Bhikubhai Maganlal Nayak vs Jyotiben Ishwarbhai Desai
2021 Latest Caselaw 13823 Guj

     C/SCA/12925/2021                                 ORDER DATED: 13/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12925 of 2021

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                        BHIKUBHAI MAGANLAL NAYAK
                                   Versus
                        JYOTIBEN ISHWARBHAI DESAI
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Appearance:
MR DHAVAL D VYAS(3225) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 7
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                               Date : 13/09/2021

                                ORAL ORDER

1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs :-

"A. Your Lordship be pleased to quash and set aside the order dated 6.8.2021 passed by the Deputy Collector, Chikhli in Rev/Mamlatdar Court Act/Revision/Case No. 2 of 2021 and the order dated 22.3.2021 passed by the Mamlatdar, Gandevi in Mamlatdar Court Act/Remand/Case No.1 of 2020;

B. Pending hearing, admission of the present petition, Your Lordship may be pleased to stay the implementation and execution of the order dated 6.8.2021 passed by the Deputy Collector, Chikhli in Rev/Mamlatdar Court Act/Revision/Case No. 2 of 2021 and the order dated 22.3.2021 passed by the Mamlatdar, Gandevi in Mamlatdar Court Act/Remand/Case No.1 of 2020.

C. Be pleased to grant any other and further relief in the interest of justice."

2. The background of facts which has given rise to filing of the present petition is that the petitioner is the owner of the

C/SCA/12925/2021 ORDER DATED: 13/09/2021

agricultural land bearing block No. 380 and 393 situated at Village Valot, Taluka Gandevi, District Navsari, whereas respondent Nos.1 to 3 are the owners of the agricultural land bearing block Nos. 163, 164, 166, 167, 173, 174, 175 and 178. These respondents filed a suit before the Mamlatdar, Gandevi purportedly under Section 5 of the Mamltdar's Court Act, 1906 which was registered as Mamlatdar Court Case No. 1 of 2019 for seeking declaration about the right of way through the land of the petitioner. The petitioner opposed the same by filing a detailed reply indicating that respondent Nos.1 to 3 had no pre-existing right of way from the petitioner's parcel of land and rather, respondent Nos.1 to 3 already have alternative way to their field from block No. 392 which they were using at initial stage and the same, according to the petitioner, is confirmed from the record of the village. It is the case of the petitioner that without appreciating the facts, the Mamlatdar, Gandevi allowed the suit vide order dated 15.06.2019 by directing the petitioner to clear the access to the road and remove the fencing from the land. Feeling aggrieved and dissatisfied with the said order, the petitioner filed a revision application before the Deputy Collector, Chikhli which was registered as Mamlatdar Court Act Revision Case No. 9 of 2019. The same came to be partly allowed by order dated 16.12.2019 whereby the matter was relegated back to the Mamlatdar to decide the issue afresh in view of the direction contained in the said order.

2.1 The petitioner has asserted in the said petition that upon remand, the Mamlatdar, Gandevi, without deciding the issues as indicated by the Deputy Collector, Chikhli, proceeded to direct the petitioner to clear the access to the road and remove the fencing and further injuncted the petitioner from putting up any obstruction on the road. The said order dated 22.03.2021 came to be challenged by the petitioner by way of preferring the revision application which was registered as Revision Case No. 2 of 2021

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and the same also came to be dismissed vide order dated 06.08.2021. Feeling aggrieved by the said orders and it is in this background, the petitioner left with no other alternative is constrained to approach this Court by way of present petition.

3. Learned advocate Mr. Dhaval D. Vyas appearing on behalf of the petitioner has submitted that the authorities below who passed the orders, have not properly examined and construed the map which was very much part of the record and finds perverse to the record. It has been submitted that there are two alternative roads available to respondent Nos.1 to 3 and that aspect has not been properly examined. It has been submitted further that on southern side, such roads are available abutting to the plots which are visible from the map. In addition thereto, it has been submitted that from the sale deed and the map, it is clear that the conclusion arrived at by the authorities is not just and proper and even the remand order which has been made, has not been properly ruled by the Mamlatdar and the same is also not properly examined by the Deputy Collector in the revision application. That being so, the exercise of jurisdiction by the authorities below being perverse, suffers from vice of non application of mind and as a result of this, such material error deserves to be corrected by quashing and setting aside the same. No further contentions have been raised.

