Gujarat High Court
Kanbi Ganeshji Sonaji vs Deputy Collector, Diyodar on 6 December, 2023
NEUTRAL CITATION
C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16992 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 17746 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed to NO see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of NO the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== KANBI GANESHJI SONAJI Versus DEPUTY COLLECTOR, DIYODAR ========================================================== Appearance:
IN SPECIAL CIVIL APPLICATION NO.16992 OF 2023:
MR MEET D KAKADIA(11896) for the Petitioner(s) No. 1 MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1 MR ROHAN H RAVAL AGP for the Respondent IN SPECIAL CIVIL APPLICATION NO.17746 OF 2023: MR AJ YAGNIK(1372) for the Petitioner(s) No. 1,2 for the Respondent(s) No. 2,3 MR ROHAN H RAVAL AGP - ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the Respondent(s) No. 1 MR SP MAJMUDAR(3456) for the Respondent(s) No. 4 MR VARUN H MODASIA(13395) for the Respondent(s) No. 4 ========================================================== CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA Date : 06/12/2023 Page 1 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined CAV COMMON JUDGMENT [1] Both these matters arising from a common impugned order and the parties are also the same, thereby, both the petitions are being disposed of by this common order.
[2] In both the petitions, the impugned order is of dated 31 st August 2023 passed by the learned Deputy Collector, Deodar in Mamlatdars' Courts Revision Case No.3 of 2023, whereby the learned Deputy Collector, while upholding the order passed by the learned Mamlatdar, Lakhani dated 17 th May 2023 in Mamlatdars' Courts Act Case No.1 of 2023, issued direction permitting the applicant therein - original plaintiff to use the way passing through the survey number of the respondents therein - original defendants on humanitarian ground till the competent Civil Court adjudicates the issue pending before it.
[3] Special Civil Application No.16992 of 2023 has been filed by the original plaintiff and the Special Civil Application No.17746 of 2023 has been filed by the original defendants. For the sake of brevity, the parties shall be hereinafter referred as per their original status .
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NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined [4] The brief facts of the case can be stated as under: [4.1] The original plaintiff is the owner of land bearing survey No.202 (old survey No.45 paiki 1) situated at village : Jhaloda, Taluka : Deodar, District : Banaskantha. The original defendants are the owners of lands bearing survey No.156 (old survey No.29 paiki 1 paiki 1) and survey No.160 (old survey No.29 paki 1 paiki
2) situated at village : Dera, Taluka : Lakhani, District :
Banaskantha.
[4.2] That the other survey Nos.200, 201 and 202 are belonging to the original plaintiff and his other family members are adjacent to the land bearing survey No.160.
[4.3] The original plaintiff filed an application on 21st February 2023 under Section 5(2) of the Mamlatdars' Courts Act, 1906 before the Court of Mamlatdar, Deodar praying, inter alia, for grant of right to way passing through the land bearing survey No.156 (old survey No.29 paiki 1 paiki 1) and survey No.160 (old survey No.29 paki 1 paiki 2) situated at village : Dera, Taluka : Lakhani, District : Banaskantha of the original defendants. Page 3 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023
NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined [4.4] The original plaintiff has filed the aforesaid application essentially on the following grounds:
(i) That, there was an agreement dated 24th November 2005 entered between the father of the original defendants and the original plaintiff, in exchange of a consideration, permitting the original plaintiff to pass through their land and giving them right of way to carry their agricultural tools and equipment which are necessary for the agricultural operation.
(ii) On 20th February 2023, the original defendants created an obstruction by constructing a cement wall.
(iii) That, this being "the only way" for the original plaintiff to pass to get his agricultural land and there is no other way.
[4.5] The said proceeding then was transferred to the Court of Mamlatdar, Lakhani at District : Banaskantha vide communication dated 13th March 2023.
[4.6] The original defendants appeared and objected to the grant of any relief to the original plaintiff by submitting as under: Page 4 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023
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(i) That, there was no such agreement entered into between the father of the original defendants and the original plaintiff and that such document is not registered one and hence it being a bogus document, no such right can be claimed on the strength of such document.
(ii) That, neither the original plaintiff nor their family or their heirs have ever walked through the lands belonging to the original defendants and that the original plaintiff are forcibly trying to enter by filing such applications only to create pressure on the original defendants to permit them to walk through their agricultural lands.
(iii) That, there exist an alternative way through the village of the original plaintiff.
(iv) That, the original defendants have also moved the learned Civil Court at Lakhani, Distrcit : Banaskantha praying appropriate relief against the original plaintiff.
(v) That, no village maps are produced which will indicate Page 5 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined any way passing through the land of the original defendants for the original plaintiff to go to his agricultural land.
