions about the
said right and liability shall be determined by the
tribunals so constituted, and whether remedies
normally associated with actions in Civil Courts are
prescribed by the said statue or not.
(7) An exclusion of the jurisdiction of the Civil Court
is not readily to be inferred unless the conditions
above set down apply.”
23. It is clear from the aforesaid that even where a
statute attaches finality to the orders passed by statutory
authorities, jurisdiction of civil court is held to be ousted only
if the statute provides for adequate remedy to do what the
civil court is competent to do. It is further clear that if
provisions of the Act have not been complied with then even if
the statute provides for finality to orders, jurisdiction of civil
court to challenge the orders is not excluded. In cases where
there is no express bar to jurisdiction of civil court, the
34
5074.2022WP+.odt
relevant consideration is as to whether the right is conferred
by the Act for the first time along with remedies for the
enforcement of the same. It is held that if a right is created
and remedy is provided under the same statute normally, the
jurisdiction of the civil court ousted. However, if the right is a
preexisting civil right and a forum is provided for
determination of the said right, the test is whether such forum
is competent to grant relief that a civil court can grant to a
litigant. The judgment also states that where the order of the
authority is ultra vires the Act i.e. it is passed in disregard to
mandatory provisions of the Act itself and in cases where
fundamental principles of law have not been followed, in such
cases also jurisdiction of the Civil Court will not be ousted.
Finally, it is held that exclusion of jurisdiction of civil court
should not be readily inferred.
24. In the light of 2nd and 7th principle laid down in
the matter of Dhulabhai (supra), it must be held that
jurisdiction of civil court to decide correctness or otherwise of
orders passed by the Mamlatdar is neither expressly nor
impliedly excluded. In this regard, it must be noted that there
is no express bar to jurisdiction of Civil Court under the Act
35
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and further that the statute does not create any special rights
or liabilities for the first time by simultaneously providing for
remedy for adjudication and enforcement of the same. The Act
does not create rights and provide for machinery for
enforcement of the same uno flatu i.e. in the same breath. The
machinery under the Act is only for summary adjudication of
pre-existing rights and even finality is not attached to such
adjudication.
25. In the considered opinion of this Court, the first
principle in the matter of Dhulabhai (supra) will also be
relevant. The judgment provides that even where statute
provides finality to the orders passed by special tribunals
jurisdiction of the civil court is not excluded in cases where
the statutory authority has not complied with the provisions of
the Act and/or has not acted inconformity with fundamental
principles of judicial procedure. Thus, even in cases where the
Act provides for finality to the orders passed by the statutory
authorities or tribunals, such orders cannot enjoy complete
immunity of being tested by a civil court. Jurisdiction of civil
court to ascertain correctness of orders passed by the
authorities under the Act, which provide for finality of orders
36
5074.2022WP+.odt
is not completely excluded. Having regard to the aforesaid
legal position as also the scheme of Mamlatdars’ Courts Act, it
must be said that jurisdiction of civil court is not excluded to
ascertain correctness or otherwise of orders passed by the
Mamlatdar.
26. Having regard to law laid down in Dhulabhai
(supra), it must be held that the civil court, apart from
deciding the merits of the main dispute, can also decide
correctness or otherwise of the order passed by the Mamlatdar
under Section 5(2) as also by the revisional authority i.e.
Collector under Section 23(2) of the Act.
27. At this juncture, it will be profitable to refer to a
Division Bench judgment of this Court in the matter of
Huseinmiya Dosumiya Vs. Desai Khandubhai Jethabhai
reported in AIR 1954 Bom 239. In the said matter, order
passed by Mamlatdar under the provisions of the Bombay
Tenancy and Agricultural Lands Act, 1948 was challenged as
ultra vires of the Act by filing a civil suit rather than availing
remedy of filing appeal provided under the said Act. Section
37
5074.2022WP+.odt
85 (2) of the Tenancy Act provides that order passed by
Mamlatdar or other authorities under the Act shall not be
questioned in any Civil Court. The Mamlatdar had passed an
order directing delivery of possession under Section 29 of the
Act. The order passed by Mamlatdar was challenged by filing
a civil suit. It will also be pertinent to mention that Section 74
of the Act provides for an appeal against order passed by the
Mamlatdar under Section 29. Ignoring the remedy of filing
appeal provided under the Act itself, a suit was filed in order
to challenge the order passed by the Mamlatdar. In this
context, issue pertaining to jurisdiction of Civil Court arose for
consideration before the learned Division Bench of this Court.
