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2021 DIGILAW 1165 (GUJ)

THAKARDA HIRABEN BADARJI v. STATE OF GUJARAT

2021-12-09

NIRZAR S.DESAI

body2021
ORDER : 1. By way of this petition, the petitioner has prayed for following reliefs: “a. Your Lordships be pleased to admit this petition. b. Your Lordships be pleased to issue writ of certiorari or any other appropriate writ, orders, directions holding that the order passed in Mamlatdar Court Case No.20/2020 Dt.08-04- 2021 by Mamlatdar, Himmatngar and confirmed by the Deputy Collector, Himmatnagar in Mamlatdar Court Revision No.5 of 2021 by order Dt.07-07-2021 are bad in law and those be quashed and set aside and it be declared that the private respondents have no right of way as claimed in the suit. b - 1. Your Lordships be pleased to hold that the forceful execution of the order by the respondents on 18/11/2021 is ultra virus and bad in law. Your Lordships be further pleased to pass appropriate orders to restore the situation before such execution. c.Your Lordships be pleased stay the execution and implementation of the judgment and order passed in the Mamlatdar Court Case No.20/2020 Dt.08-04-2021 by Mamlatdar, Himmatnagar and confirmed by the Deputy Collector, Himmatnagar in Mamlatdar Court Revision No.5 of 2021 by order Dt. 07-07-2021 pending admission, hearing and final disposal of this petition. c-1. Your Lordships be further pleased to direct that the respondents be restrained from using the land of the petitioners being survey No.502 for passage or is of way pending admission, hearing and final disposal of this petition. d. Your Lordships be pleased to grant any other relief/s as may be deemed fit in the facts and circumstances of the case.” 2. It is the case of the petitioner that the Respondent Nos.4 to 20 had filed the case under Section 5 of the Mamlatdar Courts Act, 1906 (‘the Mamlatdar Court Act’, for short) being Mamlatdar Court Act / Case No.20 of 2020. In the aforesaid application, the present respondents claimed that the land of the present respondents is situated at Survey No.514, 516, 566, 561, 584, 585, 586, 587, 590, 513, 595, 511, 565, 589, 592, 593, 594, 596, 597 and 598 of Mouje Jambudi, Tal.Himmatnagar and Survey No.502 belongs to the present petitioner – original respondents. In the aforesaid application, the present respondents claimed that the land of the present respondents is situated at Survey No.514, 516, 566, 561, 584, 585, 586, 587, 590, 513, 595, 511, 565, 589, 592, 593, 594, 596, 597 and 598 of Mouje Jambudi, Tal.Himmatnagar and Survey No.502 belongs to the present petitioner – original respondents. They were using the road passing through land bearing Survey No.502 which belongs to the present petitioners since many years and the petitioners – original respondents before the Mamlatdar, Himmatnagar all of sudden stopped the aforesaid road and denied access of the said road by creating big obstacle on the road and the petitioners, therefore, prayed for opening of the said road. 2.1 Pursuant to the aforesaid application, notice was issued to the present petitioners and the present petitioners – original respondents, in that proceedings also preferred reply. The panchnama was also drawn on 08.01.2021. Ultimately, after the bids were over, the Mamlatdar & ALT, Himmatnagar, after taking into consideration the material available on record as well as by considering the photographs of the land, maps and satellite maps also, came to the conclusion that the road passing through the land bearing Survey No.502 which belongs to the present petitioner was in existence. However, aforesaid road was blocked by the present petitioners by digging it up and by using JCB machine and thereby denied access of the aforesaid road to the present respondent and ultimately allowed the application filed by private respondent nos.4 to 20 being Mamlatdar Court Case No.20 of 2020 by issuing direction to the present petitioner to open the road. 2.2 The aforesaid order was passed on 08.04.2021 which was subsequently challenged by the present petitioners by preferring Appeal under Section 23(2) of the Mamlatdar Court Act Case No.5 of 2021 before the Deputy Collector, Himmatnagar. 2.3 The Additional Collector, Himmatnagar Division, Himmatnagar, vide order dated 07.07.2021 rejected the Revision Application preferred by the present petitioners and confirmed the order dated 08.04.2021 passed by the learned Mamlatdar & ALT, Himmatnagar in Mamlatdar Court Case No.20 of 2020. 3. 2.3 The Additional Collector, Himmatnagar Division, Himmatnagar, vide order dated 07.07.2021 rejected the Revision Application preferred by the present petitioners and confirmed the order dated 08.04.2021 passed by the learned Mamlatdar & ALT, Himmatnagar in Mamlatdar Court Case No.20 of 2020. 