Gujarat High Court
Patel Maheshbhai Keshavlal vs Mamlatdar on 20 January, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5228 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL MAHESHBHAI KESHAVLAL
Versus
MAMLATDAR
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Appearance:
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR AKASH CHHAYA AGP for the Respondent(s) No. 1
MR D C SEJPAL(1322) for the Respondent(s) No. 3,8
MR MG NAGARKAR(496) for the Respondent(s) No. 9
NOTICE SERVED BY DS(5) for the Respondent(s) No. 10,2,6,7
NOTICE SERVED(4) for the Respondent(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 20/01/2022
ORAL JUDGMENT
1. By way of this petition, the petitioner has challenged the order dated 26.08.2020 passed by the Deputy Collector, Mehsana in Mamlatdar Court Act / Revision Page 1 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 Case No. 3 of 2020 and the order dated 13.09.2016 passed by the Mamlatdar, Mehsana in Mamlatdar Court Act / Case No.7 of 2015.
2. Heard learned advocate Mr.Jigar Gadhvi for the petitioner, learned Assistant Government Pleader Mr.Akash Chhaya for the Respondent Nos.1, 2 and 10 - State Authorities, learned advocate Mr.Divyesh Sejpal for Respondent Nos.3 and 8 and learned advocate Mr.M.G.Nagarkar for Respondent No.9 - Gujarat Industrial Development Corporation ('GIDC', for short).
2.1 With the consent of learned advocates appearing for the respective parties, this matter is taken up for final disposal and hence Rule. Learned advocates waive service of notice of Rule on behalf of the respective respondents they appear.
3.1 The present petitioners herein are claiming to be the residents of Sardardham Society, Dediyasan GIDC, District:Mehsana. The petitioners are seven in numbers. The grievance of the petitioners is that the in the year 1996, the Collector, Mehsana passed the order and directed that one neliya-way cannot be claimed by 'GIDC'. The 'GIDC' constructed and developed industrial estate at Dediyasan and the petitioners are the allottees residential plots allotted to them by the 'GIDC'.
3.2 Though the petitioners state that they are residents Page 2 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 of Sardhardham society and all throughout in petition as well as in earlier round of litigation, petitioners have been projected as the residents of Sardardham society, on inquiry, this Court has found that Sardardham society was never a registered society and till date the same is not registered society. It is only a cluster of tenements and / or bungalows thought it fit to be identified as Sardardham society and started claiming the roads adjacent to their residential plots to be declared as internal roads of the society.
3.3 The so-called society consists more than 200 residential members and the present petitioners are seven in numbers and there is nothing on record to indicate that they have been authorised by other members of the society to file this petition or to appear in the proceedings before the Mamlatdar or Deputy Collector in representative capacity of the members of the society.
4.1 All these facts are nowhere stated in the petition, however, during the course of arguments, on inquiry, the aforesaid facts revealed and hence the same are stated. This background is required before narrating the facts of the petition for the reason that all throughout a picture was created as if entire society is suffering on account of proceedings before the Mamlatdar and the Deputy Collector and hence by keeping in mind aforesaid facts Page 3 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 that the society is not registered society nor the present petitioners are authorised representative by the members of that socalled society, now I may narrate the facts further.
4.2 As stated in the forgoing paras, as the Naliya land was directed not to be claimed by GIDC, when GIDC designed and developed Dediyasan industrial estate by acquiring the land, the respondent nos.3 to 8 used to have ingress and egress to their agricultural field from the land acquired by the GIDC. Once the industrial estate was created the land was allotted to the present petitioners for residential purpose individually and the petitioners constructed their residential premises on those individual plots. However, though at no point of time any society was created as per statutory provisions, few persons put a gate on public road and obstructed the use of the public road and hence present Respondent Nos.3 to 8 preferred application before the Mamlatdar, Mehsana under Section 5 of the Mamlatdar Court Act / Case No.1 of 2013.
