Gujarat High Court
Rohit Sunderlal Kabutarwala vs Ashokkumar Somabhai on 6 March, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/10492/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10492 of 2012
With
MCA/2/2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
No
order made thereunder ?
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ROHIT SUNDERLAL KABUTARWALA
Versus
ASHOKKUMAR SOMABHAI
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Appearance:
MR HASIT DAVE for the PETITIONER(s) No. 1,2
MS ASMITA PATEL, AGP for the RESPONDENT(s) No. 15,16
MR MB GOHIL for the RESPONDENT(s) No. 17,18
MR NV GANDHI for the RESPONDENT(s) No. 1,2,4,6,7,8
MS ARCHANA U AMIN for the RESPONDENT(s) No. 13,14
NOTICE NOT RECD BACK for the RESPONDENT(s) No. 10,11,15,3,9
NOTICE SERVED for the RESPONDENT(s) No. 12,5
RULE SERVED BY DS for the RESPONDENT(s) No. 17,18
RULE UNSERVED for the RESPONDENT(s) No. 16
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 06/03/2018
ORAL JUDGMENT
1. Present petition is filed by the petitioner under Articles Page 1 of 10 C/SCA/10492/2012 JUDGMENT 226 and 227 of the Constitution of India as well as under the provisions of the Mamlatdar Court's Act for the prayer as prayed for inter alia that appropriate writ, order or direction may be issued quashing and setting aside the order dated 15.12.2011 passed by the Deputy Collector confirming the order passed by the Mamlatdar dated 22.07.2010 and for the stay of the order on the ground stated in the memo of petition.
2. Heard learned advocate Shri Hasit Dilip Dave for the petitioners, learned AGP Ms. Asmita Patel for the respondent Nos.15 and 16, learned advocate Shri N. V. Gandhi for the respondent Nos. 1 to 8 (except respondent No.3), learned advocate Ms. Archana Amin for the respondent Nos.13 and 14 and learned advocate Shri M. B. Gohil for the respondent Nos. 17 and 18.
3. Learned advocate Shri Hasit Dave referred to the papers at length and also the report, which has been placed on record with affidavit by the DILR pursuant to the order passed in Misc. Civil Application No.3405/2016 dated 31.01.2018, and also pointedly referred to the order passed by the Deputy Mamlatdar produced at Annexure-B and submitted that this order has been passed, which has been subsequently carried out by way of Appeal No.4/2010 before the Deputy Collector. Page 2 of 10
C/SCA/10492/2012 JUDGMENT He submitted that the Deputy Collector, by order dated 08.12.2010, has specifically directed for the measurement by DILR, however, as there was change in the Prant, the order came to be passed by the Deputy Collector, Kamrej, which is produced at Annexure-F. He, therefore, submitted that in spite of the order for measurement by DILR, it has not been considered. He further referred to the report and the sketch produced in Civil Application along with the report of DILR and submitted that the land bearing Block No.194 belonging to the petitioner is not said to have any road as stated in the report and sale deed, by which he purchased the land, also does not mention about the same.
4. Learned advocate Shri Hasit Dave also submitted that both the authorities have failed to appreciate that though the affidavits have been filed by the original owners of the adjoining land they have not been considered and no independent records/statements of the predecessor in title like the respondents herein have been considered. He, therefore, submitted that it is a word against word, which has been accepted without appreciation of record and therefore, the order may be quashed and set aside.
5. Learned advocate Shri M. B. Gohil for respondent Page 3 of 10 C/SCA/10492/2012 JUDGMENT Nos.17 and 18 referred to the background of the facts and submitted that the said land purchased from respondent No.14 as original owner belongs to respondent Nos.1 to 8. He, therefore, submitted that the present petitioner, who is said to have purchased the said land in the year 2008, has now subsequently joined the issue with regard to the existence of road as an afterthought with deliberate purpose.
6. Learned advocate Shri Gohil also submitted that submission made by learned advocate Shri Dave that the Deputy Collector passed an order without waiting for the report of DILR, is also misconceived. For that purpose, he referred to the order at Annexure-F passed by the Deputy Collector, Kamrej and submitted that it has been specifically recorded that the petitioner did not remain present and thereafter raised an objection that opportunity of hearing was not given. He submitted that If he was keen for the report of DILR, admittedly such application has been given and therefore, now it is too late to raise such contention once having not pressed such application for the report of DILR. He, therefore, submitted that apart from the detailed reasoned order is passed, Section 5 of the Mamlatdar Court's Act provides for limitated jurisdiction to the Mamlatdar to decide about the existence of a road. He submitted that in the Page 4 of 10 C/SCA/10492/2012 JUDGMENT present case, there is no doubt regarding the existence of a road and therefore, whether the person having a right or not, is not to be decided and therefore, the issue about the existence of road sought to be joined an an afterthought, may not be accepted.
