Gujarat High Court
Hansaben Rameshbhai Patel vs Ramanbhai Bhavanbhai Patel on 2 December, 2021
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/2521/2021 ORDER DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2521 of 2021
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HANSABEN RAMESHBHAI PATEL
Versus
RAMANBHAI BHAVANBHAI PATEL
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Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1,2,3,4,5
MR PJ MEHTA(467) for the Respondent(s) No. 1,2,3
MR.JAINIL PARIKH, AGP
NOTICE UNSERVED(8) for the Respondent(s) No. 10,11,12,4,5,6,7,9
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 8
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 02/12/2021
ORAL ORDER
1. By consent of all the learned advocates for the parties, the matter is taken up for hearing.
2. Rule. Learned AGP Mr. Jainil Parikh waives service of notice of rule for and on behalf of the respondent - State and learned advocate Mr. P. J. Mehta waives service of notice of rule for and on behalf of the respondents no. 1 to 3.
3. By way of this petition, the present petitioners have prayed for the following reliefs:-
"A) THIS HON'BLE COURT may be pleased to issue writ of certiorari, or any other writ or order or directions and be further pleased to quash and set aside the impugned order dtd.
17.07.2020 passed in Revision Application no.1/2019 passed by Ld. Dy. Collector & Prant Officer, Bardoli, Dist.: Surat produced at Annex.A to this petition respectively; AND B)THIS HON'BLE COURT may be pleased to stay impugned order dtd. 17.7.2020 passed in Revision Application no.1/2019 passed by the Ld. Dy. Collector & Prant Officer, Bardoli, Dist.:
Surat produced at Annex.-A to this petition, pending the hearing and final disposal of this petition; AND Page 1 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 C)THIS HON'BLE COURT may be pleased to grant ad-interim relief in terms of Para (B) pending hearing and final disposal of this petition; AND D) THIS HON'BLE COURT may be pleased to pass such other and further orders may be deemed just and proper in the facts and circumstances of the present case."
4. Heard learned advocate Mr. N. V. Gandhi for the petitioners and learned AGP Mr. Jainil Parikh for the respondents - State and learned advocate Mr. P.J. Mehta for the respondents no.1 to 3.
5. The brief facts are stated as under:-
The present respondents no. 1 to 3 preferred an application under section 5 of the Mamlatdars Court Act before the Executive Magistrate, Mahuva against the present respondent no.4 Dilipbhai Dahyabhai Patel and his son Nirav Dilipbhai Patel praying for opening of road passing through the field of Dilipbhai Dahyabhai Patel and Nirav Dilipbhai situated at survey no. 81/2 mouje Village :Dungari, Taluka :- Mahuva and District : Surat. As according to the respondents no.1 to 3 there were owners of the block no.116 and 117 of the Mouje Dungari , Taluka:
Mahuva and District : Surat and to reach their field they were using the road passing through survey no. 81/2 which is owned by the aforesaid Dilipbhai Dahyabhai Patel and Nirav Dilipbhai Patel. Said Dilipbhai Dahyabhai Patel is joined as respondent no.4 in the present petition. Once the aforesaid application was made by the present respondents Page 2 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 no. 1 to 3, the same was registered as Mamlatdar Court Act / Case No.1 of 2018 by the Mamlatdar, Mahuva and proceedings under the Mamlatdars Court Act were initiated. Thereafter, notice was issued to the said Dilipbhai Dahyabhai Patel and Niravbhai Dilipbhai Patel and panchrojkam was carried out on 08.05.2018.
6. Pursuant to the notice, defendant no.2 in the said suit Niravbhai Dilipbhai Patel appeared before the Mamlatdar, Mahuva and file his reply. Considering the panchrojkam as well as the material available on record, ultimately the Mamlatdar, Mahuva, District:- Surat vide order dated 02.02.2019 rejected the application preferred by the respondents no.1 to 3 herein by stating that the original applicant - present respondents no.1 to 3 herein have failed to prove that the road which they are claiming to have passed through the field of the respondent no.4 and his son and therefore, the said application was dismissed vide order dated 02.02.2019.