4.3 The aforesaid suit was decided in favour of present Respondent Nos.3 to 8, who were original plaintiffs in the proceedings before the Mamlatdar being Mamlatdar Courts Act / Case No.1 of 2013. It is pertinent to note that aforesaid suit was preferred against GIDC only wherein Respondent Nos.3 to 8 succeeded and the order dated Page 4 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 05.06.2013 was passed which was challenged by the GIDC by preferring application under Section 23(2) of the Mamlatdar Courts Act, 1906 ('the Act', for short) being Revision Application No.50 of 2013. At the same time, the present petitioners and some other persons also challenged the aforesaid order by preferring revision application before the Mamlatdar, Mehsana which was registered as Mamlatdar Court Act / Case No.39 of 2013.
4.4 The Prant Officer, Mehsana vide order dated 21.02.2014 rejected the revision applications filed by the present petitioners and other persons as well as by the GIDC and confirmed the order passed by the Mamlatdar, Mehsana dated 05.06.2013.
4.5 Being aggrieved by the aforesaid order, the present petitioners preferred revision application being Civil Revision Application No.87 of 2014 before this Court and this Court, after hearing the parties, disposed of the petition vide order dated 30.07.2015 with following directions.
"6. Under the circumstances, this Revision Petition is disposed of with following directions:-
I. The impugned orders of the Mamlatdar and Assistant Collector dated 05.06.2013 and 21.02.2014 respectively are set aside. Matter is placed before the Mamlatdar for fresh consideration and disposal in Page 5 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 accordance with law.
II. Mamlatdar shall permit any authorized representative group of the residents of Sardardham Society to be joined as additional defendant in such proceedings. For such purpose, the present petitioners shall give widest possible publicity to this order and the proposal to join such proceedings in the locality as well as in any public newspaper of vernacular language having sufficiently wide publicity. The petitioners would thereupon form a group of not more than three persons who would represent the case of the members of the locality before the Mamlatdar. No further grievance of non- hearing from any members of the local residents would hereafter be entertained.
III. Till Mamlatdar decides the remand proceedings afresh, there shall be no obstruction created by the petitioners or any other members of the locality. If there is any obstruction presently standing, the same shall be immediately removed and such situation shall continue till the Mamlatdar decides the remanded proceedings. To ensure that there may not be any dispute between the parties about existence or removal of obstruction, the Mamlatdar, Mehsana shall remain present at the site at 10 O'clock on 06.08.2015. It will be open for the petitioners as well as the private respondents to Page 6 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 remain present at that time. As far as possible between 10 to 11 on that day, the Mamlatdar shall inspect whether all gates have been removed / opened. If any of the gates are not removed or opened, the Mamlatdar shall ensure that the same are opened. The petitioners or any other members of the locality would not be allowed to close or obstruct the gates till the Mamlatdar passes his fresh order.
7. I have expressed no opinion on the rival contentions and Mamlatdar is therefore free to decide the issues on the basis of materials that may be brought on record."
4.6 As vide order dated 30.07.2015 this Court quashed and set aside both the orders passed by the Mamlatdar as well as Assistant Collector and remanded back the matter and the panch-rojkam was carried out, present petitioners were joined as respondents in that proceedings.
4.7 The panch-rojkam was carried out on 06.08.2015 as per this Court's order, which is produced at page:184 of the paper-book of this petition. As per the panch-rojkam there was an encroachment on road nos.9, 10, 12, 13 and 14 and the said panch-rojkam also indicates that aforesaid encroachment was removed in presence of the officers.
4.8 Though this Court has specifically observed in the Page 7 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 order dated 30.07.2015 by recording statement of learned advocate for the petitioner that presently there is no obstruction and if there is any, the same will be removed once the Mamlatdar passes the fresh order, contrary to the said statement, on 06.08.2015 during panch-rojkam an obstruction was found and hence the same was removed in presence of the officers. Thereafter, the matter was heard by Mamlatdar, Mehsana and it was registered as Mamlatdar Court Act / Case No.7 of 2015.
