Gujarat High Court
Bhemdas Dharmabhai ... vs Satuben Kajabhai Harijan on 15 February, 2022
Bench: Sangeeta K. Vishen
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9542 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed No
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 ?
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BHEMDAS DHARMABHAI HARIJAN(SADHU)
Versus
SATUBEN KAJABHAI HARIJAN
================================================================
Appearance:
for the Petitioner(s) No. 2.2
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2.1,3,4
RUSHABH H MUNSHAW(8958) for the Petitioner(s) No. 1,2,3,4
DECEASED LITIGANT for the Respondent(s) No. 4
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 1
MR. ZALAK B PIPALIA(6161) for the Respondent(s) No. 2,3,4.1,4.2,4.3,4.4
NOTICE SERVED for the Respondent(s) No. 5,6
MS ASMITA PATEL, AGP
================================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 15/02/2022
ORAL JUDGMENT
Mr S. P. Majmudar, learned advocate appearing for the
petitioners has tendered the draft amendment. Amendment is
allowed in terms of the draft. The same shall be carried out
forthwith.
2. With the consent of the learned advocates appearing for the
respective parties, the matter is taken up for final disposal. Issue
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
Rule, returnable forthwith. Ms Asmita Patel, learned Assistant
Government Pleader waives service of notice of rule on behalf of the
respondent State. Mr Nishit P. Gandhi, learned advocate waives
service of notice of rule on behalf of respondent no.1 and Mr Zalak
Pipalia, learned advocate waives service of notice of rule on behalf
of respondent nos. 2 to 4.
3. This petition, under Articles 226 and 227 of the Constitution of
India, seeks to challenge the order dated 5.6.2020 passed by the
Mamlatdar as well as the order dated 24.7.2020 passed by the
Deputy Collector in revision application no.10 of 2020.
4. The facts are that the respondent no.1 had filed an application
before the Mamlatdar under Section 5 of the Mamlatdars' Courts
Act, 1906 (hereinafter referred to as the "Act of 1906"). According
to the respondent no.1, she is the owner of revenue survey No.532
and nearby, the fields of the petitioners are situated. The claim of
the respondent no.1 is that she has a right of way from the lands of
the petitioners. The application of the respondent no.1 was
registered as application no.3 of 2018 and the Mamlatdar, after
hearing all the parties has passed the order dated 5.6.2020 allowing
the application. Being aggrieved, the petitioners preferred a revision
application no.10 of 2020 before the Deputy Collector who, rejected
the same vide order dated 24.7.2020. The petitioners are aggrieved
by the aforesaid two orders and hence the present petition.
5. Mr S. P. Majmudar, learned advocate appearing for the
petitioners submitted that the plaint of the respondent no.1, was not
in consonance with the provisions of the Act of 1906 inasmuch as, it
was time barred. It is also submitted that there was no right of way
from the fields of the petitioners and that the respondent no.1 has
an alternative way available to her. It is submitted that as per the
provisions of sub-section (3) of Section 5 of the Act of 1906, the suit,
is to be filed within six months inasmuch as, no suit can be
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
entertained by the Mamlatdar unless it is brought within six months
from the date on which the cause of action arose.
5.1 It is submitted that Section 19 of the Act of 1906 provides for
points to be decided by the Mamlatdar and therefore, framing the
issues by the Mamlatdar, was inevitable. In the present case, the
Mamlatdar, has not framed issues and therefore, the procedure
adopted by the Mamlatdar is erroneous. In support of such
contention, reliance is placed on the judgment in the case of
Chhitubhai Budhiyabhai Patel v. Chandubhai Kuvarji Kalia Patel
passed in Civil Revision Application No.1280 of 2000. While inviting
the attention to paragraph 11, it is submitted that this Court, has
discussed the provisions of Section 19 and more particularly, the
aspect of framing of issues and findings to be recorded on the said
issues. It has been held that framing of issues is condition precedent
for deciding the matter under the Act of 1906. This Court, has held
and observed that in view of the principles enunciated by the Apex
Court, it cannot be said that Section 19, is available on the statute
book without any purpose. Even if it is assumed that the same is
procedural provision, even then law requires substantial compliance
of such procedural provision. It is submitted that this Court, when
found that no issues were formulated by the Mamlatdar, while
deciding the matter, which the Mamlatdar is otherwise obligated in
terms of provisions of Section 19, held the action of the Mamlatdar
as illegal and bad.
5.2 It is further submitted that there is another lacuna in the
procedure before the Mamlatdar inasmuch as, the panchnama,
prepared was without offering any opportunity and in violation of
principles of natural justice. Only on the basis of so called ex parte
panchnama, the Mamlatdar had passed the order which would be
impermissible for him to do. It is also submitted that no notice was
given before preparing the panchnama and it was the Circle Officer
who had informed one of the panchas that the signature is required
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
for the purpose of preparing Panipatrak; however, the pancha under
the bonafide impression had put his signature on the blank paper.
5.3 It is submitted that as is discernible from the contents of the
order of the Mamlatdar, no reasons are discernible. The Mamlatdar,
has not dealt with each and every issue and misreading the
documents, has come to the conclusion that there is a way
available. It is submitted that the petitioners have raised various
contentions; however, the contentions have not been dealt with by
the Mamlatdar while passing the order and therefore, the order
passed by the Mamlatdar, is contrary to the provisions of Act of
1906.
