Gujarat High Court
Polycab Wires Ltd Through Poa Niraj ... vs State Of Gujarat on 2 December, 2021
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/15281/2021 ORDER DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15281 of 2021
==========================================================
POLYCAB WIRES LTD THROUGH POA NIRAJ MOHANLAL KUDNANI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5,6
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 02/12/2021
ORAL ORDER
1 By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following main reliefs:
"[A] YOUR LORDSHIPS may kindly be pleased to issue a writ of mandamus, or any other appropriate writ in the nature of mandamus, order or direction quashing and setting aside the order dated 31.1.2020 passed by the learned Deputy Collector, Dabhoi in Mamlatdar Courts Act / Dispute. 04 of 2018 and further be pleased to uphold the order passed by the learned Mamlatdar in Mamlatdar Court Act Case No.04 of 2018 dated 26.07.2018;Page 1 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022
C/SCA/15281/2021 ORDER DATED: 02/12/2021 [B] During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation, execution of the impugned order dated 31.1.2020 passed by the learned Deputy Collector, Dabhoi in Mamlatdar Courts Act / Dispute. 04 of 2018;"
2 The brief facts giving rise to the present petition are stated as under:
2.1 The petitioner, a private limited company, purchased a land bearing survey No.32/1/3 (new survey No.144/1), 32/1/4 (new survey No.144/3), 32/1/5 (new survey No.144/5), 32/1/6 (new survey No.144/2), 32/1/7 (new survey No.144/4), 32/3/16 (new survey No.146/1) of Village - Khandiwada, Taluka -
Vaghodiya, District Vadodara from Snehal Shah and Sachin Shah by way of registered sale deed Nos.1199 and 1200 dated 15.10.2009. After purchasing the aforesaid land, which was agricultural land, as the petitioner wanted to use the said land for industrial purpose, the petitioner made an application under Section 63AA of the Gujarat Tenancy and Agricultural Land Act, 1948 (for short, `Tenancy Act'), which was allowed by the learned District Collector and the Page 2 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 permission under Section 63AA of the Tenancy Act was granted to the petitioner vide order dated 1.3.2011. 2.2 Thereafter, the Collector, Vadodara granted permission for non-agricultural use of the said land as per the provisions of Section 65B of the Gujarat Land Revenue Code vide order dated 5.9.2012 and thereafter the petitioner started using the said land for industrial purpose.
2.3 On 22.5.2018, the respondent Nos.4 to 6 gave application stating that the petitioner company has blocked a Government sub-road by constructing a wall, which was being used by respondent Nos.4 to 6 for ingress and egress to their agricultural fields. Pursuant to the aforesaid application, Mamlatdar Vaghodiya issued notice to the petitioner and thereafter hearing took place on various dates. Pursuant to the aforesaid application preferred by the private respondents, the petitioner remained present before the Mamlatdar, Vaghodiya and filed reply. It was contended by the petitioner before the Mamlatdar that the petitioner has not committed any Page 3 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 encroachment on the gaucher land and that private respondents are having an alternative road. It was the case of the petitioner before the Mamlatdar that even as per the map, there is no road. The petitioner further contended before the Mamlatdar that at the time of granting non-agricultural permission, all the details were verified and thereafter only permission was granted and since at that point of time, no such dispute relating to existence of road arose, application preferred by the respondent Nos.4 to 6 is misconceived. The petitioner also contended that for commuting, the petitioner is ready and willing to give way from the land owned by him i.e. survey No.32/1/2 and 32/1/1. The petitioner further contended before the Mamlatdar that the application preferred by the respondent Nos.4 to 6 under Section 5 of the Mamlatdar Courts Act, 1906 was beyond the period of limitation i.e. after six months from the date on which cause of action has arisen and cause of action specifically not mentioned therein. Hence, it was in contravention to mandatory provisions of the Mamlatdar Courts Act, and therefore, application preferred by the private respondents was required to Page 4 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 be rejected.
