Ilaba Devendrasinh Jadeja vs State Of Gujarat
2021 Latest Caselaw 6737 Guj

      C/LPA/1130/2018                            JUDGMENT DATED: 23/06/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 1130 of 2018

            In R/SPECIAL CIVIL APPLICATION NO. 9762 of 2018
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
              In R/LETTERS PATENT APPEAL NO. 1130 of 2018
                                  With
    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
              In R/LETTERS PATENT APPEAL NO. 1130 of 2018

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J.B.PARDIWALA                                 Sd/-

and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI                          Sd/-

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1      Whether Reporters of Local Papers may be allowed               Yes
       to see the judgment ?

2      To be referred to the Reporter or not ?                        Yes

3      Whether their Lordships wish to see the fair copy               No
       of the judgment ?

4      Whether this case involves a substantial question               No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
                        ILABA DEVENDRASINH JADEJA
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR MB PARIKH(576) for the Appellant(s) No. 1
MR. CHINTAN DAVE, LD. ASST. GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
DHARA P BHATT(7530) for the Respondent(s) No. 5
MR. PARTH H BHATT(6381) for the Respondent(s) No. 5
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
==========================================================

    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA



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      C/LPA/1130/2018                                 JUDGMENT DATED: 23/06/2021



              and
              HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                 Date : 23/06/2021

                                 ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ applicant of a writ application and is directed against the order passed by a learned Single Judge of this Court dated 28 th June, 2018 in the Special Civil Application No.9762 of 2018, by which, the learned Single Judge rejected the writ application filed by the appellant herein affirming the orders passed by the Mamlatdar and the Deputy Collector under the provisions of the Mamlatdar Courts Act, 1906.

2. We have heard Mr. M.B. Parikh, the learned counsel appearing for the appellant (original writ applicant), Mr. Parth Bhatt, the learned counsel appearing for the respondent (original respondent No.5) and Mr. Chintan Dave, the learned AGP appearing for the State- respondents.

3. It appears from the materials on record that the respondent No.5 herein initiated proceedings in the Court of the Mamlatdar, Rajkot under Section 5 of the Mamlatdar Courts Act, 1906 (for short "the Act, 1906"). The dispute between the appellant herein and the respondent No.5 is one of removal of obstruction and the right of way. It is the case of the respondent No.5 that he has his own

C/LPA/1130/2018 JUDGMENT DATED: 23/06/2021

agricultural farm adjacent to the farm of the appellant and there is a passage or a road passing through the land of the appellant, with the aid of which, the respondent No.5 can enter into his farm. On the other hand, it is the case of the appellant that there is no such road passing through his farm, on the strength of which, the respondent No.5 wants to enter into his farm. According to the appellant as there is no road or any passage, there is no question of creating any obstruction.

4. The suit under the Mamlatdar Courts Act filed under Section 5 of the Act instituted by the respondent No.5 was adjudicated and ultimately the Mamlatdar vide order dated 11th April, 2011 passed the following order;

"Permanent injunction order is passed that the respondent Ms. Ilaba Devendrasinh shall not in any manner prevent or create any obstruction with regard to accessing the land or transporting agricultural equipments, bullocks, carts etc. to the agricultural land at revenue survey nos. 55/1, 55/2 and 55/3 owned by the plaintiff Shri Hareshbhai Govindbhai Rakholiya etc. residing at Hadmatiya Bedi village. It is ordered that the wire fencing done by them shall be removed. It is ordered that the holders of revenue survey No. 45/1 shall immediately remove the obstruction raised by them. The plaintiff shall use the passage for commuting or transporting equipments and bullock-carts in such a manner that no damage is caused to the laod the plaintiffs."

5. The appellant, being dissatisfied with the order passed by the Mamlatdar, referred to above, preferred a revision application before the Deputy Collector, Rajkot

C/LPA/1130/2018 JUDGMENT DATED: 23/06/2021

(City-II). The appeal was heard by the Deputy Collector and vide order dated 25th April, 2018, dismissed the same thereby affirming the order passed by the Mamlatdar. The findings recorded by the Deputy Collector reads thus;

