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2021 DIGILAW 1168 (GUJ)

BAGHUBEN GORDHANBHAI JAMOD v. DEPUTY COLLECTOR

2021-12-09

NIRZAR S.DESAI

body2021
JUDGMENT : 1. Rule. Learned advocate Mr. Pravin Gondaliya and learned Assistant Government Pleader Mr. Bharat Vyas waive service of notice of rule on behalf of respective respondents. 2. Heard Mr. Apurva Kapadia, learned advocate for the petitioner, Mr. Pravin Gondaliya, learned advocate for respondent No.5 and learned Assistant Government Pleader Mr. Bharat Vyas for respondent Nos.1, 2 & 4. Though rest of the respondents are served, they have chosen not to appear. 3. Considering the short issue involved in the petition, by consent of learned advocates for the parties, this petition is taken up for final hearing. 4. By way of the present petition, the petitioner has prayed for the following main reliefs: “[B] Your Lordships may be pleased to quash and set aside the order dated 27.11.2020 passed by the respondent – Deputy Collector Revision Application No.M-Court Revision/BTD/2/2020. [C] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay implementation, operation and execution of the order dated 27.11.2020 passed by the respondent – Deputy Collector in Revision Application No.M-Court Revision/BTD/2/2020.” 5. The brief history giving rise to filing of the present petition are as under: 5.1 That in the year 2002 the petitioner purchased the land being revenue Survey No.189/2/1/1 admeasuring 8094 square meters and according to the petitioner he is cultivating the said land. The land of respondent No.5 is just adjacent to the land of the petitioner. It is the case of the petitioner that at the time of purchasing the land the approach road of the petitioner was passing through the field of respondent No.5. The petitioner after purchasing the land continued to use that road passing through field of respondent No.5. However, in February, 2015 as the respondent No.5 stopped the petitioner from using the aforesaid approach road, the petitioner preferred an application under Section 5 of the Mamlatdar Courts Act being Mamlatdar Court Act Case No.5 of 2015. The Mamlatdar carried out panchnama of the said land on 16.10.2015 and came to the conclusion that the respondent No.5 had put up fencing and thereby obstructing the way through which the petitioner could approach to his fields. Vide order dated 11.3.2016 Mamlatdar, Botad allowed the Mamlatdar Court Act Case No.5 of 2015 and restrained the respondent No.5 from creating any hindrance from using the road. Vide order dated 11.3.2016 Mamlatdar, Botad allowed the Mamlatdar Court Act Case No.5 of 2015 and restrained the respondent No.5 from creating any hindrance from using the road. 5.2 The respondent No.5 preferred Revision application as provided under Section 23(2) of the Mamlatdar Courts Act being Revision Application No.1/2016-17 before the Deputy Collector and vide order dated 30.3.2017 the Deputy Collector allowed the revision application filed by the respondent No.5. 5.3 The petitioner challenged the aforesaid order dated 30.3.2017 passed by the Deputy Collector, Botad before this Court by filing Special Civil Application No.15336 of 2017. Vide order dated 8.8.2018 this Court allowed the petition by quashing and setting aside the order of the Deputy Collector, Botad dated 20.3.2017 and remanded the matter to the Mamlatdar for fresh consideration. 5.4 After the remand, the Mamlatdar, Botad registered the aforesaid case as Remand Mamlatdar Court Case No.8 of 2015 and once again held in favour of the petitioner by allowing the suit preferred by the petitioner and directed the respondent No.5 to open the road for petitioner for ingress and egress without causing any hindrance. The aforesaid order was once again challenged by respondent No.5 by preferring revision application being Revision Application No.2/2020. Vide order dated 29.11.2020 the Deputy Collector, Botad allowed the revision application preferred by the respondent No.5 and quashed and set aside the order passed by the Mamlatdar, Botad (Rural) in Remand Mamlatdar Court Case No.8/2015. The said order is under challenge by way of the present petition. 6. Learned advocate Mr. Apurva Kapadia, submitted that a specific direction was given by a co-ordinate Bench of this Court vide order dated 3.8.2018 passed in Special Civil Application No.15336 of 2017. In paras 4 and 5 of the order dated 3.8.2018, the Court had made the following observations. “4. 6. Learned advocate Mr. Apurva Kapadia, submitted that a specific direction was given by a co-ordinate Bench of this Court vide order dated 3.8.2018 passed in Special Civil Application No.15336 of 2017. In paras 4 and 5 of the order dated 3.8.2018, the Court had made the following observations. “4. In Court’s opinion, the findings and conclusion drawn by the Deputy Collector would require to remand the matter for fresh consideration of the learned Mamlatdar and, therefore, upon finding recorded by the Deputy Collector to the extent without extending opportunity to the parties concerned, impugned order dated 30.03.2017 passed by the learned Deputy Collector in Revision Case No.1/2016-17 is required to be quashed and set aside and is hereby quashed and set aside with a direction to the learned Mamlatdar to re-hear said Mamlatdar Court Case Regi.No.8 of 2015 and pass appropriate order after permitting both the parties to lead evidence and also after drawing panchnama of the disputed way in the presence of both the parties and decide the matter afresh uninfluenced by the observations recorded in the order passed by the Deputy Collector and also present order. The learned Mamlatdar is further directed to consider the case afresh and decide the same in accordance with the provisions contained in Mamlatdar Courts Act and as per the evidence already on record and further evidence that may be adduced by the parties to the suit. 5. With the above observation and direction, present petition stands disposed of. Direct service is permitted.” 