2.4 The Mamlatdar, Vaghodiya, after taking into consideration the oral as well as written submissions made by the petitioner and private respondent Nos.4 to 6, rejected the application preferred by the private respondents by stating that there is no sub- road as mentioned in the map. The petitioner has already obtained permission under Section 63A of the Tenancy Act, in respect of the land in question and thereafter land was measured and as per the measurement sheet also no sub-road or road is shown. The learned Mamlatdar observed that the Panch Rojkam was carried out in presence of Sarpanch, Sarnej Juth Gram Panchayat, Vaghodiya Taluka on 6.6.2018 and as per the aforesaid Panch Rojkam also, the private respondents were not cultivating the land owned by them i.e. Survey No.158 (Old Survey No.32/3/26) and that the present petitioner was ready to allow the private respondents to use the road passing through their survey No.32/1/2 and 32/1/1, but the private respondents have insisted for opening up the road, which they were using as per the map. The Mamlatdar, Page 5 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 Vaghodiya also observed that the private respondents have not preferred application under Section 5 of the Mamlatdar Courts Act within the period of six months from the date the cause of action arose and ultimately rejected the application preferred by the private respondents vide order dated 26.07.2018. 3.5 The aforesaid order passed by the Mamlatdar, Vaghodiya was challenged by the private respondents by preferring Appeal No.4 of 2018 before the Deputy Collector, Dabhoi. In the said appeal, after issuing notice, on various occasions the matter was adjourned as the advocate for the petitioner used to remain absent. Ultimately, the matter was heard on 6.1.2020 and after hearing the arguments of both the sides, the Deputy Collector, Dabhoi allowed the revision preferred by the respondent Nos.4 to 6 vide order dated 31.1.2020 and directed the petitioner to open the sub-road blocked by the petitioner by way of constructing a wall.
3.6 While allowing the appeal preferred by respondent Nos.4 to 6, the Deputy Collector, Dabhoi Page 6 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 specifically observed that the road in respect of which the application under Section 5 of Mamlatdar Courts Act was preferred was a government `Nalia road' and that while deciding the application under Section 5 of the Mamlatdar Courts Act, the Mamlatdar, Vaghodiya passed an order without proper verification of record. The learned Deputy Collector observed that as per the map provided by the DILR, Hissa Form and Panch Rojkam dated 28.5.2018, a Nalia road is clearly shown. Even the Town Planning officer, Vadodara was requested to throw some light on it and the Town Planning officer, Vadodara vide his letter dated 6.6.2018 categorically stated that at the time of considering application of the petitioner for industrial purpose, the petitioner was specifically asked to give explanation about the aforesaid sub- road. The petitioner never complied with the aforesaid direction. The learned Deputy Collector, Dabhoi specifically observed that before blocking the aforesaid public road, the petitioner has not taken any permission from any of the authority and the Mamlatdar has while dismissing the appeal preferred by the private respondents either has not verified Page 7 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 the documents properly or has deliberately ignored the evidence produced before it. The learned Deputy Collector, Dabhoi specifically observed that the petitioner has blocked the sub-road shown as Nalia sub-road in the revenue village map and as per the record of DILR, which was mentioned in the Panch Rojkam of Circle Officer, and substituted by Town Planning Officer, Vadodara, the petitioner cannot block the road illegally without the permission of the competent authority. The aforesaid act would amount to encroachment, and therefore, while allowing the appeal preferred by the private respondents vide order dated 31.01.2020 the petitioner was directed to open the aforesaid road. The aforesaid order dated 31.1.2020 is under challenge by way of this petition. 4 Mr. Vimal Purohit, learned advocate for the petitioner submitted that the Deputy Collector, Dabhoi failed to appreciate the fact that the application preferred by the private respondent is time barred as private respondents have preferred application on 22.5.2018. He draws attention of this Court to the Panch Rojkam dated 6.6.2018 wherein it Page 8 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 is stated that the private respondents were not cultivating the land in question for the last 4 to 5 years. The learned advocate Mr. Purohit further submitted that even the application made by the petitioner seeking relief under Section 5 of the Act is a defective application wherein the private respondents have not stated as on which date the cause of action has arisen and in absence of mentioning of the actual cause of action in the aforesaid application, the application preferred by private respondents is in violation of the mandatory requirement of Section 7 of the Act. Therefore, learned advocate Mr. Purohit submitted that the application preferred by the private respondents though was not meeting with the mandatory requirement of Sections 5 and 7 of the Act, the Deputy Collector entertained the appeal preferred by the private respondents, and therefore, the impugned order is bad and deserves to be quashed and set aside. 4.1 In support of his contention in respect of limitation about filing suit by the plaintiff beyond the period of limitation of six months, learned Page 9 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 advocate Mr. Purohit relied upon judgment of this Court in the case of Rohit Sunderlal Kabutarwala vs. Ashokkumar Somabhai in Special Civil Application No.10492 of 2012 decided on 7.1.2016 and by referring to para 8 of the said judgment, learned advocate Mr. Purohit submitted that the private respondents preferred suit under Section 5 of the Act beyond the period of six months. Further, as per the Panch Rojkam dated 6.6.2018, the private respondents were not cultivating the land since last 4 to 5 years, whereas, the petitioner had already got non- agricultural permission in the year 2012 and thereafter constructed the factory premise and wall on the suit land.