[4.7] The learned Mamlatdar, Lakhani, after hearing both the parties, disposed of the application preferred by the original plaintiff vide its order dated 17th May 2023 de-registering the case holding, inter alia, that the application of the original plaintiff is of a civil in nature, for which suit is already pending, and thereby, only the Civil Court can decide the same. The learned Mamlatdar further observed that the suit being Regular Civil Suit No.2 of 2023 pending in the Court of learned Principal Civil Judge, Lakhani would be binding to both the parties.
[4.8] Being aggrieved and dissatisfied by the aforesaid, the original plaintiff approached the learned Deputy Collector, Deodar by way of an appeal being Mamlatdar Court/Revision No.3 of 2023 under Section 23 of the Mamlatdars' Courts Act. The said revision came to be disposed of by the learned Deputy Collector, Deodar vide its order dated 31st August 2023. By the said order, the learned Deputy Collector, Deodar, although upheld and affirmed the order passed by the Mamlatdar, Lakhani dated 17 th May 2023, however, Page 6 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined permitted the original plaintiff to use the way on humanitarian ground till the Civil Court adjudicates the civil rights in Regular Civil Suit No.2 of 2023.
[4.9] It is the case of the original defendants that the said order dated 31st August 2023 passed by the learned Deputy Collector, Deodar was served upon the original defendants on 13 th September 2023. The original defendants immediately moved an application before the learned Deputy Collector, Deodar as well as before the learned Mamlatdar, Lakhani to permit some time to approach the Hon'ble High Court. However, on 15th September 2023, the Mamlatdar along with the police personnel came with excavator vehicle such as JCBs and broke open the fencing and the cement wall and implemented the directions issued by the Deputy Collector, Deodar.
[5] The original plaintiff, having got implemented the order dated 31st August 2023 passed by the learned Deputy Collector, Deodar, for the reasons best known, approached this Court by way of Special Civil Application No.16992 of 2023 on 18 th September 2023 challenging the order dated 31st August 2023 so far as it Page 7 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined upheld the order passed by the learned Mamlatdar dated 17 th May 2023.
[6] The original defendants, as against that, approached this Court by way of Special Civil Application No.17746 of 2023 challenging the order dated 31st August 2023 passed by the learned Deputy Collector, Deodar with a prayer to quash and set aside the contrary directions issued therein.
[7] I have heard learned advocate Mr. Sharvil P. Majmudar for the original plaintiff, learned advocate Mr. Anand J. Yagnik for the original defendants and learned A.G.P. Mr. Rohan H. Raval for the respondents - State authorities.
[8] Learned advocate Mr. Majmudar for the original plaintiff, while assailing the impugned orders, has made the following submissions:
[8.1] Learned advocate Mr. Majmudar for the original plaintiff submitted that the impugned orders passed by the authorities below are contrary to the provisions under the Mamlatdars' Courts Act, 1906.
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NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined [8.2] Learned advocate Mr. Majmudar submitted that the learned Mamlatdar committed a serious error inasmuch as while refusing to entertain the case of the original plaintiff on the basis of jurisdiction, the observations on merits are not warranted. [8.3] Learned advocate Mr. Majmudar further submitted that learned Deputy Collector, Deodar ought not to have upheld the order of the learned Mamlatdar considering the provisions of Section 13 of the Act. The learned Deputy Collector ought to have appreciated the order passed by the learned Mamlatdar under Section 20 of the Act wherein the suit was dismissed. [8.4] Learned advocate Mr. Majmudar further submitted that the learned Mamlatdar ought not to have rejected the application of the original plaintiff on the ground of want of jurisdiction as the original plaintiff is claiming for ancestral right of way and such right of way can ultimately be given under the provisions of the Mamlatdars' Court Act and thereby, the learned Mamlatdar ought to have exercised power under Section 5 of the Mamlatdars' Courts Act.
[8.5] According to learned advocate Mr. Majmudar, a panchnama Page 9 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined was drawn in the facts and circumstances of the present case and the right of way of the original plaintiff is confirmed, and therefore, the learned Mamlatdar should have proceeded and allowed the application on merits and should not have rejected the same on the ground of want of jurisdiction.
[8.6] Learned advocate Mr. Majmudar submitted that the claim of right of way not only based upon the sale deed dated 24th November 2005, but the said document was just a supportive document to the case of the original plaintiff in proving that the ancestral right of way existed, more particularly, because the said document was relied upon, the learned Mamlatdar could not have refused to entertain the application of the original plaintiff on the ground of jurisdiction.
