Damubhai Lalubhai Varali vs State Of Gujarat
2022 Latest Caselaw 626 Guj

     C/SCA/14003/2019                             JUDGMENT DATED: 19/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14003 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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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 ?                      NO

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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                        DAMUBHAI LALUBHAI VARALI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MRS NISHA M PARIKH(2397) for the Petitioner(s) No. 1
MR NIKUNJ KANARA AGP for the Respondent(s) No. 1
MR JV VAGHELA(5809) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 19/01/2022

                             ORAL JUDGMENT

1. By way of this petition, the petitioner has prayed for quashing and setting aside the order dated 18.01.2018 passed by the Mamlatdar, Umargam in Mamlatdar Court Act Case No.08 of 2016 and the order dated 29.05.2019

C/SCA/14003/2019 JUDGMENT DATED: 19/01/2022

passed by the Deputy Collector, Pardi in Mamlatdar Court Act / Revision No.01 of 2018 whereby the Deputy Collector, Pardi rejected the Revision Application preferred by the petitioner and confirmed the order dated 18.01.2018 passed by the Mamlatdar, Umargam.

2. Heard learned advocate Ms.Nisha Parikh for the petitioner, learned Assistant Government Pleader Mr.Nikunj Kanara for the Respondent Nos.1, 2 and 3 - State Authorities and learned advocate Mr.J.V.Vaghela for the Respondent No.4. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing. Hence, Rule. Learned Assistant Government Pleader Mr.Kanara waives service of notice of Rule on behalf of Respondent State Authorities and learned advocate Mr.Vaghela waives service of notice of Rule on behalf of Respondent No.4.

3.1 At the outset, learned advocate Ms.Parikh for the petitioner submits that she is confining her arguments in respect of the order impugned only to the extent of direction issued by the Mamlatdar, Umargam which is confirmed by the Deputy Collector, Pardi to the effect that disputed road be widened to the extent of 12ft which was not the prayer of the respondent no.4 in his application filed under the Mamlatdar Courts Act, 1906 ("the Act", for short).

3.2 Learned advocate Ms.Parikh drew attention of this

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Court to the original application made by the Respondent No.4 herein dated 10.02.2016, at Page:25, Annexure-B to the petition compilation and pointed out that in the entire application, though measurement of road are stated all what is stated and prayed for in the application is to pass an order directing the present petitioner to open the road. She submitted that road was never blocked by the present petitioner and it was open for access of general public. At no point of time, any obstruction was created by the present petitioner and hence the direction of widening the road to the extent of 12 ft is absolutely misplaced and beyond the relief prayed for by the present Respondent No.4.

3.3 Learned advocate Ms.Parikh therefore submitted that she has now limited grievance in respect of direction to widen the road to the extent of 12 ft and since aforesaid was not even prayer of Respondent No.4, the said order which is confirmed by the Deputy Collector are required to be modified to the extent by quashing and setting aside the direction in respect of widening of the road by 12 ft.

4. Learned advocate Mr.J.V.Vaghela for the Respondent No.4 submitted that it is true that the Respondent No.4 has only prayed for opening of the road, which was blocked by the present petitioner. However, he submitted that the Mamlatdar has power to direct that road be widened and hence the order passed by the

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Mamlatdar is said to have been passed in accordance with law. He further submitted that as the present petitioner has not remained present before the Mamlatdar and the matter was proceeded ex parte, despite number of times matter was adjourned, now, at this juncture, petitioner cannot raise any grievance in respect of direction issued by the Mamlatdar which is confirmed by the Deputy Collector.

5. Learned Assistant Government Pleader Mr.Kanara for the Respondent State Authorities submitted that the Mamlatdar and the Deputy Collector both have passed the order in accordance with law and hence the petition is required to be dismissed.

6.1 It transpires from the record that in the original application preferred by the Respondent No.4 herein, the only prayer made by the Respondent No.4 was in respect of opening of the road which was allegedly blocked by the present petitioner.

6.2 Today learned advocate Ms.Parikh has made categorical statement before this Court that road was never blocked by the petitioner and the said road was open and shall remain opened to have access for the general public and hence that part of the order is not challenged by learned advocate Ms.Parikh.

6.3 As far as direction in respect of widening of the road is concerned, without going into the powers exercised by

C/SCA/14003/2019 JUDGMENT DATED: 19/01/2022

the Mamlatdar, such direction of widening of road to the extent of 12 ft is a matter of evidence. Whether actual road was 12 ft or not and to what extent it is widened or extended cannot be decided in the summary proceedings filed under "the Act". Such powers can be exercised by the appropriate authority either on the basis of appropriate application or if the present Respondent No.4 has any grievance about the width of the road in that case whether that road has been encroached upon and to what extent, such aspects can be determined only on the basis of leading evidence and, therefore, in that case, proper course of action would be to prefer civil suit before the competent court as such aspects cannot be decided in an application under "the Act".

6.4 Today, the fact remains that since learned advocate Mr.Vaghela, upon instructions from Respondent No.4, submitted before this Court that road is open, at least to that extent the Respondent No.4 cannot have any grievance. Since the road is already open to have access for everyone, the direction issued by the Mamlatdar for widening of the road to the extent of 12 ft deserves to be quashed and set aside for the reasons i.e. (i) there was no such prayer made by Respondent No.4 in the application before the Mamlatdar under "the Act" to widen up the road and (ii) if at all such direction is given, in that case, first it is to be established that road was having particular width earlier and thereafter it has been narrowed down by the present petitioner. The aforesaid being the matter

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of evidence the Mamlatdar could not have passed the order directing the petitioner to widen up the road and hence such order passed by the Mamlatdar is not only the order which is said to have been passed beyond the prayer made before it under Section 5 of "the Act", it is also beyond the jurisdiction under "the Act".

6.5 The Deputy Collector also committed an error by confirming the aforesaid order passed by the Mamlatdar being without jurisdiction.

7. In view of above and for the reasons recorded above, the present petition is partly allowed. Both the orders i.e. the order passed by the Mamlatdar, Umargam in Mamlatdar Court Act Case No.08 of 2016 which is confirmed by the Deputy Collector, Pardi vide order dated 29.05.2019 passed in Mamlatdar Court Act / Revision No.01 of 2018 deserve to be quashed and set aside to the extent of directing the petitioner to widen the road to the extent of 12ft.

8. Rule is made absolute to the aforesaid extent. Direct service permitted.

(NIRZAR S. DESAI,J) MISHRA AMIT V.