4.2 Learned advocate Mr. Purohit took this Court through the application dated 22.5.2018 (Annexure-F of the petition at page No.132), whereby the private respondents initiated the proceedings under the Mamlatdar Courts Act by making an application to various authorities. Learned advocate Mr. Purohit submitted that the aforesaid application is not in conformity with the mandatory provisions of Page 10 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 Section 7 of the Act, and therefore, the Mamlatdar, Vaghodiya has rightly not entertained the same and even the Deputy Collector also ought to have rejected the revision application preferred by the private respondents on that ground. Learned advocate Mr. Purohit submitted that since the application preferred by the private respondents does not satisfy the mandatory requirement of Sections 5 and 6 of the Act, the application was rightly rejected by the Mamlatdar, but the aforesaid aspect has completely been ignored by the Deputy Collector. In support of his contention, learned advocate Mr. Purohit relied upon the judgment of this Court in the case of Bhaskarbhai Lakshmishanker Mehta vs. Pravinbhai Mohanbhai Zalavadiya passed in Civil Revision Application No.173 of 2011 decided on 30.11.2011. 4.3 Learned advocate Mr. Purohit further submitted that the private respondents were offered an alternative way by the petitioner, and therefore, they cannot insist upon the road for which they preferred a suit under Section 5 of the Act before the Mamlatdar. By making the aforesaid submissions, Page 11 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 learned advocate Mr. Purohit prayed for quashing and setting aside the order dated dated 31.1.2021 passed by the Deputy Collector, Dabhoi.
4.4 Learned advocate Mr. Purohit did not make any other submissions or relied on any other judgment, except those mentioned herein above: 5 Having heard learned advocate for the petitioner, taking into consideration the totality of the facts and circumstances of the case, material produced on record and judgments cited by learned advocate for the petitioner, before examining the merit of the matter it would be in the interest of justice to deal with the technical objections raised by the petitioner in respect of the application made by private respondents raising their grievance about denying them access to the road by the petitioner. It is true that in the aforesaid application dated 22.5.2018 nowhere it is stated that the said application is preferred under Section 5 of the Mamlatdar Courts Act. It is a hand-written application made by respondent No.4 - Diptiben Page 12 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 Aileshkumar Shah, whereby she raised her grievance and sent copy of the aforesaid application to various authorities, including the Collector, Vadodara; Mamlatdar, Vaghodiya; and Prant Officer, Vaghodiya. In her hand written application, she expressed her difficulties and raised grievance about blockage of road by the petitioner. From the application itself it seems that the respondent No.4 is not well versed with the provisions of law, but is vigilant about her rights 5.1 It seems that the aforesaid application was treated as suit by Mamlatdar, Vaghodiya. The aforesaid fact can be seen from the first para of the order dated 26.7.2018 passed in Mamlatdar Court Case No.4/2018, wherein the Mamlatdar, Vaghodiya categorically stated that respondent No.4 (original applicant of Mamlatdar Court Case No.4/2018) instituted a suit under Section 5 of the Mamlatdar Courts Act for reopening of road passing through survey No.32/3/26 (new survey No.158) on 22.5.2018. The record indicates that except the hand written application dated 22.5.2018, no other application Page 13 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 which can be said to be an application under the Mamlatdar Courts Act was filed. In the order dated 26.7.2018 it is not stated that the aforesaid application dated 22.5.2018 was not as per the provisions of Section 7 of the said Act and by following the procedure prescribed under Section 8 of the Act, the said application was numbered as Mamlatdar Courts Act Case No.4/2018. Sections 5, 7 to 11 of the Mamlatdar Courts Act read as under:
"5. Powers of Mamlatdars' Courts - (1) Every Mamlatdar shall preside over a court, which shall be called a Mamlatdars' Court, and which shall, subject to the provisions of sections 6 and 26, have power, within such territorial limits as may from time to time be [fixed by the State Government,] -