7. Being aggrieved by the aforesaid order, the respondents no. 1 to 3 in this petition preferred a revision application being Revision Application No. 1 of 2019 before the Court of Deputy Collector and Prant Officer, Bardoli. Though it was a revision application under section 23 of the Mamlatdars Court Act and though in the original proceedings before the Mamlatdar, Mahuva, only the respondent no.4 Dilipbhai Page 3 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 Dahyabhai Patel and his son Niravbhai Dilipbhai Patel were joined as defendants by the original applicant, present respondents no.1 to 3 in the revision application, the present respondent no. 3 - applicant of the Revision Application no. 1 of 2019 deleted the name of Nirav Dilipbhai Patel from the respondent and in addition to Dilipbhai Dahyabhai Patel, they added the present petitioners as well as some other persons as respondents in the revision application. In paragraph no. 2 of the revision application, an averments was made that the present petitioner and respondents no. 5 to 9 herein were joined as respondents in the revision application only as a formal party and there are in no way connected with the revision application but as their names are there in the revenue record, they have been joined as formal party.
8. After having the aforesaid averments made in the revision application, the notice was issued to the respondents in the revision application including the present petitioners and pursuant to which the petitioners appeared before the Deputy Collector, Bardoli in the proceedings of Mamlatdars Court Act in Revision Application No. 1 of 2019 and filed their reply in the aforesaid proceedings. In the reply, it was stated by the present petitioner that there is no road passing through their field over reach the respondents no.1 to 3 original applicant are claiming their right of way.
9. However, Deputy Collector & Prant Officer, Bardoli, District:-
Surat vide order dated 17.07.2020 allowed the revision Page 4 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 application preferred by the present respondents no.1 to 3 and directed the respondents in the revision application not to obstruct the original applicants - respondents no. 1 to 3 herein for accessing the road passing through block no.81/2 from the shedha of the aforesaid land to have access to reach their field which is block no. 116 and 117 of Village:- Dungari, Taluka:-
Mahuva, District:- Surat. Since the order dated 17.07.2020 passed by the Deputy Collector & Prant Officer, Bardoli was passed against all the respondents, the aforesaid order is challenged before this Court by way of the present petition.
10. Learned advocate Mr. N. V. Gandhi for the petitioner submitted that present petitioners were not joined as respondents nor any relief was claimed against the present petitioners in the original application under section 5 of the Mamlatdar Courts Act before the Mamlatdar, Mahuva. In those proceedings only Dilipbhai Dahyabhai Patel and his son Nirav Dilipbhai Patel were joined as party respondents. In that application, relief was sought only against these two persons and thereafter, on the basis of the panchnama carried out by the Mamlatdar, Mahuva dated 08.05.2018 as well as considering the other material available on record, the Mamlatdar, Mahuva vide order dated 02.02.2019 rejected the application preferred by the present respondents no. 1 to 3.
11. Though the present petitioners were never party to the original proceedings before the Mamlatdar, Mahuva being Page 5 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 Mamlatdar Court Act/ Case No. 1 of 2018 for no reasons in revision application being Revision Application No. 1 of 2019, they were joined as respondents and though a specific averments was made in the application that they are least concerned with the dispute which the respondents no. 1 to 3 was agitating before the Mamlatar, Mahuva, yet the Deputy Collector, Bardoli has passed the impugned order dated 17.07.2020 against the present petitioners. He submitted that the only basis on which the Deputy Collector, Bardoli has passed the impugned order is the panchrojkam dated 08.05.2018, as the present petitioners were joined as party respondents in the proceedings before the Mamlatdar, Mahuva, no notice was ever issued against them by the Mamlatdar, Mahuva and even the panchrojkam was also carried out in absence of the present petitioners. He further submitted that the proceedings before the Deputy Collector being revision application wherein for the first time the present petitioners were joined as party respondent and therefore, their right of putting forward their case before the first authority i.e. Mamlatdar is taken away. Mr. Gandhi submitted that when the petitioners were not a party to the original proceedings under section 5 of the Mamlatdars Court Act before the Mamlatdar, Mahuva, they could not have been joined as respondents by the original applicant - present respondents no. 1 to 3 in the revision proceedings. Now basis of the aforesaid submissions, learned advocate Mr. Gandhi submitted that hence, the impugned order dated 17.07.2020 passed by the Deputy Page 6 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 Collector, Bardoli is illegal and bad as per the law and therefore, deserves to be quashed and set aside.