"The land of Survey No.55/1, 55/2 and 55/3 of Village: Hadmatiya Bedi of Rajkot Taluka belonged to one Hareshbhai Govindbhai Rakholiya and others. Dispute was raised when the applicant closed the right of way of the said land. The case was conducted under Section-5 of the Mamlatdar Courts Act, wherein the Mamlatdar, Rajkot Taluka passed an Order on 11/04/2011. Against the same, the present applicant Ms. Ilaba Devendrasinh Jadeja had preferred an appeal before this authority and by order dated 13/06/2014, the said case was remanded back to the Mamlatdar, Rajkot Taluka. Being aggrieved by the said order, Mr. Hareshbhai Govindbhai Rakholiya filed Appeal/Revision Application being SCA No.15039/2014 in the Hon'ble High Court of Gujarat. As per the Order dated 18/11/2014 of the Hon'ble High Court of Gujarat, the said matter was remanded back to the Mamlatdar, Rajkot Taluka with a direction to hear the matter afresh without prejudice and giving sufficient opportunity of hearing to the parties and accordingly, the said case was conducted vide Case No. Mam.Court/Section-5/Remand Case No.2/2015, wherein the applicant was directed to keep the road open for passage for Mr. Hareshbhai Govindbhai Rakholiya to his land of Survey No.55/1, 55/2 and 55/3. Being aggrieved with the same, the present applicants have filed the appeal before this court. Affidavits of the owners of the land adjoining to the land in question were submitted, wherein it is stated that the cart-road to the land of Survey No.55 paiki passes through the land of Survey No.52/2 and 45/1, which is being used as passage since many years. Moreover, site inspection was carried out by the Circle Officer, Rajkot Taluka in the presence of all the

C/LPA/1130/2018 JUDGMENT DATED: 23/06/2021

parties on 15/07/2015. Considering the same, as the application of the respondent no.1 regarding closure of road was found to be true and according to the panchnama of the spot, reports of the Talati, the Circle Officer and the DILR, it appears that the passage is required to be kept open for the movement to the agricultural land of Survey No.55/1, 55/2 and 55/3 owned by Mr. Hareshbhai Govindbhai Rakholiya and the order passed by the Mamlatdar, Rajkot Taluka to keep the passage open, is found to be proper in the interest of justice. Thus, the prayer of the applicant is found to be not acceptable and it appears that there is no need to interfere with the order passed by the Mamlatdar, Rajkot Taluka in Takrari Case No.2/2015. Hence, the following order is passed in this case."

6. The appellant herein, being dissatisfied with the concurrent findings recorded by the two authorities, came before this Court by way of filing the Special Civil Application No.9762 of 2018.

7. The learned Single Judge declined to disturb the concurrent findings recorded by the two authorities and ultimately by the impugned order dated 28th June, 2018 rejected the writ application observing as under;

"2. Having heard submissions made at bar, it appears that the disputed lands were measured on 29.09.2001, as per measurement-sheet prepared wherein, the cart way is shown. Such measurement- sheet is never challenged by the petitioner. The competent authority below, after hearing and considering the evidence on record, gave concurrent findings of fact and found that there is a right of way in favour of respondent No.5 through the land of Revenue Survey No.52/2 situated at Village:Hadmatiya Bedi."

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8. The appellant, being dissatisfied with the order passed by the learned Single Judge, rejecting his writ application, is here before this Court with the present appeal.

9. Mr. Parikh tried his best to convince us that the orders passed by the two authorities below, namely, the Mamlatdar and the Deputy Collector are erroneous and contrary to the evidence on record. He would submit that in such circumstances, the learned Single Judge ought not to have rejected the writ application in limine. He would submit that the learned Single Judge ought to have looked into the report of the DILR etc. He would submit that the impugned order passed by the learned Single Judge may be set aside and his writ application be allowed and the two orders passed by the authorities be quashed and set aside.

10. On the other hand, this appeal has been vehemently opposed by Mr. Bhatt, the learned counsel appearing for the respondent No.5 (original plaintiff before the Mamlatdar).

11. Mr. Bhatt would submit that no error, not to speak of any error of law, could be said to have been committed by the learned Single Judge in rejecting the writ application. He would submit that the learned Single Judge rightly declined to disturb the concurrent findings of fact recorded by the two authorities. Mr. Bhatt pointed out

C/LPA/1130/2018 JUDGMENT DATED: 23/06/2021

that his client has instituted the Special Civil Suit No.186 of 2014 in the Court of the Principal Senior Civil Judge, Rajkot for declaration of his rights and also for appropriate injunction. This suit is still pending for adjudication.