4.9 During the pendency of above proceedings, spot inspection was also carried out on 18.12.2015 by Talati, Nagalpur and Circle Officer, Mehsana and it was found that road nos.8, 9, 13 and 14 are blocked.
4.10 Considering the material on record, Mamlatdar, Mehsana passed an order on 13.09.2016 that as per the village map the road for which access was claimed by the respondent nos.3 to 8 was a public road and hence issued directions against the present petitioner and Respondent No.9 not to interrupt and obstruct access of aforesaid public road and further directed to remove the gate put up by the present petitioners.
4.11 In the order dated 13.09.2016, the Mamlatdar categorically observed that though the directions were given by this Court,while disposing of the Civil Revision Application No.87 of 2014 vide order dated 30.07.2015, Page 8 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 and petitioners were directed to give widest possible publicity to the said order and the proposal to join such proceedings in the locality as well as in any public newspaper in vernacular language having sufficiently wide publicity and thereafter to form a group of not more than three persons who would represent the case of the members of the locality before the Mamlatdar, the petitioners did not comply aforesaid directions nor petitioners filed any reply in the proceedings before the Mamlatdar or produced any affidavit or any other form of any evidence before the Mamlatdar, Mehsana and hence in absence of any other material by relying upon the panch-rojkam dated 06.08.2015 and spot inspection dated 18.12.2015, the Mamlatdar, Mehsana allowed the application preferred by the present Respondent Nos.3 to 8 and issued directions which are stated hereinabove.
4.12 After the aforesaid order was passed on 13.09.2016, the petitioners did nothing and set idle for three years and six months and ultimately in the year 2020, they preferred revision application under Section 23(2) of 'the Act' before the Prant Officer, Mehsana and prayed for condonation of delay of three years and six months caused in preferring such application.
4.13 The Prant Officer, Mehsana vide order dated 26.08.2020 rejected the Revision Application preferred by the present petitioners and hence the petitioners have Page 9 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 preferred the present petition.
5.1 Heard learned advocate Mr.Jigar Gadhvi for the petitioners. Learned advocate Mr.Gadhvi for the petitioners submitted that after the order dated 30.07.2015 passed by this Court remanding back the matter to the Mamlatdar, the Mamlatdar did not deal with the issues involved as the Coordinate Bench of this Court had categorically observed that; ".....there are several issues of considerable importance on one hand to the plaintiffs and on the other hand to the residents of GIDC, Dediyasan need to be examined afresh by the Mamlatdar." He submitted that the Mamlatdar did not take any pain in ensuring that the order passed by this Court is complied with in its true letter and spirit. Though the Court directed the Mamlatdar to carry out inspection on 06.08.2015, in absence of the petitioners, another inspection was carried out on 18.12.2015 and on the basis of that inspection the order was passed in favour of present Respondent Nos.3 to 8 by declaring the road to be a public road.
5.2 Learned advocate Mr.Gadhvi further contended that it is mandatory for Mamlatdar as per Section 19 of the Act to frame the issues before the issue adjudicated by Mamlatdar, however, for some extraneous reasons, Mamlatdar did not follow mandatory provisions of 'the Act' and straightway passed order on the basis of Page 10 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 material available before him. When Mr.Gadhvi confronted with the question regarding his locus, which I will be discussing later, during the course of submissions learned advocate Mr.Gadhvi to come out of the issue about locus of petitioner submitted that the locus of the petitioner was never questioned in earlier proceedings and hence at this juncture it is not open to question the locus of the petitioner. He submitted that what is important to be seen that residences of the society would be suffered if the Respondent Nos.3 to 8 are permitted to have access of the road over which they are claiming their right of way.
