Legal Heirs Of Chimanlal ... vs Patel Bholabhai Narotambhai
2022 Latest Caselaw 835 Guj

     C/SCA/2366/2021                              ORDER DATED: 27/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 2366 of 2021

==========================================================
      LEGAL HEIRS OF CHIMANLAL SHANKARLAL PATEL (DECD.)
                            Versus
                PATEL BHOLABHAI NAROTAMBHAI
==========================================================
Appearance:
MR JAYANT P BHATT(169) for the Petitioner(s) No. 1,1.1,1.2,1.3
MR JEET J BHATT(6154) for the Petitioner(s) No. 1,1.1,1.2,1.3
MR KEYUR A VYAS(3247) for the Respondent(s) No. 1
NIGAM D SONI(9314) for the Respondent(s) No. 3,4,5,6,7
MR. KRUTIK PARIKH, AGP 4) for the Respondent(s) No. 2,8,9
NOTICE SERVED(4) for the Respondent(s) No. 2,8,9
==========================================================

 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                            Date : 27/01/2022

                             ORAL ORDER

1. Heard learned advocate Mr. Jeet J. Bhatt for the petitioners, learned advocate Mr. Keyur A. Vyas for the respondent no.1, learned advocate Mr. Nigam D. Soni for the respondents no. 3 to 7 and learned AGP Mr. Krutik Parikh for the respondents no. 8 and 9.

2. By way of this petition, the petitioners have challenged the order dated 07.11.2020 in Revision Application No. 3 of 2019 passed by the Prant Officer, Kalol, District:- Gandhinagar whereby he has partly allowed the revision application preferred under section 23 of the Mamlatdar Courts Act by the present respondents no. 1 and 2 and remanded back the matter to the Mamlatdar, Mansa and further directed that if any

C/SCA/2366/2021 ORDER DATED: 27/01/2022

encroachment is done in the government naaliya of Village: Charada then the same may be removed.

3. The fact of the case is that the present petitioners wrote a letter to the Mamlatdar, Mansa stating that he is having an agricultural field situated at survey no.1109/253 and the way of ingress and egress to his field was through a naaliya. The aforesaid naaliya was cultivated by neighbouring farmers and therefore, his right of way was affected and the road was closed.

4. Pursuant to the aforesaid application dated 27.12.2013, the case under the Mamlatdars Court Act was registered being Mamlatdar Court Act Case No. 2 of 2014 and in the said proceedings, the Mamlatdar, vide order dated 12.10.2015 passed an order in favour of the petitioner. However, the present respondents no. 1 and 2 preferred the revision application under section 23 of the Act being Revision Application No. 1 of 2015 and Prant Officer, Kalol allowed the said revision application and quashed and set aside the order passed by the Mamlatdar in Mamlatdar Court Act Case No. 2 of 2014 dated 12.10.2015. The petitioners challenged the aforesaid order dated 05.02.2016 passed by the Prant Officer, Kalol in Revision Application No. 1 of 2015 by way of Special Civil Application No. 9048 of 2016 before this Court. This Court vide judgment dated 18.07.2018 quashed and set aside both the orders passed by the Mamlatdar, Mansa

C/SCA/2366/2021 ORDER DATED: 27/01/2022

as well as Prant Officer, Kalol remanded the matter back to examine the case on merits to the Mamlatdar, Mansa.

5. Pursuant to the aforesaid judgment dated 18.07.2018, the case was once again re-numbered as Mamlatdar Court Act Case No. 3 of 2019 and the Mamlatdar, Mansa once again vide order dated 23.10.2019 granted the way in favour of the petitioner. The aforesaid order dated 23.10.2019 passed in Mamlatdar Court Act Case No. 3 of 2019 was once again challenged by the present respondents no. 1 and 2 by preferring revision application under section 23 of the Act being Mamlatdar Court Act Case SR No. 3 of 2019 before the Prant Officer, Kalol. After hearing the parties, ultimately, the Prant Officer, Kalol passed an order whereby the revision application preferred by the respondents no. 1 and 2 was partly allowed and the matter was once again remanded back to the Mamlatdar for deciding it afresh with a further direction that to remove the encroachment as per the law, if it is found on the naaliya way in Village Charada. It is this order dated 07.11.2019 passed by the Prant Officer, Kalol in Revision Application No. 3 of 2019 which is under challenge by way of this petition.

6. At the outset, learned advocate Mr. Jeet Bhatt for the petitioners, under instructions, submitted that the petitioners do not have any objection if the order in respect of the remand remains as it is. The petitioners are ready and willing to

C/SCA/2366/2021 ORDER DATED: 27/01/2022

participate in the proceedings before the Mamlatdar. However, the observations made in the last paragraph before the operative portion would prejudice the Prant Officer and the said observations are not required in view of the controversy in question and therefore, only that observation part may be quashed.

