Gujarat High Court
Umarbhai Nathubhai Kher vs Kalubhai Gumanbhai Kher & ... on 17 December, 2014
Author: A.G.Uraizee
Bench: A.G.Uraizee
C/CRA/288/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 288 of 2014
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UMARBHAI NATHUBHAI KHER....Applicant(s)
Versus
KALUBHAI GUMANBHAI KHER & 2....Opponent(s)
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Appearance:
MR.M.M.SAIYED, ADVOCATE for the Applicant
MS.VRUNDA C.SHAH, AGP for the Opponents No. 2 - 3
MR SANDEEP N.BHATT, ADVOCATE for the Opponent No. 1
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 17/12/2014
ORAL ORDER
1. By filing of this Revision Application under Section 115 of the Code of Civil Procedure, 1908, the applicant has challenged the legality and validity of the order passed by the Mamlatdar, Valiya in Mamlatdar Court's Case No.3 of 2013 and the order dated 06.02.2014 passed by the Deputy Collector, Jhagadiya in Revision No.3 of 2014, whereby the order passed by the Mamlatdar is confirmed.
2. The brief facts necessary for the disposal of this Revision Application are that respondent No.1 filed suit being Mamlatdar Court's Case No.3 of 2013 in the Court of Mamlatdar, Valiya inter alia contending that the respondent is the owner of Survey/Block Nos. 280 and 284 situated at Gandhu of Taluka:- Valiya while the applicant is the owner of Block No.272 situated in the village Gandhu of Taluka:-
Valiya. According to respondent No.1, he has got a right of way from Block No.272 belonging to the applicant to approach the aforesaid field. According to respondent No.1, the applicant has created impediment/obstruction in the way, and therefore, he filed Case No.3 of 2013 in the Court of Mamlatdar, Valiya for removal of the Page 1 of 7 C/CRA/288/2014 ORDER obstruction. The Mamlatdar, Valiya vide order dated 6-2-2014 allowed the suit and directed the applicant to remove the obstruction created by him. Being aggrieved by the order of the Mamlatdar, the applicant preferred Revision Application No.3 of 2014 before the Deputy Collector Mamlatdar, who, by his order dated 06.08.2014, confirmed the order passed by the Mamlatdar and dismissed the Revision. Hence, this Revision Application.
3. Heard learned advocate, Mr.M.M.Saiyed, for the applicant, learned advocate, Mr.Sandeept N.Bhatt, for the respondent No.1 and learned Assistant Government Pleader, Ms.Vrunda C.Shah, for respondents No. 2 and 3.
4. Learned advocate, Mr.Saiyed, for the applicant has contended that the Mamlatdar, Valiya has exceeded his jurisdiction and decided the suit without affording any opportunity of hearing to the applicant. It is further contention that the applicant was denied opportunity to produce his evidence as is evident from the Rojkam. He also contended that the Mamlatdar has no jurisdiction to record findings on easementory rights of the parties, and therefore, also the impugned orders require interference. He also contended that the Mamlatdar has misdirected himself inasmuch as per Section 5(1) of the Mamlatdar Court's Act, there is no damage to the land, and therefore, also the Mamlatdar could not have passed the impugned order. It is his further contention that in view of judgment of this Court in the Case of Samji Shivji versus Devji Valji, 2011 (4) GLR 3036, wherein the decision by Mamlatdar on issue of easementory rights of parties operates as res-judicata and hence, according to his submission, the Revision requires consideration.
5. On the other hand, learned advocate, Mr.Bhatt, for respondent Page 2 of 7 C/CRA/288/2014 ORDER No.1 has submitted that the impugned orders do not warrant any interference in the revision. He has relied upon judgment of this Court in the case of Dhaniben Wd/o.Chelabhai Kalu-bhai Mihor versus Umeshbhai Kalidas Acharya, 2007 (0) GLHEL - HC 217572 to contend that the Mamlatdar has got jurisdiction to pass mandatory injunction. He has also relied upon judgment of this Court in the case of Kiritsinh Dharamvirsinh versus Kalubhai Shardulbhai, 2006 (3) GLR 2031, wherein it is held that the revisional jurisdiction is very limited and parties can always resort to civil proceedings for getting their rights declared by filing appropriate civil suit. Even if there is an error of law, same can not be corrected by Court in exercise of its revisional jurisdiction. Therefore, he has urged that this Revision does not require any consideration.
