Gujarat High Court
Hemrajbhai S/O Bhagabhai Harijan vs The Deputy Collector, Tharad on 20 April, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/16270/2020 JUDGMENT DATED: 20/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16270 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
==========================================================
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 ?
==========================================================
HEMRAJBHAI S/O BHAGABHAI HARIJAN
Versus
THE DEPUTY COLLECTOR, THARAD
==========================================================
Appearance:
MR.KISHORE PRAJAPATI(6305) for the Petitioner(s) No. 1,2,3,4
MR AKASH CHHAYA AGP for the Respondent(s) No. 1,2
HCLS COMMITTEE(4998) for the Respondent(s) No. 3,4
MR NACHIKET D MEHTA(6529) for the Respondent(s) No. 3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 20/04/2022
ORAL JUDGMENT
1. By way of this petition, the petitioner has prayed for following reliefs:
"[A]YOUR LORDSHIPS may be pleased to issue a writ of certiorari or any other appropriate writ, Page 1 of 8 Downloaded on : Thu Apr 21 21:01:19 IST 2022 C/SCA/16270/2020 JUDGMENT DATED: 20/04/2022 order or direction in the nature of certiorari for setting aside the impugned dated 09.11.2020 passed in Revision Application No.7 of 2020 passed by the Deputy Collector, Tharad (Respondent No.1) and the ex-parte order dated 20.12.2019 passed by the Mamlatdar, Vav (Respondent No.2) in the interest of justice.
[B] During the pendency and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the implementation, execution and operation of the order dated 09.11.2020 passed in Revision Application No.7 of 2020 passed by the Deputy Collector, Tharad (Respondent No.1) and the ex- parte order dated 20.12.2019 passed by the Mamlatdar, Vav (Respondent No.2) on any conditions, those may be deem fit and appropriate in the interest of justice.
[C] YOUR LORDSHIPS be pleased to pass such other order and further orders as may be deemed just and proper in the interest of justice."
2. Heard learned advocate Mr.Kishore Prajapati for the petitioner, learned advocate Mr.Nachiket D. Mehta for Respondent Nos.3 and 4 and learned Assistant Government Pleader Mr.Akash Chhaya for Respondent Nos.1 and 2.
3.1 It is the case of petitioners that the petitioners are the owners of land bearing Survey No.72 [New Survey No.196] of Mouje Fangdi, Tal.Vaav, District:Banaskantha. It is the case of the petitioners that Respondent No.4 is serving in Indian Army and gave an application in the month of August, 2019 to the Superintendent of Police, Banaskantha and prayed that path-way of their land Page 2 of 8 Downloaded on : Thu Apr 21 21:01:19 IST 2022 C/SCA/16270/2020 JUDGMENT DATED: 20/04/2022 bearing Survey No.200/2 of Mouje Fangdi, Tal.Vaav, District: Banaskantha be cleared. The aforesaid communication was also sent to District Magistrate, Collector and others. On 25.09.2019, the Collector, Banskantha intimated Mamlatdar, Vaav to initiate action under Section 5(2) of the Mamlatdar Courts Act, 1906 ['the Court Act', for short] and that is how the suit under 'the Court Act' was registered and the same was numbered as Mamlatdar Court Act / Case No.8 of 2019.
3.2 Pursuant to the registration of the aforesaid Mamlatdar Court Act / Case No.8 of 2019, the panch- rojkam was carried out on 18.11.2019 in absence of the petitioner and thereafter vide order dated 20.12.2019 only on the basis of the aforesaid panch - rojkam, which was carried out in absence of the petitioner, Mamlatdar, Vaav passed an order directing the present petitioner to open the road passing through his field situated at land bearing Survey No.196 of Mouje Fangdi, Tal.Vaav, Dist.Banaskantha.
3.3 Since the aforesaid order was passed on the basis of the panch-rojkam dtd.18.11.2019, which was carried out in absence of the petitioners and without sending any intimation to the petitioner, the petitioner preferred an application under Section 23 of 'the Mamlatdar Act' before the Deputy Collector, Tharad, which was registered as Mamlatdar Court Act / Revision No.07 of 2020. However, after hearing the parties, even the Page 3 of 8 Downloaded on : Thu Apr 21 21:01:19 IST 2022 C/SCA/16270/2020 JUDGMENT DATED: 20/04/2022 Deputy Collector, Tharad also rejected the revision application preferred by the petitioner and vide order dated 09.11.2020 confirmed the order dated 20.12.2019 passed by the Mamlatdar, Vaav in Mamlatdar Court Act / Case No.08 of 2019.