7. Mr. Bhatt appearing for the petitioners is referring to the observations made by the Prant Officer, Kalol, whereby it is the case of the present petitioners that their land remained uncultivated for last 6 years as stated in the written submission and therefore, Taluka Development Officer was directed to examine as to whether the present petitioners have availed any government aid or not. He further directed the Taluka Development Officer to inquire as to whether there was any alternative road available to the petitioner or not and if alternative road was already there, why the land of the petitioners remained uncultivated.

8. Learned advocate Mr. Bhatt submits that the aforesaid observations being outside the purview of the provisions of the Mamlatdar Court Act, the Prant Officer, Kalol ought not to have made such observations.

9. Learned advocate Mr. Nigam D. Soni appearing for the respondents no. 3 to 7 supports the contentions of the petitioners and states that he has no objections if the aforesaid

C/SCA/2366/2021 ORDER DATED: 27/01/2022

observations are quashed and set aside.

10. Learned advocate Mr. Keyur A. Vyas appearing for the respondent no. 1 submits that once the revision application was partly allowed and the matter is remanded back to the Mamlatdar, as the Mamlatdar is directed to decide the matter on merits, the observations in respect of making an inquiry about existence of alternative road is well within the jurisdiction of Prant Officer and hence, the aforesaid observations are not required to be disturbed.

11. Learned AGP Mr. Krutik Parikh also supports the order passed by the Prant Officer, Kalol by stating that it is the inherent powers of the Prant Officer to direct the Taluka Development Officer about whether the petitioners have availed any government aid or not? Hence, said findings may not be quashed.

12. Considering the rival submissions, coupled with the fact that learned advocate Mr. Bhatt, on instructions, has shown willingness to participate in the remand proceedings before the Mamlatdar, Mansa as directed by the Prant officer, Kalol vide order dated 07.11.2019 and Revision Application SR. no. 3 of 2012, the only question that requires to be adjudicated is that whether the observations made by the Prant Officer, Kalol can be said to be unnecessary or not? As far as the observations made by the Prant officer, Kalol in respect of whether the

C/SCA/2366/2021 ORDER DATED: 27/01/2022

petitioners have availed any government aid or not cannot be said to be unnecessary observation, considering the fact that it is the case of the petitioners themselves that the land has remained uncultivated for last 6 years. If despite such fact the land has remained uncultivated for last six years, if any government aid is availed by the petitioners, in that case, if a direction is given to verify about the same, it cannot be said to be unnecessary for the fact that ultimately government aid is in aid from the money of public exchequer and therefore, the Prant Officer can always issue directions to ensure that government aid is not availed by a person wrongfully.

13. So far as the direction in respect of the examination by the Taluka Development Officer about the existence of alternative road or not is there, the said direction also cannot be said to be unnecessary simply for the reason that ultimately if the petitioners cannot successfully establish before the Mamlatdar about their right to use the way which the petitioners have prayed for and which according to the petitioners is their customary way, in that case existence of alternative road also is required to be seen while adjudicating the issue, just to ensure that once again the matter may not require to be remanded back to the authority.

14. The issue is pending since, 2013 and even in the year 2022, though the order was passed on 07.11.2020, remand proceedings have not even initiated that is what all the leaned

C/SCA/2366/2021 ORDER DATED: 27/01/2022

advocates have jointly submitted before this Court. Hence, this being the remand proceedings that will be initiated for the 3 rd time and therefore, if the directions are issued to examine the issue about the existence of the alternative road also, that would not cause any prejudice to the petitioners.

15. However, while holding that the Prant Officer's observations made in the paragraph just before operative portion cannot be said to be unnecessary. It is clarified that the Mamlatdar, Mansa while deciding the remand case shall consider the same strictly in accordance with the merits of the matter and on the basis of the material available on record and even, if the petitioners have availed any government aid, in that case, the aforesaid fact being altogether a different subject matter for which a separate inquiry is directed by the Prant Officer, Kalol, he shall not be influenced by the aforesaid fact.

16. During the remand proceedings, rights and contentions of all the parties are kept open. It is also clarified that since the petitioners themselves have shown willingness to participate in the proceedings before the Mamlatdar in the remand case, this Court has not examined the merits of the matter and hence, the aforesaid order with the aforesaid directions is passed without entering into the merits of the matter. As it is submitted by the learned advocates for the parties to direct the Mamlatdar to hear and decide the remand case within some stipulated time, considering the fact that issue is pending before the Mamlatdar

C/SCA/2366/2021 ORDER DATED: 27/01/2022

since, 2013 and even the order remanding the case to Mamlatdar, Mansa was passed on 07.11.2020 and till date, the remand proceedings have not been initiated by the Mamlatdar, Mansa, the Mamlatdar, Mansa is directed to hear and decide the remand case latest before 31.08.2022.

17. With the aforesaid directions, the present petition stands disposed of.

Direct service is permitted.

(NIRZAR S. DESAI,J) VARSHA DESAI