Holding that the Civil Suit is maintainable, the learned
Division Bench has held as under :-
” The other matter that has got to be considered is,
what is the effect of s. 74 of the Act which provides
for an appeal against the order of the Mamlatdar. It
was open to the opponents to prefer an appeal
against the decision of the Mamlatdar because s. 74
in terms provides for an appeal to the Collector
against an order made by the Mamlatdar under s. 29.
Instead of preferring an appeal the opponents have
filed this suit in a Civil Court.
38
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Now, does the fact that a statute provides for a right
of appeal against an order made by an authority set up
under that statute make any difference to the position
when the order made by the authority is an invalid or
ultra vires order? It is clear that if the order itself is
ultra vires it is a nullity and there is no obligation
upon a party against whom the order is made to prefer
an appeal against that order. The appeals that are
provided for under s. 74 are strictly appeals against
valid orders made by the Mamlatdar and orders made
with jurisdiction. It may be that the Collector could
have corrected the Mamlatdar and could have held
that the order of the Mamlatdar was ultra vires. But
the question is not whether the opponents could have
appealed to the Collector and could have got the
necessary relief. The question is whether the
opponents are bound to appeal and are prevented or
precluded from going to a civil Court. In our opinion,
on principle it is erroneous to argue that merely
because a statute provides for a right of appeal, the
party against whom the order is made is bound to
appeal although the order made is a nullity. If the
order is a nullity, the party is entitled to ignore it, to
treat it as waste paper, and to go to a civil Court for a
declaration that the order is a nullity and no action
should be taken against the party under that order
which would prejudice his rights. See for this purpose
the decision of a Full Bench of this Court in
Abdullamiyan Abdulrehman v. The Government of
39
5074.2022WP+.odtBombay. Therefore, in our opinion, the learned Judge
below was right in coming to the conclusion that he
did that the Court had jurisdiction to try this suit.”
28. The judgment in the matter of Huseinmiya
Dosumiya (supra) is followed by learned Single Judge in the
matter of Meerabai Madhav Kossambe Vs. Laxmi Narayan
Naik reported in 2024 SCC Online Bom 1212. The said
judgment arises out of an order passed by the Mamlatdar
under the provisions of the Goa Agricultural Tenancy Act,
which is pari materia with the Bombay Tenancy Act. A suit
was filed seeking declaration that the order passed by the
Mamlatdar was a nullity. Section 58B of the said Act provides
that orders passed by the authorities under the said Act cannot
be challenged before the civil court. It was held that the order
passed by the Mamlatdar was obtained by practicing fraud
and principles of natural justice were also not followed in the
proceeding before the Mamlatdar. The observations with
respect to fraud may not be relevant for the purpose of
present petitions. However, as regards breach of principles of
natural justice, the learned Single Judge has held that breach
of principles of natural justice resulted in violation of one of
40
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the foundational principles of judicial procedure. It was
therefore held that the suit was maintainable in view of first
principle laid down in Dhulabhai. Apart from Dhulabhai, the
learned Single Judge has placed reliance of judgment in the
matter of State Bank of Patiala and others Vs. S.K. Sharma
reported in (1996) 3 SCC 364, wherein it was held that order
passed by authority without opportunity of hearing would be
invalid and also be termed to be void or a nullity. Likewise, by
pressing reliance on the judgment in the matter of
Huseinmiya Dosumiya (supra), it is held as under :-
” 53. …. When the Mamlatdar makes an order
within the jurisdiction or, in other words, makes an
order for the purposes of the Act or an order required
by the Act, such an order cannot be questioned in a
civil Court. However, if Mamlatdar’s order is not for
the purposes of the Act or not required by the Act
and the order is incompetent or ultra vires, then the
order is a nullity, and it can be challenged in a civil
Court.
54. The Division Bench rejected the argument that
since an appeal was provided against Mamlatdar’s
order, the Civil Court would lack jurisdiction to
entertain the suit.”