3.4 Being aggrieved and feeling dissatisfied with the aforesaid two orders, the petitioner has preferred present petition.
4.1 On 24.11.2021, this Court had passed the following order:
"1. Heard learned advocate Mr. Kishore Prajapati for the petitioners and learned advocate Mr. Nachiket D. Mehta for the respondents no.3 and 4.
2. It is the specific case of the petitioner that the respondents no.4 herein is son of the owner of the land i.e. respondent no.3 and respondent no. 4 is serving in Indian Army, by using influence of his position, respondent no. 4 instead of making any application prescribed as per the section 7 of the Mamlatdars Court Act preferred an application to the Higher Authority in Indian Army which was subsequently forwarded to the Collector and District Magistrate, Banaskantha, in turn the Collector and District Magistrate, Banaskantha forwarded the said application to the Mamlatdar, Vav for exercising his jurisdiction and to initiate the proceedings under section 5 (2) of the Mamlatdars Court Act, if Mamlatdar, Vav deems it appropriate. Accordingly the Mamlatdar, Vav initiated the proceedings under the Mamlatdar Courts Act and passed an order dated 20.12.2019 in Mamlatdars Act Court Case No.8 of 2019 directing the present petitioner to open the road for the access of the respondents no.3 and 4. This entire exercise was carried out without any notice to the petitioner as per the case of the petitioner.
3. The present petitioner carried the aforesaid order dated 20.12.2019 by way of preferring the revision application before the Deputy Collector, Tharad by the Mamlatdar Court Act Revision No. 7 of 2020 wherein the specific contention was taken that without putting the present petitioner to notice or even without issuance of notice, the panchnama was drawn and the entire proceedings took place behind the back of the petitioner.
4. The Deputy Collector confirmed the order passed by the Mamlatdar, Vav dated 20.12.2019 by order dated 09.11.2020 Page 4 of 8 Downloaded on : Thu Apr 21 21:01:19 IST 2022 C/SCA/16270/2020 JUDGMENT DATED: 20/04/2022 passed in Mamlatdar Court Act Revision No.7 of 2020. However, the contention of the petitioner in respect of non observation of principal of natural justice was not dealt with the said order.
5. Today, at the time, when the matter is called out, learned advocate Mr. Prajapati drew the attention of this Court to section 8 of the Mamlatdars Court Act and submitted that even if the application which is not in prescribed format as prescribed under section 7 of the Mamlatdars Court Act made by any person then also section 8 of the Act empowers the Mamlatdar to initiate the proceedings after following due procedure as prescribed under Section 8 of the Act. However, according to Mr. Prajapati though the application was not made as per the requirement of section 7 of the Mamlatdars Court Act. The Mamlatdar while initiating the proceedings under the Mamlatdar Court Act did not follow the procedure as prescribed under section 8 of the Act and therefore, order passed by the Mamlatdar dated 20.12.2019 as well as order passed by the Deputy Collector, Tharad dated 09.11.2020 confirmed by order passed by the Mamlatdar, Vav are bad as per the law.
6. As against that learned advocate Mr. Mehta submitted that panchrojkam clearly reveals that the way of respondents no. 3 and 4 was obstructed by the petitioner and therefore, considering the factual aspect, the Mamlatdar passed the order in favour of the respondent no. 3 and 4 and hence, the same was absolutely, just and legal proper.
7. Learned AGP Mr. Bharat Vyas could not point out from the record or affidavit in reply filed by the respondent no. 2 - I/C. Mamlatdar, Vav that the submissions made by the learned advocate for the petitioner does not have any basis or that while adjudicating the issue, the Mamlatdar, vav followed the procedure of law as prescribed under the Act. However, he requested for time to verify the record once again and if need be, may file extensive reply placing the relevant documents on record.
8. Considering the aforesaid submissions, matter required consideration. Hence, RULE returnable on 09.12.2021. Learned advocate Mr. Mehta waives service of notice of rule for and on behalf of the respondents no.3 and 4 and learned AGP waives service of notice of rule for and on behalf of the respondent - State. 9. In the meantime, there shall be interim relief in terms of paragraph no. 9 (B)."