[a] to remove or cause to be removed any impediment, erected otherwise than under due authority of law, to the natural flow in a defined channel or otherwise of any surface water naturally rising in or falling on any land used for agriculture, grazing, trees or crops, on to any adjacent land, where such impediment causes or is likely to cause damage to the land Page 14 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 used for such purpose or to any such grazing, trees or crops thereon;
[b] to give immediate possession of any lands or premises used for agriculture or grazing, or trees, or crops, fisheries, or to restore the use of water from any well, tank, canal or water-course, whether natural or artificial used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than by due course of law, or who has become entitled to the possession or restoration thereof by reason of the determination of any tenancy or other right of any other person, not being a person who has been a former owner or part-owner, within a period of twelve years before the institution of the suit of the property or use claimed, or who is the legal representative of such former owner or part- owner:
Provided that, if in any case the Mamlatdar considers it inequitable or unduly harsh [to remove or cause to be removed any such impediment or], to give possession of any such property or to restore any such use to a person who has become entitled thereto merely by reason of the determination of any such tenancy or other right, or if it appears to him that such case can be more suitably dealt with by a Civil Court, he may in his discretion refuse to Page 15 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 exercise the power aforesaid, but shall record in writing his reasons for such refusal.
[2] Power to issue injunction - The said Court shall also, subject to the same provisions, have power within the said limits, [where any impediment referred to in sub-section (1) is erected, or an attempt has been made to erect it, or], when any person is otherwise than by due course of law disturbed or obstructed, or when an attempt has been made so to disturb or obstruct any person, in the possession of any lands or premises used for agriculture or grazing, or trees, or crops, or fisheries, or in the use of water from any well, tank, canal or water-course, whether natural or artificial, used for agricultural purposes, or in the use of roads or customary ways thereto, to issue an injunction to the person [erecting or who has attempted to erect such impediment, or] causing, or who has attempted to cause, such disturbance or obstruction, requiring him to refrain [from erecting or attempting to erect any such impediment or], from causing or attempting to cause any further such disturbance or obstruction.
[3] Suits to be filed within six months - No suit shall be entertained by a Mamlatdar's Court unless it is brought within six months from the date on which the cause of action arose.Page 16 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022
C/SCA/15281/2021 ORDER DATED: 02/12/2021 [4] Cause of action - The cause of action shall be deemed to have arisen on the date on which the [impediment to the natural flow of surface water or the] dispossession, deprivation or determination, of tenancy or other right occurred, or on which the [impediment] disturbance or obstruction, or the attempted [impediment or] disturbance or obstruction, first commenced.
7. Suits commenced by plaint. Contents of plaint
- All suits under this Act shall be commenced by a plaint, which shall be presented to the Mamlatdar in open Court by the plaintiff, and which shall contain the following particulars; -
Contents of plaint [a] the name, age, religion, caste, profession and place of abode of the plaintiff;
[b] the name, age, religion, caste, profession and place of abode of the defendant;
[(bb) the nature and situation of the impediment erected and the situation of the lands which are adjacent to each other, and the nature of the relief sought;] Page 17 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 [c] the nature and situation of the property of which possession for use is sought, or the nature of the injunction to be granted, as the case may be;
[d] the date on which the cause of action arose;
[e] the circumstances out of which the cause of action arose; and [f] a list of the plaintiff's documents, if any, and of his witnesses, if any, showing what evidence is required from each witness, and whether such witnesses are to be summoned to attend, or whether the plaintiff will produce them on the day and at the place to be fixed under section 14.