7. Learned advocate Shri N. V. Gandhi also referred to the papers and submissions made by learned advocate Shri Gohil and submitted that the issue regarding existence of road, which is sought to be joined at belated stage after the purchase of said land by the petitioner in the year 2008, would not make any change in the factual position. He, therefore, submitted that the petition under Articles 226 and 227 may not be entertained in view of the detailed order passed by both the authorities giving concurrent finding of facts on appreciation of material.
8. Learned advocate Shri Gandhi and learned advocate Shri Gohil both have said that it is not correct to state that it is passed without any material on an oral words inasmuch as as discussed in the order, the deposition or the affidavits have been considered and after examining the material, the order has been passed.
9. Learned AGP Ms. Asmita Patel has stated that the Page 5 of 10 C/SCA/10492/2012 JUDGMENT reasoned order is passed by the Mamlatdar, which is confirmed by the Deputy Collector and therefore, it cannot be said that there is any error, which would call for exercise of discretionary jurisdiction under Articles 226 and 227. She submitted that even the DILR report, which is sought to be relied upon in the facts of the present case, supports the case of the petitioner and the road is used by the parties and therefore, the present petition may not be entertained.
10. In rejoinder, learned advocate Shri Hasit Dave again made the submission that let the matter be remanded back to consider on the basis of DILR report and also submitted that there are disputed questions of fact. He submitted that the issue is not regarding the existence of a road, but it is encroachment on his land.
11. In view of the rival submissions, it is required to be considered whether the present petition deserves consideration.
12. As could be seen from the background of the facts and chequered history with regard to the issue of road, which is sought to be raised by the petitioner, after he purchased the said land in the year 2008. The issue regarding the existence of a road or a right of the way is sought to be raised with Page 6 of 10 C/SCA/10492/2012 JUDGMENT deliberate purpose after the petitioner had purchased land in the year 2008. However, as discussed above in light of the material which has been reflected would not make any change in the factual position with regard to the existence of a road, which has been there and has been utilized since more than 50 years as recorded by both the authorities. As rightly submitted by learned advocate Shri Gohil that even at the time of NA in the year 1982, reference is made about the road. The submission made by learned advocate Shri Hasit Dave that the road was in another land bearing Block No.193 and thereafter, there was encroachment for which he has filed such proceedings, is also misconceived. A detailed discussions have been made in both the impugned orders with specific reference to the predecessor in title of the land purchased by respondent Nos.13 and 14 and thereafter, respondent Nos.17 and 18, there is reference having made with regard to the existence of road. It is also evident from the order passed by the Deputy Collector at Annexure-F that he has discussed with regard to the say of one Mohamed Abovat from whom the petitioner has purchased land in the year 2008. Shri Abovat has filed the affidavit in favour of the person to whom he has sold the land and he has stated that he had purchased land before 10 years and thereafter, he sold the land. In other Page 7 of 10 C/SCA/10492/2012 JUDGMENT words, the right, which has been in existence as recorded since 50 years, which has been accepted on appreciation of material and evidence, which cannot be discarded merely because a person like petitioner has sought to join the issue. It is required to be stated that the other persons, who have also been examined like Rameshbhai Jhaverbhai and Pareshbhai Jhaverbhai have also confirmed about the existence of a road. Moreover, even in the earlier order passed by the Deputy Collector in the registered document dated 17.07.1998 in favour of Kamalsing Chandaliya, there is a reference about the road. It is also recorded that Shri Chandaliya had no objection with regard to the use of road by the respondents and he has confirmed about the same. Therefore, the petitioner, who has purchased the land in the year 2008, is now seeking to raise such issue and in spite of the concurrent findings, he has raised an issue that it is based on no evidence coupled with the fact that there was no report of DILR. However, as stated above, he could have pressed application, which he did not. Not only that even before this Court, it has been recorded in the Misc. Civil Application No.3405/2016, that the report was called for and placed on record. Therefore, during the course of hearing, now what he has said is, may be the road could have been in Block No.194 Page 8 of 10 C/SCA/10492/2012 JUDGMENT and not in Block No.193. Thus, the issue is now sought to be raised without producing any material in the present proceedings in light of discussion made hereinabove. Further, in rejoinder, he himself has submitted that there are disputed questions of fact and therefore, now he has said that it cannot be remanded back to the authority which normally the Court would have permitted. However, in light of the fact that now the report is also there and since there has been a chequered history, no useful purpose would be served again remanding it back and therefore, such prayer cannot be entertained.
13. It is well settled that the scope of exercise of discretionary jurisdiction under Articles 226 and 227 would be limited.
14. Therefore, in light of these findings with the detail reasons recorded by both the authorities, it cannot be said that there is any error or jurisdictional error much less perversity, which would call for any any interference in the present petition.
15. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed. Rule is discharged. Interim relief, if any, stands vacated.
16. In view of the order passed in the main matter being Page 9 of 10 C/SCA/10492/2012 JUDGMENT Special Civil Application No.10492/2012, the Misc. Application No.3405/2016 is also stands disposed of.
(RAJESH H.SHUKLA, J.) ABHISHEK Page 10 of 10