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2021 DIGILAW 1043 (GUJ)

Veljibhai Ambabhai Ramani v. Mamlatdar

2021-11-22

NIRZAR S.DESAI

body2021
ORDER : 1. Heard Mr. Vaibhav Sheth, learned advocate for the petitioner, Mr. Bharat Vyas, learned Assistant Government Pleader for the State respondents and Mr. Tushar Sheth, learned advocate for the private respondent Nos.3 to 12. 2. By way of this petition, the petitioner has prayed for the following main reliefs: “[B] This Hon’ble Court may kindly be pleased to issue a writ of mandamus or a writ of certiorari or a writ in the nature of mandamus or certiorari or an appropriate writ, order or direction thereby quashing and setting aside the impugned Panch Rojkam dated 12.07.2021 drawn by respondent No.2 – Circle Officer, Gondal Taluka in Mamlatdar Court Case No.4 of 2021 pursuant to application filed under Section 5 of the Mamlatdar Courts’ Act, 1906 by respondent Nos.3 to 12 without calling upon the petitioner in the interest of justice; [C] Pending admission, hearing and final disposal of the present petition, this Hon’ble Court may kindly be pleased to stay the further proceedings of Mamlatdar Court Case No.4/2021 pending before the Court of learned Mamlatdar, Gondal filed by respondent Nos.3 to 12 herein in the interest of justice; [D] Ad-interim relief in terms of Para 8(C) may kindly be granted;” 3 The limited controversy agitated by the petitioner in the petition is that in the Mamlatdar Court Case No.4/2021, the Mamlatdar carried out panchnama on 12.07.2021 and that action of the Mamlatdar is challenged by the petitioner by way of the present petition. The issue involved in the petition is very short, and therefore, by consent of learned advocates for the parties, the matter is taken up for hearing today. 4. Learned advocate Mr. Vaibhav Sheth draws attention of this Court that the Panch Rojkam in Mamlatdar Court Case No.4/2021 was carried out by the Mamlatdar, Gondal (Taluka) on 12.07.2021. According to learned advocate Mr. Sheth, the present petitioner, who has land at Gondal, but residing at Surat was never intimated about the date and time of the Panch Rojkam of the disputed land i.e. land situated at Survey No.82 of village Keshwala, District Gondal, District Rajkot. 4.1 It is the case of the petitioner that the Circle Officer, Gondal carried out panchnama on 12.07.2021 without intimating the petitioner and by stating that nephew of the petitioner i.e. Maheshbhai Vallabhbhai Ramani was present while carrying out Panch Rojkam. 4.1 It is the case of the petitioner that the Circle Officer, Gondal carried out panchnama on 12.07.2021 without intimating the petitioner and by stating that nephew of the petitioner i.e. Maheshbhai Vallabhbhai Ramani was present while carrying out Panch Rojkam. It is the case of the petitioner that agricultural lands of the family members are situated in the area and are adjoining to each other, and therefore, Maheshbhai Vallabhbhai Ramani whose name was mentioned in the Panch Rojkam was never intimated, but was called at the time of carrying panchnama. 4.2. Mr. Vaibhav Sheth, learned advocate for the petitioner pointed out that the petitioner, for the first time, was intimated about the proceedings being Mamlatdar Court Case No.4/2021 vide summons dated 15.07.2021 by Mamlatdar, Gondal (Taluka), wherein it is stated that the Mamlatdar, Gondal received application under Section 5 of the Mamlatdar Courts’ Act, 1906 from respondent Nos.3 to 12 on 13.07.2021 and hearing of the said application was scheduled on 29.07.2021 at 12:00 in the afternoon. Learned advocate Mr. Vaibhav Sheth submitted that when the Mamlatdar issued summons dated 25.07.2021, and the application under Section 5 of the Mamlatdar Courts’ Act was preferred on 13.07.2021, the Panch Rojkam ought not have been carried out prior thereto and in any case before carrying out any Panch Rojkam, the petitioner was required to be duly intimated as provided under the Act. He, therefore, submitted that the aforesaid Panch Rojkam carried out even prior to submission of application under Section 5 of Mamlatdar Courts Act is required to be quashed and set aside and the Mamlatdar, Gondal may be directed to carry out fresh Panch Rojkam in the proceedings of Mamlatdar Court Case No.4/2021. 5. Mr. Tushar Sheth, learned advocate for respondent Nos.3 to 12 submits that if the petitioner has any grievance about the manner in which the Panch Rojkam was carried out, the petitioner has alternative efficacious remedy as envisaged under Section 23 of the Mamlatdar Courts Act. He draws attention of this Court to the affidavit in reply filed on behalf of respondent Nos.3 to 12, wherein in para 3, a reference has been made by the private respondents about Section 23(2) of the Mamlatdar Courts Act. According to Mr. He draws attention of this Court to the affidavit in reply filed on behalf of respondent Nos.3 to 12, wherein in para 3, a reference has been made by the private respondents about Section 23(2) of the Mamlatdar Courts Act. According to Mr. Tushar Sheth, the present petition is not maintainable and if the petitioner has any grievance with regard to Panch Rojkam, he could have preferred application as provided under Section 23 of the Act before the competent authority. Learned advocate Mr. Tushar Sheth further submits that the present petition is not maintainable and is required to be dismissed. 