5.4 It is further submitted that the petitioners had preferred an
appeal before the Appellate Authority. Attention is invited to the
revision application no.10 of 2020. That specific contentions were
raised as regards the mode and manner of drawing the panchnama
and the conduct of the Circle Officer; however, the Deputy Collector
also, while dismissing the revision application and confirming the
order of the Mamlatdar has not assigned single reason. The Deputy
Collector, reiterated the observations and findings of the Mamlatdar
and has not given any independent reasons so as to come to the
conclusion that there exists a way. It is submitted that the Deputy
Collector did not consider the arguments raised by the petitioners
and confirmed the order of the Mamlatdar without dealing with the
arguments. It is observed that the panchas should not have signed
the panchnama. However, except the panchanama there is not a
single evidence on record to suggest that the way exists. The order
of Deputy Collector is without any reasons and therefore, the same
is also in violation of principles of natural justice and deserves to be
quashed and set aside.
5.5 Reliance is placed on the judgment of this Court in the case of
Raisinh Dhirajsinh Boradhara v State of Gujarat reported in 2005(0)
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
AIJEL-HC-209938: 2006 (1) GCD 36. Attention is invited to paragraph
6, it is submitted that in the case before this Court, the Mamlatdar
had drawn the panchnama; however, opportunity of hearing, for
such purpose was not given. This Court has held and observed that
when the Deputy Collector found that hearing has not been given to
the parties it was required for the Deputy Collector to have allowed
the appeal to that extent and to remand the matter to the
Mamlatdar. It is submitted that in the present case the petitioners,
in the memo of the revision application, in paragraph 4, has raised
objection that the Circle Officer was not empowered to visit the
place still he has visited and issued the notice to the defendant
concerned to remain present. It was a specific contention raised that
the whole exercise has been undertaken behind the back and not in
consonance with the principles of natural justice and therefore,
illegal. When specific contention was raised about violation of
principles of natural justice in preparing the panchnama the Deputy
Collector ought to have quashed the action of the Mamlatdar and
remanded the matter back to the Mamlatdar for taking a decision
afresh. It is submitted that the ratio is very clear that even for
drawing the panchnama, both sides to be heard; however, in the
present case no such procedure has been followed. It is submitted
that as is clear the Deputy Collector has assigned the reasons in one
line and therefore, the said order cannot be said to be a reasoned
order.
5.6 Further reliance is placed on the CAV Judgment dated
30.11.2011 of this Court in the case of Bhaskarbhai Lakshmishanker
Mehta v. Pravinbhai Mohanbhai Zalavadiya passed in Civil Revision
Application No.173 of 2011. It is submitted that this Court has
discussed in detail the scheme of the Act of 1906. While dealing
with the provisions of Sections 5, 7, 8 and 9 it has been held and
observed that one of the mandatory particulars required to be
stated in the plaint is the date on which the cause of action arose.
Section 8, provides that where a petition not in the form of a plaint
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
is presented to the Mamlatdar and the subject matter thereof
appears to fall within the scope of Section 5, it is the duty of the
Mamlatdar to explain to the person presenting the petition, the
nature of the reliefs afforded by the Act and shall inquire whether
the petitioner desires to obtain relief thereby. It is submitted that
this Court has also held and observed that if the plaint does not
contained the particulars specified in Section 7, it was incumbent
upon the Mamlatdar to resort to provisions of Section 9 of the Act;
examine the plaintiff and ascertain from him such particulars
specified in Section 7 if are not clearly and correctly stated in the
plaint. This Court while explaining the scheme of provisions of Act
1906 has held and observed that if the requirements as envisaged
under the provisions of the Act are not fulfilled, then the Mamlatdar
would not be justified in entertaining the suit. It is submitted that
the reliance was placed on documents by the Mamlatdar while
passing the order; however, no sufficient opportunity was afforded
to the party concerned and therefore, this Court held the action of
the Mamlatdar in passing the order relying upon such documents as
illegal and bad. The Court also held that the action of the
Mamlatdar, in passing the order, was in violation of principles of
natural justice. It is therefore submitted that the judgment in the
said case has dealt with all the aspects namely; the procedure to be
followed, framing of the issues and reliance on the documents for
determining the issue in question.
5.7 It is therefore urged that the order dated 5.6.2020 passed by
the Mamlatdar as well as order dated 24.7.2020 passed by the
Deputy Collector are contrary to law and evidence on record which
has resulted in gross miscarriage of justice. It is also submitted that
the orders are contrary to the provisions of the Act of 1906 for,
neither the plaint presented was in accordance with the provisions
of Section 5 nor the Mamlatdar framed the issues which, is
mandatory. It is therefore submitted that the orders deserve to be
quashed and set aside and petition be allowed.
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
6. On the other hand, Mr Nishit P. Gandhi, learned advocate
appearing for the respondent no.1, submitted that respondent no.1
is the owner of the land situated at revenue survey no.530 and is a
widow. While inviting the attention of this Court to village map
(page 112), it is submitted that the boundary of the land of
respondent no.1, touches the boundary of revenue survey no.540
belonging to the petitioners and revenue survey no.533 belonging
to respondent nos. 2 to 4. It is submitted that revenue survey
nos.540 and 539 are adjacent to each other and of the ownership of
the petitioners. The revenue survey no.539 is adjacent to the
existing Naliya Marg which, is clear from the village map. It is
further submitted that the petitioners, restrained the respondent
no.1 from passing through the existing way which compelled her to
file a suit under Section 5 of the Act of 1906 which was in
conformity with the provisions of the Act and all ingredients of
Section 7, were satisfied.