8. Informal petitions to be treated as plaints - Where a petition not in the form of a plaint is presented to the Mamlatdar and the subject matter thereof appears to fall within the scope of section 5, the Mamlatdar shall explain to the person presenting the petition the nature of the relief afforded by this Act and shall inquire whether the petitioner desires to obtain relief thereby. If the petitioner expresses a desire so to obtain relief, the Mamlatdar shall endorse the desire on the petition which shall thereupon Page 18 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 be deemed to be a plaint presented under section
7.
9. Examination of plaintiff on oath - Where the plaint does not contain the particulars specified in section 7 or is unnecessarily prolix, the Mamlatdar shall forthwith examine the plaintiff upon oath and ascertain from him such of the particulars specified in section 7 as are not clearly and correctly stated in the plaint and shall reduce the examination to writing in the form of an endorsement on or annexure to the plaint which shall thereupon be deemed to be part of the plaint. Where the plaintiff requires time to obtain any of the particulars specified in section 7, the Mamlatdar shall grant him such time as may under all the circumstances appear reasonable.
10. Plaint to be subscribed and verified - When the plaint is presented, and has, if necessary, been treated in the manner specified in section 9, the Mamlatdar shall require the plaintiff to subscribe and verify the plaint in his presence, in open Court, in the manner following, or to the like effect;-
"I, A. B., the plaintiff, do declare that what is stated in this plaint is true to the best of my information and belief."Page 19 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022
C/SCA/15281/2021 ORDER DATED: 02/12/2021
11. Endorsement by Mamlatdar - (1) The Mamlatdar shall endorse the plaint to the effect that it was duly subscribed and verified.
(2) Procedure where plaintiff cannot write - Where the plaintiff cannot write, the verification may be written for him in open Court and he shall affix his mark to his name in token of the authenticity of the verification, and the Mamlatdar shall, in such case, record that the verification was made in his presence at the request of the plaintiff, and that his mark was so affixed."
5.2 Neither from the record available with this Court, which was produced by the petitioner nor learned advocate Mr.Purohit could throw any light as to whether the mandatory requirement of Section 8 of the Act was complied with or not by the Mamlatdar, as under Section 7 of the Act, the details about the contents of a plaint are required to be mentioned. It is an admitted position that application dated 22.5.2018 was not made as per the requirement of Section 7. However, Section 8 provides for treating informal petitions as plaints after following the procedure prescribed there under. It is an admitted position that the application dated 22.5.2018 was treated as suit preferred by the private respondents and the said proceedings were initiated under Section 5 of Mamlatdar Courts Act, based upon the aforesaid Page 20 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 application dated 22.5.2018.
5.3 Section 8 of the Act casts responsibility upon the Mamlatdar to follow the procedure in case if a petition is not in form of a plaint prescribed under Section 7 of the Act. No obligation is cast upon the applicant, who prefers a petition before the Mamlatdar, about requesting the Mamlatdar to treat it a plaint, which is in consonance with the mandatory provisions of Section 7 of the Act for seeking any relief under the Act, and therefore, it was the duty of the Mamlatdar to ensure that all the duties cast upon the Mamlatdar under Section 8 of the Act are strictly adhered to. In fact, Division Bench of this Court as back as in the year 1967 while deciding Special Civil Application No.88 of 1964 vide judgment dated 23.02.1967 in case of Desai Navinkant Kesarlal vs. Prashant Kabhai observed in para 29 as under:
"29 The learned Advocate General contended that this application could not be said to be an application which falls within the requirements of the provisions of the Tenancy Act for negative declaration to be obtained under sec. 76(b) He complained that no parties are Page 21 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 mentioned in the application as the opponents. We have pointed out that they have given the names of the tenants who were intended to be affected by this application. It was then submitted that by this application the complaint made was as regards the entry having been wrongly made. Therefore that would clearly fall within the purview of an application for correcting a wrong entry in the record of rights. We do not find any substance in this submission also because regarding the application as a whole and particularly the paragraph to which we have