Hansaben Vithhalbhai Sakariya vs Vashrambhai Premjibhai Varsani
2022 Latest Caselaw 1473 Guj

     C/SCA/18086/2017                                      ORDER DATED: 09/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 18086 of 2017

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                  HANSABEN VITHHALBHAI SAKARIYA
                              Versus
              VASHRAMBHAI PREMJIBHAI VARSANI & 5 other(s)
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Appearance:
MR RN JADAV(7688) for the Petitioner(s) No. 1
MR DN DHOLAKIYA(7605) for the Respondent(s) No. 1,2
MR AAKASH CHHAYA, AGP for the Respondent(s) No. 3,4,5,6
MR RISHI O MALIK(7727) for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                  Date : 09/02/2022

                                      ORAL ORDER

1 Heard Mr. R.N.Jadav, learned advocate for

the petitioner, Mr. Rishi Malik, learned advocate for

respondent Nos.1 and 2 and Mr. Aakash Chhaya, learned

AGP for the respondent Nos.3 to 6.

2 By way of this petition, the petitioner has

challenged the order dated 13.6.2013 passed by the

Mamlatdar, Kotda Sangani, District Rajkot in

Mamlatdars' Court Act Case No.21 of 2012, which was

further confirmed by the Deputy Collector, Rajkot

(City-II) dated 27.2.2015 passed in Revision /

Mamlatdars' Court Act Case No.2 of 2013.

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3 The brief facts leading to filing of the

petition are that the petitioner is the original

respondent No.1 in Mamlatdars' Court Act Case No.21

of 2012. The respondent No.1 preferred an application

under Section 5 of the Mamlatdars' Court Act stating

that he holds the land situated at Survey No.195/1 at

Village Thordi and natural flow of the water from the

eastern side of the fields are passing through his

field and ultimately reach the field of petitioner,

who holds survey No.201 and from the field of

petitioner it goes further west and goes to village

Vokla. This is the natural system of disposal of

natural water. It was alleged that the petitioner

constructed a big `pala' in his land bearing survey

No.201 and thereby stopped the natural flow of water

and because of that `pala', the problem of water

logging started in the field of respondent No.1, who

preferred an application under Section 5 of the

Mamlatdar Courts Act wherein he prayed for removal of

the `pala' constructed by the petitioner.

3.1 Initially, the petitioner preferred an

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application wherein there was a typographical error

and instead of survey No.195/1, the survey No.194/1

was stated by the petitioner as if he is the owner of

land bearing survey No.194/1. However, during the

course of proceedings, while carrying out the spot

inspection by the Mamlatdar, the Mamlatdar realized

that there was a mistake and ultimately respondent

No.1 is the owner of survey No.195/1, and therefore,

all throughout the survey No.195/1 was considered to

be the land of the respondent No.1. In fact a

correction also was made in the revenue record on

30.10.2017, as because of computerization, the survey

No.194/1 was wrongly mentioned in the revenue records

as the land of the respondent No.1. However,

subsequently vide order dated 30.10.2017 the said

mistake was corrected and name of the respondent No.1

was shown as the owner of survey No.195/1.

3.2 Pursuant to the application made by the

respondent No.1, the case under Section 5 of the

Mamlatdars' Court Act was filed being Mamlatdar

Courts Act Case No.21 of 2012 and after carrying out

the spot inspection and after taking into

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consideration the panch rojkam, the Mamlatdar, Kotda

Sangani found that the petitioner has constructed a

big `pala' on his land bearing survey No.201, and

therefore, he passed the order dated 13.6.2013

directing the petitioner to remove the `pala'

constructed by the petitioner.

3.3 The petitioner challenged the aforesaid

order dated 13.6.2013 by preferring a revision

application before the Deputy Collector, Rajkot City-

II, which was numbered as Revision Application No.2

of 2013 and the aforesaid revision application

preferred by the petitioner was rejected by the

Deputy Collector, Rajkot (City-II) vide order dated

27.7.2015 by taking note of the fact that the

Mamlatdar had carried out spot inspection and both

the parties were heard and after hearing both the

sides, the Deputy Collector passed order by rejecting

revision application preferred by the petitioner vide

order dated 27.7.2015 and both these orders are under

challenge and subject matter of this petition before

this Court.

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3.4 Thought the petitioner has also prayed for

declaration that the proceedings under Section 5 of

the Mamlatdars' Court Act are summary proceedings and

remedy is available to the respondent No.1 as civil

suit was required to be filed and hence respondent

No.1 be directed to institute civil suit in view of

judgment of this Court in the case of Kiritsinh

Dharamvirsinh vs. Kalubhai Shardulbhai & ors.

reported in 2006(3) GLR 2031. The petitioner has

further prayed for directing the Collector, Rajkot to

hold inquiry under the supervision of the Secretary,

Revenue Department against the Mamlatdar and other

officers for preparing false panch rojkam showing

original plaintiff as owner of land bearing survey

No.195/1 which is against the revenue record.

