Gujarat High Court
Chhitubhai vs Chandubhai on 28 August, 2008
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
CRA/1280/2000 9/ 9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1280 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= CHHITUBHAI BUDHIYABHAI PATEL - Applicant Versus CHANDUBHAI KUVARJI KALIA PATEL & 2 - Opponents ================================================= Appearance : MR SJ GAEKWAD for Applicant : MR ZUBIN F BHARDA for Opponents : 1 - 3. ================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/08/2008 CAV JUDGMENT:
The petitioner has under section 115 of the Civil Procedure Code preferred this petition challenging the order dated 31/7/2000 passed by the Deputy Collector, Navsari in Mamlatdar Court / Revision Application No.1 and 2 of 1999, whereby the Deputy Collector modified the order dated 30/3/1998 passed by the Mamlatdar in Case No. 8 of 1997 filed under Section 5 of the Mamlatdars' Courts Act, 1906.
The facts in brief deserve to be set out as under.
The respondent original plaintiff preferred suit in the Court of Mamlatdar under the Mamlatdar s Court Act 1906 against the present petitioner inter alia praying that the obstructions on their way put up by the petitioners be removed as their right of passage was getting obstructed. The Learned Mamlatdar passed an order dated 30.03.1998 directing the defendants to remove the obstructions and open up the way for plaintiff so that they can have access to their land being block no. 321 from block no. 311 The learned Mamlatdar had further directed that the Road must be kept open till May 1999 and by the time parties were to make Government Kharaba Land fit for use. It was to remain open without prejudice to the Civil Court s order if any. Being aggrieved and dissatisfied with the said order both the plaintiff as well as the defendants preferred revision application before the Deputy Collector Navsari being Revision Application No.1 and 2 of 1999. The Deputy Collector vide his order dated 31.07.2000 allowed Revision Application no.1 of 1999 and passed no orders on Revision Application no.2 of 1999 as the time fixed for keeping the way open in the impugned order there had been over. The order dated 30.06.1998 of Mamlatdar Chikhli was quashed and set aside and ordered that present respondent had rights to use the way from the land in question. Being aggrieved and dissatisfied with these orders the original defendant has preferred the present petition.
The petitioner has submitted as under :
The respondents claiming right of way through the petitioner's field bearing Block No. 321 alleged that the petitioner closed the road by creating obstruction in exercise of right of way on 4/2/1997. The suit was filed on 2/6/1997.
The Mamlatdar, Chikali decided the matter on 30/3/1998 whereby he directed the petitioner to keep open the road which according to the respondents passed through the south-east corner of the petitioner's field till May, 1999, and directed the respondents to make use of another available road which passes thorough the Government kharaba land. Being aggrieved by the said order, the respondents preferred Revision Application No. 1 of 1999 and while the petitioner preferred Revision Application No. 2 of 1999 before the Deputy Collector, Navsari. The petitioner preferred Revision Application No.2 of 1999 because the order passed by the Deputy Collector was not in consonance with sub-section 4 of Section 19 of the Act.
The Mamlatdar, Chikhali did not frame issues as contemplated by Section 19 (1) (c) (1) (2) (3) of the Act. Neither the Mamlatdar framed the issues as per above referred Section nor did he record findings as required by the said Section. In the circumstances, it can be said that the Mamlatdar has not conducted the matter as per the relevant provisions of the Act. The authority deriving jurisdiction under the Special Statute cannot exercise its powers de hors the provisions of the Act. The order that was passed by the Mamlatdar was contrary to Sub-Sec. 4 of Section 19 of the Act.
The Deputy Collector while deciding the matter has recorded the clear finding that the order passed by the Mamlatdar, Chikhali is contrary to the provisions of the Act. In the circumstances, being provisional revision authority the Deputy Collector should have remanded the matter bringing to the notice of the Mamlatdar the correct legal provisions of law which were required to be followed by the Mamlatdar while deciding the suit under Section 5 of the Act. However, instead of remanding the matter the Deputy Collector substituted his own findings for findings recorded by the Mamlatdar. That was not permissible for the Court exercising revisional jurisdiction. The Deputy Collector decided the question of tenancy in these proceedings which was not permissible under the law. The Mamlatdar conducting the matter under Section 5 of the Act is required to concentrate on the statutory issues which are required to be framed under Section 19 of the Act.