already referred to it definitely contains a plea that their right should be decided according to the provisions of law and particularly sec. 83 of the Land Revenue Code. They merely referred to the entry in the record of rights as a matter of history and as the basis of their complaint that the tenants have been wrongly shown as permanent tenants and thus their right had been affected. Such an averment had to be made in order to show as to what the cause of action was. Then it was tried to be made out that it bears no verification. The procedure under the Mamlatdars Courts Act has been made applicable and therefore it must be verified. In this also we find no merit. If we turn to the procedure of the Mamlatdars Courts Act particularly secs. 8 9 and 10 and the others clearly show that an obligation actually is cast under those provisions on the Mamlatdar Page 22 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 not to throw away even a plaint meant to be under the Mamlatdars Courts Act if it does not comply with all the formalities of the plaint as required under that Act but to himself look into it and give an opportunity to the party coming for relief to put it in order and this is so even as regards the want of verification or incorrect verification. Now it is true that the provisions of the Mamlatdars Courts Act as regards the plaint or contents of the plaint would not directly apply because the Tenancy Act itself provides for an application to be filed and what that application shall contain But at the same time the rest of the provisions which constitute the procedure for the Mamlatdars Courts definitely apply and therefore even if this application is found to be wanting in some of the formalities or its contents as required by even the Tenancy Act it would be the duty of the officer concerned to discharge his obligation as required by law under the provisions of the Mamlatdars Courts Act. We therefore find no merit in either of the contentions raised by the learned Advocate General against this application to make an effort to persuade us to hold that this application cannot be an application under the Tenancy Act but can only be treated as an application under the Code for altering a mutation entry or an entry in the record of right. We are convinced having ourselves looked Page 23 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 into the Contents of this application that it was an application which was maintainable under sec. 70(b) of the Tenancy Act."
[emphasis supplied] 5.4 The aforesaid observations made by a Division Bench of this Court, clearly establishes the fact that it is obligatory upon the Mamlatdar to call the person claiming the relief and to verify the correctness of the application made by the applicant. In fact, Division Bench of this Court has categorically observed that as far as Sections 8, 9 and 10 of the Mamlatdar Court Act are concerned, it is the obligation of the Mamlatdar to follow the procedure prescribed in Sections 8 to 10 of the Act, meaning thereby if a plaint is not in conformity or in consonance with Section 7 of the Act, it is obligatory upon the Mamlatdar to follow the procedure as contained in Section 8 of the Act, and therefore, the submission of Mr. Purohit that the application preferred by the petitioner is not in consonance with mandatory provisions of Section 7 of the Act, has no legs to stand, and therefore, cannot be sustained. Page 24 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022
C/SCA/15281/2021 ORDER DATED: 02/12/2021 5.5 As far as the second contention about technical defect in the application preferred by the private respondents under Section 5 of the Mamlatdar Courts Act, which is with regard to limitation of six months is concerned, a bare perusal of the record suggests that even the petitioner has not stated anywhere that on which date he constructed the wall. In the application made on 22.5.2018, the respondent No.4 herein had categorically stated that it was the Government road, which has been blocked by the petitioner by constructing a wall. The respondent No.4 addressed the aforesaid application to 9 authorities, including the Hon'ble the Chief Minister of the State; Collector, Vadodara; District Development Officer, Vadodara District Panchayat; Mamlatdar, Vaghodiya; Office of the Town Planner, Vadodara; DILR, Vadodara and other local authorities. Since the application was not in accordance with the mandatory provisions of Section 7 of the Act and yet it was considered by the Mamlatdar as application under Mamlatdar Courts Act. Hence, what is required to be seen is the powers conferred to the Mamlatdar under the Mamlatdar Courts Act by virtue of Section 5 Page 25 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 of the Act.
5.6 Section 5(3) of the Act provides that no suit shall be entertained by Mamlatdar's Court unless it is brought within six months from the date on which the cause of action arose.
