Gujarat High Court
Kanbi Ganeshji Sonaji vs Deputy Collector, Diyodar on 6 December, 2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16992 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 17746 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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KANBI GANESHJI SONAJI
Versus
DEPUTY COLLECTOR, DIYODAR
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Appearance:
IN SPECIAL CIVIL APPLICATION NO.16992 OF 2023:
MR MEET D KAKADIA(11896) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR ROHAN H RAVAL AGP for the Respondent
IN SPECIAL CIVIL APPLICATION NO.17746 OF 2023:
MR AJ YAGNIK(1372) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3
MR ROHAN H RAVAL AGP - ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP for the Respondent(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 4
MR VARUN H MODASIA(13395) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 06/12/2023
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CAV COMMON JUDGMENT
[1] Both these matters arising from a common impugned order
and the parties are also the same, thereby, both the petitions are
being disposed of by this common order.
[2] In both the petitions, the impugned order is of dated 31 st
August 2023 passed by the learned Deputy Collector, Deodar in
Mamlatdars' Courts Revision Case No.3 of 2023, whereby the
learned Deputy Collector, while upholding the order passed by the
learned Mamlatdar, Lakhani dated 17 th May 2023 in Mamlatdars'
Courts Act Case No.1 of 2023, issued direction permitting the
applicant therein - original plaintiff to use the way passing through
the survey number of the respondents therein - original defendants
on humanitarian ground till the competent Civil Court adjudicates
the issue pending before it.
[3] Special Civil Application No.16992 of 2023 has been filed by
the original plaintiff and the Special Civil Application No.17746 of
2023 has been filed by the original defendants. For the sake of
brevity, the parties shall be hereinafter referred as per their original
status .
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[4] The brief facts of the case can be stated as under:
[4.1] The original plaintiff is the owner of land bearing survey
No.202 (old survey No.45 paiki 1) situated at village : Jhaloda,
Taluka : Deodar, District : Banaskantha. The original defendants
are the owners of lands bearing survey No.156 (old survey No.29
paiki 1 paiki 1) and survey No.160 (old survey No.29 paki 1 paiki
2) situated at village : Dera, Taluka : Lakhani, District :
Banaskantha.
[4.2] That the other survey Nos.200, 201 and 202 are belonging to
the original plaintiff and his other family members are adjacent to
the land bearing survey No.160.
[4.3] The original plaintiff filed an application on 21st February
2023 under Section 5(2) of the Mamlatdars' Courts Act, 1906
before the Court of Mamlatdar, Deodar praying, inter alia, for grant
of right to way passing through the land bearing survey No.156
(old survey No.29 paiki 1 paiki 1) and survey No.160 (old survey
No.29 paki 1 paiki 2) situated at village : Dera, Taluka : Lakhani,
District : Banaskantha of the original defendants.
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[4.4] The original plaintiff has filed the aforesaid application
essentially on the following grounds:
(i) That, there was an agreement dated 24th November 2005
entered between the father of the original defendants and the
original plaintiff, in exchange of a consideration, permitting
the original plaintiff to pass through their land and giving
them right of way to carry their agricultural tools and
equipment which are necessary for the agricultural operation.
(ii) On 20th February 2023, the original defendants created an
obstruction by constructing a cement wall.
(iii) That, this being "the only way" for the original plaintiff
to pass to get his agricultural land and there is no other way.
[4.5] The said proceeding then was transferred to the Court
of Mamlatdar, Lakhani at District : Banaskantha vide
communication dated 13th March 2023.
[4.6] The original defendants appeared and objected to the
grant of any relief to the original plaintiff by submitting as under:
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(i) That, there was no such agreement entered into
between the father of the original defendants and the original
plaintiff and that such document is not registered one and
hence it being a bogus document, no such right can be
claimed on the strength of such document.
(ii) That, neither the original plaintiff nor their family or their
heirs have ever walked through the lands belonging to the
original defendants and that the original plaintiff are forcibly
trying to enter by filing such applications only to create
pressure on the original defendants to permit them to walk
through their agricultural lands.
(iii) That, there exist an alternative way through the village
of the original plaintiff.
(iv) That, the original defendants have also moved the
learned Civil Court at Lakhani, Distrcit : Banaskantha praying
appropriate relief against the original plaintiff.
(v) That, no village maps are produced which will indicate
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any way passing through the land of the original defendants
for the original plaintiff to go to his agricultural land.
