Jagdishbhai Shivabhai Patel vs State Of Gujarat
2021 Latest Caselaw 10969 Guj

     C/SCA/9095/2021                              IA ORDER DATED: 06/08/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2021
         In R/SPECIAL CIVIL APPLICATION NO. 9095 of 2021
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BHIKHABHAI MANGADBHAI PATEL Versus JAGDISHBHAI SHIVABHAI PATEL ========================================================== Appearance:

for the PETITIONER(s) No. MR SAURIN A MEHTA for the PETITIONER(s) No.1 A B PATEL for the RESPONDENT(s) No.1 MS DHARITRI PANCHOLI AGP for the RESPONDENT(s) No.2,3,4 ==========================================================

CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

Date : 06/08/2021

IA ORDER

1. Heard. Issue Rule, returnable forthwith. Mr.A.B. Patel, learned advocate waives service of notice of Rule on behalf of respondent No.1 and Ms.Dharitri Pancholi, learned A.G.P. waives service of notice of Rule on behalf of respondent Nos.2 to 4.

2. By this application under Article 226(3) of the Constitution of India, the applicant that is the respondent No.4 (hereinafter referred to as 'the respondent No.4') has prayed for vacating the ex-parte ad-interim relief granted by this Court vide order dated 02.07.2021, passed in the captioned writ petition.

3. Mr.Saurin Mehta, learned advocate for the respondent No.4 submitted that the petitioner has challenged the order dated 04.06.2021 passed by the Deputy Collector, Nadiad whereby, the order dated 03.02.2021 passed by the learned Mamlatdar has been quashed and set aside. Mr.Mehta, learned advocate took this Court to the voluminous documents on record to submit that all the documents were very much available before the learned Mamlatdar; however, the learned Mamlatdar, disregarding the documents, only

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on the basis of the measurement-sheet as well as site inspection, has arrived at the findings that there is no way available from the land of the petitioner. As against this, the Deputy Collector has considered all the documents, namely, the map, registered sale deeds, measurement-sheet as well as 7/12 Forms of the years 1950 and 2010. It is on the basis of such documents, the Deputy Collector has concluded that there is a way available from Block No.339 and which deserves to be kept open. It is therefore, submitted that since the findings have been arrived at by the Deputy Collector, on the basis of the evidence and documents available on record; it cannot be said that the Deputy Collector has committed any error in quashing and setting the order dated 03.02.2021 passed by the learned Mamlatdar.

4. It is submitted that considering 7/12 Form of the year 1950, the land of the petitioner was admeasuring 2 acres and 7 gunthas, out of which, 2 gunthas were ear-marked for way, passing through the Survey No.156. The area of 2 acres and 5 gunthas would be 8599 sq.mtrs. whereas, the total area admeasuring 2 acres and 7 gunthas would be 8802 sq.mtrs., including 2 gunthas of the land carved out as a way. It is submitted that similarly, the way has been carved out from Survey No.156 (Hissa No.2), admeasuring 1 guntha. It is further submitted that the recent 7/12 Forms, if perused, clearly suggest that the Block/Survey No.339 (old Survey No.156) is admeasuring 8599 sq.mtrs. which would be the total area equivalent to 2 acres and 5 gunthas. As against this, if the village Form No.7/12 is seen of Survey No.180, which is the land of the respondent No.4, there are no details of carving out way from the said survey number.

5. While inviting the attention of this Court to the measurement- sheet prepared by the office of the District Inspector Land Record (hereinafter referred to as the 'DILR'), it is submitted that

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immediately after boundary of Block No.339, there is a way (Marag) shown and therefore, the contention of the petitioner that there was no way existing, is incorrect.

6. Further inviting the attention of this Court to the photographs, it is submitted that the pictures are self-explanatory inasmuch as, there is a way existing, which is being used by the villagers for ingress and egress to their fields and therefore, the finding recorded by the learned Mamlatdar that no way is in existence, is erroneous. It is submitted that the learned Mamlatdar was obliged to consider the aspects viz. as to whether the way is in existence and whether an impediment has been created. It is submitted that both the aspects i.e. existence of way and the element of impediment by the petitioner are clear from the photographs. However, the learned Mamlatdar disregarded the direct evidence and held contrary to the evidence.

7. It is submitted that therefore, the Deputy Collector, while passing the order dated 4.6.2021, cannot be said to have committed any error. The petitioner has not correctly pointed out the facts for grant of any relief, as prayed for. It is submitted that on the basis of the documents, which have been produced on record of the captioned writ petition so also, produced before the learned Mamlatdar and thereafter, before the Deputy Collector, clearly suggest that the Nali/Marag, out of Survey No.339 of the field of the petitioner, is the approach road not only for the respondent No.4 but, also for the other field owners. Since it was the petitioner, who has created impediment, the respondent No.4 has submitted an application dated 27.10.2020, clearly indicating the cause of action to be 26.10.2020 and therefore also, the contention of the petitioner that the plaint is not in conformity with the provisions of Clause-(d) of Section 7 of the Mamlatdars' Courts Act, 1906 (hereinafter referred to as the 'Act of 1906'), is erroneous and does not deserve to be accepted. It is submitted that all the elements/requirements

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under the provisions of the Act of 1906 stand fulfilled and therefore also, the submission of the petitioner that the plaint was not in accordance with the provisions of the Act of 1906, deserves to be rejected.