6.1 It is submitted that in the plaint, in paragraph 6, the
respondent no.1 has categorically stated that 20 days back, during
the onset of monsoon, the petitioners have created impediment
and have tried to remove the boundaries and have started
cultivating the same.
6.2 It is submitted that it is the case of the respondent no.1 that
20 days prior to the filing of the suit, the impediment and obstacles
have been created. The suit was filed on 27.8.2018 and the
panchnama was drawn on 12.2.2020 i.e. 18 months after the filing
of the suit and in the panchnama, it has been stated that more than
12 months back, the way has been removed and therefore, cause of
action has been clearly mentioned which would be, as per the
requirement contained in the proviso to clause (d) of Section 7 of
the Act of 1906. Therefore, it is incorrect to contend that no cause of
action, has been mentioned or that the plaint suffers from the
irregularity of the provisions of Section 7 of the Act of 1906.
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
6.3 It is next submitted that in the prayer clause, respondent no.1
has categorically averred that there is a way for ingress and egress
to her field and that she has been using the said way, which crosses
the field of revenue survey nos.539 and 540. That learned
Mamlatdar after scrutinizing the facts in detail reached the
conclusion that disputed way is the only way for the respondent
no.1 to reach her agricultural land and because of such act on the
part of the petitioners that the land of the respondent no.1, has
remained uncultivated/barren since last more than 2 years. It is
submitted that on the basis of material available on record there is a
categorical finding recorded by the Mamlatdar that there is a way
and impediment has been caused by the petitioners and therefore,
it cannot be said that any error has been committed by the
Mamlatdar in allowing the plaint.
6.4 It is next submitted that so far as the order passed by the
Deputy Collector is concerned, it is incorrect to contend that the
same is unreasoned order for, the Deputy Collector has discussed
each and every aspect contained in the order of the Mamlatdar and
has confirmed the order. It is submitted that the Deputy Collector
after examining the record has observed that the long standing way
is there which is at the boundary of revenue survey no.539 and 540
on the eastern side. It has also been recorded that the respondents
in the proceeding before the Mamlatdar have also stated that thrice
the arm's length of the land of either side of the shedha, has been
carved out for ingress and egress to the field of the respondent
no.1. The Deputy Collector has also given his finding as regards the
cause of action arisen to the respondent no.1 so also the
panchnama drawn by the Circle Officer. It is therefore submitted
that the Deputy Collector while referring to contention of putting
signature on panchnama has observed that it would be difficult to
believe that a person aged 55 years would sign blank papers. After
considering each and every aspect, the Deputy Collector, has
rejected the revision application and confirmed the order dated
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
5.6.2020 of the Mamlatdar.
6.5 Reliance is placed on the judgment of this Court in the case of
Sirishkumar Ishwarlal Naik v. Deputy Collector passed in Civil
Revision Application No.376 of 2020. It is submitted that this Court,
has held and observed that Section 5 of the Act of 1906, authorizes
the Mamlatdar to conduct summary inquiry and order removal of
obstruction. By nature of things, such inquiry would be summary in
nature and cannot take shape of full fledged civil suit. Necessarily,
therefore, any order of the Mamlatdar passed in exercise of such
summary powers would be subject to the judgment of the civil court
if any civil suit is instituted. This Hon'ble Court, has further observed
that neither Section 19 of the Act nor the decision of the learned
single Judge passed in Civil Revision Application No.1280 of 2000,
provides for or envisaged framing of issues as in a civil trial. This
Court, held that sub-section (1) of section 19 of the Act provides
that on the day fixed by the Mamlatdar he shall, subject to the
provisions of section 16 proceed to hear the evidence led before
him and try the issues mentioned in clauses (aa) to clause (c) of the
sub-section. Sub-section (1) of section 19, outlines the scope of
inquiry and the nature of issues that the Mamlatdar can examine
and redress upon an application filed by the aggrieved person;
however, sub-section (1) of section 19 of the Act does not talk of
framing of issues the way Civil Procedure Code requires a civil Court
to dispose of a civil suit.
6.6 It is also submitted that the proceeding before the Mamlatdar,
is a summary proceeding which aspect, has also been dealt with by
this Court in the judgment in the case of Jay Atul Shah v. Arvindbhai
Amrutbhai Patel reported in 2017 (0) AIJEL-HC-237926: 2018 (2) GLR
1473. Reference has been made to paragraph nos.6.1 to 6.4. It is
submitted that this Court, while examining the scope of powers to
be exercised by the Mamlatdar under the Act has held and observed
that the powers are given to address and redress the grievances in
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relation to the land used for agriculture and the orders passed by
the authorities under the Act of 1906 are not binding and either of
the parties can seek relief from the civil court by instituting civil suit.
The civil court is not bound by the orders and decisions of the
authorities under the Act of 1906 and may upturn the same after
trying the dispute between the parties.
