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2019 DIGILAW 726 (GUJ)

Aartiba Laxmansinh Sarviya v. Dy. Collector and prant officer, palitana

2019-07-08

A.J.DESAI

body2019
ORDER : 1. By way of the present petition under Articles 14, 16, 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 28.8.2017 passed by the Deputy Collector and Prant Officer, Palitana in Mamlatdar Court Act/Revision/Case/Reg. No.2/2016. By the impugned order, the Deputy Collector has allowed the revision application filed by the respondent No.3 herein under Section 23 (2) of the Mamlatdar’s Court Act, 1906 (hereinafter referred to as ‘the Act’) and quashed and set aside the order dated 20.01.2012 passed by the Mamlatdar, Palitana in Case No. Mamlatdar Courts Act, Reg. No.8 of 2011 and further directed the petitioners to remove the wife fencing done by them from which the petitioners as well as predecessor-in-title of the private respondent as well as private respondent Nos.3 and 6 used the road to enter their respective agricultural fields. 2. The short facts arise from the record are as under :- 3. The petitioners are owners and in occupation of land bearing Revenue Survey No.4 of village Mokhdaka, Tal. Palitana, Dist. Bhavnagar. The respondent No.3 is the owner of land bearing Revenue Survey No.6 of the same village. The respondent No.3 filed a suit under Section 5 of the Act before Mamlatdar, Palitana being Case No.8 of 2011 alleging therein that the land of the present petitioners and respondent No.4 are adjoining to the land of the respondent No.3. Though there is a right of way between Survey No.6 and Survey No.4 to enter their respective fields, the said road was closed by the petitioners by putting wire fencing. 4. The said suit came to be dismissed by the Mamlatdar, Palitana vide order dated 20.1.2012. The respondent No.3 challenged the said order before the Deputy Collector and Prant Officer, Palitana by Revision Application No.2 of 2012. The Deputy Collector and Prant Officer, Palitana vide his order dated 28.2.2013 allowed the revision application of the respondent No.3 and quashed the order of the Mamlatdar, Palitana. 5. Being aggrieved by the said order, the petitioners preferred Civil Revision Application No.183 of 2013 before this Court and the coordinate Bench of this Court vide order dated 3.8.2016 allowed the revision application and remanded the matter to the Deputy Collector and Prant Officer, Palitana for deciding the same afresh. 6. 5. Being aggrieved by the said order, the petitioners preferred Civil Revision Application No.183 of 2013 before this Court and the coordinate Bench of this Court vide order dated 3.8.2016 allowed the revision application and remanded the matter to the Deputy Collector and Prant Officer, Palitana for deciding the same afresh. 6. Thereafter, the Deputy Collector and Prant Officer, Palitana again heard Revision Application No.2 of 2012 and by the impugned order dated 28.8.2017 allowed the same and quashed and set aside the order dated 20.1.2012 passed by the Mamlatdar, Palitana in Case No.8 of 2011. 7. Hence the present petition. 8. By an order dated 23.2.2018, Urva Polabhai Kukabhai was joined as respondent No.6 since he is owner and in possession of land bearing Survey No.6 paiki which is adjacent to Survey No.6 as well as Survey No.4 which belongs to the respondent No.3 as well as petitioners. The respondent Nos.3 and 6 are being represented by learned advocate Mr. Dharmesh V. Shah. 9. It is also pertinent to note at this stage that while issuing the notice on 9.10.2017, the coordinate Bench of this Court directed the Mamlatdar, Palitana to find out shortest alternative path and produce a map with his report showing the way suggested by him. Accordingly, Panchnama was prepared and an affidavit has been filed on behalf of the Mamlatdar, Palitana to the above effect along with the map. 10. Mr. Nirzar Desai, learned advocate appearing for the petitioners by taking me through the impugned orders has vehemently submitted that though the Deputy Collector has made certain observations in favour of the petitioners, has presumed that there was some road though there is no road on the revenue record and came to the conclusion that the same was being used by the petitioners as well as private respondents. He, therefore, would submit that the impugned order is required to be quashed and set aside. 11. By taking me through the reasons recorded by the Deputy Collector, he would submit that though there is alternative way available to the private respondents to enter their respective Survey Numbers, the Deputy Collector has committed grave error in allowing the revision application and directing the petitioners to remove the wife fencing as the wire fencing has been done in the land of the petitioners. He, therefore, would submit that the petition may be allowed. 12. He, therefore, would submit that the petition may be allowed. 12. On the other hand, Mr. Dharmesh V. Shah, learned advocate appearing for the respondent Nos.3 and 6 has opposed this petition and would submit that the predecessor-in-title of the private respondents were using the road which is passing through between Survey Nos.4 and 6 which belonged to the petitioners as well as private respondents respectively, which is connecting to the main road. He would further submit that apart from the observations made in the impugned order, even as per the Panchnama prepared by the Mamlatdar pursuant to the order passed by this Court, the map prepared by him amply makes it clear that there is a way through which Bullock Carts can be passed through between Survey Nos.4 and 6. He, therefore, would submit that the Deputy Collector has committed no error and hence, the present petition may be dismissed. 13. I have heard learned advocates appearing for the respective parties and perused several orders passed in the proceedings. I have also examined reasons given by the Deputy Collector in the impugned order. The Deputy Collector has dealt with the case in detail by giving not less than 14 reasons to allow the revision application of the respondent No.3 and that too after examining factual aspects of the matter. It appears that the Deputy Collector has examined several affidavits of ex-Sarpanch of the said village by which they have made it clear that there was a way between Survey Nos.4, 5 and 6 which was being used since number of years. The averments made in the affidavits by the Ex-Sarpanch clearly support the latest sketch prepared by the Mamlatdar, Palitana pursuant to the order passed by this Court that there is a road/way passing through the same which the petitioners and private respondents were using to enter their respective agricultural fields. 14. Considering the above aspects of the matter, I do not find any reason to interfere with the impugned order. Hence, the present petition fails and is accordingly dismissed. Notice is discharged. There shall be no order as to costs.