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[Cites 3, Cited by 0]

Gujarat High Court

Subhashbhai Natwarbhai Patel vs Mansinh Kabhai Rathod on 22 February, 2021

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

       C/SCA/22842/2019                                        ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 22842 of 2019

                             With
        CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
        In R/SPECIAL CIVIL APPLICATION NO. 22842 of 2019
==========================================================
            SUBHASHBHAI NATWARBHAI PATEL & 1 other(s)
                            Versus
               MANSINH KABHAI RATHOD & 4 other(s)
==========================================================
Appearance:
MR RR MARSHAL SENIOR ADVOCATE FOR MR AB MUNSHI(1238) for the
Petitioner(s) No. 1,2
MR VIMAL A PUROHIT(5049) for the Respondent(s) No. 1,2,3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 4,5
SHRENIK R JASANI(9486) for the Respondent(s) No. 1,2,3
==========================================================

 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                          Date : 22/02/2021

                           ORAL ORDER

1. Heard learned Senior Advocate Mr. R.R. Marshal assisted by learned advocate Mr. A.B. Munshi for the petitioners and learned advocate Mr. Vimal Purohit for respondent nos. 1 to 3 through video conference.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs :

"(A) Your Lordships be pleased to admit and allow this petition.
(B) Your Lordships be pleased to issue a writ Page 1 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022 C/SCA/22842/2019 ORDER of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 25.11.2019 passed by respondent no.5­Deputy Collector, Olpad Pranth, Olpad in Mamlatdar Courts Act/ Revision Case No. 8/2019, in the interest of justice.
(C) Pending the admission, hearing and final disposal of this petition, Your Lordships be pleased to stay the implementation, operation and execution of the impugned order dated 25.11.2019 passed by respondent no.5­Deputy Collector, Olpad Pranth, Olpad in Mamlatdar Courts Act/ Revision Case No. 8/2019, in the interest of justice.
(D) Your Lordships may be pleased to grant such other and further reliefs as may be deemed fit, in the interest of justice."

3. Brief facts of the case are as under :

3.1) The petitioners are the owners of the land bearing Survey no.63, Block No. 98 admeasuring 14,265 sq. mtrs and Block No. 116/B admeasuring 13,394 sq mtrs. situated at Rajnagar (earlier Mahamedpor), Taluka Olpad, District Surat. The petitioners have purchased these lands by two separate sale deeds on 6.10.2016 and 12.4.2018.
3.2) Pursuant to the above sale deeds, the names of the petitioners were recorded in the revenue records as owners of land bearing Block No. 98 and 116/B of Village Rajnagar.
3.3) Respondents nos. 1 to 3 filed an application under section 5 of the Mamlatdars Courts Act, 1906 before respondent no.4­ Page 2 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022 C/SCA/22842/2019 ORDER Mamlatdar on 29.1.2019 being Mamlatdar Court Act Case No.2/2019, claiming that they have a right of way from the lands of petitioners bearing Survey no.63, Block No.98 admeasuring 14,265 sq. mtrs and Block No.116/B admeasuring 13,394 sq. mtrs situated at Rajnagar, Taluka Olpad, District Surat.
3.4) The petitioners filed their written statement as well as written arguments, upon service of the notice issued by respondent no.4 in the said proceedings. Respondent No.4 carried out panchkyas on 29.3.2019.
3.5) Respondent no. 4 vide order dated 17.6.2019 rejected the section 5 application filed by the respondent nos. 1 to 3.
3.6) Being aggrieved by order dated 17.6.2019 passed by respondent no.4, the respondent nos. 1 to 3 preferred a Revision application before respondent no.5­Deputy Collector, Olpad Pranth being Revision Case No.8/2019. The petitioners filed their reply opposing such revision application.
3.7) Respondent no.5 vide impugned order dated 25.11.2019 allowed the revision application filed by respondent nos. 1 to 3 herein.
Page 3 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022 C/SCA/22842/2019 ORDER
3.8) Being aggrieved by the said impugned order, the petitioners have preferred the present petition with the aforesaid prayers.
4. This Court (Coram : Hon'ble Mr. Justice Vipul Pancholi) passed the following order on 24.12.2019 :
"Mr.R.R.Marshal, learned Senior Counsel assisted by Mr. A.B.Munshi learned advocate appearing for the petitioners, has pointed out from the Ground
- D and H of the memo of petition that the petitioner have kept alternative road for respondent Nos. 1 to 3 to go to their field.
In view of the aforesaid submission, Notice returnable on 14.02.2020. Mr. Shrenik Jasani, learned advocate, waives service of notice qua respondent Nos. 1 to 3.
The parties are directed to maintain status quo as on today. Direct service permitted."