6.7 While adverting to the contention raised by the learned
advocate for the petitioners that the order of the Deputy Collector is
not a reasoned order, it is submitted that such contention is
fallacious inasmuch as, the Deputy Collector has dealt with each
and every aspect. Reliance is placed on the judgment in the case of
Dhulabhai Somabhai Thakor v. Jesinbhai Gordhanbhai reported in
2016 (0) AIJEL-HC-236902L 2016 JX (Guj) 1836. This Court while
dealing with similar issue has held and observed that when the
Deputy Collector is confirming the order of the Mamlatdar, absence
of elaborate and long reasons would not render the Deputy
Collector's order bad on the count of being non-speaking. The
Deputy Collector, while confirming the order of the Mamlatdar, has
reaffirmed the reasonings given by him. It is also submitted that
once when there is a concurrent finding of facts, the present petition
may not be entertained. In support of such contention, reliance is
placed on the judgment in the case of Jamatsing Kalusing Thakor v.
Mamlatdar - Dantiwada reported in 2017 (0) AIJEL-HC-236950: 2017
JX (Guj) 11. It is submitted that this Court has held and observed
that entering into the aspect of appreciation of evidence is not
permissible so long as the findings are not perverse. This Court,
when found that there were concurrent orders passed by the
Mamlatdar and Deputy Collector, did not interfere with the petition
and dismissed it. It is therefore, submitted that on all counts, it can
not be said that the order of the Mamlatdar is either bad or illegal so
also the order of the Deputy Collector in rejecting the revision
application and confirming the order of the Mamlatdar.
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
6.8 Mr Gandhi, learned advocate, while referring to the sale deed
dated 26.6.2020 executed in relation to Survey No.527, submitted
that the sale deed, categorically records about the way available for
ingress and egress to the field of Survey No.528 from Survey
Nos.539, 540.It is therefore urged that the petition be dismissed as
respondent no.1 has suffered a lot. Owing to the captioned
proceedings so also the proceedings before the Mamlatdar and
Deputy Collector, the respondent No.1 has been unable to cultivate
her land which is clear from the photographs (page 127). It is
submitted that Survey No.531 is adjacent to Survey No. 532 which
has been cultivated by growing crops while the land of the
respondent no.1 has remained barren.
7. Mr Zalak Pipaliya, learned advocate appearing for respondent
Nos.2 to 4, has supported the submissions made by learned
advocate Mr Nishit P. Gandhi.
8. Ms Asmita Patel, learned Assistant Government Pleader has
supported the order dated 5.6.2020 passed by the Mamlatdar so
also order dated 24.7.2020 passed by the Deputy Collector. While
adopting the submissions of Mr Gandhi, learned advocate, it is
submitted that the Mamlatdar, has thoroughly examined the
documents and has dealt with all the aspects namely the cause of
action, framing of issues so also the factum of way existing between
the Survey Nos.539, 540, 531 on one hand and Survey Nos.532,
533, 534 and 535 on the other. It submitted that the Mamlatdar, on
the basis of the statements, documents and panchnama drawn has
concluded that there is a way available for approaching the field of
the respondent no.1 i.e. survey no.532 since long. The Mamlatdar,
has also considered the submissions of the defendants wherein, it
has been stated that three times of arm's length of lands from each
side of shedha were carved out for the way. Therefore, it cannot be
said that the Mamlatdar has committed any error in conducting the
inquiry as envisaged in the Act of 1906. It is submitted that the
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Deputy Collector has, also in detail, considered the documents and
has confirmed the order passed by the Mamlatdar. It is also
submitted that when the order of the Mamlatdar was confirmed, it
would be incorrect on the part of the petitioners to argue that the
Deputy Collector has not assigned single reason while rejecting the
revision application. It is therefore urged that when there are
concurrent findings of facts arrived by two authorities and in
absence of any perversity, having been pointed out, this Court,
under Article 227 of the Constitution of India may not like to
interfere with the orders passed by the authorities. It is therefore
urged that the petition deserves to be dismissed.
9. Heard the learned advocates appearing for the respective
parties and perused the material available on the record.
10. Pertinently, the respondent no.1 had filed a suit on 27.8.2018
whereby, it has been averred that 20 days back, the petitioners
have created impediment in the way. Not only that the petitioners,
have started cultivation over the way and have tried to remove the
impression. Efforts were made to convince the petitioners; however,
since the petitioners did not accede to the request, the suit has
been filed. The Mamlatdar, after considering the statements, the
documents on record so also the panchnama drawn, has passed the
order dated 5.6.2020. On 12.2.2020, the panchnama was drawn by
the Circle Officer in presence of the Mamlatdar. The panchas namely
one Sadhu Hansaram Pirdas and Manwar Amrutbhai Maghabhai had
stated that the land bearing Survey No.539 and Survey No.540 are
of the ownership of the petitioners and adjacent to which, there is a
way. The panchas have also confirmed the fact that the respondent
no.1 and their heirs have been using the said way for approaching
the field i.e. Survey No.532. According to the panchas, connecting to
the public road, from Survey No.539 and 540 there is a land
connecting Survey No.532. The panchas have also confirmed the
fact that around more than 12 months back, the said way has been
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merged in the field by the petitioners. The Mamlatdar, after
considering the panchnama prepared by the Circle Officer,
statements, held that there is a way from Survey Nos.539, 540, 535,
534 and 533 to connect the Survey No.532. The Mamlatdar, has also
considered the statement of the defendants wherein, they have in
no uncertain terms held that three times of arm's length from either
side of shedha, was carved out for ingress and egress to the field of
the plaintiff. Considering material available on record, the
Mamlatdar passed the order dated 5.6.2020 declaring that the
petitioners shall not create any impediment from using the way. The
order of the Mamlatdar was challenged before the Deputy Collector
who, after considering the statements, the panchnama and other
documents available on the record, dismissed the revision
application and confirmed the order dated 5.6.2020 of the
Mamlatdar.
