Gujarat High Court
Sirishkumar Ishwarlal Naik vs Deputy Collector & 2....Opponent(S) on 19 June, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/CRA/376/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 376 of 2014
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SIRISHKUMAR ISHWARLAL NAIK....Applicant(s)
Versus
DEPUTY COLLECTOR & 2....Opponent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Applicant(s) No. 1
MR. VISHRUT R. JANI, AGP for the Opponent(s) No. 1 - 2
MR DAKSHESH MEHTA, ADVOCATE for the Opponent(s) No. 3
MR. RUSHANG D MEHTA, ADVOCATE for the Opponent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 19/06/2015
ORAL JUDGMENT
1. This Civil Revision Application is filed by the Original Respondent challenging the order dated 14.7.2014 passed by the Mamlatdar, Gandevi under Section 5 of the Mamlatdars' Courts Act, 1906 (hereinafter referred to as "the Act") as confirmed by the order dated 14.10.2014 passed by the Deputy Collector, Chikhali. The Respondent No.3 had filed application dated 16.4.2014 before the Mamlatdar, Gandevi contending that he had a existing right of way through the land bearing Block No.59 to reach his own land bearing Block No. 60, which the present Petitioner had obstructed. Page 1 of 5
C/CRA/376/2014 JUDGMENT The case of the Applicant was that he had no other right of way to access his own land.
2. After putting the parties to notice, the Mamlatdar carried out spot visit and recorded the evidence, including taking on record affidavits presented by the Applicant, passed the impugned order holding that the Applicant enjoyed the right of way customarily since long through the land of the present Petitioner, that there was no other road by which the Applicant could access his own land and finally that the present Petitioner had obstructed such passage. He therefore allowed the Application and directed the Petitioner to remove such obstruction. The Deputy Collector concurred with the view of the Mamlatdar, hence, this Revision Petition.
3. Learned Counsel Shri S.P.Majmudar for the Petitioner vehemently contended that the Mamlatdar, without a site visit passed the order, which was not a reasoned order. The Dy. Collector confirmed such order without giving independent reasons. He submitted that the Mamlatdar had not drawn any report and further that he had relied on the affidavits presented by the Applicant without permitting cross-examination of the deponents.
4. On the other hand, learned Advocates for the Respondents opposed the Revision Application contending that two authorities had concurrently held that the Applicant had a right of way through the Page 2 of 5 C/CRA/376/2014 JUDGMENT land of the Petitioner, which he had obstructed.
5. Having thus heard learned Counsels for the parties and having perused the documents on record, it emerges that the Mamlatdar and Dy. Collector concurrently held that the Applicant - the present Respondent No.3 enjoyed a right of way through the land of the petitioner since long. He had no other access to his land and that the petitioner had obstructed the passage. Section 5 of the Act authorizes the Mamlatdar to conduct summary and order removal of obstruction. By nature of things, such inquiry would be summary in nature and cannot take shape of full fledged civil suit. Necessarily, therefore, any order of the Mamlatdar, passed in exercise of such summary powers would be subject to the judgment of the Civil Court, if any Civil Suit is instituted.
6. With this background, one may examine the grievance of the petitioner. Firstly, I do not find that the Mamlatdar's order can be stated to be unreasoned, he had passed a detailed order taking note of the background of the case, the materials on record and his assessment of evidence to serve both the sides. He himself visited the site and had concluded that there was a right of way through the land of the petitioner which he had blocked and further that Respondent No.3 had no other access to his own land. The Mamlatdar has also relied on the affidavits presented by Page 3 of 5 C/CRA/376/2014 JUDGMENT Respondent No.3. It also supported his case. This was done for recognizing the customary or a long standing right of way. Likewise, the Dy. Collector also gave his reasons of reassessment of the evidence for confirming the views of the Mamlatdar.
7. Learned Advocate Shri Majmudar however submitted that the Mamlatdar had to draw the issues as envisaged under Section 19 of the Act, failing which, the order would be vitiated. He relied on the decision of the learned Single Judge dated 28.8.2008 in Civil Revision Application No. 1280 of 2000. Neither Section 19 of the Act nor the decision of the learned Single Judge, in my understanding, provide for or envisage framing of issues as in a civil trial. Sub Section (1) of Section 19 of the Act provides that on the day fixed by the Mamlatdar, he shall, subject to the provisions of Section 16, proceed to hear the evidence led before him and try the issues mentioned in Clauses (aa) to (c) of the Sub Section. Such issues pertain to the Plaintiff's grievance of obstruction of natural flow of surface water, his own unlawful dispossession of any property or deprivation of its use, the Plaintiff's claim to any possession of any property or restoration of its use etc. The said Sub Section 1 of Section 19 of the Act, outlines the scope of the inquiry and the nature of issues that the Mamlatdar can examine and redress upon an application filed by Page 4 of 5 C/CRA/376/2014 JUDGMENT an aggrieved person. Sub Section (1) of Section 19 of the Act does not talk of framing of issues the way Civil Procedure Code requires a Civil Court to dispose of a Civil Suit. It authorizes the Mamlatdar to examine various grievances of the nature referred to above.
8. Under the circumstances, I see no reason to interfere. The Revision Application is therefore dismissed.
9. The amount of Rs.10,000/- deposited by the Petitioner while issuing notice and which is lying with the Registry shall be returned to the Petitioner.
(AKIL KURESHI, J.) JNW Page 5 of 5