5.3 Learned advocate Mr.Gadhvi further submitted that before carrying out spot inspection on 18.12.2015, the petitioners were not put to notice and hence the order passed by the Mamlatdar, Mehsana dated 13.09.2016 is bad as per law. Mr.Gadhvi further submitted that the entire proceedings under Mamlatdar Courts Act, 1906 are without jurisdiction as the Mamlatdar, Mehsana exceeded jurisdiction by making declaration that road over which the right of way is claimed by the private respondent nos.3 to 8 was a public road. Mr.Gadhvi submitted that such powers are vested only with the Civil Court and Mamlatdar would not to have declared the aforesaid road as public road. No other submissions are made by learned advocate Mr.Gadhvi nor he has pointed out any other facts from the record.
6.1 As against that, learned advocate Mr.Sejpal Page 11 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 representing the private respondent nos.3 & 8 submitted that the society consists of more than 200 members. Out of 200 members, only seven persons have preferred this petition. The road over which the respondents are claiming their right of way is a public road and since the same is blocked by the present petitioners, the order passed by the Mamlatdar which is confirmed by the Deputy Collector is absolutely just, legal and proper as both of them have concurrently found those roads to be a public road. Mr.Sejpal further submitted that initially only 'GIDC' was shown as party respondent as the entire land was acquired by 'GIDC' for creation and development of industrial estate and hence since the land was owned by 'GIDC' only 'GIDC' was made party initially. It was the petitioners who felt that they would be affected with the order passed by the Mamlatdar in the first round of litigation and hence they preferred Revision Application No.39 of 2013 and challenged the order passed by the Mamlatdar along with Respondent No.9 - 'GIDC'. As they failed before the Deputy Collector, Mehsana, they preferred Civil Revision Application No.87 of 2014 before this Court and pursuant to the order passed by the coordinate Bench of this Court dated 30.07.2015 they were permitted to be joined as party respondents before the Mamlatdar in the proceedings under the Mamlatdar Courts Act, 1906. However, the direction to join them as respondents was subject to the compliance of directions given by this Court vide order dated 30.07.2015 passed in Page 12 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 Civil Revision Application No.87 of 2014.
6.2 Learned advocate Mr.Sejpal submitted that as such the order passed by the Mamlatdar and confirmed by the Deputy Collector would not affect the present petitioners simply for the reason that the petitioners claiming their access over the roads which are public roads and not belonging to the present petitioners or petitioner society and hence he submitted that this petition is required to be dismissed.
7.1 Learned advocate Mr.Nagarkar for Respondent No.9 - 'GIDC' submitted that the entire land originally belonged to the Government and subsequently 'GIDC' acquired a big parcel of land through the Government for creation of Dediyasan Industrial Estate, however, one Neliya land which was used as road by the villagers for ingress and egress to their field remained with the Government. Once the industrial estate was created and developed, the present petitioners were allotted residential plots and over those plots they have constructed their residential premises and are residing. He submitted that the Government roads which are within the limits of industrial estate have remained to be Government land and which are open for public access.
7.2 Learned advocate Mr.Nagarkar further drew attention of this Court to one of the proposals in respect of NA permission and submitted that it is usual practice Page 13 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 that whenever anyone applies for NA permission, the Government usually seeks opinion from the 'GIDC' and it is always made clear by 'GIDC' all throughout that NA permission may be given but along with the permission to use the road and hence usually the usage of road are never confined to any particular person or private body and is made always accessable to the public at large.
7.3 However, learned advocate Mr.Nagarkar fairly submitted that the aforesaid letter, which is at page:190 of the petition compilation, was not part and parcel of proceedings before the Mamlatdar or Deputy Collector, however, just with a view to assist this Court to adjudicate the issue aforesaid letter at page:190 of the paper-book is produced on record.
7.4 In view of the aforesaid submissions, learned advocate Mr.Nagarkar submitted that no lands which are used as road can be said to be private land and hence he prayed for dismissal of the present petition.