11. While challenging the said two orders, the petitioners have
raised various contentions namely (i) that the plaint presented
before the Mamlatdar was not in accordance with the provisions of
Section 5 of the Act of 1906; (ii) non framing of issues, which is
mandatory; (iii) panchnama in question was not prepared in
consonance with the principles of natural justice as the Circle Officer
had taken signatures of the panchas on blank papers. The
contentions are required to be dealt with, considering the scope and
nature of powers exercised by the Mamlatdar under the Act of 1906.
Apt would be the judgment in the case of Jay Atul Shah v.
Arvindbhai Amrutbhai Patel (supra). The issue before this Court was
whether the Mamlatdar's Court under the Act of 1906 and the
Collector exercising powers under sub-Section (2) of Section 23
could be said to be a Court and the court subordinate to the High
Court. This Court, held and observed that as the Collector, functions
under the provisions of the Act of 1906 or any other authorities,
cannot be construed as court within the meaning and for the
purposes of Section 115 of the Code of Civil Procedure they are not
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the court subordinate to the High Court. The Division Bench has
examined all the provisions of the Act of 1906. It has been held and
observed that merely because the parties before the Mamlatdar
under the Mamlatdars' Courts Act, 1906 are described as 'plaintiff'
and 'defendant', forums under the Act do not become the court. It
would also be naive to reason that since application lodged before
the Mamlatdar is called plaint, the proceedings become judicial
proceedings. It has been further held that merely because the
Mamlatdar under the Act examines the witnesses and takes
evidence in that form or follows some of the procedures of the Civil
Procedure Code, 1908, it does not make him a court in its technical
sense of the term. Relevant paragraphs 5, 6, 6.1, 6.3, 6.4 and 6.8,
read thus:
"5. The primary question which falls for consideration is as
to whether Mamlatdar's court is a court. Therefore it would
be germane to examine the concept of 'court' from its
jurisprudential dimensions, to comprehend properly what the
'court' means in its generic meaning, and in technical sense.
5.1 In Rama Rao v. Narayan [(1969) 1 SCC 167], the
Supreme Court cited with approval Articles 809 and
810 from the Halsbury's Laws of England, 3rd edition,
Vol.9 which lucidly defined the concept of court as is
understood commonly thus, "The expression "court" in
ordinary parlance is a generic expression and in the
context in which it occurs may mean a 'body or
organisation' invested with power, authority or
dignity. Originally, the term 'court' meant, among
other meanings, the sovereign's place; it has acquired
the meaning of the place where justice is
administered and, further, has come to mean the
persons who exercise judicial functions under
authority derived either immediately or mediately
from the sovereign". The court is understood to be a
body which settles disputes and decides rights and
liabilities of parties before it. In Canara Bank v.
Nuclear Power Corporation of India [1995 Supp. (3)
SCC 81] it was observed that the word 'court' must be
read in the context in which it is used in a statute
which would includes such courts which are the
Tribunals exercising judicial powers.
5.2 In an English decision in Shell Company of
Australia Limited v. Federal Taxation Commissioner
[1931 All ER 671], Lord Sankey in his picturesque
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language explained what the court really means,
which was quoted with approval by the Apex Court in
Bharat Bank Limited v. Employees [AIR 1950 SC 188].
It was observed that they are Tribunals with many of
the trappings of the court which nevertheless, are not
courts in the strict sense of exercising judicial power.
A Tribunal is not necessarily a court in this strict sense
only because it gives a final decision, nor because it
hear witnesses on oath, nor because two or more
contending parties appear before it between whom it
has to decide, nor because it gives decision which
affect the rights of subjects nor because there is an
appeal to a court, nor because it is a body to which a
matter is referred by another body.
5.3 The word 'court' is often understood in its limited
sense with reference to and in context of particular
statute also. The word 'court' is defined under section
3 of the Indian Evidence Act but merely because a
body is empowered to take evidence, it may not
readily make the body a 'court'. A body may be
considered to be a court for the purpose of applying
Section 14 of the Limitation Act. In P. Sarathy v. SBI
[(2000) 5 SCC 355], the Supreme Court examined the
term 'court' in the context of section 29(2) of the
Limitation Act, 1963 and drew a distinction between a
'civil court' and a 'court'. It was observed that Section
14 of the Limitation Act does not speak of a 'civil
court' but mentions only of a 'court'. It is not
necessary that the court spoken of in Section 14
should be a 'civil court'. It was observed that any
authority or tribunal having the trappings of a court
would be a 'court' within the meaning of this section.
5.4 Also, for the purpose of application of Contempt of
Courts Act, 1952, a body or person may be viewed as
court to make them amenable to the jurisdiction
under the Contempt of Courts Act. In Horli v. Keshav
[(2012) 5 SCC 525] which was a case under U.P.