5.7 As stated in the foregoing paras, the application dated 25.5.2018 was a hand-written application by not stating that it is an application under Section 5 of the Mamlatdar Courts Act nor addressed to the Mamlatdar and even the same was not in the form prescribed under Section 7 of the Act. However, it seems that the same was treated as application under Section 5 of the Act and the Mamlatdar proceeded on the basis of the aforesaid application and issued notice to the petitioner. 5.8 Further, the Division Bench of this Court in the case of Desai Navinkant Kesarlal (supra) clearly held that Sections 8 to 10 cast obligation upon the Mamlatdar to do needful in accordance with the provisions of Sections 8 to 10 of the Act. Though Page 26 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 the contention raised by the petitioner in reply filed before the Mamlatdar was about his objection that the application was filed beyond the period of limitation of six months and the grievance raised by the petitioner in this petition is that the applicant has not stated the cause of action and the application does not contain the details, which are mandatory as per Section 7 of the Act. Despite that, once if the Mamlatdar has initiated proceedings on the basis of an informal application preferred by the private respondents, it is the duty of the Mamlatdar to strictly adhere to the provisions of Sections 8 to 10 of the Act and the applicant (private respondents) cannot be made to suffer. However, no grievance is made by the petitioner that the Mamlatdar has failed to act in accordance with the provisions of Sections 8 to 10 of the Act. Even otherwise, when the Mamlatdar passed the order in favour of the petitioner, it cannot be said that the petitioner is prejudiced by any action of the Mamlatdar, which amounts to a procedural lapse on his part. If he finds that an application given by a person seeking his right of way from someone's fields was not in Page 27 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 accordance with the provisions of Section 7 of the Act, it is mandatory for the Mamlatdar to consider the aforesaid application and if he finds that the cause of action stated in the application falls within the jurisdiction of the Mamlatdar Courts Act, it is obligatory for him to act in accordance with the provisions of Sections 8 to 10 by following procedure prescribed under the provisions of Sections 8 to 10 of the Act. If the Mamlatdar does not adhere to the procedure and a person is not adversely affected, at a later stage he cannot take the recourse of Mamlatdar's failure to meet with the obligation cast upon him under Sections 8 to 10 of the Act and agitate the aforesaid issue at a later stage. In the instant case, had the petitioner raised the issue about non-adherence to the procedure prescribed under Sections 8 to 10 of the Act while treating the application of the private respondents as plaint under Mamlatdar Courts Act and had such objection raised at the outset, it would definitely have a bearing on the subject matter. But as per the record available with this Court, which was produced by the petitioner, the only objection that was taken Page 28 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 by the petitioner before the Mamlatdar was with regard to limitation and thereafter the petitioner participated in the proceedings before the Mamlatdar and ultimately succeeded before the Mamlatdar. He did not take any objection about the fact that thought the application made by the private respondents was not as per Section 7 of the Act, and yet the same was treated as plaint by Mamlatdar and the Mamlatdar proceeded further on the basis of the aforesaid application without adhering to the provisions of Sections 8 to 10 of the Act.
5.9 In view of the above, in the considered opinion of this Court, though the aforesaid procedure prescribed under Sections 8 to 10 is mandatory in nature and required to be followed by the Mamlatdar to ensure that the object of the Act is achieved, as per para 29 of Desai Navinkant Kesarlal (supra), the Division Bench of this Court held that the procedure prescribed under Sections 8 to 10 of the Act is the obligation cast upon the Mamlatdar. Therefore, in the opinion of this Court, the failure to meet with such obligation cannot be seen as a ground to vitiate the Page 29 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 entire proceedings if such objections are not raised at the outset or if because of such procedural lapse the one who takes such objection is not adversely affected by participating in the proceedings before the Mamlatdar. In the instant case also, the petitioner has participated before the Mamlatdar in the proceedings before the Mamlatdar and never raised any objection in this regard to demonstrate that the aforesaid procedural lapse has adversely affected the petitioner. Therefore though in the application the cause of action is not expressly stated, the same was rightly treated as a plaint by Mamlatdar and initiated the proceedings on the basis of the aforesaid application. Hence, when the petitioner himself has not placed on record any document to indicate the cause of action of the application, which was treated as plaint under the Mamlatdar Courts Act and pursuant to the same, actions are initiated by the Mamlatdar, it cannot be said that the proceedings were beyond the period of limitation. It was the duty of the Mamlatdar under Section 9 of the Act to verify about the aspect of limitation as well. However, neither the Mamlatdar verified the Page 30 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 aforesaid aspect nor the petitioner provided any material on record either by way of any documentary evidence or by way of affidavits of independent witnesses to indicated that the cause of action has arose prior to six months from the date on which the issue was agitated, and therefore, the contention of learned advocate for the petitioner that suit was instituted by the private respondents after a period of limitation of six months is required to be rejected.