3. By way of this petition, the petitioners have challenged both these order i.e. the order dated dated 08.04.2021 passed by the learned Mamlatdar & ALT, Himmatnagar in Mamlatdar Court Case No.20 of 2020 and the order dated 07.07.2021 rejecting the revision preferred by the present petitioners in Mamlatdar Court Act Case No.5 of 2021 before the Deputy Collector, Himmatnagar. 4. Heard learned advocate Mr.Kirtidev R. Dave for the petitioners. 4.1 The matter was heard from time to time and learned advocate Mr.Dave for the petitioners had produced records and proceedings before the Mamlatdar Court Act Case No.20 of 2020 on record by amending the petition. 4.2 Today learned advocate Mr.Dave has shown a map produced by him, which is at page:29, and another map at page:30 and submitted by showing those mapes that as per the maps there is no road. The present respondents were using one Naliya, which is on the extreme eastern side of the field of the petitioners and the main road passes through southern side of the road of field of the present petitioners. The field of the respondents are on the northern side of the field of the petitioner and, therefore, only with a view to see that they may not require to use a long road they found short-cut by claiming the road from passing through the road of the petitioners. He further submitted that the photographs produced before the Mamlatdar & ALT, Himmatngar, which is also one of the base on which Mamlatdar & ALT had come to the conclusion that the road was in existence and which was blocked by the present petitioners by digging it up, cannot be believed. 4.3 Learned advocate Mr.Dave submitted that the Mamlatdar & ALT has without taking into consideration any other material straightway has come to the conclusion that the road was in existence and the same was blocked by the present petitioners and allowed the application preferred by the Respondent Nos. 4.3 Learned advocate Mr.Dave submitted that the Mamlatdar & ALT has without taking into consideration any other material straightway has come to the conclusion that the road was in existence and the same was blocked by the present petitioners and allowed the application preferred by the Respondent Nos. 4 to 20 before him and, therefore, according to Mr.Dave the Mamlatdar & ALT has failed to adhere to the procedures prescribed under the Law and, therefore, impugned order is bad and action of the Deputy Collector confirming the aforesaid order of the Mamlatdar & ALT is also bad and, therefore, both the orders deserve to be quashed and set aside. 5. Considering the averments made by learned advocate Mr.Dave and considering record available on record, which are produced by learned advocate Mr.Dave for the petitioners, it can be seen that a map used by the petitioner was duly considered by the Mamlatdar. In fact, even as per the map there is Naliya on the eastern side of the field of the petitioners and there is road on the southern side of the field of the petitioners. In the map, there is strip that can be considered as road but though the same is not shown as road, however, it is stated that actual area of land and the area which the petitioner possesses does not match. That area is long strip passing through northern to southern side and the same seems to have been considered to be a road. However, learned Mamlatdar has relied on panch Rojkam carried out on 08.01.2021 and on the basis of aforesaid panch Rojkam the learned Mamlatdar has specifically come to the conclusion that road was in existence and the petitioners have tried to block the road by creating obstacles and by digging up the road. However, according to the petitioners, the panchnama Rojkam was carried on 08.01.2021 i.e. after about 3 months from the date on which application was filed by the present respondents. 5.1 The Mamlatdar & ALT has also taken into consideration that there is ‘pot kharaba’ land and a particular strip of land is area marked as ‘pot kharaba’ land is the area of 0 – 07 – 08 hec.are. Sq mtr which is as per the village Form No.1. 5.1 The Mamlatdar & ALT has also taken into consideration that there is ‘pot kharaba’ land and a particular strip of land is area marked as ‘pot kharaba’ land is the area of 0 – 07 – 08 hec.are. Sq mtr which is as per the village Form No.1. The Mamlatdar & ALT has specifically observed that Survey No.502 consists of Old Survey No.175, 199 and 200 and the aforesaid three survey numbers form Block No.445 and one survey No.502 which also clearly indicates that the ‘pot kharaba’ land was used as road, even though which is part of Survey No.502. 