29. With respect, the judgments in the matters of
41
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Mangalabai Vitthal Jadhav (supra) and Baban @ Nainsukh
Dagadu Kurandale (supra) do not appear to be in consonance
with the principles laid down in the matter of Dhulabhai
(supra). It is not possible to reconcile the ratio of Mangalabai
and Baban @ Nainsukh with the law laid down in Dhulabhai
(supra).
30. The judgments in the matters of Mangalabai
Vitthal Jadhav and Baban @ Nainsukh Dagadu Kurandale
(supra) relied upon by the petitioners not only run contrary
to the ratio of Dhulabhai (supra) but also to the ratio of the
aforesaid Division Bench judgment in Huseinmiya Dosumiya
(supra) which deals with jurisdiction of the Civil Court to
entertain the challenge to the order passed by the Mamlatdar
under the Tenancy Act. It will be pertinent to mention here
that the said judgment deals with a statute under which
jurisdiction of civil court is specifically barred and finality is
attached the orders passed by authorities exercising
jurisdiction under the Tenancy Act. The law laid down in the
said judgment will apply with greater force in the present
cases which deal with orders passed by Mamlatdar and/or
Collector under the Mamlatdars Courts Act, which neither
42
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expressly or impliedly excludes the jurisdiction of a civil court
but rather provides that adjudication under the Act will be
subject to any order to the contrary to be passed by a civil
court.
31. In view of Mangalabai and Baban, relied upon by
the petitioners, although, the civil court cannot sit in appeal
over decision taken by Mamlatdar, it can certainly take
decision on merits of the matter contrary to the decision of
Mamlatdar as also the Sub-Divisional Officer. Adjudication of
the matter on merits by the civil court will have the effect of
rendering the orders impugned in the present petition
nugatory. Therefore, the petitioners can file a suit to have civil
rights adjudicated by competent civil court once and for all.
On adjudication of the matter by civil court controversy will
be set at rest for all times to come.
32. It will also be pertinent to mention that the
controversy involved in the matters under Mamlatdars’ Courts
Act essentially involve a scrutiny of disputed facts. The issue
that arises for consideration pertains to existence of a
43
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easementary right and obstruction thereof. The obstruction
should be within period of six months prior to the date of
filing of the suit before the Mamlatdar. In all these aspects
inquiry is required in disputed questions of facts. It is well
settled that a court exercising jurisdiction under Article 226 or
227 of the Constitution of India should not venture into an
inquiry with respect to disputed questions of facts. Although,
in cases of perversity or findings being based on conjectures
and not on any evidence, and such other limited grounds,
interference with findings of fact is permissible, it is well
settled that in no case the evidence can be re-appreciated in a
petition under Article 226 or 227 of the Constitution of India.
However, civil court is a court of facts and law both. It has
power and jurisdiction to permit parties to lead evidence and
adjudicate disputed questions of facts in a full-dressed trial.
Having regard to the nature of controversy, it is desirable that
the dispute between the parties is thrashed out once and for
all before a civil court. The remedy of filing a civil suit is not
only an equally efficacious remedy but it is rather a more
appropriate and effective remedy.
33. Of late many petitions are coming up before this
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Court arising out of provisions of Mamlatdars’ Courts Act.
Whereas the provisions of Mamlatdars’ Courts Act are
statutory provisions, which are meant to give immediate
urgent reliefs to villagers with respect to the matters covered
under Section 5 of the Act, it is found that the procedural
requirements of the Act are seldom followed. As a
consequence of this, whenever a challenge to the orders
passed under the Act is brought before this Court, submissions
are advanced with respect to technical aspects regarding non-
compliance of statutory provisions relating to procedure. Even
when submissions with respect to merits of the rival claims are
made, since merits of the matter involve essentially disputed
questions of fact, this Court is unable to make a venture to
rule on disputed questions of facts. Most of the times, the
matters are required to be remanded back to decide the case
by following procedural formalities. These procedural
formalities are held to be mandatory. Litigants who are
farmers coming from villages are forced through repeated
rounds of litigation. However, if the matter goes to the civil
court, the controversy between the parties can be adjudicated
on merits and can be set at rest once and for all.
