Harijan Dharmashibhai ... vs Patel Virambhai Parkhabhai ...
2023 Latest Caselaw 758 Guj

      C/SCA/3030/2020                               ORDER DATED: 31/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 3030 of 2020

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           HARIJAN DHARMASHIBHAI MANSANGBHAI
                          Versus
PATEL VIRAMBHAI PARKHABHAI (DECEASED) THROUGH LEGAL HEIRS
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Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
for the Respondent(s) No. 1.1,1.4,1.5,1.6
MR JAYNEEL S. PARIKH, AGP for the Respondent(s) No. 3
DECEASED LITIGANT for the Respondent(s) No. 1
MR.KIRIT R CHAUDHARI(3745) for the Respondent(s) No. 1.2,1.3,2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 31/01/2023

                                 ORAL ORDER

1. Rule. Learned advocates appear and waive service of notice of rule on behalf of the respective respondents.

2. Since a short issue is involved in the present writ petition, the same is taken up for final hearing today.

3. The petitioner - Harijan Dharmashibhai Mansangbhai since deceased is represented by his legal heirs.

4. In the present writ petition, the petitioners have assailed the impugned order dated 16.10.2019 passed by the respondent - Deputy Collector in Jamin / Mam. Court Act / Case No.01 of 2019 as well as the order dated 11.06.2019 passed by the respondent Mamlatdar in Mamlatdar Court Act / Case No.05 of 2018.

C/SCA/3030/2020 ORDER DATED: 31/01/2023

5. The brief facts leading to filing of the present writ petition are that the co-owner of the land situated at New Venue Survey No.91, Village Katav, Taluka Suigam, District Banaskantha. The respondent Nos.1 and 2 filed an application under Section 5 of the Mamlatdars' Courts Act, 1906 (for short, "the Act") seeking right of way passing from the land belonging to the petitioners.

6. Learned advocate Mr.Gandhi, appearing for the petitioners has submitted that without issuing any notice to the petitioners, the Circle officer prepared Panchnama dated 25.08.2018, in gross violation of the principle of the natural justice, since the petitioners were not even heard. It is further submitted that for the first time, the notice was issued on 27.09.2018 and thereafter, without following any procedure as required under the provisions of Section 19 of the Act, once again, the Panchnama was drawn on 07.03.2019 which was prepared in absence of the petitioners and the same also does not bear the signature of the Mamlatdar. It is submitted that despite the aforesaid defect in procedure, the impugned order was passed on 11.06.2019, against which, the petitioners preferred revision application as per the provisions of Section 23 of the Act before the Deputy Collector, who by the impugned order dated 16.10.2019 rejected revision application, hence, the present petitioners are constrained to approach this Court. Thus, it is submitted by the learned advocate Mr.Gandhi, that the impugned orders are required to be quashed and set aside. In support of his submissions, learned advocate Mr.Gandhi, has placed reliance on the

C/SCA/3030/2020 ORDER DATED: 31/01/2023

judgment of this Court in the case of Raisinh Dhirajsinh Boradhara Vs. State of Gujarat, 2006 (1) GCD 36. Learned advocate Mr.Gandhi, has submitted that the impugned orders may be set aside and the matter may be remanded.

7. Per contra, learned advocate Mr.Kirit R. Chaudhari, appearing for the private respondents has submitted that the impugned orders do not require any interference since the same are appropriately passed. It is submitted that the land in question belongs to the respondents, however he is unable to dispute with regard to the panchnama, which have been drawn in absence of the petitioner.

8. Learned Assistant Government Pleader Mr.Parikh, while placing reliance on the affidavit filed by the concerned Mamlatdar has submitted that in fact, due to inadvertence, the Mamlatdar did not put his signature on the Panch Rojkam dated 07.03.2019. It is further submitted that the Mamlatdar has admitted that Panch Rajkom is one of the important evidences put on record and should not suffer due such inadvertence.

9. I have heard the learned advocates appearing for the respective parties.

10. The aforementioned submissions and facts unquestionably establish the fact that both the Panchnama suffer from a procedural defect. The first panchnama dated 25.08.2018, which was drawn by the Circle Officer was

C/SCA/3030/2020 ORDER DATED: 31/01/2023

prepared prior to issuance of notice dated 27.09.2018 by the Mamlatdar Court. Thereafter, when the matter proceeded further, a second Panchnama was drawn on 07.03.2019, which does not bear the signature of the Mamlatdar and also it is an established the fact that the same was drawn in absence of the petitioner. In the affidavit filed by the Mamlatdar dated 29.07.2021, this fact is admitted. On the contrary, it is asserted that the spot inspection dated 07.03.2019 does not bear his signature and due to inadvertence, the Mamlatdar forgot to put his signature on such Panch-Rojkam. Thus, it is a grave irregularity committed by the Mamlatdar. Such a panchnama which does not bear his signature could not have been relied upon while passing the impugned order.

11. The authenticity of such panchnama, which neither bears signature of the Mamlatdar nor records the presence of the petitioner, is in violation of the provisions of Section 19(2) of the Act. The Deputy Collector has also on the contrary while rejecting revision application filed by the petitioner has encouraged such illegality. It was the statutory duty of the Deputy Collector to take a notice of such grave illegality and should have remanded the matter to the Mamlatdar for fresh consideration.

12. Under the circumstances, the present petition stands allowed. The impugned orders suffer from the illegality and infirmity and the same are hereby quashed and set aside. The matter is remanded to the Mamlatdar for fresh consideration. The Mamlatdar after hearing the respective parties and by

C/SCA/3030/2020 ORDER DATED: 31/01/2023

following the procedure as envisaged in the Act, shall pass a reasoned order.

Direct Service is permitted.

(A. S. SUPEHIA, J)

MB/33