5.10 The aforesaid facts would clearly indicate that there is no substance in the contentions of learned advocate for the petitioner Mr. Vimal Purohit that the order passed by the Mamlatdar, Vaghodiya was absolutely just and proper as the suit preferred by private respondents was barred by limitation. 5.11 In view of the fact that there is no evidence about the date on which the petitioner had constructed the wall, the judgment cited by learned advocate for the petitioner in the case of Rohit Sunderlal Kabutarwala (supra) is not applicable to Page 31 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 the facts of the present case as in absence of any material produced by the petitioner to show that the suit was time barred, it cannot be said that the suit is time barred.
5.12 Similarly, in view of the judgment of the Division Bench in the case of Desai Navinkant Kesarlal (supra), the contention of learned advocate Mr. Purohit about the defective plaint also cannot be sustained and the said contention is also required to be rejected.
5.13 Now, if the order under challenged passed by the Deputy Collector, Dabhoi dated 31.1.2020 which is subject matter of challenge in this petition is examined, it reveals the facts that thought the private respondents preferred revision application as back as in the year 2018 and though on number of occasions the matter was adjourned to give the petitioner sufficient opportunity to put forth his case before the Deputy Collector, Dabhoi, on most of the occasions the petitioner had chosen not to participate in the proceedings by remaining absent. Page 32 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 5.14 While passing the impugned order dated 31.1.2020, the Deputy Collector, Dabhoi has categorically observed that the tall wall constructed by the petitioner has caused hindrance to the private respondents in carrying out agricultural activities. It is an obstruction for ingress and egress to the fields of private respondents. The learned Deputy Collector has categorically observed that the Mamlatdar, Vaghodiya has not examined the record properly which was produced before him pursuant to the application preferred by the private respondents. The documentary evidence referred to in the judgment viz. map prepared by DILR, which clearly indicates that as per the village map, there is a public road, which is passing through the land of the petitioner which the petitioner has blocked by constructing a wall. The aforesaid fact was also confirmed by the Town Planner, Vadodara in his letter, which is also a part of the record, as stated by the Deputy Collector, Dabhoi. In fact, even as per the Panch Rojkam carried out by the Mamlatdar dated 28.5.2018, there is a categorical mention about the existence of Page 33 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 the aforesaid road as Naliya Road, yet the aforesaid fact was conveniently ignored by the Mamlatdar, Vaghodiya. In fact, the learned Deputy Collector, Dabhoi has after examining the documentary evidence produced before him, which was part of record before the Mamlatdar, has categorically stated that the petitioner has encroached upon a public road and therefore, they are in unlawful possession of the public road and the Deputy Collector, Dabhoi has rightly allowed the revision application preferred by the private respondents and directed the present petitioner to remove the obstruction and to open up the road.
5.15 This Court has also noticed the fact that the order dated 31.1.2020 which is the matter of challenge before this Court by way of this petition was challenged after almost 20 months. In fact, the record indicates that the petition was affirmed on 6.9.2021 and was listed on 7.10.2021 and thereafter also when it was listed for the first time on 22.10.2021 request for adjournment was made and it was adjourned to 22.11.2021. During this period, the Page 34 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022 C/SCA/15281/2021 ORDER DATED: 02/12/2021 petitioner continued to remain in illegal possession of the Government road. It seems that once the order passed by the Mamlatdar, Vaghodiya dated 26.6.2018 was passed in favour of the petitioner, the petitioner tried to adopt the delay tactics first by not appearing before the Deputy Collector, Dabhoi in revision proceedings and thereafter even after the Deputy Collector, Dabhoi allowed the revision application and passed the order on 31.1.2020 against the petitioner, the petitioner sat idle and had chosen to challenge the said order only after a period of 20 months. During this period, the petitioner continued to encroach upon public road. Such conduct of the petitioner is an additional factor to dismiss the petition apart from the merits of the matter.
6 In view of the above discussion, I do not find any merit in the present petition. Accordingly, the petition is summarily dismissed. However, there shall be no order as to costs.
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 35 of 35 Downloaded on : Wed Jan 12 06:40:13 IST 2022