45
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34. There are two regimes regulating right of way
prevailing in the State of Maharashtra. One is under Section 5
of the Mamlatdars’ Courts Act, which enables a Mamlatdar to
order removal of obstruction on an existing road, if the suit is
filed within a period of six months from the date of
obstruction. Apart from this there is another provision under
Section 143 of the Maharashtra Land Revenue Code, under
which the Tahsildar is authorized to grant a new road over
boundaries of agricultural lands. Whereas, the jurisdiction
under the Mamlatdars’ Courts Act is to order removal of
obstruction over existing roads, jurisdiction under Section 143
of the M.L.R. Code is to grant a new right of way over
boundaries of agricultural lands. However, when a suit is filed
under Section 5(2) of the Act, the Mamlatdar cannot grant
right of through fare over a road which is not previously in
existence. Similarly, while exercising jurisdiction under
Section 143, the Tahsildar cannot order removal of
obstruction over an existing road.
35. Right of way over a property of another person is
pre-existing civil right of easement. This right is not created
for the first time either under the Mamlatdars’ Courts Act or
46
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under the Maharashtra Land Revenue Code. This is
preexisting right of easement. Such easementary right can be
enforced by any person by instituting a civil suit before the
competent civil court. Jurisdiction of civil court is not
restricted like jurisdiction of Mamlatdar or Tahsildar under
Section 143. On an easementary right being established, civil
court can grant right of way through a road which did not
exist prior in point of time, as can be done by the Tahsildar
under Section 143 and likewise civil court can also order
removal of obstruction as can be done by Mamlatdar under
Section 5 of the Mamlatdars’ Courts Act. A party, who
approaches civil court for adjudication of his civil right, thus
has the benefit of prosecuting claim before a judicial forum
whose jurisdiction is not circumscribed or restricted but
limitless. Therefore, a person on proving the need can get
orders for creation of a road and/or removal of obstruction
over existing road. Both these reliefs can be sought in the
same proceeding. Likewise provisions of Easements Act can
also be invoked by both parties.
36. In a suit for enforcement of easementary rights
parties can also take resort to provisions of the Indian
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Easements Act before the civil court relating to easement of
necessity, easement by prescription etc., as also extinction of
easement, frustration of easement etc. Such defences which
depend on scrutiny of facts cannot be raised and adjudicated
before the High Court in a petition under Article 226 or 227 of
the Constitution of India. It also needs to be mentioned that
there are provisions under the M.L.R. Code, which can also be
pressed into service while prosecuting the matter before the
civil court. Recourse to the provisions can be taken by both the
parties.
37. Thus, for the reasons aforesaid, in the considered
opinion of this Court, remedy of filing a civil suit is not only
an efficacious alternate remedy but a more effective and
meaningful remedy.
38. As regards, any emergent situation, that arises in
such matters, it goes without saying that the same can be
addressed by the civil court by passing appropriate orders of
temporary injunction, which will of course prevail over orders
passed under Section 5(2) and 23(1) of the Mamlatdars’
Courts Act. Section 22 includes the words “decree” and
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“order” both . The words unless otherwise ordered would not
mean unless otherwise finally ordered. The legislature has
deliberately used the words “decree” and “order” both in the
provision. Therefore, even if an interlocutory order is passed
by the civil court contrary to the decision of Mamlatdar, the
interim order by civil court will prevail. This would, therefore,
take care of any urgent or emergent situation, in as much as,
the plaintiff can also seek order of temporary injunction
contrary to the orders passed under the Act and if order of
temporary injunction is granted, the same shall prevail over
the formal orders passed under the Act. It will be pertinent to
mention that the judgment in the matter of Baban @
Nainsukh, relied upon by the petitioners, this Court has
specifically held that an application for grant of temporary
injunction in a civil suit should be decided by the civil court
on its own merits and not merely by deciding correctness or
otherwise of the order passed by the Mamlatdar. The said
judgment implies that order of temporary injunction can also
be passed by a civil court contrary to final order passed under
39. The contentions raised by the petitioners as
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recorded in the initial paragraph are pertaining to :-
(a) limitation;
(b) grant of new road under the guise of directions for
removal of obstruction;
(c) plaint is not filed and verified as prescribed under the
statute and steps required for curing the defects are also not
taken;
(d) evidence is not recorded and opportunity of cross
examination is not granted;
(e) panchanamas are not drawn in accordance with
prescribed procedure and
(f) apart from this grounds are also raised with respect to
merits which were not argued since the petitions were heard
on the point of alternate remedy.