5 Heard Mr. Jadav, learned advocate for the

petitioner, who stated that the panch rojkam which is

relied upon by the Mamlatdar was not prepared in his

presence. According to Mr. Jadav, learned advocate

for the petitioner, after the panch rojkam was

prepared the very next date the Mamlatdar passed the

impugned order, which is conformed by the Deputy

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Collector.

5.1 Mr. Jadav, learned advocate for the

petitioner, has further made submission that the

petitioner is not provided sufficient opportunity of

hearing and without taking into consideration the

material on record, the Mamlatdar has passed the

order dated 13.6.2013 which is confirmed by the

Deputy Collector vide order dated 27.7.2015 and hence

both the impugned orders are bad and deserve to be

quashed and set aside. No other submissions are made

by learned advocate for the petitioner.

6 Per contra, Mr. Rishi Malik, learned

advocate appearing for the respondent Nos.1 and 2

submitted that it is true that initially respondent

No.1, who is the original applicant before the

Mamlatdar has stated survey No.194/1 as during the

course of computerization of revenue record, survey

No.194/1 was shown against his name. However, on

realizing the aforesaid mistake by the Mamlatdar as

well as by the petitioner, the Mamlatdar has

rectified the mistake by stating actual survey of

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the petitioner and entire proceedings took place in

respect of survey No.195/1 only and the aforesaid

mistake also is rectified in the revenue record vide

order dated 30.10.2013 passed by the Mamlatdar, Kotda

Sangani, wherein name of the petitioner was shown

against survey No.195/1.

6.1 Mr. Malik, learned advocate for the

respondent No.1 submitted that when the Mamlatdar

himself has carried out spot inspection and both the

parties are heard, and considering the fact that the

petitioner had constructed the `pala' which is still

existing and the same was directed to be removed by

the Mamlatdar vide order dated 13.6.2013, which is

confirmed by the Deputy Collector vide order dated

27.7.2015. He further submitted that even after the

petitioner was directed to remove `pala', the

petitioner did not act upon the order passed by the

Mamlatdar and confirmed by the Deputy collector, and

therefore, ultimately the respondent No.1 had to give

an application dated 26.5.2017 to the Mamlatdar,

Kotda Sangani. Though the aforesaid application was

made in the year 2017, till date the `pala' is still

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in existence, and therefore, learned advocate Mr.

Malik prayed that the petition be dismissed. Learned

advocate for the respondent No.1 has also placed on

record the document showing that the land bearing

survey No.195/1 belongs to respondent No.1.

7 Considering the submissions made by both

the learned advocates for the contesting parties and

considering the fact that once the Mamlatdar himself

has carried out spot inspection and found in no

uncertain terms that the `pala' was constructed by

the petitioner which can affect the natural flow of

the water resulting into water logging in the fields

of respondent No.1 and since the aforesaid findings

have been upheld by the Deputy Collector vide order

dated 17.7.2015, I do not find any reason to

interfere with the aforesaid findings. As far as the

submission made by Mr. Jadav, learned advocate for

the petitioner that the panch rojkam was carried out

in his absence and on the very next day the impugned

was passed is concerned, this Court is of the view

that once the authority itself has carried out the

spot inspection, there is no reason to disbelieve the

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version of the authority unless some concrete

evidence is produced on record. The fact remains that

`pala' was constructed by the petitioner and it is

causing obstruction to the natural flow of the water

and ultimately causing water logging in the field of

respondent No.1. What required to be seen is that

even if panch rojkam is not prepared in presence of

the petitioner it is not the case of the petitioner

that panch rojkam was carried out by a person, who

has sided with the respondent No.1 or some panchas

were the relatives of the respondent No.1. Hence,

even if the panch rojkam is carried out in absence of

the petitioner, considering the fact that it is not

the panch rojkam only which has been taken into

consideration by the Mamlatdar, but the Mamlatdar

himself has also carried out spot inspection, and

therefore, whether the panch rojkam was carried out

in presence of the petitioner or not is of not much

significant. Same way, once existence of `pala' was

found by the Mamlatdar, even if the order was passed

on the next day of carrying of panch rojkam, it would

not affect the petitioner for the reason that what

was required to be seen is that whether the

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petitioner has constructed the `pala' and it is

causing obstruction to natural flow of the water or

not. Since the aforesaid facts could be established

by the spot inspection of the Mamlatdar, which is

confirmed by the Deputy Collector, I do not find any

reason to interfere with the order passed by the

authorities below since this Court does not find any

reason to interfere with the order passed by the

Mamlatdar and confirmed by the Deputy Collector, the

petition deserves to be dismissed and according it is

dismissed.

7.2 Since this Court has not found any merit in

this petition, rest of the prayers are also not

examined and the petition is dismissed qua those

petitions as well. Notice discharged. No order as to

costs.

(NIRZAR S. DESAI,J) P. SUBRAHMANYAM