Writ Petition No. 842 of 1989

26th June, 1992

Respondent Counsel: H. Ahmed, A.G.P., .

Cases Cited:
AIR 1929 Bom 94 : ILR 53 Bom 187 (Referred to) [Para 12]

JUDGMENT

M. F. SALDANHA, J. :-A rather ticklish problem that is common to rural India has arisen for determination in this petition and having regard to the delicate stage at which the developments are, the matter requires determination on merits.

2. We formulate the legal issue that is involved which is summarized as follows :

Whether it is open to the State authorities to unilaterally blockout a cart-track which is the only available access to agricultural lands without following the procedure prescribed by Section 21 of the Maharashtra Land Revenue Code and in a case where this is done whether the petitioner would be entitled to a relief for restoration of the status quo ante ?

3. Efforts were undoubtedly made by both the sides to try and find a suitable via media, but having failed, the petition is required to be decided on merits.

4. The dispute is within a narrow ambit. The petitioners are the tenure holders of certain lands which are situated at mouza Sindi, Tahsil Selu, District Wardha, and we are immediately concerned in this petition with the fields constituting Survey Nos. 4/3 and 4/2. That the petitioners are the occupants, is undisputed and they have sought to place heavy reliance on the Nistar Patrak which describes the area quite accurately. It is contended by the petitioners before us that adjacent to their lands and to the north thereof, there existed certain unoccupied land bearing Survey Nos. 1/1, 5/2, 5/3, 6/1K, 6/3, 7/1K, 7/2 and 8/5. The petitioners have annexed to the petition a certified copy of the map relating to that area and it is their grievance that as a result of certain action on the part of the State Government that the cart-track which is the only means of access to the petitioners' land from the Sindhi-Seldoh road has been virtually obliterated. It appears that in execution of certain welfare schemes, the authorities have undertaken construction of a colony on the unoccupied land and that in the course of the construction of this colony, it became necessary for them to dig certain wells as also erect a fencing around the colony. This activity has provoked the filing of the present petition because the petitioners have complained that the fencing has been so erected that it virtually touches their land and that the construction of the well has resulted in the only access to their land being totally cut off.

5. The petitioners have further contended that the cart-track in question has been in existence for a long time, that it has been used by the petitioners' ancestors and by several villagers and that there is a clear reference to this road in the Nistar Patrak. Under these circumstances, it is the case of the petitioners that there existed a right of user in respect of that road or the cart-track in question, which, according to them, could not have been extinguished without having resort to the procedure prescribed under the Land Revenue Code.

6. As against this position, the respondents have contended that there was no such well defined road or cart-track in existence. They have stated that taking advantage of the fact that the Government land was unoccupied, that the petitioners and others obviously used to pass over the area and since the Government has now occupied that land, the petitioners are restricted to movement in a particular direction and that there is no valid

ground for the grievance. The respondents further contended that it was unnecessary to comply with the procedure as prescribed by Sections 21 and 22 of the Land Revenue Code which would only apply in the case of regular established roads which are sought to be changed.

7. Mr. Kaptan, learned counsel representing the petitioners, has pointed out to us that the facts in this case speak fur themselves and apart from the documentary evidence which has been produced by the petitioners - which we find both reliable and correct - he contends that if one has a look at the map, it would be self-evident that the petitioners and the adjoining field owners both, as of necessity, have been using the cart-track for the purpose of access to their respective land, and that this cart-track runs adjacent to the lands in question. He canvassed considerable support of this argument from the reference in the Nistar Patrak to the existence of such a road. We are satisfied from a perusal of the material that is on record and from the submissions advanced by Ms. Kaptan that such a cart-track was, in fact, in existence and it is further pointed out in this petition that the procedure contemplated under Section 21 of the Maharashtra Land Revenue Code has not been complied with by the authorities.

8. The learned Assistant Government Pleader, Mr. Habibuddin, has, in the first instance, submitted relying on the Nistar Patrak, that the reference made by the learned counsel for the petitioners to the existence of the road. is incorrect, He submits that there is only a vague reference to a road leading in a certain direction but there is no description of the exact type of road nor about the definite location. Mr. Habibuddin also drew our attention to Annexure R-4 to the respondents' affidavit in reply, by which he states that the Collector had, in fact, notified that the land in question was being transferred for the purpose of rehabilitation. He submits that if no objections are raised and if nobody came forward to complain that he had any right, in that event the procedure prescribed under Section 21 was wholly unnecessary.

9. We are unable to accept these contentions because, as indicated by us earlier, that the record does indicate that the cart-track in question was in existence. Furthermore, in our opinion, Mr. Kaptan is fully justified in contending that in respect of the track, the procedure prescribed by Section 21 of the Land Revenue Code is necessary. In our considered judgment, even if in a given case, it was absolutely necessary to utilise the road in question, it would have been equally necessary for them to have safeguarded the rights of the petitioners and not having done so, they have infringed upon the petitioners' right, thereby making it necessary for the grant of suitable relief.