6. Respondent No.1 approached the Mamlatdar, Valiya with a specific case by filing Case No.3 of 2013 that he has been using the way which is passing through Block No.272 since many years and has got no other alternative way, and therefore, prayed that the obstruction put up by the applicant be directed to be removed. It appears from the impugned order of the Mamlatdar that various dates were fixed for hearing and after hearing the contesting parties, the impugned orders came to be passed. The contention of learned advocate, Mr.Saiyed, for the applicant that the Mamlatdar has no jurisdiction to decide easementory rights, and therefore, the impugned order of the Mamlatdar suffers from illegality cannot be accepted because perusal of the order makes it manifestly clear that the Mamlatdar has not decided any easementory rights. What the Mamlatdar has said in the impugned order is that the parties are at liberty to approach the competent Civil Court of decide their easementory rights. Therefore, Section 5(1) which provides that if Mamlatdar is of the opinion, and finds that it is a question of Page 3 of 7 C/CRA/288/2014 ORDER easementory rights, can refer the matter to the civil Court.
7. This Court in the case of Dhaniben (Supra) as held as under
para No.9:-
"9. From the very language of the Act it would clearly appear that the Mamlatdar would have jurisdiction to issue injunction to the person causing or who has attempted to cause such disturbance or obstruction, requiring him to refrain from .... causing or attempting to cause any further such disturbance or obstruction. In the opinion of this Court, the moment a Court is entitled to issue injunction, then, the Court would have jurisdiction to issue prohibitory injunction and/or mandatory injunction. Under the prohibitory injunction, the Court prohibits a particular person from doing a particular act, but under the mandatory injunction, the Court requires a person to do a particular act in accordance with the directions of the Court. If the language of the Act is properly read and appreciated, it would clearly appear that an injunction to the extent necessary can be granted against a person who is causing disturbance or obstruction. Once the right of way is obstructed and uch obstruction continues, then, nuisance continues and would give a right to the person to approach the authority so long as the obstruction remains. Assuming for a minute that somebody had already caused disturbance by putting the barbed wires or stacking thorns, an injunction restraining the person from interfering with right of way is granted, then, such person has to remove the barbed fencing or thorns. If argument of learned counsel for the petitioner is accepted, and an injunction to remove the obstruction cannot be granted against servient owner then a right would still be available to the claimant to demolish any obstruction created by any person. Once there is a right in favour of a person and the right is recognized by the competent court of law, then such right is to be respected, one would not be entitled to say that as the Court has limited right to injunct a person from doing a wrong act, therefore, the Court would have no right to correct the wrong already committed."
It is clear from above observation of this Court and the language of Section 5(2) of the Act that if the Mamlatdar finds that way is obstructed, he has jurisdiction to direct removal thereof and that is what the Mamlatdar has done in the present case.