[4.7] The learned Mamlatdar, Lakhani, after hearing both the
parties, disposed of the application preferred by the original
plaintiff vide its order dated 17th May 2023 de-registering the case
holding, inter alia, that the application of the original plaintiff is of
a civil in nature, for which suit is already pending, and thereby,
only the Civil Court can decide the same. The learned Mamlatdar
further observed that the suit being Regular Civil Suit No.2 of 2023
pending in the Court of learned Principal Civil Judge, Lakhani
would be binding to both the parties.
[4.8] Being aggrieved and dissatisfied by the aforesaid, the
original plaintiff approached the learned Deputy Collector, Deodar
by way of an appeal being Mamlatdar Court/Revision No.3 of 2023
under Section 23 of the Mamlatdars' Courts Act. The said revision
came to be disposed of by the learned Deputy Collector, Deodar
vide its order dated 31st August 2023. By the said order, the learned
Deputy Collector, Deodar, although upheld and affirmed the order
passed by the Mamlatdar, Lakhani dated 17 th May 2023, however,
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permitted the original plaintiff to use the way on humanitarian
ground till the Civil Court adjudicates the civil rights in Regular
Civil Suit No.2 of 2023.
[4.9] It is the case of the original defendants that the said
order dated 31st August 2023 passed by the learned Deputy
Collector, Deodar was served upon the original defendants on 13 th
September 2023. The original defendants immediately moved an
application before the learned Deputy Collector, Deodar as well as
before the learned Mamlatdar, Lakhani to permit some time to
approach the Hon'ble High Court. However, on 15th September
2023, the Mamlatdar along with the police personnel came with
excavator vehicle such as JCBs and broke open the fencing and the
cement wall and implemented the directions issued by the Deputy
Collector, Deodar.
[5] The original plaintiff, having got implemented the order
dated 31st August 2023 passed by the learned Deputy Collector,
Deodar, for the reasons best known, approached this Court by way
of Special Civil Application No.16992 of 2023 on 18 th September
2023 challenging the order dated 31st August 2023 so far as it
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upheld the order passed by the learned Mamlatdar dated 17 th May
2023.
[6] The original defendants, as against that, approached
this Court by way of Special Civil Application No.17746 of 2023
challenging the order dated 31st August 2023 passed by the learned
Deputy Collector, Deodar with a prayer to quash and set aside the
contrary directions issued therein.
[7] I have heard learned advocate Mr. Sharvil P. Majmudar
for the original plaintiff, learned advocate Mr. Anand J. Yagnik for
the original defendants and learned A.G.P. Mr. Rohan H. Raval for
the respondents - State authorities.
[8] Learned advocate Mr. Majmudar for the original plaintiff,
while assailing the impugned orders, has made the following
submissions:
[8.1] Learned advocate Mr. Majmudar for the original plaintiff
submitted that the impugned orders passed by the authorities
below are contrary to the provisions under the Mamlatdars' Courts
Act, 1906.
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[8.2] Learned advocate Mr. Majmudar submitted that the learned
Mamlatdar committed a serious error inasmuch as while refusing to
entertain the case of the original plaintiff on the basis of
jurisdiction, the observations on merits are not warranted.
[8.3] Learned advocate Mr. Majmudar further submitted that
learned Deputy Collector, Deodar ought not to have upheld the
order of the learned Mamlatdar considering the provisions of
Section 13 of the Act. The learned Deputy Collector ought to have
appreciated the order passed by the learned Mamlatdar under
Section 20 of the Act wherein the suit was dismissed.
[8.4] Learned advocate Mr. Majmudar further submitted that the
learned Mamlatdar ought not to have rejected the application of
the original plaintiff on the ground of want of jurisdiction as the
original plaintiff is claiming for ancestral right of way and such
right of way can ultimately be given under the provisions of the
Mamlatdars' Court Act and thereby, the learned Mamlatdar ought
to have exercised power under Section 5 of the Mamlatdars' Courts
Act.
[8.5] According to learned advocate Mr. Majmudar, a panchnama
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was drawn in the facts and circumstances of the present case and
the right of way of the original plaintiff is confirmed, and therefore,
the learned Mamlatdar should have proceeded and allowed the
application on merits and should not have rejected the same on the
ground of want of jurisdiction.
[8.6] Learned advocate Mr. Majmudar submitted that the claim of
right of way not only based upon the sale deed dated 24th
November 2005, but the said document was just a supportive
document to the case of the original plaintiff in proving that the
ancestral right of way existed, more particularly, because the said
document was relied upon, the learned Mamlatdar could not have
refused to entertain the application of the original plaintiff on the
ground of jurisdiction.
[8.7] Learned advocate Mr. Majmudar next submitted that the
learned Deputy Collector ought not to have upheld the order of the
learned Mamlatdat as the order of the learned Mamlatdar
essentially in rejecting the case of the original plaintiff not only on
the ground of jurisdiction, but also on the ground of unregistered
document.