10. Section 21 of the Maharashtra Land Revenue Code, reads as follows :

21. (1) Whenever it appears to the Collector that any public road, lane or path which is the property of the State Government or part thereof (hereinafter in this Section referred to as the Government road), is not required for the use of the public, the Collector may, by a notification published in the Official Gazette, make a declaration to that effect and state in such declaration that it is proposed that the rights of the public in or over such Government road (of which the situation and limits as far as practicable are specified) shall subject to the existing private rights, if any, be extinguished.

(2) On the publication of such notification, the Collector shall, as soon as possible, cause public notice of such declaration to be given at convenient places on, or in the vicinity of, such Government road, and shall invite objections to the proposal aforesaid.

(3) Any member of the public or any person having any interest or right, in addition to the right of public highway, in or over such Government road, or having any other interest or right which is likely to be adversely affected by the proposal may, within ninety days after the issue of the notification under Sub-Section (1), state to the Collector in writing his objections to the proposal, the nature of such interest or right and the manner in which it is likely to be adversely

affected, and the amount and particulars of his claim to compensation for such interest or right :

Provided that, the Collector may allow any person to make such a statement after a period of ninety days aforesaid if he is satisfied that such person had sufficient cause for not making it within that period.

(4) The Collector shall give every person who has made a statement to him an opportunity of being heard either in person or by legal practitioner and shall after hearing all such persons in such manner and after making such further inquiry, if any, as he thinks necessary, is satisfied that the Government road is not required, for the use of the public, make a declaration which shall be published in the Official Gazette that all rights of the public, in or over such Government road are extinguished, and all such rights shall thereupon be extinguished, and such Government road shall, subject to any existing private rights, be at the disposal of the Government with effect from the date of such declaration. The Collector shall also determine the amount of compensation, if any, which should, in his opinion, be given in any case in respect of any substantial loss or damage likely to be caused by the proposed extinction of the rights of the public as aforesaid. The provisions of Sections 9, 10, 11, 12, 13, 14 and 15 of the Land Acquisition Act, 1894, shall so far as may be, apply to the proceedings held by the Collector for the determination of the amount of compensation under this Sub-Section :

Provided that, no compensation shall be awarded for the extinction or diminution of the right of public highway over such Government road.

(5) The decision of the Collector under Sub-Section (4) as respects the extinguishment of the rights of the public on or over Government road and the amount of compensation and the persons to whom such compensation, if any, is payable shall, subject to the decision of the Commissioner in appeal, be final; and payments of compensation shall be made by the Collector to such persons accordingly :

Provided that, if payment is not made within six months from the date of the final order, the Collector shall pay the amount awarded with interest thereon at the rate of six per cent per annum from the date of the final order."

It is contended by the counsel for the petitioners that no notification was published in the Gazette, no notice was given to the affected parties nor were they heard before the action which extinguishes their rights, was taken. Section 21 is omnibus and covers all types of land-routes right up to lanes and paths. A cart-track would, therefore, be necessarily included. The Section permits action only in cases where the land-route in question is not required for use of the public and by necessary implication prohibits such action of closure in cases where the public are using the road; all the more so when they are wholly dependent on it. The action of the Government Officers is unilaterally shutting off the cart-track is, therefore, indefensible. As a necessary consequence, the petitioners would be entitled to a writ against the respondents directing them to restore the status quo ante and restraining them from preventing the user of the cart-track by the petitioners and others.

11. It is essential that we take special note of one particular circumstance which has been emphasised by Mr. Kaptan, on behalf of the petitioners, namely, that the locations of the petitioners' fields are such that they would be land-locked as a result of the action taken by the respondents. It is under these circumstances that we consider it absolutely essential to grant the relief.

12. Mr. Kaptan has drawn our attention to a Division Bench decision reported in Ardesar Jivanji Mistri v. Aimai Kuvarji, (1929) ILR 53 Bombay 187 : (AIR 1929 Bom 94), wherein the Division Bench of this Court, while considering a somewhat similar situation regarding the right of user of a highway, has upheld the view that it is absolutely essential that the procedure prescribed under the Land Revenue Code be complied with. Though the facts were different, the ratio covers the present case.

13. Having regard to this situation, the petitioners are entitled to the relief that has been claimed by them. We accordingly allow the petition. The Rule is made absolute in terms of prayer clauses (A) and (B) of the petition. Under the circumstances of the case, there shall be no order as to costs.

14. Since it is pointed out to us that because the construction work of the Colony is in an advanced stage, we clarify that the respondents to make necessary modifications to restore the cart-track or access road of the petitioners forthwith and that it shall be not less than 15 feet wide.

Petition Allowed