5. It appears that thereafter the matter was heard on 18.03.2020 and this Court (Coram : Hon'ble Mr. Justice A.Y. Kogje) passed the following order :

"1. Learned Advocate for the petitioners has mentioned for taking up the matter urgently. The Matter was listed lastly on 11­03­2020, when the learned Advocate for the respondents had mentioned for priority. Today, also matter is taken up after learned Advocate for the respondents submitted that he has informed the petitioners that matter being taken up.
2. Learned Advocate for the respondents draw attention of this Court to the order dated 24­ Page 4 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022 C/SCA/22842/2019 ORDER 12­2019, wherein the Court has recorded as under:
"Mr.R.R.Marshal, learned Senior Counsel assisted by Mr. A.B.Munshi learned advocate appearing for the petitioners, has pointed out from the Ground
- D and H of the memo of petition that the petitioner have kept alternative road for respondent Nos. 1 to 3 to go to their field.
In view of the aforesaid submission, Notice returnable on 14.02.2020. Mr. Shrenik Jasani, learned advocate, waives service of notice qua respondent Nos. 1 to 3.
The parties are directed to maintain status quo as on today. Direct service permitted."

3. It is submitted that having this recorded, the respondents had approached the petitioners for pointing out alternative way that was promised under the statement made by the Advocate for the petitioners. However, no such alternative way was pointed out. In this connection, learned Advocate draws attention of this Court to the Para­25 of his affidavit in reply and letter at Annexure­F (Page­232) in writing wherein again request was made to point out alternative way to reach the fields of the respondents.

4. However, as the respondents have not provided for alternative way, the matter is taken now and S.O. to 24­03­2020.

5. In the meantime, learned Advocate for the petitioners shall see to it that the statements made by them and recorded in order 24­12­2019 is complied with, failing which on 24th March, 2020, interim relief granted would stand automatically vacated.

Direct service is permitted."

6. It appears that thereafter respondent nos. 1 and Page 5 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022 C/SCA/22842/2019 ORDER 2 preferred Civil Application (For Direction) No.1/2020 wherein this Court passed the following order on 18.01.2021 :

"Heard learned Senior Advocate Mr. Vimal Purohit for the petitioner and learned Senior Advocate Mr. R.R. Marshal assisted by learned advocate Mr. A.B. Munshi for the respondent through video conference.
Learned Senior Advocate Mr. Marshal prays for time to file affidavit­in­reply in the Civil Application filed by the respondent nos. 4 and 5 in the main petition. It was jointly submitted by the learned advocates for both the sides that on the next date, both the sides shall proceed to argue the main matter.
Let Special Civil Application No.22842/2019 be notified for hearing along with the Civil Application filed by respondent nos. 4 and 5 on 22nd February, 2021."

7. When the matter is taken up for hearing today, at the outset, learned Senior Advocate Mr. Marshal invited the attention of the Court to the additional affidavit filed by the petitioners wherein the petitioner has averred that the petitioners have maintained the status­ quo order which was granted by this Court vide order dated 24.12.2019 and further averred as follows :

