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2022 DIGILAW 193 (GUJ)

Patel Vitthalbhai Trikambhai v. State of Gujarat

2022-02-02

NIRZAR S.DESAI

body2022
JUDGMENT : NIRZAR S. DESAI, J. 1. By way of the present petition, the petitioners have prayed for quashing and setting aside the order dated 28.07.2020 passed by the Deputy Collector, Rajpipla in Revision Application under the Mamlatdar’s Court Act being Mamlatdar Court Act No. Bhumi/Vashi/3014-3021 of 2020. 2. Heard learned advocate Mr. Jigar P. Raval for the petitioners, learned AGP Mr. Akash Chhaya for the respondents no. 1 and 2 and learned advocate Mr. J.F. Mehta for the respondent no. 4. 3. By consent of the all the parties, the matter was taken up for final hearing. 4. Hence, issue RULE. Learned AGP Mr. Akash Chhaya waives service of notice of rule for and on behalf of the respondents-State and learned advocate Mr. J.F. Mehta waives service of notice of rule for and on behalf of the respondent no. 4. 5. Learned advocate Mr. Jigar P. Raval for the petitioner states that the present petitioners are the original applicants who preferred an application under section 5 of the Mamlatdar’s Court Act before the Mamlatdar, Nandol and prayed that the present respondents have closed the road over which the petitioners have their right of way since, three months from the date on which application under section 5 of the Mamlatdar’s Court Act was preferred and prayed for opening of the aforesaid road. 6. The Mamlatdar, Nandol registered the aforesaid application as Mamlatdar Court Act Case No. 13 of 2019 and after hearing the parties, allowed the suit preferred by the petitioners and directed the respondent no. 4 herein to open the road over which the petitioners claimed their right of way. The respondent no. 4 challenged the aforesaid order dated 05.03.2020 passed by the Mamlatdar, Nandol in Mamlatdar Court Act Case No. 13 of 2019 by way of Mamlatdar Court Act Revision No. 3 of 2020 before the Deputy Collector, Rajpipla and ultimately, after hearing the parties, the Deputy Collector, Rajpipla vide order dated 28.07.2020 allowed the revision application preferred by the respondent no. 4 and quashed and set aside the order dated 05.03.2020 passed by the Mamlatdar, Nandol in Mamlatdars Court Act Case No. 13 of 2019. 7. It is submitted by the learned advocate Mr. Raval for the petitioners that the Deputy Collector, Rajpipla while passing the impugned order dated 28.07.2020 while allowing the revision application preferred by the respondent no. 4 and quashed and set aside the order dated 05.03.2020 passed by the Mamlatdar, Nandol in Mamlatdars Court Act Case No. 13 of 2019. 7. It is submitted by the learned advocate Mr. Raval for the petitioners that the Deputy Collector, Rajpipla while passing the impugned order dated 28.07.2020 while allowing the revision application preferred by the respondent no. 4 has verbatim reproduced the written submissions made by the present respondent no. 4 and thereafter, without considering the submission made by the present petitioners or without assigning any reasons straightway allowed the revision application preferred by the present petitioners and quashed and set aside the order dated 05.03.2020 passed by the Mamlatdar, Nandol in Mamlatdar Court Act Case No. 13 of 2019. 8. Learned advocate Mr. Jigar Raval for the petitioner has also drawn the attention of this Court to the order dated 01.02.2021 passed by the Coordinate Bench of this Court at the time of issuance of notice, which reads as under: “Heard learned advocate Mr. Jigar Raval for the petitioners through video conference. Learned advocate Mr. Raval submitted that the Deputy Collector while reversing the order passed by the Mamlatdar in exercise of powers under section 23(2) of the Mamlatdars' Courts Act, 1906, did not consider any submission made by the petitioners and passed the impugned order after verbatim reproducing the written arguments of respondent no. 4. It was pointed out that the Deputy Collector has ignored the panchnama relied upon by the Mamlatdar as well as statement of respondent no. 4 made before the Mamlatdar that he would open the gate put up by him locking the way of the petitioners. Considering the above submissions, issue notice qua respondent nos. 1 to 4 returnable on 1st March 2021.” 9. By relying upon the aforesaid order, learned advocate Mr. Jigar Raval submitted that considering the facts of the matter, the matter is required to be remanded back to the Deputy Collector, Rajpipla for deciding the revision application afresh without entering into the merits of the matter by this Court. The order passed by the Deputy Collector, Rajpipla is not backed by reasons and is merely reproduction of the arguments advanced by the applicant of the Revision Application No. 13 of 2019. 10. Learned advocate Mr. Jayesh Mehta for the respondent no. The order passed by the Deputy Collector, Rajpipla is not backed by reasons and is merely reproduction of the arguments advanced by the applicant of the Revision Application No. 13 of 2019. 10. Learned advocate Mr. Jayesh Mehta for the respondent no. 4 states that he has no objection if the matter is remanded back to the Deputy Collector, Rajpipla with a direction to decide the revision application within such time bound schedule, however, he states that rights and contentions of all the parties may be kept open and the Deputy Collector, Rajpipla may be directed to pass a reasoned order after incorporating the submissions that both the parties may advance in the remand proceedings. 11. Learned AGP Mr. Akash Chhaya for the respondent-State does not have any objection to the aforesaid proposition canvassed by the learned advocates for the respective parties. 12. In view of the aforesaid broad consensus arrived at between the parties, without entering into the merits of the matter, impugned order dated 28.07.2020 passed by the Deputy Collector, Rajpipla in Mamlatdar’s Court Act Revision Case No. 3 of 2020 is hereby quashed and set aside and the matter is remanded back to the Deputy Collector, Rajpipla for fresh adjudication with the following directions: 1. The Deputy Collector, Rajpipla is hereby directed to hear and decide the Mamlatdar Court Act Revision Application No. 3 of 2020 afresh after giving opportunity of hearing to the both the contesting parties and to decide within a period of four months from today latest by 31.05.2022. 2. The Deputy Collector is directed to record the submissions that the parties may advance before him and pass a reasoned order in respect of the Revision Application no. 3 of 2020. Rights and contentions of all the parties are kept open. 13. It is clarified that this Court has not gone into the merits of the matter. It is further clarified that the Deputy Collector, Rajpipla shall not be influenced by the fact that order dated 28.07.2020 is quashed by this Court as the aforesaid order is quashed on account of consensus arrived at between the parties and the Deputy Collector, Rajpipla shall hear and decide the Revision Application no. 3 of 2020 on the basis of material available before him on record on its own merits. 14. 3 of 2020 on the basis of material available before him on record on its own merits. 14. Parties are directed to cooperate in respect of the hearing, by not asking unnecessary adjournment and to ensure that hearing will be over by 15.05.2022 so as to enable the Deputy Collector to pass appropriate order before the 31.05.2022. 15. In view of the aforesaid directions, the present petition is allowed. Rule is made absolute. No order as to cost. Direct service is permitted.