8. Considering the material on record and considering the fact that though Mamlatdar and the Deputy Collector have not questioned the locus of the petitioner, this Court raised the query and Mr.Gadhvi was asked as to whether this society wherein the petitioners are residing is registered society or not, the Mr.Gadhvi submitted that the society is not a registered society and individual plots were allotted by 'GIDC' to the residents. A big cluster of Page 14 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 tenements and / or bungalows was thereafter started to be identified as Sardardham Society. When a further query was put to learned advocate Mr.Gadhvi about whether roads on which obstructions are created by the petitioners are internal roads of society or whether at any point of time alongwith the allotment of plots the petitioners were given any exclusive rights over the roads or not, learned advocate Mr.Gadhvi for the petitioners could not answer the aforesaid query and in reply to that query only submitted that as society is not registered society, these roads are internal roads of the occupants of the plots who have constructed residential premises over there plots. However, in support of his claim, he could not produce any material on record.
9. In view of above, considering the totality of the facts and on examination of the orders passed by the Mamlatdar, Mehsana and Deputy Collector, Mehsana, which are under challenge by way of this petition, following facts emerge.
9.1 So far as the conduct of the present petitioners is concerned, it seems that the petitioners all throughout before this Court, in earlier round of litigation, projected themselves as if they are residents of registered society. It is only after inquiry from this Court the Court found that the society was never registered and hence there was no internal roads except the roads of the industrial Page 15 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 estate.
9.2 Secondly, though the petitioners seven in numbers have claimed that they are persons affected by the orders passed by the Mamlatdar and the Deputy Collector, it is not their case that the roads over which the Resopndent Nos.3 to 8 are claiming their right of way are passing through their residential plots. The roads over which petitioners are claiming right do not belong to the petitioner nor any society. In fact, both the roads are declared to be public road by the Mamlatdar, Mehsana and the same was confirmed by Deputy Collector, Mehsana;
9.3 The petitioners have failed to produce any material to indicate that the petitioners were authorised to file this petition on behalf of the members of the society. Since the society itself is not in existence. The so- called society is having more than 200 members and out of those 200 members only seven persons who are petitioners have challenged the orders passed by the Mamlatdar and Deputy Collector and though it is canvassed by learned advocate Mr.Gadhvi that the orders are challenged in representative capacity, nothing has been placed on record to indicate that the petitioners have preferred the petition in representative capacity;
9.4 Despite the fact that the statement was made by Page 16 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 counsel for the petitioners in earlier round of litigation in Civil Revision Application No.87 of 2014 that at that point of time there was no obstruction to the road and if any they would remove the same, however, on two occasions i.e. panch-rojkam, which was carried out on 06.08.2015 and spot inspection which was carried out on 18.12.2015, it was found that there was encroachment on the road and it was obstructed by putting a gate and pillars etc.;
9.5 Despite the Court's direction in its order dated 30.07.2015 that the order dated 30.07.2015 was required to be given widest publicity, the petitioners did not comply with the aforesaid direction and thought the Court had specifically directed the petitioners that not more than three petitioners would represent the members of the society, in fact there were 13 members originally preferred an application to join the proceedings before the Mamlatdar and by passage of time out of that 13 persons only 07 have preferred this petition.
10.1 All the aforesaid facts would indicate that the road over which the petitioners are claiming that it is a private road or that the access to the aforesaid road be denied to the present Respondent Nos.3 to 8 is nothing but an attempt to get declaration indirectly that actually the land which is otherwise belonged to the GIDC and the State Government is belonged to the society which is not even in existence.
Page 17 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 10.2 Though the petitioners have, at no point of time, produced any material before the Mamlatdar or Deputy Collector, nor even bothered to file reply before the Mamlatdar coupled with the fact that after the Mamlatdar order was passed in the year 2016, after 3 ½ years the petitioner preferred the revision application only in the year 2020 that itself suggests that petitioners' intention is not as bona fide as it is being projected.
10.3 On one hand, the petitioners themselves had chosen not to file reply and not to place any material on record to indicate that the roads in question are actually private roads, which would actually facilitate the Mamlatdar to determine the issue in a better way, the petitioners are now making grievance that the Mamlatdar has failed to decide the issue involved and has not dealt with the issues in its true latter and spirit. If the petitioners themselves have not filed any reply or not placed any material on record before the Mamlatdar, the Mamlatdar is expected to decide the issue only on the basis of material placed before him or which is available before him. Even today, learned advocate Mr.Gadhvi could not point out as to which are those issues which the Mamlatdar could not determine or decide.