This Court has held in case of Kanbi Devji Valji Vs. Kanbi Shamji Shivji, reported in 18 G.L.R. 309, that the Mamlatdar should decide the matter after recording findings on statutory issues as contemplated by Section 19 of the Act. No reasons have been given by the Mamlatdar for not framing the specific issues and not recording findings as contemplated by Section 19 (1) (c) (1)(2) (3) of the Act.
In case of State of Gujarat Vs. M/s Jaipalsingh Jaswantsingh Engineers & Contractors, Chandigarh, XXXV (i) G.L.R. 258, this Court has emphasized the importance of framing the issues as under :
It is indeed a matter of common knowledge that whenever any party asserts its rights and pursuant thereto claims any enforcement of relief which is seriously disputed by the other side, then, obviously the burden to establish the same by leading the evidence is on party asserting such rights. The Civil Procedure Code and the Law of Evidence are clear enough on the point to tell us that when facts are in dispute, the trial court in the first instance is bound to frame the issues of facts and/or of law (as the case may be) as warranted under Order XIV, Rule 1 of the Civil Procedure Code, 1908. Such framing of issues in the first instance would facilitate the applicant to lead necessary evidence in support of the claim and the reliefs prayed pursuant thereto. In the second instance, it will avail the opponent an opportunity to confront and contradict the particular witness and thereafter to lead the evidence (if he so desires) to bring home the defence. Pleaded and in the third instance, enlighten the trial court to test and appreciate the same in proper perspective to enable it to reach just decision. It is hardly required to be told that issues are back-bone of a suit. They are also the lamp-post which enlightens the parties to the proceedings, the trial Court and even the appellate Court as to what is the controversy, what is evidence and where lies the way to truth and justice. Further framing of issues is absolutely essential to a right decision of the case and therefore this bounden duty of framing of issues primarily rests on the trial court.
The Mamlatdars' Courts Act prescribed the statutory issues under Section 19 of the Act. Framing of those issues and recording findings on the same issues is condition precedent for deciding the matter under the Mamlatdars' Courts Act. The law is settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See, Constitution Bench decision of the Supreme Court in the case of Nathi Devi Vs. Radha Devi Gupta, reported in 2005 (1) RCJ 9 (SC). The same view has been taken by the Supreme Court in the cases of Shankar Ram & Co. Vs. Kasi Naicker and Others, in (2003) 11 SCC 699 (Para 7), Union of India Vs. Hansoli Devi, (2002) 7 SCC 273 (para 9) and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd Vs. Ram Gopal Sharma, (2002) 2 SCC 244 (para
13), and High Court of Gujarat Vs. Gujarat Kishan Mazdoor Panchayat & Ors., (2003) 4 SCC 712 (para 36).
In view of above referred decisions of the Supreme Court, it cannot be said that Section 19 of the Mamlatdars' Courts Act is there without any purpose. If it is assumed that the same is procedural provisions, even then law requires substantial compliance of such procedural provision. The Law is settled if the statute prescribes a procedure for doing a thing, a thing has to be done according to that procedure. (See, Haresh Dayaram Thakur Vs. State of Maharashtra, (2000) 6 SCC 179. To the same effect is the decision of the Supreme Court in case of M/s. Dove Investments Pvt. Ltd. & Ors. Vs. M/s Gujarat Industrial Inv. Corporation & Anr, 2006(2) Supreme 41: (2006)2 SCC 619 (para 17).