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[9] By making above submissions, learned advocate Mr.
Majmudar submitted that the impugned order dated 31 st August
2023 passed by the learned Deputy Collector, Deodar so far as it
confirms the order passed by the learned Mamlatdar, Lakhani
deserves to be quashed and set aside and further prayed to quash
and set aside the order dated 17th May 2023 passed by the learned
Mamlatdar, Lakhani in the interest of justice.
[10] Per contra, learned advocate Mr. Anand Yagnik for the
original defendants, while challenging the order dated 31 st August
2023 passed by the learned Deputy Collector, Deodar so far as it
relates to issuance of directions, has made the following
submissions:
[10.1] According to learned advocate Mr. Yagnik, the learned
Deputy Collector, Deodar committed a serious error in giving
direction after upholding the order dated 17 th May 2023 passed by
the learned Mamlatdar, Lakhani. According to learned advocate
Mr. Yagnik, such direction itself is contrary to the finding arrived at
by the learned Deputy Collector and thereby, the said direction
deserves to be quashed and set aside.
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[10.2] Learned advocate Mr. Yagnik submitted that the
learned Deputy Collector, after having recorded satisfaction about
finding arrived at by the learned Mamlatdar and after upholding
that the prayer made by the original plaintiff cannot be granted and
after rejecting the appeal by upholding the order passed by the
learned Mamlatdar; cannot pass any direction contrary to what has
been held by both the Courts. Learned advocate Mr.
Yagnik,therefore, prayed this Court to quash and set aside the said
direction issued in the impugned order dated 31st August 2023.
[10.3] According to learned advocate Mr. Yagnik, once the
learned Deputy Collector, Deodar upheld the order dated 17 th May
2023 passed by the learned Mamlatdar, Lakhani and rejected the
appeal of the original plaintiff, no direction can be issued in favour
of the original plaintiff, which would amount to allowing the claim
of the original plaintiff. According to learned advocate Mr. Yagnik,
though the original plaintiff lost in application under Section 5 of
the Mamlatdars' Courts Act as well as in revision under Section 23
of the Act, however, in the resultant effect, by virtue of impugned
order, direction given by the learned Deputy Collector, Deodar vide
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its order dated 31st August 2023, the claim of the original plaintiff
is allowed in toto and that has resulted serious miscarriage of
justice. Learned advocate Mr. Yagnik submitted that the original
plaintiff has relied upon the deed of the year 2005 to claim that the
road in question was being used by his ancestral, however, both the
authorities have specifically discarded and rejected the said
evidence. Thus, learned advocate Mr. Yagnik submitted that once
the application and revision of the original plaintiff are rejected, no
direction can be issued by the authorities in operative part of the
order, which would amount to granting of claim of the original
plaintiff in toto.
[10.4] Lastly, learned advocate Mr. Yagnik submitted that the
order passed by the learned Deputy Collector, Deodar dated 31 st
August 2023 was only served upon the original defendants in the
evening of 13th September 2023 without giving any breathing time
to the original defendants, the Mamlatdar along with police
personnel came to the site and got executed the directions issued
by the Deputy Collector, Deodar vide its order dated 31 st August
2023. Learned advocate Mr. Yagnik, therefore, submitted that the
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original plaintiff, though lost before both the authorities below,
ultimately, succeeded and that has resulted serious miscarriage of
justice to the original defendants.
[11] By making above submissions, learned advocate Mr. Yagnik
has prayed this Court to quash and set aside such direction issued
by the learned Deputy Collector, Deodar.
[12] Having heard the learned advocates appearing for the
respective parties and having considered the material produced on
record, a short question that falls for consideration of this Court is
whether the impugned order dated 31 st August 2023 passed by the
learned Deputy Collector, Deodar can be said to be legal?
[13] So as to decide the aforesaid question, facts of the case
deserve to be appreciated as under:
[13.1] The original plaintiff preferred an application under
Section 5 of the Mamlatdars' Courts Act being Mamlatdars' Courts
Act Case No.1 of 2023 in the Court of the learned Mamlatdar,
Lakhani. The learned Mamlatdar, Lakhani, having considered the
fact that the claim of the original plaintiff based on unregistered
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sale deed can only be decided in a civil proceeding by the
competent Civil Court, more particularly, when the Regular Civil
Suit No.2 of 20232 is already pending. The learned Mamlatdar,
Lakhani, vide its order dated 17 th May 2023, deregistered the case
of the original plaintiff on the ground of jurisdiction.