12. Learned advocate Mr. P.J.Mehta for the respondents no.1 to 3 original applicants of the Revision Application No. 1 of 2018 before the Mamlatdar, Mahuva submitted that the present petitioners are the joined owners of the land bearing block no. 81/2 situated at Village: Dungari, Taluka: Mahuva, District:- Surat. However, according to Mr. Mehta, the land is being looked after by the present respondent no.4 Dilipbhai Dahyabhai Patel only and therefore, in the original application before the Mamlatdar only the Dilipbhai Dahyabhai Patel and his son Nirav Dilipbhai Patel has joined as party respondent. According to the learned advocate Mr. Mehta thereafter, with a view to rectify the technical defect as the revenue record bears the name of the present petitioners as well the present petitioners were joined as party respondents in the revision application. This according to Mr. Mehta would not make any difference as the panchrojkam was carried out by the Mamlatdar in his presence and as per the panchrojkam, as rightly observed by the Deputy Collector that there are marking which may indicate that the particular portion of land though was being used as road they have removed the road by cultivating the land and thereafter they had done some levellig work which would indicate that road which the respondents no. 1 to 3 were using was actually existing but due to malafide intention of not allowing the present respondents no. 1 to 3 to Page 7 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 have access over the said road, the present petitioners have cultivated even that portion of land which the respondents no.1 to 3 original applicants were using the roads.
13. As far as the contentions raised by Mr. Gandhi about the fact that the present petitioners were not put to any notice before carrying out the panchrojkam, learned advocate Mr. Mehta submitted that its the matter of record and only learned AGP can through some light, however, as per say of Mr. Mehta before carrying out the panchrojkam, the present petitioners also were served with the notice.
14. Learned AGP Mr. Jainil Parikh for the respondents no. 10 to 12 submitted that the order passed by the Deputy Collector, Bardoli is absolutely just, legal and proper and is based on the panchrojkam dated 08.05.2018 whom to be joined as party respondent and whom not is always within a domain of the applicant and therefore, it is for the respondents no.1 to 3 to decide and to prove that whether the present petitioners were required to be joined as party respondents before the Mamlatdar, Mahuva or not?
15. Both the learned advocate Mr. Mehta for the respondent no. 1 to 3 as well as learned AGP Mr. Jainil Parikh for the respondent - State prayed for dismissal of the present petition.
16. Heard learned advocates for the respective parties and on perusal of the record, what transpires is the fact that when Page 8 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 an application under section 5 was preferred by the present respondents no.1 to 3 and which was registered as Mamlatdars Court Act Case No. 1 of 2018 before the Mamlatdar, Mahuva, at that time, the present petitioners were not joined as party respondents. The aforesaid fact is not disputed even by the learned advocate Mr. Mehta. Even from the averments made in the paragraph no. 2 of the revision application preferred before the Deputy Collector, Bardoli also it is clear that the present petitioners were not joined as party in the Mamlatdar Court Act Application No.1 of 2018 before the Mamlatdar, Mahuva and for the first time they were joined as party respondents in the proceedings before the Deputy Collector, Bardoli. It is also the matter of record that while joining the present petitioners as respondents in Revision Application no. 1 of 2019 before the Deputy Collector, Bardoli a specific averment was made in the paragraph no. 2 that they are only formal party and they are least concerned with the dispute related to right of way. Surprisingly one Nirav Dilipbhai Patel who was joined as respondent no.2 by the applicant, present respondents no.1 to 3 in the proceedings before the Mamlatdar, Mahuva was not joined as respondent in the revision application before the Deputy Collector, Bardoli. Therefore, submission made by the learned advocate Mr. Gandhi that the present petitioners had no opportunity to appear and put forward their case before the Mamlatdar, Mahuva is an undisputed fact.