8. Mr.Saurin Mehta, learned advocate for the respondent No.4 has relied upon the judgment of this Court in the case of Kanbi Devji Valji vs. Kanbi Shamji Shivji reported in 1977(18) GLR 309. The reliance is placed on para 7 to contend that in a case where there is a complete obstruction to a road or customary way, the obstruction would in law amount to deprivation of the use of the road or way and with regard to such deprivation of the use of road or way, the appropriate order including removal of the obstruction can be passed by the learned Mamlatdar as contemplated by sub-sec.(4) of sec.19 of the Act. It is therefore, submitted that it would be well within the right of the learned Mamlatdar, even to direct opening of the customary way and the petitioner is not correct in contending that the learned Mamlatdar will have no authority, so far as the customary way is concerned.

9. On the other hand, Mr.A.B. Patel, learned advocate for the petitioner submitted that the learned Mamlatdar has not committed any error in passing the order. Mr.Patel, learned advocate however, fairly conceded that the way is available but, the petitioner has not created any impediment and the way is being used by the villagers as of today also. It is submitted that the petitioner has carved out some portion from his land; however, it is the respondent No.4, who did not agree to share the portion from his field; which aspect has been recorded by the learned Mamlatdar while passing the order dated 03.02.2021. It is submitted that the respondent No.4, though is claiming the right of way from the field of the petitioner i.e. Block No.339, he is not agreeable to part with his land. Even otherwise there is an alternative way available to the respondent No.4 and he can very well use the same for approaching his field. It is also

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submitted that this way is for the other villagers and not for the respondent No.4. It is therefore, submitted that no error has been committed by the learned Mamlatdar. It is further submitted that as against this, the Deputy Collector has not considered the documentary evidence produced by the petitioner, namely, the village map as well as measurement-sheet and therefore, the order dated 04.06.2021 passed by the Deputy Collector is not in right earnest. It is submitted that plain reading of the plaint dated 27.10.2020 suggests that it is not in conformity with the provisions of Section 7 of the Act of 1906, considering the fact that no cause of action has been mentioned which is the condition precedent for maintaining the suit. It is also submitted that the plaint dated 27.10.2020 is vague for, neither the survey numbers nor the cause of action is mentioned. Moreover, the same is in the form of a simple letter addressed to the learned Mamlatdar, which cannot be construed as the plaint for the purpose of the Act of 1906. It is urged that the application deserves to be disallowed.

10. Heard the learned advocates for the respective parties.

11. The present civil application has been filed praying for vacating the ad-interim relief granted by this Court vide order dated 02.07.2021. The application was filed by the applicant that is respondent No.4 before the learned Mamlatdar, inter alia, praying for removal of the impediment created by the petitioner. The application was decided by the learned Mamlatdar and has observed that considering the measurement-sheet as well as the site inspection, it does not appear that the way is available. The learned Mamlatdar has also observed that the 'Nali' is being used by the villagers. It is also observed that the said 'Nali' is in the field of the petitioner, which is in existence. Further, on the basis of the measurement-sheet and site inspection, the learned Mamlatdar has rejected the application of the applicant.

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12. Clearly, the learned Mamlatdar did not consider the 7/12 Form of the year 1950 which was available on the record. It clearly records the measurement of 2 acres and 5 gunthas + 02 gunthas against the road; total admeasuring 2 acres and 7 gunthas. Similarly, the 7/12 Forms of the recent years also indicate the measurement admeasuring 8599 sq.mtrs. which would be 2 acres and 5 gunthas. Therefore, the way was/is very much available since the year 1950. The said fact is further strengthened by the measurement-sheet (Page-28) which also suggests about availability of the road/way in between Block Nos.337,338 and 339. Further, the photographs at pages 146 to 150 clearly indicate the existence of way and being extensively used by the villagers. The Deputy Collector, in his order, after examining the evidence available on record, has also observed that as per the old map of the Block (Survey No.179/paiki and Survey No.180/1/paiki) (337-

338) and Survey No.156 (Block No.339), there is a way available. It has been further observed that the 7/12 Form of the Block No.339 (old Survey No.156/1), if considered, there is way (Marag) admeasuring Acre 0-2 gunthas and in Survey No.156/2, there is a Marag admeasuring Acre 0-1 guntha. The Deputy Collector has also considered the measurement-sheet wherein also, on the northern side of the Block No.339, there is a road (Marag) indicated and therefore, clearly there is a way available on the northern side of Block No.339. Accordingly, the Deputy Collector quashed the order of the learned Mamlatdar and directed to open the way facilitating the respondent No.4 and villagers to have the access to their fields.

13. Considering the documents produced on the record, alongwith the civil application, namely, (i) 7/12 Forms of the year 1950 and 2010; (ii) the measurement-sheet prepared by the office of the DILR and (iii) the photographs pages 146 to 150, evidently, the way is in existence. Also, the petitioner has not been able to dispute the said aspect. As has been mentioned by Mr.Saurin Mehta, learned

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advocate for the respondent No.4, it is not only he, who is affected but, other villagers are also affected by the closer of the way. The villagers are not able to carry out the farming activities and more particularly during the monsoon season. Therefore, as discussed hereinabove and considering the order of the Deputy Collector, the ad-interim relief granted by this Court vide order dated 02.07.2021 deserves to be vacated and is hereby vacated.

14. The civil application is allowed. Rule is made absolute to the aforesaid extent. No order as to cost.

15. Mr.A.B. Patel, learned advocate requests for stay of this order. Mr.Mehta, learned advocate has strongly objected to such request on the ground that the way which is being used by the villagers and if stay is granted, the villagers would be severely affected. The request of learned advocate Mr.A.B. Patel is refused, considering the fact that the way is in existence, impediment is created by the petitioner; and if stay is continued, the respondent No.4 and the villagers would be put to further inconvenience, affecting their agricultural activities and that too during monsoon season.

(SANGEETA K. VISHEN, J) Hitesh