[13.2] The original plaintiff approached the learned Deputy
Collector, Deodar by way of Revision No.3 of 2023. The learned
Deputy Collector, Deodar, vide its order dated 31 st August 2023,
while upholding the impugned of the Mamlatdar, Lakhani dated
17th May 2023 on humanitarian ground, allowed the original
plaintiff to use the way, as clamed for, till the competent Civil
Court comes to any conclusion with regard to right to use the way
in question.
[13.3] The order of the learned Deputy Collector, Deodar
datted 31st August 2023, was served upon the original defendants
on 13th September 2023. The said fact has not been seriously
disputed by the original plaintiff. On 15 th September 2023, the
order passed by the learned Deputy Collector, Deodar dated 31 st
August 2023, with the help of the police personnel, got
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implemented.
[13.4] Having consumed the fruits of the directions of the
impugned order dated 31st August 2023, the original plaintiff
approached this Court by way of petition being Special Civil
Application No.16992 of 2023 on 18th September 2023, challenging
the first part of the impugned order, whereby the order of the
learned Mamlatdar was upheld.
[13.5] Similarly, the original defendants approached this
Court by way of petition being Special Civil Application No.17746
of 2023, challenging the very impugned order dated 31 st August
2023 passed by the learned Deputy Collector, Deodar, more
particularly second part of the impugned order, by which the
original plaintiff was permitted to use the way, as claimed.
[14] Keeping in mind the aforesaid facts, the learned Deputy
Collector, Deodar appears to have committed serious error while
passing the impugned order. I say so because, in the impugned
order, on one hand, the learned Deputy Collector has confirmed the
order of the learned Mamlatdar dated 17 th May 2023. The order of
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the learned Mamlatdar, if perused, would reveal that the said order
was only on the ground of jurisdiction. In other words, the learned
Mamlatdar had not considered merits of the case. Learned Deputy
Collector, therefore, in my view, could have either dismissed the
revision by upholding the order of the learned Mamlatdar or could
have remanded the matter back to the learned Mamlatdar for a
fresh proceeding on merits after deciding the issue of jurisdiction,
but, in any case, straightway, could not have passed any such order
or direction on humanitarian ground, which would amount to
allowing the entire claim of the original plaintiff. Thus, the
resultant effect would be that despite the application of the original
plaintiff under Section 5 of the Mamlatdars' Courts Act was
dismissed by the learned Mamlatdar on the ground of jurisdiction
and confirmed by the learned Deputy Collector, but the original
plaintiff succeeds in toto. Such situation cannot be allowed to
operate. The learned Deputy Collector, Deodar cannot pass any
such order, which is contrary to the settled law. The learned
Deputy Collector, Deodar could not have shown any humanitarian
consideration at the cost and/or any violation of statutory
provisions and settled proposition of law. It is pertinent to note that
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because of undue and unwarranted humanity shown by the learned
Deputy Collector, Deodar, the original plaintiff, though lost in both
the proceedings, but got the relief in toto. In my view, the conduct
of the original plaintiff is also worth noting. The impugned order
dated 31st August 2023 passed by the Deputy Collector, Deodar has
been challenged by the original plaintiff only on 18 th September
2023, after implementation and execution of favourable part
thereof. In my considered opinion, by way of this petition, the
original plaintiff has sought intervention of this Court only to see
that the illegal order of the Deputy Collector, which has been
implemented be approved by the High Court. Such conduct of the
original plaintiff is highly deprecated and thus, this Court proposes
to saddle the original plaintiff with appropriate costs.
I answer the question accordingly.
[15] For the foregoing discussion, following order is passed:
(i) Special Civil Application No.16992 of 2023 preferred by
the original plaintiff is hereby rejected with costs of
Rs.35,000/- to be deposited with the Bar Association of
Gujarat High Court within 15 days.
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(ii) Special Civil Application No.17746 of 2023 is hereby
allowed by quashing and setting aside the impugned order
dated 31st August 2023 passed by the Deputy Collector,
Deodar. It is directed to restore Revision No.3 of 2023 with a
direction to the respondent No.2 - Deputy Collector, Deodar
to decide the same afresh in accordance with law. The
learned Deputy Collector, Deodar to decide the said revision
within a period of three months from today. Till the Deputy
Collector, Deodar decides the remanded proceedings a fresh,
the original plaintiff is hereby restrained from using the way
passing through the land of the original defendants.
(NIRAL R. MEHTA,J)
FURTHER ORDER
After pronouncement of the order, learned advocate
Mr.Meet Kakadia for the petitioner requested this Court to
stay the order for some time so as to enable the petitioner to
approach the higher forum.
Such request cannot obviously be granted in view of the
observations and discussions made herein-above.
(NIRAL R. MEHTA,J)
CHANDRESH
