This order has been corrected pursuant to speaking to minutes order dated 07/05/2025. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 910 WRIT PETITION NO. 5257 OF 2024 BALIRAM HARIBA KAKADE AND ANOTHER VERSUS STATE OF MAHARASHTRA THROUGH SECRETARY AND OTHERS Mr. H. S. Adwant, Advocate for the Petitioners Mr. N. D. Raje, AGP for the Respondent/State Mr. R. R. Gore and Mf. S. K. Shinde, Advocate for Respondent Nos. 6 to 10. CORAM : R. M. JOSHI, J. DATE : 23rd APRIL, 2025 PER COURT :- 1. The issue involved in this petition is as to whether it was open for Tahasildar to pass any order under Section 5(2) of the Mamlatdar’s Courts Act (for short ‘the Act’) after recording the finding that the application filed is beyond limitation and that respondents therein have not caused any obstruction. 2. Petitioners take exception to the orders dated 01/09/2023 passed by Respondent No.4- Tahasildar allowing application under Section 5(2) of the Act and confirmation of the said order in the Revision Application No. 217/2023 vide order dated 24/04/2024. 3. Leaned counsel for the petitioners has drawn attention of the 910.wp5257.24 (corrected).odt 1 of 5 2025:BHC-AUG:13737 Court to the findings recorded by the Tahasildar in order dated 01/09/2023 to the effect that the application filed by the contesting respondents is not within limitation. He further pointed out to the Court that there is also a finding recorded by the Tahasildar that the petitioners herein have not caused any obstruction to the contesting respondents. According to him in spite of these findings Tahasildar proceeded to allow application, which is wholly impermissible in law. It is further submission that the operative part of the order indicates that Tahasildar has exceeded the jurisdiction under Section 5(2) of the Act as it was only open for the Tahasildar to direct removal obstruction if caused to the customary way but no order of creation of any road could have been passed by him. 4. Learned counsel for the respondents sought to support the impugned order. It is his submission that the Court cannot go into technicality while dealing with the proceeding under Section 5(2) of the Act. To support his submission he had placed reliance on the judgment of Coordinate Bench of this Court in case of Shriram Abhiman Nafade and others Versus The State of Maharashtra and others in Writ Petition No. 3923/2021, dated 14/07/2021 (Coram : Avinash G. Gharote, J.). 5. There cannot be any two opinion in respect of the observations made by the Coordinate Bench with regard to the purpose 910.wp5257.24 (corrected).odt 2 of 5 of the legislation and that the responsibility of the Tahasildar to ensure that miscarriage of justice is not caused. That however does not mean that the proceeding which are filed beyond limitation can be entertained and order can be passed therein. 6. The Tahasildar in order dated 01/09/2023 has recorded specific finding that the application is filed beyond limitation. Though it is sought to be argued that the learned counsel for the contesting respondents that on the basis of stray admission the said findings cannot be accepted. In this regard, perusal of record, however, indicates that while conducting panchanama there are big trees found existing on the disputed portion of the land. This fact of presence of big/grown up trees coupled with the statement of contesting respondents that they were using the said way prior to 10 years is more than sufficient to show that the finding recorded by Tahasildar about the application beyond limitation is fully justified. 7. Tahasildar has also recorded the finding that there is no obstruction caused by the petitioners in the way. Section 5(2) of the Act contemplates that if the finding is recorded by the Tahasildar, that thee is customary way and obstruction has been caused by any person a direction can be issued for removal of such obstruction. It is not within the jurisdiction of Tahasildar to direct creation of any new way. 910.wp5257.24 (corrected).odt 3 of 5 8. In this regard it is pertinent to note that in the application filed before the Tahasildar, even contesting respondents do not claim existence of 16 ft. road. In spite of this, Tahasildar has passed following order. ^^2- ekS- ,sukiwjokMh rs miGkbZ Bksaxs f’ko loZ laca/khr ‘ksrd&;kaP;k lks;hlkBh nG.kog.kkP;k n`”Vhdks.kkrwu ‘ksanzh& okjnokMh jLR;ki;Zar [kwys vl.ks vko’;d vlY;kus vtZnkj o xSjvtZnkj ;kauh ekS- ,sukiwjokMh rs miGkbZ Bksaxs f’kosxyxr vl.kk&;k tehuhph fjrlj ekst.kh d:u f’kosojhy lkekbZd cka/kkP;k gnnh o [kw.kk dk;e d:u lnj lkekbZd cka/kko:u 16 QqV xkMhjLrk loZ lgerhus [kqyk djkok vU;Fkk vkt jksth vLrhRokr vlysY;k f’kosojhy lkekbZd cka/kkpk e/; dk<wu nksUgh cktwus vkB vkB QqV tehu ?ksowu ,dw.k 16 QqVkpk jLrk r;kj djkok-** 9. Having regard to the jurisdiction of Tahasildar and powers entrusted to him under Section 5(2) of the Act, it is wholly impermissible that any new road can be directed to be created. The Tahasildar therefore has exceeded his jurisdiction and any such direction is not sustainable while exercising powers under Section 5(2) of the Act. 10. Learned counsel for the respondents submits that if this Court is inclined to cause interference in the impugned order, the matter be relegated back to Tahasildar for decision afresh. This is not the case, wherein Tahasildar has committed any error in recording the finding contrary to the material on record or any other material which otherwise 910.wp5257.24 (corrected).odt 4 of 5 was required to be considered has not been considered. Herein this case Tahasildar recorded positive finding of there being no obstruction caused by the petitioners. So also it is recorded that the application is filed beyond limitation. In such circumstances, question of relegating matter back to Tahasildar for reconsideration does not raise. 11. As a result of above discussion, petitioners have made out a case for causing interference in the impugned order, impugned orders are set aside. 12. Even though for the purpose of deciding application under Section 5(2) of the Act, the said Authority is not required to take into consideration availability of alternate way, as a matter of fact finding is recorded that there is a alternate way is available. As such by setting aside the orders impugned, no miscarriage of justice would be caused. (R. M. JOSHI, J.) ssp 910.wp5257.24 (corrected).odt 5 of 5