4. Having heard learned advocate Mr. Dhaval Vyas appearing for the petitioner and having gone through the contents which are stated in the orders impugned, it prima facie appears that while passing the impugned orders, several material which were adduced before the authorities have been examined and after arriving at a proper conclusion and after granting adequate opportunity to the petitioner, a satisfaction is arrived at which has resulted into passing of the impugned orders. So in substance, the exercise of jurisdiction by the authorities is not possible to be

C/SCA/12925/2021 ORDER DATED: 13/09/2021

construed as perverse in any form.

5. Apart from that, while passing the impugned order, there is a a clear conclusion arrived by the authority that upon physical verification of the spot, it was found that the petitioner has stopped and obstructed the road by placing fencing from the year 2019 which has resulted into a serious prejudice to respondent Nos.1 to 3 and resulted into likelihood of damage to the crops. Further, the physical verification which has been undertaken by the authority has indicated that there is no other way (NAL) visible and as such, upon such proper verification of relevant record including 7/12 extract and physical verification, the conclusion is arrived at that there is no cogent material available to indicate that alternative road is available and as such, that plea of the petitioner is turned down not only by the Mamlatdar but also by the Revisional Authority. Such finding of fact since is based upon the relevant material on record, this Court is of the opinion that such finding of fact concurrently arrived at on the basis of same material does not deserve to be interfered with since it appears that there is no perversity reflecting from the orders. The Court would have understood that if the authorities while arriving at a conclusion concurrently against the petitioner might have lost sight of some material documents, but here is a case in which the relevant documents which were forming part of the record have been examined at two stages and as such, the said finding of fact is not possible to be substituted on the basis of very same material. A perusal of the original order passed by the Mamlatdar even after remand has also clearly indicated that the claim of respondents appears to be justified since the disputed way appears to be in existence, but it is only by putting fencing, is stopped by the present petitioner. It has been found that for the purpose of passing and re-passing, there is no right of the petitioner to intercept or put hurdle in the use of said disputed way. It may be

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that in the sale deed that might have been reflecting, but on the basis of physical verification, it was categorically found by the officer that there is no NAL visible. In addition thereto, even there is no reference of NAL in 7/12 extract. So, when that be so, the stand taken by the petitioner that in the eastern side, there is NAL available for respondent Nos.1 to 3 is not held to be justified and correct by the authority. So this conclusion which has been arrived at on the basis of the material on record, cannot be said to be perverse in any form. As a result of this, no case is made out which calls for any interference.

6. This petition captioned as a petition under Articles 226 and 227 of the Constitution of India, but basically the exercise of extraordinary jurisdiction is well defined by Hon'ble Apex Court in catena of decisions. One such decision reported in (2020) 7 SCC 327 recent in time since is considered by the Court, the observations contained in paragraph 34 deserve to be quoted hereunder :-

"34. It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers underArticle 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa Tirumale10, Bathutmal Raichand Oswal vs. Laxmibai R. 10 (1960) 1 SCR 890 Tarta & Anr.11, M/s India Pipe Fitting Co. vs. Fakruddin M. A. Baker & Anr.12, Ganpat Ladha v. Sashikant Vishnu Shinde13, Mrs. Labhkuwar Bhagwani Shaha & Ors. vs. Janardhan Mahadeo Kalan & Anr.14, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram15, Venkatlal G. Pittie and another vs. Bright Bros (Pvt.) Ltd.16, State of Maharashtra vs. Milind & Ors.17, State Through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and others18, Ranjeet Singh vs. Ravi

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Prakash19, Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through LRs. and others20, Celina Coelho Pereira (Ms.) and others vs. Ulhas Mahabaleshwar Kholkar and others21."

7. In view of aforesaid proposition of law as well as in view of concurrent findings of fact, in absence of any perversity, non application of mind or violation of principles of natural justice or material irregularity, the petition found to be meritless. As a result of this, the same is hereby dismissed.

(ASHUTOSH J. SHASTRI, J)

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