6.1 Learned advocate Mr. Kapadia submitted that the Mamlatdar conducted the proceedings of Remand Case No.8/2015 and allowed the application in favour of the petitioner and the Deputy Collector, Botad vide order dated 29.11.2020 allowed the application preferred by the respondent No.5. Learned Advocate Mr. Kapadia submitted that the observations made by the Deputy Collector, Botad while allowing the Revision Application No.2 of 2020 preferred by respondent No.5 are verbatim same, as compared to the observations made by the Deputy Collector, Botad in earlier round of litigation while passing order dated 30.3.2017 in Revision Application No.1/2016-17. Learned advocate Mr. Kapadia thereafter has drawn attention of this Court to the order dated 3.3.2021 passed by this Court at the time of issuance of notice, which is reproduced as under: “Heard Ms. Apurva R. Kapadia, learned advocate for the petitioner and Ms. Jyoti Bhatt, learned AGP for the respondent-State. Mr. Learned advocate Mr. Kapadia thereafter has drawn attention of this Court to the order dated 3.3.2021 passed by this Court at the time of issuance of notice, which is reproduced as under: “Heard Ms. Apurva R. Kapadia, learned advocate for the petitioner and Ms. Jyoti Bhatt, learned AGP for the respondent-State. Mr. Apurva R. Kapadia, learned advocate for the petitioner draws attention of the Court to the order dated 30/03/2017 passed in Revision Case No.1 of 2017 by the Deputy Collector, Botad and submits that the observations made in para nos.4.2 to 4.4 of the aforesaid order are verbatim reproduced in the next round of litigation after remand. He draws attention of this Court to the observations made in para nos.5.2 to 5.4 in the order dated 27/11/2011 passed by the Deputy Collector, Botad in Revision Application No.2 of 2020 and submits that by making verbatim observations for the purpose of the remanding the matter back is frustrated. This Court also on perusal of both the orders prima facie is of the opinion that the observations made in both the orders prior to remand and after remand are identical. Hence, issue Notice to the respondents returnable on 05/04/2021. In the meantime, there shall be ad interim relief in terms of para- 8(C). Direct service is permitted.” 6.2 On the basis of the aforesaid submissions, learned advocate Mr. Kapadia prayed for quashing and setting aside the order dated 27.11.2020 passed by the Deputy Collector, Botad in Revision Application No.2 of 2020. 7. Learned advocate Mr. Pravin Gondaliya for respondent No.5 could not dispute the aforesaid aspect that the order passed by the Deputy Collector, Botad in earlier round of litigation as well as the second round of litigation are verbatim same even on comparing both the orders. Even Mr. Bharat Vyas, learned Assistant Government Pleader, could not dispute the aforesaid facts. 8. Learned advocate Mr. Pravin Gondaliya for respondent No.5 could not dispute the aforesaid aspect that the order passed by the Deputy Collector, Botad in earlier round of litigation as well as the second round of litigation are verbatim same even on comparing both the orders. Even Mr. Bharat Vyas, learned Assistant Government Pleader, could not dispute the aforesaid facts. 8. In view of the above and considering the fact that the order passed by the Mamlatdar, Botad (Rural) in Remand Case No.8/2015 and order dated 27.11.2020 in Revision Application No.2 of 2020, are verbatim identical and prima facie it appears that the Deputy Collector, Botad has not decided the aforesaid applications independently by applying his mind to the facts and evidence produced on record by the parties, without entering into the merit of the petition, the matter is required to be remitted to the Deputy Collector for taking decision afresh by quashing and setting order dated 27.11.2020 passed in Revision Application No.2 of 2020 by Deputy Collector, Botad. 8.1 Accordingly, the Deputy Collector, Botad is directed to hear and decide the revision application preferred by the respondent No.5 afresh, on its own merits and in accordance with law without being influenced by the observation made by this Court and the material placed on record by the respective parties. The entire exercise shall be completed latest by 31.3.2022. 9. With the aforesaid observations and directions, the present petition is allowed. Rule is made absolute to the aforesaid extent only. It is made clear that this Court has not gone into the merits of the matter. Direct service is permitted.