Jamindari Abolition and Land Reforms Act, 1950, it
was held that though by virtue of Section 341 of the
said Act, provision of the Code of Civil Procedure are
made applicable to the proceedings under the Act,
however the said aspect would not make the
authorities specified under the Act as 'court' and
those authorities shall continue to have their
nomenclature as courts for limited and restricted
jurisdiction. In Malay Kumar Ganguly v. Dr. Sukumar
Mukherjee [(2009) 9 SCC 221], the Supreme court
held that the proceedings before the consumer fora,
though are judicial in nature, yet they are not courts
within the meaning of the Code of Civil Procedure,
1908.
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
5.5 In Bharat Bank Limited (supra) the Apex Court
observed that there can be no doubt that industrial
tribunal has all the trappings of the court and
performs function which can be regarded as judicial,
that is, deciding according to law the litigated
questions in the disputes between the parties. The
Supreme Court observed, defining the concept of
court that "before a person or persons can be said to
constitute a court, it must be held that they derive
their powers from the State and are exercising the
judicial powers of the State".
5.6 In Jagadguru Anandanishwara Maha Swamiji v.
V.C. Allipur [(2009) 4 SCC 625] after considering
various decisions, it was observed by the Supreme
Court,
"It is now a well-settled principle of law and having
regard to the definition of the court contained in
various statutes like the Code of Civil Procedure or the
Evidence At, it would mean a tribunal, whose decision
shall be final and/or would be entitled to take
evidence in terms of the provisions of the Evidence
Act. It is also well settled that although a tribunal may
exercise some of its powers in terms of the Code of
Civil Procedure or Code of Criminal Procedure and
have all the trappings of a court but still would not be
treated as a court." (Para 8)
6. With the aforesaid principles kept in view, now proceeding
to analyse as to whether the Mamlatdar's Court and the
authorities thereunder are courts. The Mamlatdars' Courts
Act, 1906 was enacted to consolidate the law relating to the
powers and procedures of the Mamlatdar and the Collector
who are the authorities functioning under the Act, and who
preside over the forum to deal with the matters and disputes
referred to in Section 5 of the Act. Clause (a) and clause (b)
of Section 5(1) of the Act demarcate the areas and kinds of
disputes which the Mamlatdar's Court may resolve between
the parties by exercising powers under the Act. It will be
useful and relevant to reproduce clauses (a) and (b) of
subsection (1) of Section 5 of the Act.
"(a) to remove or cause to be removed any
impediment, erected otherwise than under due
authority of law, to the natural flow in a defined
channel or otherwise of any surface water naturally
rising in or falling on any land used for agriculture,
grazing, trees or crops, on to any adjacent land, where
such impediment causes or is likely to cause damage
to the land used for such purpose or to any such
grazing, trees or crops thereon;
(b) to give immediate possession of any lands or
premises used for agriculture or grazing, or trees, or
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
crops, or fisheries, or to restore the use of water from
any well, tank, canal or watercourse, whether natural
or artificial used for agricultural purposes to any
person who has been dispossessed or deprived thereof
otherwise than by due course of law, or who has
become entitled to the possession or restoration
thereof by reason of the determination of any tenancy
or other right of any other person, not being a person
who has been a former owner or part-owner, within a
period of twelve years before the institution of the suit
of the property or use claimed, or who is the legal
representative of such former owner or part owner."
6.1 Thus, the Mamlatdar is given powers under the Act
to address and redress the grievances in relation to the
land used for agriculture. The agriculturists or farmers
who face impediments or obstructions with regard to
use and cultivation of their agricultural land have a
recourse under the provisions of the Act for immediate
relief. The aggrieved party is enabled to obtain a quick
relief which is necessary having regard to the nature of
rights to be claimed in the circumstances. Sub-section
(2) empowers the Mamlatdar to pass injunctive orders.
From a close reading of Section 5 above, it would be
noticed that this forum is created essentially to redress
the disputes which could be said to be of revenue
nature. The rights which may be enforced under the
Act could be classified as revenue-cum-agriculture
related rights.
6.3 The orders passed by the authorities under the
Mamlatdars' Courts Act are not final and either of the
parties can seek relief from the civil court by instituting
civil suit. The civil court is not bound by the orders and
decisions of the authorities under the Mamlatdars'
Courts Act and may upturn the same after trying the
dispute between the parties. These aspects clearly
show that the civil court is treated as a different and
separate forum under the provisions of the Act
themselves. From more than one provisions of the Act
it can be specifically demonstrated that the forum of
Mamlatdar's Court and the civil court are perceived to
be distinct bodies. Giving a clear indication in this
regard, for instance, Section 22 of the Act says that a
party in whose favour Mamlatdar has passed an order
of removal of impediment or for restoration of the
possession or for having continued flow of surface
water or has granted injunction, such person is able to
enjoy the orders under the Mamlatdar's Court only
until such order or decision is otherwise decreed or
such person is ousted from the enjoyment by the
competent civil court.
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6.4 Viewed from the standpoint of the nature of rights
dealt with by the authorities under the Act, the rights
which are subject matter of exercise of powers by the
Mamlatdar are in the realm of possessory rights
related to agricultural activity or of a revenue kind.
These rights can be said to be a transitory in nature, in
as much as they could crystallised in a civil remedy
finally before the civil court. The Mamlatdar's Court
pronounces on the rights which stand as inchoate in
their kind. They may not be called or treated as the full
fledged 'civil rights'.