4.2 While passing the aforesaid order, learned Assistant Government Pleader requested the time to verify the record and hence Rule was issued while granting relief in favour of the petitioners.
Page 5 of 8 Downloaded on : Thu Apr 21 21:01:19 IST 2022C/SCA/16270/2020 JUDGMENT DATED: 20/04/2022 4.3 Today, the learned Assistant Government Pleader has produced certified copy of the Record and Proceedings of Mamlatdar Court Act/ Case No.08 of 2019 before the Mamlatdar, Vaav and the aforesaid Record and Proceedings were perused by learned Assistant Government Pleader Mr.Akash Chhaya and learned advocate Mr.Mehta who represented Respondent Nos.3 and 4 - original plaintiffs before Mamlatdar Court Act/ Case No.08 of 2019.
4.4 On perusal of the aforesaid record, learned advocate Mr.Mehta for the concerned respondents could not point out from the record that while treating the letter of Respondent No.4 as plaint under 'the Court Act', the Mamlatdar, Vaav has not undertaken any procedures as prescribed under Sections 8 to 11 of the Court Act. Further, since the panch rojkam dated 18.11.2019 carried out in absence of the petitioners, even without intimating the petitioners about the same, the aforesaid order was confirmed by Deputy Collector without even dealing with the contentions raised by learned advocate for the petitioners herein of revision application preferred by the petitioners.
5.1 In view of that, both the impugned orders i.e. order dated 20.12.2019 passed by the Mamlatdar, Vaav in Mamlatdar Court Act / Case No.08 of 2019 and the order dated 09.11.2010 passed by the Deputy Collector, Tharad in Mamlatdar Court Act Revision No.07 of 2020 are Page 6 of 8 Downloaded on : Thu Apr 21 21:01:19 IST 2022 C/SCA/16270/2020 JUDGMENT DATED: 20/04/2022 required to be quashed and set aside as those orders were passed in contravention of mandatory provisions of Sections 8 to 11 of 'the Court Act'.
5.2 The provisions of Section 8 of 'the Court Act' empowers the Mamlatdar to treat the informal petition as plaint, however, subject to procedures prescribed under Sections 9, 10 and 11 of 'the Court Act'. As per Section of 'the Court Act', Mamlatdar is required to examine the plaintiff on oath whereas as per Section 10 of 'the Court Act' , when the plaint is presented and has, if necessary, been treated in the manner specified in Section 9, the Mamlater was required the plaintiff to subscribe and verify the plaint in his presence in the open Court and thereafter as per Section 11 of 'the Court Act', the Mamlatdar is required to endorse the plaint to the effect that it was duly subscribed and verified.
5.3 On verification of the record and proceedings before the Mamlatdar, none of the advocates i.e. learned advocate Mr.N.D.Mehta representing respondent nos.3 and 4, nor learned Assistant Government Pleader Mr.Chhaya could point out from record that aforesaid procedures were undertaken by Mamlatdar, Vaav and hence both the impugned orders are required to be quashed and set aside and accordingly both the impugned orders i.e. order dated 20.12.2019 passed by the Mamlatdar, Vaav in Mamlatdar Court Act / Case No.08 of 2019 and the order dated 09.11.2010 passed by the Page 7 of 8 Downloaded on : Thu Apr 21 21:01:19 IST 2022 C/SCA/16270/2020 JUDGMENT DATED: 20/04/2022 Deputy Collector, Tharad in Mamlatdar Court Act Revision No.07 of 2020 are hereby quashed and set aside.
5.4 Matter is remanded back to Mamlatdar, Vaav to hear and decide the Mamlatdar Courts Act / Case No.08 of 2019 afresh by strictly following the procedures prescribed in the Mamlatdar Courts Act including the procedures prescribed in Sections 8 to 11 of 'the Courts Act'.
5.5 Rights and contentions of all the parties are kept open. It is clarified that since aforesaid orders passed by the Mamlatdar and Deputy Collector are quashed on the ground that the Mamlatdar could not follow the mandatory procedures prescribed under 'the Courts Act', needless to say that this Court has not examined the merits of the matter.
6. With the above observations and directions, the present petition is allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 8 of 8 Downloaded on : Thu Apr 21 21:01:19 IST 2022