"5. I state and submit that the compound wall is built within my property and 5 feet land outside the wall especially the road in my property to the entire land of the property is what has to be used as road and what is stated by me in Ground (D) and (H) of the memo of the petition is reiterated herein for the sake of repetition. That is what is incorporated in the order that Page 6 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022 C/SCA/22842/2019 ORDER is passed by this Hon'ble Court while issuing notice on 24­12­2019.
6. I state and submit that the contesting respondents are hereby informed that the road outside the compound wall admeasuring at some places 9 feet and minimum 5 feet which was original road outside our compound wall is the road that was intended in Ground No.(D) and (H) of the petition. The contesting respondents are free to use the same and it should put an end to any controversy and the contesting respondents should not be permitted to take law in to their hands pursuant to the order dated 18­3­2020 that is passed by this Hon'ble Court in the captioned petition. It is made clear that there is no question of approach way as it is the original road which was used by contesting respondents and it is still open for them to use the same. I state and submit that to narrow down the contest between the parties to the petition, I hereby annex two photographs which go to show that the contesting respondents have an approach way to go to their field. Annexed hereto and marked as Annexure­I­colly are the copies of the two photographs.
7. I state and submit that without prejudice to the contentions that are canvassed before this Hon'ble Court, I hereby state and submit that the contesting respondents have alternative road to go to their field. To demonstrate before this Hon'ble Court, I hereby annex herewith and marked as Annexure­J colly copies of two enlarged photographs which would reveal that there is an alternative road to contesting respondents of Block No. 101/A & B and Block No.99.
8. I state and submit that the photographs mentioned herein above are taken by expert in digital photography and video shooting and the deponent herein is in receipt of invoice issued by Master Photo Studio dated 19­3­2020. Annexed hereto & marked as Annexure­K is the copy of invoice issued by Master Photo Studio dated 19­ Page 7 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022 C/SCA/22842/2019 ORDER 3­2020.
9. I state and submit that I had also taken the expertise of Master Photo Studio for videography by way of drone. The invoice also mentions the same and I crave leave of this Hon'ble Court to refer to and rely upon the said video which was taken with the help of drone (which is retrieved in a pen drive) at the time of hearing of this petition. I state and submit that this Hon'ble Court will be shocked to see that there is a tractor which is there on the land of Block No. 101/A & B whereby the labourers are seen harvesting the crop. This has happened on 19­3­ 2020 which had been captured by way of photography through drone. If the photographs that are annexed herein above are looked into, in one such photograph this Hon'ble Court will find a tractor on the field of one of the contesting respondents of Block No. 101. If the said videography is looked into by this Hon'ble Court, this Hon'ble Court will find that crop of sugarcane has been there on the lands belonging to the contesting respondents (101/A & B and
99). I state and submit that sugarcane crop is there on the field which are in the height of around 9 to 10 feet and if the contention of the contesting respondents is accepted as to what they have stated on 18­03­2020 and canvassed before the Hon'ble Court that their approach road is blocked by the deponent herein, then how did the tractor go to the field of contesting respondents. Therefore, there is an alternative road which is available to the contesting respondents to go to their fields. In the premises aforesaid the petition, be allowed on this ground alone and the contesting respondents be saddled with heavy costs whereby they have tried to convince this Hon'ble Court into passing an order of such nature dated 18­3­2020.
10. It is further submitted that as regards alternative road for Block No.99 of contesting respondent no.3­Balvantsinh Dahyabhai Rathod -

is concerned, the owner of Block No.99 has an alternative road to go from the canal of field Page 8 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022 C/SCA/22842/2019 ORDER of Block No.96 paikee which is owned by Bharatsinh Prabhatsinh who has filed an affidavit stating that he is ready and willing to permit the owner of Block No.99 paikee i.e. respondent no.3 herein to pass through his land. It is also stated in the said affidavit that the owner of Block No.99 paikee i.e respondent no.3 herein is using the alternate road from the Block No.96 paikee even as on today. Annexed herewith and marked as Annexure­L is the copy of the affidavit of Bharatsinh Prabhatsinh­owner of Block No.96.

11. I state and submit that on the contrary to approach to the field of contesting respondent nos. 1,2 and 3 (Block No. 101/A &B and Block No.99) the shortest route is the one which is shown by the deponent herein in the photographs annexed herein above."

8. In view of the aforesaid averments made on oath by the petitioners, the grievances of respondent nos. 1 and 2 is redressed to the effect that the petitioners have abided by the statement made in grounds (D) and (H) of the petition and further stated so on oath in affidavit filed before this Court.

9. In that view of the matter, the impugned order passed by the Deputy Collector would not survive as there is no hindrance caused by the petitioners on the road which was used by respondent nos. 1 and 2 to go to their land bearing block no. 101/A, 101/B and 99 passing through 98 and 116/B of the ownership of the petitioners.

Page 9 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022 C/SCA/22842/2019 ORDER

10. In view of the aforesaid fact situation, the impugned order dated 25.11.2019 passed by the respondent no.5 Deputy Collector is quashed and set aside. The petition is disposed of. Notice is discharged.

11. In view of order passed in the Special Civil Application, no order is required to be passed in the Civil Application. Civil Application stands disposed of.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 10 of 10 Downloaded on : Thu Jan 13 01:35:41 IST 2022