6.8 Merely because the parties before the Mamlatdar
under the Mamlatdars' Courts Act, 1906 are described
as 'plaintiff' and 'defendant', forums under the Act do
not become the court. It would also be naive to reason
that since application lodged before the Mamlatdar is
called plaint, the proceedings become judicial
proceedings. Nor the aspect that the Mamlatdar under
the Act examines the witnesses and takes evidence in
that form or that he follows some of the procedures of
the Civil Procedure Code, 1908, it does not make him a
court in its technical sense of the term."
12. In another decision in the case of Sirishkumar Ishwarlal Naik v.
Deputy Collector (supra), this Court, has held and observed that
Section 5 of the Act of 1906, authorizes the Mamlatdar to conduct
summary inquiry and order removal of obstruction; by nature of
things, such inquiry would be summary in nature and cannot take
shape of full fledged civil suit. It has also been observed that any
order of the Mamlatdar passed in exercise of such summary powers
would be subject to the judgment of the Civil Court, if any Civil Suit
is instituted. Relevant paragraphs 5 and 7 of the said judgment read
thus:
"5. Having thus heard learned Counsels for the parties and
having perused the documents on record, it emerges that the
Mamlatdar and Dy. Collector concurrently held that the
Applicant - the present Respondent No.3 enjoyed a right of
way through the land of the petitioner since long. He had no
other access to his land and that the petitioner had
obstructed the passage. Section 5 of the Act authorizes the
Mamlatdar to conduct summary and order removal of
obstruction. By nature of things, such inquiry would be
summary in nature and cannot take shape of full fledged civil
suit. Necessarily, therefore, any order of the Mamlatdar,
passed in exercise of such summary powers would be subject
C/SCA/9542/2020 JUDGMENT DATED: 15/02/2022
to the judgment of the Civil Court, if any Civil Suit is
instituted.
7. Learned Advocate Shri Majmudar however submitted that
the Mamlatdar had to draw the issues as envisaged under
Section 19 of the Act, failing which, the order would be
vitiated. He relied on the decision of the learned Single Judge
dated 28.8.2008 in Civil Revision Application No. 1280 of
2000. Neither Section 19 of the Act nor the decision of the
learned Single Judge, in my understanding, provide for or
envisage framing of issues as in a civil trial. Sub Section (1) of
Section 19 of the Act provides that on the day fixed by the
Mamlatdar, he shall, subject to the provisions of Section 16,
proceed to hear the evidence led before him and try the
issues mentioned in Clauses (aa) to (c) of the Sub Section.
Such issues pertain to the Plaintiff's grievance of obstruction
of natural flow of surface water, his own unlawful
dispossession of any property or deprivation of its use, the
Plaintiff's claim to any possession of any property or
restoration of its use etc. The said Sub Section 1 of Section
19 of the Act, outlines the scope of the inquiry and the nature
of issues that the Mamlatdar can examine and redress upon
an application filed by an aggrieved person. Sub Section (1)
of Section 19 of the Act does not talk of framing of issues the
way Civil Procedure Code requires a Civil Court to dispose of
a Civil Suit. It authorizes the Mamlatdar to examine various
grievances of the nature referred to above."
13. Keeping the aforesaid principle, in the forefront, the
contentions raised by the petitioners, are required to be dealt with.
The petitioners have raised the contention that while passing the
order dated 5.6.2020, it was incumbent upon the Mamlatdar to have
framed the issues. Having not framed the issues, the order passed
by the Mamlatdar, is not in conformity with provisions of section 19
but also against the principle laid down by this Court in the case of
Chhitubhai Budhiyabhai Patel v. Chandubhai Kuvarji Kalia Patel
(supra). It has been argued that this Court, in the said judgment,
while referring to the provisions of Section 19, in the facts of the
said case, held that the procedure is embedded in the Statute with a
specific purpose and it has to be followed while deciding the issues.
In the case of Sirishkumar Ishwarlal Naik v. Deputy Collector (supra)
this Court, while dealing with similar contention so also the
judgment in the case of Chhitubhai Budhiyabhai Patel v.
Chandubhai Kuvarji Kalia Patel (supra) has held and observed that
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neither section 19 of the Act nor the decision of the learned single
Judge, provide for or envisages framing of the issues as in the civil
trial. The coordinate Bench has further held and observed that sub-
section (1) of section 19 of the Act provides that on the day fixed by
the Mamlatdar he shall, subject to the provisions of section 16
proceed to hear the evidence led before him and try the issues
mentioned in clauses (aa) to clause (c) of the sub-Section. This
Court, has held and observed that such issues, pertain to the
plaintiff's grievance of obstruction of natural flow of surface water,
his own unlawful dispossession of any property or deprivation of its
use and the plaintiff's claim to any possession of any property or
restoration of its use etc. While examining the language of section
19, this Court, also held that sub-section (1) of section 19, outlines
the scope of inquiry and the nature of issues that the Mamlatdar can
examine and redress upon an application filed by the aggrieved
person and that the said provision does not talk of framing of issues
the way Civil Procedure Code requires a civil Court to dispose of a
civil suit and that it authorizes the Mamlatdar to examine various
grievances of the nature referred to above. Therefore, the
contention raised by the learned advocate for the petitioners that it
was incumbent upon the Mamlatdar to have framed the preliminary
issues, cannot be accepted and is rejected.