[8.7] Learned advocate Mr. Majmudar next submitted that the learned Deputy Collector ought not to have upheld the order of the learned Mamlatdat as the order of the learned Mamlatdar essentially in rejecting the case of the original plaintiff not only on the ground of jurisdiction, but also on the ground of unregistered document.
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NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined [9] By making above submissions, learned advocate Mr. Majmudar submitted that the impugned order dated 31 st August 2023 passed by the learned Deputy Collector, Deodar so far as it confirms the order passed by the learned Mamlatdar, Lakhani deserves to be quashed and set aside and further prayed to quash and set aside the order dated 17th May 2023 passed by the learned Mamlatdar, Lakhani in the interest of justice. [10] Per contra, learned advocate Mr. Anand Yagnik for the original defendants, while challenging the order dated 31 st August 2023 passed by the learned Deputy Collector, Deodar so far as it relates to issuance of directions, has made the following submissions:
[10.1] According to learned advocate Mr. Yagnik, the learned Deputy Collector, Deodar committed a serious error in giving direction after upholding the order dated 17 th May 2023 passed by the learned Mamlatdar, Lakhani. According to learned advocate Mr. Yagnik, such direction itself is contrary to the finding arrived at by the learned Deputy Collector and thereby, the said direction deserves to be quashed and set aside.
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NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined [10.2] Learned advocate Mr. Yagnik submitted that the learned Deputy Collector, after having recorded satisfaction about finding arrived at by the learned Mamlatdar and after upholding that the prayer made by the original plaintiff cannot be granted and after rejecting the appeal by upholding the order passed by the learned Mamlatdar; cannot pass any direction contrary to what has been held by both the Courts. Learned advocate Mr. Yagnik,therefore, prayed this Court to quash and set aside the said direction issued in the impugned order dated 31st August 2023. [10.3] According to learned advocate Mr. Yagnik, once the learned Deputy Collector, Deodar upheld the order dated 17 th May 2023 passed by the learned Mamlatdar, Lakhani and rejected the appeal of the original plaintiff, no direction can be issued in favour of the original plaintiff, which would amount to allowing the claim of the original plaintiff. According to learned advocate Mr. Yagnik, though the original plaintiff lost in application under Section 5 of the Mamlatdars' Courts Act as well as in revision under Section 23 of the Act, however, in the resultant effect, by virtue of impugned order, direction given by the learned Deputy Collector, Deodar vide Page 12 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined its order dated 31st August 2023, the claim of the original plaintiff is allowed in toto and that has resulted serious miscarriage of justice. Learned advocate Mr. Yagnik submitted that the original plaintiff has relied upon the deed of the year 2005 to claim that the road in question was being used by his ancestral, however, both the authorities have specifically discarded and rejected the said evidence. Thus, learned advocate Mr. Yagnik submitted that once the application and revision of the original plaintiff are rejected, no direction can be issued by the authorities in operative part of the order, which would amount to granting of claim of the original plaintiff in toto.
[10.4] Lastly, learned advocate Mr. Yagnik submitted that the order passed by the learned Deputy Collector, Deodar dated 31 st August 2023 was only served upon the original defendants in the evening of 13th September 2023 without giving any breathing time to the original defendants, the Mamlatdar along with police personnel came to the site and got executed the directions issued by the Deputy Collector, Deodar vide its order dated 31 st August 2023. Learned advocate Mr. Yagnik, therefore, submitted that the Page 13 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined original plaintiff, though lost before both the authorities below, ultimately, succeeded and that has resulted serious miscarriage of justice to the original defendants.
[11] By making above submissions, learned advocate Mr. Yagnik has prayed this Court to quash and set aside such direction issued by the learned Deputy Collector, Deodar.
[12] Having heard the learned advocates appearing for the respective parties and having considered the material produced on record, a short question that falls for consideration of this Court is whether the impugned order dated 31 st August 2023 passed by the learned Deputy Collector, Deodar can be said to be legal? [13] So as to decide the aforesaid question, facts of the case deserve to be appreciated as under:
[13.1] The original plaintiff preferred an application under Section 5 of the Mamlatdars' Courts Act being Mamlatdars' Courts Act Case No.1 of 2023 in the Court of the learned Mamlatdar, Lakhani. The learned Mamlatdar, Lakhani, having considered the fact that the claim of the original plaintiff based on unregistered Page 14 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined sale deed can only be decided in a civil proceeding by the competent Civil Court, more particularly, when the Regular Civil Suit No.2 of 20232 is already pending. The learned Mamlatdar, Lakhani, vide its order dated 17 th May 2023, deregistered the case of the original plaintiff on the ground of jurisdiction. [13.2] The original plaintiff approached the learned Deputy Collector, Deodar by way of Revision No.3 of 2023. The learned Deputy Collector, Deodar, vide its order dated 31 st August 2023, while upholding the impugned of the Mamlatdar, Lakhani dated 17th May 2023 on humanitarian ground, allowed the original plaintiff to use the way, as clamed for, till the competent Civil Court comes to any conclusion with regard to right to use the way in question.
