[Cites 12, Cited by 0]
Gujarat High Court
Manubhai @ Maheshbhai Dayalbhai Nayak vs State Of Gujarat on 20 April, 2026
NEUTRAL CITATION
C/SCA/17204/2024 ORDER DATED: 20/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17204 of 2024
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MANUBHAI @ MAHESHBHAI DAYALBHAI NAYAK
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DARSHIT D THAKKAR(12434) for the Petitioner(s) No. 1
MR SIDDARTH DESAI, AGP for the Respondent(s) No. 1,2,3
MR YOGIN A BHAMBHANI(6444) for the Respondent(s) No. 4
MS RAKSHA S DIKSHIT(5568) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 20/04/2026
ORAL ORDER
1. By way of filing present petition under Articles
226 and 227 of the Constitution of India, the
petitioner assailed the order dated 09.01.2024 passed
by the Mamlatdar, Jalalpor in the proceedings
initiated under Section 5 of the Mamlatdars' Courts
Act (it shall hereinafter be referred to as the 'Act'
for short) and order dated 28.08.2024 passed by the
Deputy Collector, Navsari in revision application,
whereby the order passed by the Mamlatdar has been
upheld.
2. Heard learned advocate Mr. Darshit Thakkar for
the petitioner, learned advocate Mr. Yogin Bhambhani
for respondent No.4 and learned AGP Mr. Siddarth
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Desai for respondent Nos. 1 to 3.
3. Learned advocate Mr. Thakkar for the petitioner
has referred the facts mentioned in the petition and
submitted that the respondent No.4 herein - original
plaintiff had made compliant (suit) to the Mamlatdar,
Jalalpor and Collector, Navsari, inter alia, alleging
that he is the owner and occupier of land bearing New
Block/Survey No. 553 (Old Block/Survey No.304),
situated at Village Dambhar, Taluka: Jalalpor,
District:Navsari and he has a right of way, which is
blocked by the present petitioner and therefore
appropriate directions may be issued to the
petitioner to open the said road by removing the
impediments/obstructions. Pursuant to the said
complaint, the Collector, Navsari forwarded it to the
Mamlatdar, Jalalpor vide communication dated
18.05.2023 and directed him to initiate the
proceedings under the provisions of the Act.
Thereafter, upon receipt of the report from the
Circle Officer concerned, the Mamlatdar had initiated
the proceedings under Section 5 of the Act by
treating the said complaint as a plaint and issued
notice to the petitioner herein. Upon receipt of the
notice from the Mamlatdar, petitioner herein had
submitted his written statement/reply to the plaint.
Thereafter, after considering and appreciating the
materials/documents available on record, the suit
came to be allowed by the Mamlatdar vide order dated
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09.01.2024, directing the defendant - petitioner
herein to open the way, which alleged to have been
blocked by the petitioner, by removing the
impediments/obstructions created by the petitioner
for smooth usage of the right of way of the
respondent No.4.
4. Being aggrieved by the order of the Mamlatdar,
the petitioner assailed it before the Deputy
Collector by preferring revision application.
However, the said revision application also came to
be dismissed vide order dated 28.08.2024, whereby,
the order passed by the Mamlatdar has been upheld.
Hence, petitioner has preferred present petition.
5. Learned advocate Mr. Thakkar submits that in
fact at the time of initiation of the proceedings
under Section 5 of the Act, mandatory and statutory
provisions of the Act itself are required to be
followed/complied with by the Mamlatdar concerned in
stricto sensu manner. However, the record reveals
that at the time of initiation of the proceedings,
the Mamlatdar concerned has not complied with the
statutory provisions of the Act in true sense and
proper perspective and therefore the order passed by
the Mamlatdar, which is confirmed by the Deputy
Collector in the revision application, are required
to be quashed and set aside. Learned advocate Mr.