14. Contention, has also been raised that the Circle Officer, had
taken the signature of one of the panchas on the blank papers and
that the panchnama was prepared without giving due notice. It is
stated that the signatures were obtained on blank papers by the
Circle Officer under the pretext that the panipatrak, is to be
prepared. Mr. Gandhi, learned advocate has vehemently opposed
the said contention by stating that for preparing the panipatrak,
which is, for the purpose of 7/12 Form, does not require any
signatures. Such objection was not raised before the Mamlatdar and
therefore, the Mamlatdar, on the basis of the panchnama had given
his findings. It was only before the Deputy Collector, that an
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affidavit came to be filed by the panchas to the effect that
signatures were obtained on the blank papers. The said contention
has also been dislodged by the learned advocate appearing for the
respondent that it was at the behest of the petitioners, that pancha
witness has filed an incorrect affidavit for, in return, the petitioners,
had facilitated the way in favour of the pancha to approach his
agricultural land. It is also not disputed that the said averment has
been denied by the petitioners by making counter allegation that
the respondent, has tried to infuse the panchas and got the bogus
panchnama prepared in her favour. However, the fact remains that
when the Mamlatdar has passed the order, the panchnama was very
much there and on the basis of the panchnama and other
documents available on the record, the Mamlatdar has given his
finding that there is a customary and a long standing way available.
The Deputy Collector, in his order while dealing with the said
contention, has disbelieved the aspect that the person would sign
on a blank paper. It is unbelievable that any prudent man, would
sign on a blank paper and that too aged 55 years. While not
accepting the said factum, the Deputy Collector, has confirmed the
order.
15. So far as the contention as regards cross-examination of the
Circle Officer is concerned, there is nothing available on record to
suggest that the petitioners, have ever asked for cross-examination.
In absence of any plea by the petitioners, the petitioners cannot be
allowed/permitted to raise such contention before this Court.
Therefore, such contention also does not help the petitioners in
challenging the order of the Mamlatdar. The said plea also deserves
to be rejected.
16. While adverting to the contention of the petitioners that the
order passed by the Mamlatdar so also the Deputy Collector, cannot
be said to be reasoned order also does not deserve to be accepted
and is rejected. So far as the order of the Mamlatdar is concerned,
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the Mamlatdar's order is a reasoned order for, it had considered all
the documents, statements, visited the site, drawn panchnama and
on the basis of over all consideration of the facts and the documents
available on record, it has come to the conclusion that there is a
customary way available and therefore, it cannot be said that the
Mamlatdar committed any illegality or that findings are perverse
and tainted with arbitrariness.
17. So far as the contention that the Deputy Collector has not
assigned a single reason for rejecting the revision application,
cannot be accepted inasmuch as, the Deputy Collector, after
recording the submissions, counter submissions of the parties, has
observed that the record reflects that there is a customary way for
approaching the Survey No.532 from the Survey Nos.539 and 540.
The Deputy Collector, has discussed the statements and the
evidence of the respondents, recording the factum that three times
of the arm's length from either side of the shedha, was carved out
for the respondent no.1 to approach her field. The Deputy Collector
has also recorded the factum that the Mamlatdar so also the Circle
Officer were present and in their presence the panchnama has been
carried out. Therefore, it cannot be said that the Deputy Collector,
has not assigned any reasons. Even otherwise, the judgment in the
case of Dhulabhai Somabhai Thakor v. Jesinbhai Gordhanbhai
(supra) is worth referring to. Similar such contention was raised that
the order of the Deputy Collector is without reasons. This Court, has
held that when the Deputy Collector is confirming the order of the
Mamlatdar absence of elaborate and long reasons would not render
the Deputy Collector's order bad on the count of being non-
speaking. Therefore, this Court is of the opinion that the order of the
Deputy Collector cannot be sad to be unreasoned order or a cryptic
order or that there was a non-application of mind on the part of the
Deputy Collector. May be that the order does not contain elaborate
reasons; however, that would not render the order of the Deputy
Collector bad or illegal. Therefore, the contention raised by the
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petitioners that the Deputy Collector has not assigned any reasons,
cannot be accepted and is hereby rejected.
18. Also, when there are concurrent findings of fact arrived at by
the authorities below on the basis of the material available on
record and in absence of petitioners having been failed to prove
that the orders, are based on no evidence or are perverse, this
Court, in exercise of Article 227 of the Constitution of India would
not like to interfere with the orders of the Mamlatdar dated 5.6.2020
so also the Deputy Collector dated 24.7.2020.
19. In view of the aforementioned discussion, this Court, is of the
opinion that the orders passed by the Mamlatdar dated 5.6.2020 so
also the Deputy Collector dated 24.7.2020 are just and proper and
no error either jurisdictional or otherwise can be said to have been
committed and therefore, no interference is warranted. Accordingly,
the petition does not deserve to be entertained and is hereby
dismissed.
20. Mr Kaushal H. Patel, learned advocate on behalf of Mr S. P.
Majmudar, learned advocate for the petitioners urged that status
quo granted by this Court vide order dated 18.08.2020 shall be
extended for another two weeks'. Mr Nishit P. Gandhi, learned
advocate opposes the request. The authorities concerned, have
come to the conclusion that there is a customary and long standing
way and the fact that the respondent no.1, has been deprived of
cultivating her field since last three to four years, further extension
of the protection would deprive her of cultivation. However, since
the stay was in currency, the same is continued for another period
of six weeks' from today.
21. Rule is discharged. No order as to costs.
Sd/-
(SANGEETA K. VISHEN, J)
RAVI P. PATEL