40. The contentions pertaining to limitation and
creation of new road in excess of jurisdiction can be raised
before the civil court in view of first principle in the matter of
Dhulabhai (supra), which states that even if jurisdiction of the
civil court is excluded by the statute, suit will be maintainable
in cases where provisions of the statute are not complied with.
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This principle is reiterated in the matter of Huseinmiya
(supra).
41. Grounds pertaining to principles of natural justice
can also be raised before the civil court in view of the clear
exposition in the matter of Dhulabhai that a civil suit will be
maintainable against order passed by a statutory tribunal,
even if finality is attached to such order, if the tribunal has not
acted inconformity with fundamental principles of judicial
procedure. This principle is reiterated in Huseinmiya and
State Bank of Patiala (supra).
42. The above grounds can also be raised and
entertained under Articles 226 and 227 of the Constitution of
India. However, apart from grounds pertaining non-
compliance with provisions of Act, principles of natural justice
and error of jurisdiction, issues pertaining to disputed
questions of facts are also raised in petitions arising out of
Mamlatdars’ Courts Act. The issues pertaining to facts are
better left to be decided by a civil court, which is a court of
empowered to record evidence and conclusively decide
questions of facts and law both. As stated above, this Court
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has very limited jurisdiction while dealing with questions of
facts. It cannot reappreciate the evidence or even substitute its
view with view taken by the authority, if the same is probable
although the court may be inclined to take a different view.
Such limitations and hindrances will not come in the way of
litigants if the matter is decided by civil court. In the
considered opinion of this Court, the remedy of challenging
the orders before the civil court is therefore a more
meaningful remedy where the entire controversy can be
resolved finally.
43. Therefore, in the considered opinion of this Court,
the jurisdiction of civil court extends to deciding matter falling
within the jurisdiction of a Mamlatdar on merits and also to
decide the correctness or otherwise of the orders passed by the
Mamlatdar and/or the Collector under Sections 5 and 23
respectively of the Act.
44. The learned advocates for the petitioners contend
that even if it is assumed that civil court will have jurisdiction
to entertain challenge to orders passed by the Mamlatdar and
Revisional Authority/Sub-Divisional Officer under the Act,
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jurisdiction of this Court under Article 226 and 227 of the
Constitution of India can never be barred. They place reliance
on the judgment of the Hon’ble Supreme Court of India in the
case of L. Chandra Kumar Vs. Union of India and others
reported in AIR 1997 SC 1125. There cannot be any quarrel
about this well settled legal proposition. The jurisdiction of
this Court is certainly not barred, however, it is well settled
that in cases where an equally efficacious remedy is available
to the petitioner, normally High Courts should not exercise
their jurisdiction under Article 226 or 227 of the Constitution
of India.
45. This judgment/order should not be interpreted to
mean that jurisdiction of High Court under Article 226 and/or
227 of the Constitution of India cannot be invoked in order to
challenge orders passed under the provisions of Mamlatdars’
Courts Act. It is merely held that remedy of civil suit is
available in order to challenge orders passed by the authorities
under the Mamlatdars’ Courts Act and that the said remedy is
more meaningful and effective remedy.
46. For the reasons above, this Court is of the opinion
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that judgments in the matter of Mangalabai and Baban are
per incuriam of Dhulabhai and Huseinmiya and therefore,
cannot be followed as binding precedents for the proposition
that the orders passed under the Mamlatdars’ Courts Act
cannot be challenged in a civil suit. Judgment in the matter of
Mohommad Khan S/o Rahim Khan which holds that orders
passed under the Mamlatdars’ Courts Act can be challenged in
the civil suit lays down the correct position of law.
47. In the matters of Mangalabai and Baban it is held
that whenever a civil suit is filed with respect to a matter
which is decided by a Mamlatdar or the Collector in exercise
of revisional powers under the Act, the civil court should
decide the suit on its own merits in the light of evidence
brought before it and that it cannot decide the suit as if it is
deciding an appeal against order passed by the Mamlatdar or
the Collector. Having regard to the judgments in the matter of
Dhulabhai, Huseinmiya and Mohommad Khan Rahim Khan,
correctness of the order passed by the Mamlatdar or the
Collector can be tested by a civil court. However, having
regard to Section 22 and 23 of the Act, the law laid down in
the said judgments that the civil court can independently
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adjudicate the issue which is already decided by the
Mamlatdar or the Collector cannot be doubted. The law laid
down to that extent is correct.