Thakkar has read the plaint filed by the plaintiff
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under Section 5 of the Act and submitted that if the
Hon'ble Court would make cursory glance upon the
contents of the plaint, in that event, it would have
been found out that the plaint does not disclose when
the cause of action for the plaintiff to file the
suit has arisen and therefore the plaint itself is
defective one. Learned advocate Mr. Thakkar has read
the provisions of the Act and submitted that in
absence of any averment regarding the exact cause of
action in the plaint, it is the duty of the Mamlatdar
to examine the plaintiff on oath for the purpose of
ascertainment of the particulars specified in Section
7 of the Act. However, without examining the
plaintiff and defendant, the order came to be passed
by the Mamlatdar and therefore it can safely be said
that the Mamlatdar has not followed the statutory and
mandatory provisions of the Act in true spirit. Thus,
the orders passed by the revenue authorities are
defective and hence they are required to be set
aside. He further submits that as per the provisions
of Section 5(3) of the Act, a suit is required to be
filed within a period of six months from the date on
which the cause of action arose. He further submits
that merely on this ground the orders passed by the
revenue authorities are required to be quashed and
matter is required to be remanded back to the
Mamlatdar concerned to decide it afresh after
following the statutory and mandatory procedure
prescribed in the Act itself. In support of his
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submissions, learned advocate Mr. Thakkar has put
reliance upon the decision of the Coordinate Bench of
this Court in the case of Vallabhbhai Vastabhai
Kukadiya v. Dy. Collector, Botad, reported in 2022
(2) GLH 469.
6. On the other hand, learned advocate Mr. Yogin
Bhambhani for respondent No.4 - original plaintiff
has submitted that both the revenue authorities have
passed the orders in favour of the plaintiff after
considering and appreciating overall materials and
therefore the concurrent findings of fact recorded by
the concerned revenue authorities are not required to
be disturbed at the hands of this Court. He submits
that the scope of interference of this Court in the
matter of concurrent findings of fact recorded by the
concerned revenue authorities is very limited and
except in the case of perversity apparent on the face
of the record, the Hon'ble Court would be slow in
disturbing the concurrent findings of fact. He,
however, fairly conceded before this Court that it is
true that the plaint does not disclose as to when the
cause of action has arisen and the Mamlatdar has not
examined the plaintiff as well as defendant to
ascertain the particulars mentioned in Section 7 of
the Act. He, therefore, submits that appropriate
order may be passed.
7. Learned AGP Mr. Desai has also submitted that
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almost all the submissions have been canvassed by
learned advocate for respondent No.4 and he is
adopting all those arguments. However, in addition,
he submits that essentially the dispute is between
the two private parties and the State has a very
limited role to play. He, therefore, submits that
appropriate order may be passed.
8. Having heard learned advocates appearing for the
parties and considered the materials placed on
record, it is found out that respondent No.4 herein
had made a complaint to the Collector concerned and
Mamlatdar concerned, inter alia, alleging that the
petitioner herein had blocked the right of way of the
respondent No.4 herein and therefore appropriate
directions may be issued to him to open the way by
removing the impediments/obstructions created by him
for the smooth usage of the right of way of
respondent No.4 herein. Pursuant to the said
complaint, the Collector concerned directed the
Mamlatdar to initiate the proceedings against the
petitioner under the provisions of the Act.
Accordingly, the Mamlatdar directed the Circle
Officer to carry out spot inspection. Upon receipt of
the report from the Circle Officer, the Mamlatdar
concerned initiated proceedings under Section 5 of
the Act against the petitioner by treating the said
complaint as a plaint and issued notice to the
petitioner. Thereafter, after considering and
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appreciating the materials, the Mamlatdar allowed the
suit and directed the petitioner herein to open the
way in question and remove the obstructions created
by him. The said order is assailed before the Deputy
Collector by way of preferring revision application.
However, the Deputy Collector has dismissed the
revision application and confirmed the order passed
by the Mamlatdar.
9. It is the case of the petitioner that at the
time of initiating the proceedings, the statutory and
mandatory provisions of the Act have not been
followed by the Mamlatdar concerned. Attention of
this Court is also drawn to the plaint, which is
filed by the plaintiff and it transpires that
plaintiff has not disclosed the fact when the cause
of action has arisen. It is also an admitted position
of fact that before jumping to the conclusion and
passing the order, the Mamlatdar concerned has not
examined the plaintiff as well as defendant to
ascertain the particulars specified in Section 7 of
the Act. Moreover, as per the provisions of Section
5(3) of the Act, the Mamlatdar shall not entertain a
suit, which is filed after six months from the date
on which the cause of action arose. Thus, the
averment regarding the cause of action in the plaint
is the basic requirement which decides the fate of
the suit and in absence of such averment in the
plaint it is the Mamlatdar who has to examine the
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plaintiff for the purpose of ascertainment of the
particulars mentioned in Section 7 of the Act. It is
not in dispute that neither petitioner - original
defendant nor respondent No.4 herein - original
plaintiff have been examined by the Mamlatdar.