10.4 On one hand, the petitioners have not participated in adjudicating the proceedings before the Mamlatdar and on the other hand the petitioners are Page 18 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 making grievances that Mamlatdar has not framed the issues which are mandatory under Section 19 of the Act and hence the impugned order is bad.
11. In view of the aforesaid aspects, it is important to examine the matter apart from merits even on the basis of the locus of the petitioners as well.
12. As transpires from the record as well as as the query was put to learned advocate Mr.Gadhvi as to whether it was pointed out to the coordinate Bench of this Court during the proceedings of Civil Revision Application No.87 of 2014 that the society is an unregistered society, without there being any plans etc., and is having 200 members, learned advocate Mr.Gadhvi simply submitted that he has no idea about the same as he was not appearing. However, learned advocate Mr.Gadhvi conceded that the petitioners are the allottees of individual plots and after considering aforesaid facts he further conceded that it is true that the allotment letters of the petitioners are not on record.
13.1 Keeping aforesaid facts in mind, what is required to be seen is that if the petitioners have preferred petition individually and not by society, in that case, the petitioners right would be only confined to the residential plots allotted to the petitioners. Since the allotment letter is never produced on record, which were the conditions of the allotment letter are not known to this Court.
Page 19 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 However, the fact remains that in absence of creation of any society coupled with the fact that entire land was acquired by 'GIDC' and separate plots allotted to the occupants for residential purpose, it can safely be presumed that it is a public road. However, the Mamlatdar has given a categorical finding that it was a public road and the same was confirmed by the Deputy Collector.
13.2 In view of the aforesaid facts, this Court thinks it fit to determine as to whether the petitioners have the locus to participate in the proceedings under the Mamlatdar Courts Act, 1906 and to challenge the orders passed by the Mamlatdar and Deputy Collector. This Court is aware about the fact that vide order dated 30.07.2015 passed in Civil Revision Application No.87 of 2014, the Coordinate Bench of this Court issued certain directions and permitted the affected residents of Sardardham Society to be joined as additional defendants in the proceedings before the Mamlatdar. The direction no.2 given in para:6 of the said order reads as under:
"II. Mamlatdar shall permit any authorized representative group of the residents of Sardardham Society to be joined as additional defendant in such proceedings. For such purpose, the present petitioners shall give widest possible publicity to this order and the proposal to join such proceedings in the locality as well as in any public newspaper of Page 20 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 vernacular language having sufficiently wide publicity. The petitioners would thereupon form a group of not more than three persons who would represent the case of the members of the locality before the Mamlatdar. No further grievance of non- hearing from any members of the local residents would hereafter be entertained."
13.3 The aforesaid direction would indicate that it was not the petitioners who were directed to be joined as additional defendants in the proceedings before the Mamlatdar. In fact, the Court was of the view that only authorised representative group of the residents of Sardardham Society was required to be joined as defendants. Further, the petitioners were directed to give widest possible publicity to the order dated 30.07.2015 in the locality as well as in the public newspaper of vernacular language having sufficiently wide publicity and thereafter the petitioners were required to form a group of not more than three persons to represent the case of members of the locality before the Mamlatdar.
In the instant case, learned advocate Mr.Gadhvi could not point out that the aforesaid directions were complied with by the petitioners. As against maximum three representatives, 14 persons approached the Mamlatdar and got impleaded as party respondents and out of those 14 persons, 07 preferred Revision Page 21 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 Application before the Deputy Collector and they were the petitioners before this Court which is in stark contrast of directions issued by this Court.