8. So far as the submission that no opportunity of hearing was given to the applicant is concerned, it appears from the Rojkam Page 4 of 7 C/CRA/288/2014 ORDER produced on record that the matter was kept for hearing on various dates and lastly on 30.09.2013 and the learned advocate for the applicant was present before the Mamlatdar and produced the evidence, and thereafter, the matter was adjourned to 14.10.2013 for further hearing. It appears from Rojkam that thereafter, the matter came to be adjourned for the purpose of spot visit by the Mamlatdar and case was kept on 28.10.2013 on which date the Mamlatdar was not available, and therefore, the case was adjourned to 28.11.2013. It appears from the impugned order that the spot visit was made on 27.11.2013, and thereafter, the impugned order is passed on 6-2- 2014. Therefore, the contention that opportunity of leading evidence was not afforded to the applicant has no substance. The contention that no panchnama of spot visit is prepared, and therefore, the order suffers from irregularity also has no substance because, Section 19(2) empowers the Mamlatdar to pay spot visit. At this juncture, it is required to be noted that the Mamlatdar has recorded in his order that the present applicant while denying the existence of way has admitted in his reply that respondent No.1 used to approach his field for taking crops through his field. Therefore, the finding of the Mamlatdar that the there exists a way cannot be said to be not founded on any evidence. Moreover, the Mamlatdar in the impugned order has not decided any easementory rights and with a view to strike the balance has directed the applicant to remove the obstruction and kept the option of approaching the civil Court open for deciding the easementory rights. This Court in the case of Kiritsinh Dharamvirsinh (Supra) has held as under paragraphs No.5 & 6:-
"5. Mr. Amrish Pandya, learned advocate for the opponents No.1 and 2 vehemently submitted that under section 5 of the Act, the Mamlatdar is only empowered to to remove or cause to be removed any impediment to the natural flow in a defined channel land or otherwise of any surface water and to give immediate possession of any lands or premises used for agriculture etc. or to restore the use of water from any well etc. to any person who has Page 5 of 7 C/CRA/288/2014 ORDER been dispossessed or deprived thereof otherwise than by due course of law. He further submitted that under section 5, the Mamlatdar has also got power to issue injunction to a person causing such impediment. He further submitted that it is not open for the Mamlatdar to make a declaration that the petitioner has got right of way and has not passed any order or direction for removal of impediments or obstructions as provided under section 5 of the Act. The Deputy Collector, after considering the provisions of the Act, has set aside the order passed by the Mamlatdar.
6. In my view, in exercise of its very limited jurisdiction under section 115, CPC, this Court is not required to interfere with the order passed by the Deputy Collector. It cannot be said that the Deputy Collector has committed any error of jurisdiction. Ultimately, the parties can always resort to civil proceedings for getting their rights declared by filing appropriate civil suit. So far as the proceedings under the Act is concerned, it is summary proceedings in nature, and the Deputy Collector has found that the petitioner has failed to prove his case. Considering the facts and circumstances of the case and the fact that even the Mamlatdar has also not exercised his power properly and has merely given a declaration, no interference is called for and this application is required to be rejected. It is required to be noted that the object of granting order under section 5 of the Act is to see that possession is restored in favour of the plaintiff if cause of action arose within six months and to remove obstruction in the right of way, if alleged to have been made by the defendant by which an agriculturist may not be allowed to pass through a field or land. In the instant case, the Mamlatdar has merely given a declaration without giving any further direction for removal of obstruction or impediment, if any. In the operative part of the order, at page 24 of the compilation, merely a declaration is given by the Mamlatdar. Such type of an order, even otherwise, is not in consonance with the provisions of section 5 of the Act. Considering this aspect of the matter also, the order passed by the Deputy Collector is not required to be interfered by this Court in its limited jurisdiction even if it is found that the Deputy Collector ma not have given satisfactory reasons while deciding the Revision Application. Even if there is an error of law, the same cannot be corrected by this Court in exercise of its jurisdiction under section 115, CPC. Considering all these aspects, this Revision is required to be rejected, and is hereby rejected. Rule is discharged. Interim Relief stands vacated. No order as to costs."
It is clear from the above observations that the revisional jurisdiction is very limited and as held by this Court in the said judgments and that even if there is any error of law, the same cannot be corrected by this Court in the revisional jurisdiction. There are two concurrent findings against the applicant. The judgment of this Court Page 6 of 7 C/CRA/288/2014 ORDER in the case of Samji Shivji (Supra) would be of no avail to the applicant inasmuch as in the present case the Mamlatdar has not recorded any finding on the issue of easementory rights as he has not decided that respondent No.1 has got easementory rights of way through the field of the applicant. Therefore, either party if goes to the civil Court for resolution of easementory rights, the impugned findings of the Mamlatdar would not operate as res-judicate in civil proceedings.
9. For the reasons aforesaid, the Revision Application lacks merit and deserves to be dismissed and it is, hereby, dismissed. Notice discharged. No costs.
(A.G.URAIZEE,J) dharmendra Page 7 of 7