6. Mr. Bharat Vyas, learned Assistant Government Pleader, does not dispute the aforesaid facts which are emerging from the record. Mr. Vyas further submitted that considering the facts emerging on record, it is true that the Panch Rojkam was drawn on 12.07.2021 by the Circle Officer, Gondal Taluka, whereas, the application preferred by respondent Nos.3 to 12 under Section 5 of the Mamlatdar Courts’ Act was filed on 31.07.2021. He, therefore, submitted that appropriate order in the matter be passed. 7. Having heard learned advocates for the parties, the undisputed fact emerging from the record is that the respondent Nos.3 to 12 preferred an application under Section 5 of the Act on 13.07.2021. The record produced by the petitioner indicates that the aforesaid application though bears date of 06.07.2021 the same was registered by the Mamlatdar, Gondal Taluka only on 13.07.2021 and Panch Rojkam was drawn even prior to the date on which application under Section 5 of the Act was preferred by respondent Nos.3 to 12 as Mamlatdar Court Case No.4/2021 and even without issuance of notice to the present petitioner, Panch Rojkam was drawn and in the Panch Rojkam, it is categorically stated that the present petitioner is residing at Surat and hence he was not present. Without any basis in the Panch Rojkam, it was stated that the said land is being cultivated by his nephew – Maheshbhai Vallabhbhai Ramani, who is present on the spot. However, said Maheshbhai Vallabhbhai Ramani never signed the aforesaid Panch Rojkam nor there is any say in the Panch Rojkam stating that he is authorized by the present petitioner to remain present at the time when the Panch Rojkam was drawn. However, said Maheshbhai Vallabhbhai Ramani never signed the aforesaid Panch Rojkam nor there is any say in the Panch Rojkam stating that he is authorized by the present petitioner to remain present at the time when the Panch Rojkam was drawn. Therefore, there cannot be any dispute about the fact that Panch Rojkam was drawn in absence of the petitioner and even without issuing any notice to the petitioner indicating the date and time for drawing the Panch Rojkam to be carried out by the Circle Inspector, Gondal. 7.1 As far as the contention of Mr. Tushar Sheth, learned counsel for the respondent Nos.3 to 12 about availability of alternative remedy to the petitioner is concerned, there cannot be any doubt about the provisions of Section 23 of the Act, which provides for remedy of revision before the Deputy Collector. One cannot lose sight of the fact that this petition was affirmed by the petitioner on 18.8.2021 and the notice was issued on 21.09.2021. Pursuant to the notice issued by this Court, the contesting respondents as also the State respondents have appeared in this petition. Now at this juncture when all the parties are appearing in the petition, if on the ground of alternative remedy the petitioner is relegated to avail the alternative remedy, it will not only prolong the litigation, but also may create multiplicity of proceedings. Hence, though the alternative remedy is provided under Section 23 of the Act, considering the peculiar facts and the issue involved in this petition is very short issue, this petition is being entertained. 7.2 The only grievance of the petitioner, which is agitated by way of this petition is about carrying out Panch Rojkam dated 12.07.2021 and considering the fact that co-ordinate Bench of this Court vide order dated 8.9.2021 directed that the proceedings in the form of Mamlatdar Court Case No.4/2021 may not be finalized till the next date of hearing and the aforesaid stay was extended from time to time, interest of justice would be served if the Mamlatdar, Gondal Taluka is directed to not to consider the Panch Rojkam carried out by Circle Officer, Gondal Taluka dated 12.07.2021 while deciding the Mamlatdar Court Case No.4/2021 pending before the Mamlatdar, Gondal Taluka. Accordingly, while deciding the proceedings pending before him, the Mamlatdar, Gondal Taluka shall not consider the aforesaid Panch Rojkam, dated 21.07.2021 as the same was carried out in absence of the petitioner and without putting the petitioner to notice. 7.3 At this stage, Mr. Vaibhav Sheth, learned advocate for the petitioner, draws attention of this Court to the application dated 5.8.2021 (Annexure-D to the petition) made by the present petitioner requesting the competent authority to carry out panchnama in the presence of both the litigating parties, and prayed to issue suitable directions to the Mamlatdar, Gondal Taluka in respect of the aforesaid application. 7.4 In view of the above peculiar facts of this case, the Mamlatdar, Gondal Taluka is directed to consider the application dated 5.8.2021 submitted by the petitioner and draw fresh Panch Rojkam for adjudication of Mamlatdar Court Case No.4/2021 pending before him. Therefore, the Mamlatdar is hereby directed to give notice in writing to the litigating parties through their advocates at least 48 years in advance and the intimation must specifically bear the date and time of carrying out Panch Rojkam and the panchnama shall be drawn in presence of the litigating parties. The Mamlatdar, Gondal Taluka is further directed to hear and decide the Mamlatdar Court Case No.4/2021 pending before him in accordance with law preferably within a period of six months from today. Both the learned advocates Ms. Vaibhav Sheth and Mr. Tushar Sheth assures that their counterparts appearing in the matter before the Mamlatdar, Gondal shall cooperate in the matter. 8. With the aforesaid directions, present petition is disposed of. However, there shall be no order as to costs. Notice discharged. It is made clear that this Court has not entered into the merit of the petition. Direct service is permitted.