5.2 In the Revision Application before the Deputy Collector the only contention raised by the petitioner was that except photographs no other photographs were produced by the present respondents and the present respondents were using that Naliya to have ingress and egress of their field. It was also contended before the Deputy Collector that the rest of the evidence produced before the Mamlatdar & ALT have not been even believed by the Mamlatdar & ALT. However, nothing was produced either before the Mamlatdar & ALT or before the Deputy Collector by the present petitioners to show or to prove that road was never in existence or that the present respondent nos. 4 to 20 were using another road. What was canvassed by the present petitioners before the authorities below was that the respondents were using Naliya for commuting. 5.3 Therefore, after considering the materials on record, the Deputy Collector dismissed the Revision Application preferred by the present petitioners. 5.4 It is noteworthy that at no point of time photographs or panch Rojkam produced before the Mamlatdar & ALT were disputed by the present petitioners by showing any procedural laps or by showing that the photographs give entirely different picture and, therefore they could not have been believed by the Mamlatdar. In fact when specific query was put to learned advocate Mr.Dave about the fact whether he has challenged the genuineness of the photographs or not, to which Mr.Dave candidly submitted that even though he does not challenge genuineness of the photographs, according to him, those photographs could not have been relied upon by the Mamlatdar & ALT. 6. Considering aforesaid fact and also considering the fact that as per the panch Rojkam dated 08.01.2021 is concerned, the aforesaid panch Rojkam was never objected nor challenged by the present petitioner. 6. Considering aforesaid fact and also considering the fact that as per the panch Rojkam dated 08.01.2021 is concerned, the aforesaid panch Rojkam was never objected nor challenged by the present petitioner. The Mamlatdar & ALT has, in his order dated 08.04.2021, rightly stated about the contents of the panch Rojkam which is main basis as it can be seen from the order that on the basis of same ultimately Mamlatdar came to the conclusion that there was road in existence which is blocked by the petitioners. Furthermore, Mamlatdar & ALT has also considered the fact that there was ‘kharaba’ land which is also part of Survey No.502 which belongs to the present petitioners. The Mamlatdar & ALT has also in panch Rojkam categorically observed that it can clearly be seen that petitioners have obstructed road by constructing Pala. These are findings and as the manner in which panch Rojkam was carried out is not disputed by the petitioners, this Court does not find any reason to disbelieve aforesaid facts which are also believed by the Deputy Collector. 6.1 As far as the map is concerned even as per the map one can see strip and observe that as per map strip is difference between the actual possession of the petitioner and actual boundary of the petitioners. However, it can be seen that strip clearly indicates that there is road as can be seen from the satellite images which is also produced on record in this petition by the present petitioners which makes it clear that road was in existence and the Mamlatdar & ALT and the Deputy Collector both have rightly considered the existence of the road. Considering the evidence also to the effect that petitioner has obstructed aforesaid road and, therefore, this Court deems it appropriate not to interfere with the findings recorded by both the authorities i.e. Mamlatdar & ALT and the Deputy Collector and, therefore, present petition deserves to be dismissed and the same is dismissed summarily. 7. At this stage, Mr.Dave submits that petitioners may prefer civil suit and, therefore, it may be clarified and observed that dismissal of this petition may not come in the way if the petitioners prefer suit before the civil court. 7. At this stage, Mr.Dave submits that petitioners may prefer civil suit and, therefore, it may be clarified and observed that dismissal of this petition may not come in the way if the petitioners prefer suit before the civil court. 7.1 In view of request made above by Mr.Dave, it is clarified that the findings and observations made by this Court are based upon the orders of the Mamaltdar & ALT and the Deputy Collector and the same are tentative in nature and, therefore, if petitioners prefer any civil suit before the Civil Court, the Civil Court decide the suit independently without being influenced by the observations made by this Court in this order.