[13.3] The order of the learned Deputy Collector, Deodar datted 31st August 2023, was served upon the original defendants on 13th September 2023. The said fact has not been seriously disputed by the original plaintiff. On 15 th September 2023, the order passed by the learned Deputy Collector, Deodar dated 31 st August 2023, with the help of the police personnel, got Page 15 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined implemented.
[13.4] Having consumed the fruits of the directions of the impugned order dated 31st August 2023, the original plaintiff approached this Court by way of petition being Special Civil Application No.16992 of 2023 on 18th September 2023, challenging the first part of the impugned order, whereby the order of the learned Mamlatdar was upheld.
[13.5] Similarly, the original defendants approached this Court by way of petition being Special Civil Application No.17746 of 2023, challenging the very impugned order dated 31 st August 2023 passed by the learned Deputy Collector, Deodar, more particularly second part of the impugned order, by which the original plaintiff was permitted to use the way, as claimed. [14] Keeping in mind the aforesaid facts, the learned Deputy Collector, Deodar appears to have committed serious error while passing the impugned order. I say so because, in the impugned order, on one hand, the learned Deputy Collector has confirmed the order of the learned Mamlatdar dated 17 th May 2023. The order of Page 16 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined the learned Mamlatdar, if perused, would reveal that the said order was only on the ground of jurisdiction. In other words, the learned Mamlatdar had not considered merits of the case. Learned Deputy Collector, therefore, in my view, could have either dismissed the revision by upholding the order of the learned Mamlatdar or could have remanded the matter back to the learned Mamlatdar for a fresh proceeding on merits after deciding the issue of jurisdiction, but, in any case, straightway, could not have passed any such order or direction on humanitarian ground, which would amount to allowing the entire claim of the original plaintiff. Thus, the resultant effect would be that despite the application of the original plaintiff under Section 5 of the Mamlatdars' Courts Act was dismissed by the learned Mamlatdar on the ground of jurisdiction and confirmed by the learned Deputy Collector, but the original plaintiff succeeds in toto. Such situation cannot be allowed to operate. The learned Deputy Collector, Deodar cannot pass any such order, which is contrary to the settled law. The learned Deputy Collector, Deodar could not have shown any humanitarian consideration at the cost and/or any violation of statutory provisions and settled proposition of law. It is pertinent to note that Page 17 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023 NEUTRAL CITATION C/SCA/16992/2023 CAV JUDGMENT DATED: 06/12/2023 undefined because of undue and unwarranted humanity shown by the learned Deputy Collector, Deodar, the original plaintiff, though lost in both the proceedings, but got the relief in toto. In my view, the conduct of the original plaintiff is also worth noting. The impugned order dated 31st August 2023 passed by the Deputy Collector, Deodar has been challenged by the original plaintiff only on 18 th September 2023, after implementation and execution of favourable part thereof. In my considered opinion, by way of this petition, the original plaintiff has sought intervention of this Court only to see that the illegal order of the Deputy Collector, which has been implemented be approved by the High Court. Such conduct of the original plaintiff is highly deprecated and thus, this Court proposes to saddle the original plaintiff with appropriate costs.
I answer the question accordingly.
[15] For the foregoing discussion, following order is passed:
(i) Special Civil Application No.16992 of 2023 preferred by the original plaintiff is hereby rejected with costs of Rs.35,000/- to be deposited with the Bar Association of Gujarat High Court within 15 days.
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(ii) Special Civil Application No.17746 of 2023 is hereby allowed by quashing and setting aside the impugned order dated 31st August 2023 passed by the Deputy Collector, Deodar. It is directed to restore Revision No.3 of 2023 with a direction to the respondent No.2 - Deputy Collector, Deodar to decide the same afresh in accordance with law. The learned Deputy Collector, Deodar to decide the said revision within a period of three months from today. Till the Deputy Collector, Deodar decides the remanded proceedings a fresh, the original plaintiff is hereby restrained from using the way passing through the land of the original defendants.
(NIRAL R. MEHTA,J) FURTHER ORDER After pronouncement of the order, learned advocate Mr.Meet Kakadia for the petitioner requested this Court to stay the order for some time so as to enable the petitioner to approach the higher forum.
Such request cannot obviously be granted in view of the observations and discussions made herein-above.
(NIRAL R. MEHTA,J) CHANDRESH Page 19 of 19 Downloaded on : Mon Dec 11 20:35:41 IST 2023