13.4 Furthermore, as observed by the Mamlatdar, Mehsana in his order dated the petitioners neither gave widest possible publicity to the order dated 30.07.2015 nor published in the newspaper coupled with the fact that even before this Court learned advocate Mr.Gadhvi could not point out from the material available that the petitioners are authorised by the residents of so-called Sardardham Society. Hence, though the petitioners are claiming that they are necessary party in the proceedings by relying upon the order dated 30.07.2015 passed by the coordinate Bench of this Court in Civil Revision Application No.87 of 2014 as the base as the petitioners themselves have not complied with the directions issued by the Court vide order dated 30.07.2015.
13.5 Now these facts are considered coupled with the fact that since the petitioners were allottee of separate single plot and as the claim of Respondent Nos.3 to 8 was in respect of a road, which is ultimately declared to be a public road, the petitioners do not have any locus to challenge the orders of the Mamlatdar and the Deputy Collector as it seems that petitioners did not point out to this Court in earlier round of litigation that it is not a registered society or that at no point of time there was Page 22 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 society created and the sub-plotings were created etc. and roads, lights and internal roads were part and parcel of society. Merely because some like-minded people residing in one cluster decide to be identified the residents as of a society, all the roads within the boundaries of those residential plots cannot be claimed to be a private road and hence as the petitioners have failed to place any material before Mamlatdar, this Court holds that petitioners have no locus to challenge the aforesaid two orders passed by the Mamaltdar, Mehsana and Deputy Collector, Mehsana as the petition is not preferred in capacity of representatives of locality or society as directed by this Court vide order dated 30.07.2015 passed in Civil Revision Application No.87 of 2014.
13.6 Further, once it is revealed that the aforesaid roads are public roads and the aforesaid facts have come from the village map as observed by Mamlatdar, therefore the contention of learned advocate Mr.Gadhvi that Mamlatdar has no power of declaration in the suit preferred under the Mamlatdar Courts Act, 1906 also would go. The public road was already there. The Mamlatdar verified the aforesaid facts from the village map and simply reiterated it. Therefore, it cannot be said that the Mamlatdar has declared a particular road to be public road.
13.7 As far as contention in respect of inaction on Page 23 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 the part of the Mamlatdar of not framing the issues as mandatory under Section 19 of 'the Act' is concerned, once the petitioners' locus itself is found to be questionable and ultimately it is decided that petitioners have no locus and they have only the ownership of a particular plot which is allotted to them, coupled with the conduct of the petitioners, only because there were some technical lapse on the part of the Mamlatdar coupled with the fact that the petitioners have not filed any reply before the Mamlatdar nor produced any material before the Mamlatdar, remanding the matter back to the Mamlatdar would turn down to be a futile exercise as it would not serve any purpose nor would vitiate entire proceedings, more particularly when the road over which Respondent Nos.3 to 8 claim their right of way is public road, if on the ground of such procedural lapse, the matter is remanded back to the Mamlatdar, it would cause great hardships to the people at large as the road is public road and the issue is pending since the year 2013 and, therefore, this Court has taken not of the fact that framing of issues which is mandatory as per Section 19 of the Act, at this juncture, if the matter is remanded back to the Mamlatdar, it would not serve any purpose but would cause hardship to the general public at large. Further, as the proceedings under the Mamlatdar Courts Act, 1906 before the Mamlatdar being summary proceedings in nature, ultimately if any right of the present petitioners is affected, the petitioners can always Page 24 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022 C/SCA/5228/2021 JUDGMENT DATED: 20/01/2022 take recourse to filing of civil suit for determination of their rights.
14. In view of the above discussion, I do not see any error committed by Mamaltdar, Mehsana while passing the order dated 13.09.2016 passed by the Mamlatdar, Mehsana in Mamlatdar Court Act / Case No.7 of 2015 which is confirmed by the order dated 26.08.2020 passed by the Deputy Collector, Mehsana in Mamlatdar Court Act / Revision Case No. 3 of 2020.
15. This petition, therefore, requires to be dismissed and is dismissed accordingly. Rule is discharged. No order as to costs.
Direct service permitted.
Sd/-
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 25 of 25 Downloaded on : Thu Jan 27 20:13:40 IST 2022