12. We are of the view that we should not disturb the impugned order passed by the learned Single Judge. We are saying so because even otherwise the subject matter of challenge before the learned Single Judge was an order passed by the Deputy Collector in a revision application affirming the order passed by the Mamlatdar in the suit proceedings under the Act, 1906. We may only observe that when the respondent No.5 has already instituted the civil suit in the Civil Court, referred to above, the final rights of the parties will be determined by the Civil Court in accordance with law. In our opinion, the only possible view is that the order passed by the Mamlatdar under the Act, as affirmed by the Deputy Collector, would be subject to the decision of the Special Civil Suit No.186 of 2014 pending as on date in the Court of the Principal Senior Civil Judge, Rajkot. The authorities under the Mamltdar Courts Act have recorded concurrent findings of fact which may be treated as the findings recorded on prima facie assessment of evidence and, hence, the orders passed by the authorities, on appreciation of material available on record, have rightly been not interfered with by the learned Single Judge. However, all such orders shall be subject to the result of the Special Civil Suit No.186 of 2014, referred to above.

C/LPA/1130/2018 JUDGMENT DATED: 23/06/2021

13. Before parting with this order, we may observe that in the course of the hearing of this appeal, our attention was also drawn to Section 26 of the Mamlatdar Courts Act, 1906. Although, Section 26 of the Act may not be relevant for the purpose of deciding the present appeal, yet having regard to the importance of the provision of the Act and for the guidance of the authorities under the Act, we would like to say something.

14. The provisions of Section 26 are reproduced below;

"26. No suit shall lie under this Act,-

(a) against Government or against any Government Officer in respect of any act done or purporting to be done by any such officer in his official capacity, except where acting as a manager or guardian duly constituted under any law for the time being in force; or

(b) in respect of any removal of any impediment or of any dispossession, recovery of possession or disturbance of possession, that has been the subject of previous proceedings, to which the plaintiff or his predecessor in interest was a party, under this Act, or in a Civil Court or under Chapter XII of the Code of Criminal Procedure, 1989"

15. Section 26 opens with the sentence "No suit shall lie under this Act". It creates a bar for entertaining a suit to be filed under the said Act and it does not take away the jurisdiction of the Civil Court to entertain, try and decide the suit in respect of matters covered by clause (b) of Section 26 above. On the contrary, if it shown that a Civil Suit is filed in respect of matter covered by Section

C/LPA/1130/2018 JUDGMENT DATED: 23/06/2021

26 (b) of the said Act, prior to initiation of proceedings under Section 5 of the Mamlatdars' Courts Act, then there is a bar to entertain the suit under the provisions of Mamlatdars' Courts Act. It also cannot be urged that Section 26 (b) would be attracted only in case where there is already a decision of a Civil Court, as the phraseology used therein is "that has been the subject of previous proceedings" in a Civil Court. However, this is also not acceptable for the reason that the legislature would have used the word "decided" or "concluded" in respect of the proceedings or Civil Suit covered by Section 26 (b) of the said Act.

16. We may only observe that the bar of jurisdiction of Mamlatdar's Court under Section 26(b), operates only when it is pointed out that the civil suit was filed prior to the institution of proceedings under Section 5 of the said Act. In the present case, the Special Civil Suit No.186 of 2014 was filed after the institution of proceedings under Section 5 of the Act, 1906. Hence, it cannot be said that the Mamlatdar's Court proceeded without jurisdiction or that it could not have proceeded with the matter.

17. One other important aspect which needs to be kept in mind is that the Proviso below sub-section (1) of Section 5 empowers Mamlatdar's Courts to refuse to exercise the power under the said provision, if it appears to him that such a case can be more suitably dealt with by the Civil

C/LPA/1130/2018 JUDGMENT DATED: 23/06/2021

Court. Though there is a revision provided under Section 23 of the said Act, to challenge the order passed by the Mamlatdar under Section 5, but the Act of 1906 no where attaches finality, either to the order passed under Section 5 by Mamlatdar on merits or to the order passed in Revision under Section 23 of the said Act. In the absence of such finality being attached to the order passed under the Act, the jurisdiction of the Civil Court cannot be held to be impliedly barred, merely because the Act provides a separate machinery for getting the grievance redressed. The ouster of plenary jurisdiction of Civil Court should not be readily inferred and such jurisdiction remains in-tact and available to be exercised either against the order under Section 5 or against the order of revision under Section 23 of the said Act.

18. In view of the aforesaid, this appeal fails and is hereby dismissed. The interim order, earlier granted, stands vacated. The connected civil applications also stand disposed of.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J)

Vahid