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1995 DIGILAW 421 (GUJ)

Dhirubhai Jasmatbhai Rudani v. Nanubhai Govabhai Vadodaria

1995-09-21

R.K.ABICHANDANI

body1995
R. K. ABICHANDANI, J. ( 1 ) THE petitioners have challenged the order of the Deputy Collector dated 12-9- 1994 dismissing the appeal of the petitioners which was filed against the order of the Mamlatdar dated 31-1-1994 by which the Mamlatdar acting under the provisions of Section 5 of the Mamlatdar court Act, 1906, restrained them from obstructing passage referred to in the said order. ( 2 ) IT was contended on behalf of the petitioners that the order of the Mamlatdar could not have been made under Section 5 of the said Act since a suit was already pending in the Civil Court having bearing on the question of right of way which was sought to be claimed by the respondents. It was further submitted that the order of the mamlatdar was made in violation of the principle of natural justice inasmuch as he had relied on the evidence of persons who were not offered for cross-examination to the petitioners. Furthermore, the mamlatdar did not decide the application made by the petitioners by which he was requested not to proceed with the matter further in view of the pending suit. It was also contended that panchnama and map were relied upon by the Mamlatdar even though neither the Panch nor the Circle inspector was examined. It was submitted that the Mamlatdar proceeded as if the burden lay on the petitioners to prove the negative that no one had a right of way through the land. ( 3 ) THE orders of the Mamlatdar and the collector made under Sections 5 and 23 (2) of the said Act were challenged before this court by these petitioners by filing Civil revision Application No. 660 of 1994. The revision Application was preferred presumably on the basis of Section 23 (3) of the said Act which provides that the collector, Assistant Collector or Deputy collector shall be deemed to be a court when he takes any proceedings under the act. That Revision Application came up for hearing before Honble Justice Mr. N. J. Pandya. The following order was made therein: courts ORDER:"as there are orders under Mamlatdars court Act, they will always be subject to the decision of a Civil Court as to the rights of the parties that may be established at the end of the full-fledged trial. That Revision Application came up for hearing before Honble Justice Mr. N. J. Pandya. The following order was made therein: courts ORDER:"as there are orders under Mamlatdars court Act, they will always be subject to the decision of a Civil Court as to the rights of the parties that may be established at the end of the full-fledged trial. In this view of the matter, there is nothing to be revised and hence, the CRA is disposed of as rejected. "dt. 24-7-95 Sd/- (N. J. PANDYA, J.) ( 4 ) ALL the contentions which are now sought to be raised in this petition were also raised in that Revision Application as can be seen from the memo of Revision application and the very issue of the validity of the orders challenged in this petition was before the court. It was submitted on behalf of the petitioners that the writ powers are wider than Revisional powers and therefore even if a Revision application is decided by this Court, the same subject-matter can be gone into again in exercise of the writ jurisdiction. ( 5 ) THE effect of the order dated 24-7- 1995 passed by my learned Brother would be that the challenge against the impugned orders was not accepted. The High Court had observed that the orders of Mamlatdar and the Deputy Collector passed under the mamlatdar Courts Act were subject to the decision of the Civil Court as to the rights of the parties which may be established at the end of the full-fledged trial. It will not be appropriate for this court to exercise writ jurisdiction in face of the Revisional order made by this Court on 24-7-1995 in identical challenge by these very petitioners against the impugned orders. The High court having rejected the Revision application directed against the same orders cannot again in different jurisdiction of co-ordinate level reconsider the matter. So long the order passed in the Revision application holds the field, in my view, it will not only be inappropriate but also not open for a single Judge exercising powers under Article 226 to indirectly upset the order of another single Judge passed in a revision Application directed against the same orders. In this view of the matter, the contentions raised by the petitioners on merits cannot be gone into in this petition. The petition is, therefore, rejected with no order as to costs. In this view of the matter, the contentions raised by the petitioners on merits cannot be gone into in this petition. The petition is, therefore, rejected with no order as to costs. .