48. The correct position of law is that civil court has
jurisdiction to decide the correctness or otherwise of orders
passed by Mamlatdar and Collector and also to independently
adjudicate the matter on merits dehors of the decision
rendered under the Act. In the considered opinion of this
Court, it will be advisable that whenever a dispute is carried
with respect to orders passed under the Act, apart from
challenging the decision, the parties also include pleadings
and lead evidence with respect to merits of the dispute.
Whenever, a suit is filed against any adjudication by the
authorities under the Act, the decree to be passed will be in
the nature of declaration as regards correctness or otherwise
of the order passed by Mamlatdar or Collector. Section 34 of
the Specific Relief Act is not exhaustive as regards the
declaration which a civil court is competent to grant. Likewise,
jurisdiction to grant a decree for declaration is a matter of
discretion. A declaratory decree cannot be claimed as a matter
of right. In this regard it will be appropriate to refer to
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judgment of the Hon’ble Supreme Court in the matter of Vaish
Degree College Vs. Lakshmi Naraian reported in AIR 1976 SC
888. The Hon’ble Supreme Court has referred to various
decisions by different High Courts as also by this Court to hold
as under :-
“26. …… It is manifestly clear from the authorities discussed
above that the relief of declaration and injunction under the
provisions of the Specific Relief Act is purely discretionary and the
plaintiff cannot claim it as of right. The relief has to be granted by
the court according to sound legal principles and ex debito
justitiae. The court has to administer justice between the parties
and cannot convert itself into an instrument of injustice or an
engine of oppression. In these circumstances, while exercising its
discretionary powers the court must keep in mind the well settled
principles of justice and fair play and should exercise the discretion
only if the ends of justice require it, for justice is not an object
which can be administered in vacuum.”
49. In view of the aforesaid legal position pertaining
to declaratory reliefs, the civil court may refuse to grant a
decree for declaration in cases where although the order may
not be passed strictly in compliance with the provisions of the
Act but the defendant is in a position to establish his right to
the relief granted under the order impugned on the basis of
evidence and justify the final decision. Such discretion will
obviously be exercised on case to case basis. It is well settled
that jurisdiction of this Court under Articles 226 and 227 is
also a matter of discretion to be exercised judiciously and not
a matter of right.
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50. Since, the question that is being decided pertains
to existence of alternate remedy of filing of civil suit, it must
be reiterated that even in the light of Mangalabai and Baban
on which the petitioners have placed strong reliance, the
petitioners can be relegated to the remedy of filing civil suit in
as much as once the matter is decided by the civil court on
merits, the order passed either under Section 5 or Section 23
of the Act shall automatically be inoperative. This a person
aggrieved by order passed by authorities under the Act can get
rid of the same by filing a civil suit and seeking adjudication
of the subject matter on merits.
51. In view of the aforesaid, it needs to be held that
the remedy of filing a civil suit is an adequate alternate
remedy and rather a more efficacious remedy for challenging
the orders passed by Mamlatdar or Collector under the
provisions of the Mamlatdars’ Courts Act. The civil court has
the jurisdiction to decide correctness or otherwise of the order
passed by authorities under the Act. Likewise even in the
absence of challenge to the orders passed by the authorities
under the Act, the party aggrieved by the order can file a
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substantive civil suit and get rid of the orders by establishing
the case on merits and obtaining a decree contrary to the
adjudication of the dispute by the authorities under the Act.
52. The preliminary objection relating to alternate
remedy is therefore upheld.
53. Writ Petitions are dismissed granting liberty to the
petitioners to avail of the alternate remedy of filing civil suit.
Time spent in prosecution of the petitions, shall stand
excluded for computation of period of limitation.
54. Interim orders dated 17.05.2022 in Writ Petition
No.5074/2022, dated 19.07.2022 in Writ Petition
No.7499/2022, dated 26.08.2022 in Writ Petition
No.8819/2022, dated 26.09.2022 in Writ Petition
No.8920/2022 and dated 08.04.2024 in Writ Petition
No.3623/2024 are extended till 31st October, 2025.
55. The civil applications, if any, stand disposed of.
[ROHIT W. JOSHI, J.]
sga/2025