10. At this juncture, it would be profitable to
refer to the decision of the Coordinate Bench of this
Court in the case of Vallabhbhai Vastabhai Kukadiya,
(supra), wherein, the following observations are
made:
"7.3 As per Section 9 of the Act, when a
plaint does not contain the particular facts
as stated in Section 7 of the Act, what the
Mamlatdar is required to do is to examine the
plaintiff on oath and to ascertain from him
the particulars specified in Section 7 of the
Act. In the instant case, the date on which
the cause of action arose and the
circumstances out of which the cause of action
has arisen were not stated by the plaintiff in
the plaint. Therefore, the Mamlatdar was
expected to follow the procedure prescribed
under Section 9 of the Act by examining the
plaintiff on oath and after the plaintiff is
examined on oath, the Mamlatdar was required
to follow the procedure prescribed in Section
10 of the Act by making necessary verification
as prescribed under section 10 of the Act and
thereafter the Mamlatdar was expected to
endorse the plaint to the effect that it was
duly subscribed and verified. On perusal of
record, it transpires that the Mamlatdar has
not performed any of the duty which is cast
upon him by way of Sections 8 to 11 of the Act
and has straightaway, only at the time of
passing the order, has stated in the order
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that he has done the spot inspection and he is
of the view that the road has been blocked
within the period of six months before the
suit was preferred by the plaintiffs. The
Mamlatdar has merely made a reference that by
exercising the powers available to him under
Section 8 of the Act, he has treated the
application preferred by the plaintiffs to be
a plaint.
7.4 When the statute has prescribed the
specific procedure for treating any informal
application as plaint, it is the duty of the
Mamlatdar to act in accordance with the
provisions of the Act and his subjective
satisfaction must reflect on papers by
following the due procedure prescribed under
the Act. Merely by recording his subjective
satisfaction about the fact that the suit was
preferred in respect of a cause of action,
which has arisen within a period of six months
before filing of the suit, is not sufficient.
Further on perusal of the impugned order
passed by the Mamlatdar, Botad it also
transpires that the Mamlatdar has not framed
any issues, which is also a mandatory
requirement as per Section 19 of the Act.
7.5 Since the Mamlatdar has not followed the
procedure prescribed under the Act while
deciding the Mamlatdars Courts Act Case No.1
of 2021, the order passed by the Mamlatdar
dated 25.5.2021 cannot be sustained. Same way,
the order 5.8.2021 passed by the Deputy
Collector, Botad in M-Court
Revision/BTD/9/2021 confirming order passed by
the Mamlatdar, Botad also cannot be sustained,
and therefore, both the orders deserve to be
quashed and set aside. Accordingly, order
dated 25.5.2021 passed by the Mamlatdar, Botad
in Mamlatdar Court Case No.1/2021 and order
dated 5.8.2021 passed by the Deputy Collector,
Botad in M-Court Revision/BTD/9/2021 are
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hereby quashed and set aside. However, since
both the orders passed by the Mamlatdar and
the Deputy Collector are quashed and set aside
only on the ground that the procedure
prescribed under the Act is not followed, the
matter is remanded to the Mamlatdar, Botad for
hearing and decide the application afresh
preferred by the respondent Nos.3 and 4."
11. Thus, it transpires that the Mamlatdar has not
followed the procedure prescribed in the Act itself
and passed the impugned order, which is confirmed by
the Deputy Collector. Thus, without going into the
merit of the matter, both the orders passed by the
Mamlatdar as well as Deputy Collector are required to
be set aside and matter is required to be remanded
back to the Mamlatdar concerned to decide it afresh,
in accordance with law, after affording opportunity
of hearing to both the parties. Accordingly, the
petition is partly allowed. The orders impugned are
set aside. The matter is remanded back to the
Mamlatdar concerned to decide the issue afresh in
accordance with law by strictly following the
procedure prescribed in the Act itself. It is
needless to observe that this Court has not examined
the merit of the matter.
(DIVYESH A. JOSHI,J)
LAVKUMAR J JANI