17. Further it is also undisputed fact that which can be seen Page 9 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 from the panchrojkam photocopy of which is produced at page no. 37 of the petition and which is not disputed even by the respondents no.1 to 3 and even that panchrojkam does not bear signature of the present petitioners, as the present petitioners were not party to the proceedings before the Mamlatdar, Mahuva in Mamlatdar Courts Act Case No.1 of 2018, no notice was ever issued to them and therefore, they had no occasion to defend and put forward their case before the Mamlatdar, Mahuva. For the first time, they appeared before the Deputy Collector, Bardoli in the proceedings of Revision Application No. 1 of 2019 and denied the disputed the fact that there was any road passing through their block no. 81/2 over reach the present respondents no.1 to 3 are claiming their right of way. However, the Deputy Collector, Bardoli while passing the impugned order dated 17.07.2020 relied upon the panchrojkam dated 08.05.2018 only and allowed the revision application and granted relief in favour of the respondents no.1 to 3, it can be seen from the record that panchrojkam dated 08.05.2018 was drawn in presence of the respondents no.1 to 3 and more particularly, the respondent no.1. However, at that time none of the present petitioners were neither present nor had signed the aforesaid panch as they were never party to the original proceedings before the Mamlatdar, Mahuva.
18. Therefore, Deputy Collector, Bardoli ought to have appreciated the fact that present petitioners were never party before the Mamlatdar and therefore, he should not have Page 10 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 permitted the respondents no.1 to 3 to join the present petitioners as party respondents in the revision application, or he could have granted such permission and thereafter, could have remanded the matter back to ensure that the present petitioners also can participate in the proceedings. However, the Deputy Collector, Bardoli has failed to do either of this and therefore, there is a clear cut violation of principles of natural justice, as the petitioners were not given any opportunity either to represent their case before the Mamlatdar, Mahuva nor they were put to notice about the panchrojkam dated 08.05.2018 which was relied upon by the Deputy Collector, Bardoli.
19. Hence, the impugned order dated 17.07.2020 passed in Revision Application No. 1 of 2019 by the Deputy Collector, Bardoli can be said to have been passed in violation of principles of natural justice and hence, the same deserves to be quashed and set aside.
20. The proceedings initiated by the respondents no.1 to 3 are remanded back to the Mamlatdar, Mahuva for considering it afresh after joining all those persons who according to the respondents no.1 to 3 are necessary and proper party. At this stage, learned advocate Mr. Mehta apprehended that present petitioners and some of the respondents are residing at Abroad and therefore, the present respondents no. 1 to 3 again will face a situation that though he may chose to implead the present petitioners as party respondents in the remand Page 11 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022 C/SCA/2521/2021 ORDER DATED: 02/12/2021 proceedings before the Mamlatdar, Mahuva but for want of address of them, it would not be possible to serve them. At this stage, learned advocate Mr. Gandhi for the petitioners has assured the Court that he will provide the name, address and e- mail address of all the petitioners that Mr. Gandhi represent. He also has assured full cooperation in the remand proceedings and therefore, in view of the above assurance, the respondents no. 1 to 3 does not have any reason to apprehend that the present petitioners if joined as party respondents in the remand proceedings, they would not be in a position to serve them for want of their address.
21. In view of above, order dated 17.07.2020 passed by the Deputy Collector, Bardoli is quashed and set aside and matter is remanded back to the Mamlatdar, Mahuva for considering it fresh within a period of six months from the date of receipt of this order.
22. It is clarified that this Court has quashed and set aside the impugned order dated 17.07.2020 passed by the Deputy Collector, Bardoli in Revision Application No. 1 of 2019 only on the ground violation of principle of natural justice. The present petition is disposed of. Rule is made absolute.
23. This Court has not gone into the merits of the matter. All the contentions and rights of all the parties are kept open.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 12 of 12 Downloaded on : Wed Jan 12 06:40:21 IST 2022