In view of above submissions it cannot be said that the Mamlatdar while deciding the matter complied with the provisions of the Act. Nothing is on record to show that there was substantial compliance of the provisions of the Act. No clear findings were recorded by the Mamlatdar to the effect that the disturbance or obstruction first commenced within six months before the suit was filed. No clear finding has been recorded that the petitioner caused obstruction as alleged in the month of February, 1997. There is no finding about the existence of alleged road and causing obstruction within the period of six months before the institution of the suit. The panchanama prepared is also not according to law. The statements of witnesses are recorded in the panchnama that is not permissible. In the circumstances, reliance cannot be placed on the panchnama. It appears that the Mamlatdar was not aware about the provisions of Section 19 of the Act since he did not refer to the said provisions in his judgment and did not record any reasons for not complying with the said section. When the statutory authority exercises its statutory powers either in ignorance of the procedure prescribed in law or while deciding the matter takes into consideration irrelevant or extraneous matters not germane therefore, he misconducts himself in law. In such an evident, an order of the statutory authority must be held to be vitiated in law. It suffers from an error of law. (See, V.C. Banaras Hindu University & Ors. Vs. Shrikant, 2006 (6) Scale, 66 : (2006) 11 SCC 42.
The advocate for the respondent submitted that the impugned order deserves to be confirmed as the authorities have acted in their jurisdiction and no error apparent on the face of the record could be said to have been committed.
The impugned order is only directing the Mamlatdar to see to it that the way is kept open so that the respondents access to their field may not be obstructed. The Learned Advocate submitted that the order impugned need not be interfered with under Section 115 of the Civil Procedure Code.
This Court has heard the Counsels and perused the record and proceedings.
A close perusal of the order of the Mamlatdar would show that he did not frame issues as contemplated by Section 19 (1) (c) (1) (2) (3) of the Act. As he did not frame the issues he could not record clear findings with regard to the controversy in question. The aforesaid sections make it incumbent upon the concerned authority to frame the issues so as to decide the same. In the circumstances, it can be said that the Mamlatdar has not conducted the matter as per the relevant provisions of the Act. The authority deriving jurisdiction under the Special Statute cannot exercise its powers in ignorance and without complying with the statutory provisions. The procedure is embed in the statute with a specific purpose and it has to be followed for deciding the issues. The order that was passed by the Mamlatdar was contrary to Sub-Sec. 4 of Section 19 of the Act.
The Counsel for the petitioner is also correct when he submitted that the Deputy Collector while deciding the matter has recorded the clear finding that the order passed by the Mamlatdar, Chikhali is contrary to the provisions of the Act. In the circumstances, being provisional revision authority the Deputy Collector should have remanded the matter bringing to the notice of the Mamlatdar the correct legal provisions of law which were required to be followed by the Mamlatdar while deciding the suit under Section 5 of the Act. However, instead of remanding the matter the Deputy Collector substituted his own findings for findings recorded by the Mamlatdar. That was not permissible for the Court exercising revisional jurisdiction. The Deputy Collector decided the question of tenancy in these proceedings which was not permissible under the law. The Mamlatdar conducting the matter under Section 5 of the Act is required to concentrate on the statutory issues which are required to be framed under Section 19 of the Act In view of the above, the order passed by the Mamlatdar, Chikhali in Case No. 8 of 1997 is not in accordance with the provisions of the Mamlatdars' Courts Act. Consequently, the order passed by the Deputy Collector in Revision Application No. 1 and 2 of 1999 is also contrary to law and particularly the provisions of the Mamlatdars' Courts Act. The Deputy Collector was not justified in substituting his own findings in case of the findings recorded by the Mamlatdar. In the circumstances, the Revision Application deserves to be allowed and both the orders passed by the Mamlatdar, Chikhali in Case No. 8 of 1997 and the Deputy Collector, Navsari, in Revision Applications No. 1 and 2 of 1999 deserve to be quashed and set aside, and they are accordingly quashed and set aside. However it is clarified that this Court has allowed the petition only on the ground of non compliance with the mandatory provisions while deciding the issues in question and not on the merits or veracity of the claim of both the parties, and it shall therefore have no bearing upon the subsequent proceedings in Civil Court if any preferred by parties. Rule made absolute. No costs.
[ S.R. BRAHMBHATT, J ] /vgn