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2023 DIGILAW 321 (GUJ)

Nagarbhai Bhikhabhai Kedva v. Deputy Collector, Banaskantha

2023-02-15

A.S.SUPEHIA

body2023
JUDGMENT : 1. RULE. Learned advocates appearing on behalf of the respective respondents waive service of notice of Rule. Since a short issue is involved in the writ petition, the same is finally heard and decided today. 2. In the present writ petition, the petitioners have assailed the order dated 25.05.2022 passed by the Deputy Collector, Palanpur, District Banaskantha in Revision Case No.6 of 2022 and a further prayer is sought to restore the order dated 21.02.2022 passed by the Mamlatdar, Palanpur in Mamlatdar Case No.1 of 2022 (Old Case No.4 of 2021). 3. The brief facts leading to filing of the present petition are as under : - 3.1 It is the case of the petitioners that they are the owners and occupiers of the land bearing Survey Nos.757 and 765 situated at Village Sejalpura, Taluka Palanpur, Dist. Banaskantha, whereas the respondent Nos.3 to 5 jointly own Survey Nos.762, 763 and 723 and the respondent Nos.6 and 7 jointly own the land bearing Block Nos.764, 759 and 760. 3.2 In the month of June, 2021, the respondent Nos.3 to 7 have instituted a suit being Case No.1 of 2022 (Old Case No.4 of 2021) against the petitioners under Section 5(2) of the Mamlatdars’ Courts Act, 1906 (for short, “the Act”), seeking removal of obstruction between Survey Nos.757 and 765. It was alleged that the petitioners have created obstruction on the road passing through the land between Survey Nos.757 and 765, leading to survey numbers owned by the respondent nos.3 to 7 and hence, it was alleged that the private respondents were unable to access their respective lands. 3.3 A panchnama was carried out on 22.06.2021, as directed by the Mamlatdar Court. It is pertinent to note that after the panchnama was carried out, a notice was issued to the petitioners, pursuant to which the petitioners filed their reply before the Mamlatdar Court. After the proceedings were undertaken by the Mamlatdar, vide order dated 21.02.2022 passed in Mamlatdar Case No.1 of 2022, the suit preferred by the private respondent Nos.3 to 7 was rejected by holding that no cause of action has arisen and there also exists an alternative permanent way to access their lands. 3.4 Being aggrieved, the respondent Nos.3 to 7 challenged the aforesaid order by preferring Revision Application No.6 of 2022 before the respondent No.1 i.e. the Deputy Collector, Banaskantha. 3.4 Being aggrieved, the respondent Nos.3 to 7 challenged the aforesaid order by preferring Revision Application No.6 of 2022 before the respondent No.1 i.e. the Deputy Collector, Banaskantha. After hearing the respective parties, by the impugned order dated 25.05.2022, the Deputy Collector allowed the revision application preferred by the respondent Nos.3 to 7, which is subject matter of challenge in the present writ petition. SUBMISSIONS: 4. At the outset, learned advocate Mr.Kharadi, appearing for the petitioners has submitted that the only option available to the Deputy Collector was to remand the matter to the Mamlatdar Court since it was recorded that the relevant documents and the panchnama in question were not at all examined by the Mamlatdar. It is submitted that in case the matter was remanded to the Mamlatdar Court, the documents, on which the Deputy Collector has placed reliance, could have been examined by the Mamlatdar Court by leading evidence. It is submitted that instead of remanding the matter, the impugned order passed by the Deputy Collector undertaking the exercise of examining all the documents including the maps of the concerned survey number, is impermissible as per the Act, hence the order passed by the Deputy Collector was required to be quashed and set aside. 5. Learned advocate Mr.Kharadi has further contended that as per the provisions of Section 19(2) of the Act, the Mamlatdar is the only authority who can undertake the necessary exercise of re-examining the entire issue by preparing a fresh panchnama, in case the Deputy Collector has found it to be defective in nature. Thus, it is urged that the matter may be remanded. 6. In response to the aforesaid submissions, learned advocate Mr.Majmudar, appearing for the private respondents has submitted that the impugned order does not require any interference as the same is appropriately passed after considering the relevant documents such as revenue records, maps and the order passed in the consolidation proceedings. He has further submitted that the Deputy Collector has also placed reliance on the measurement report carried by the District Inspector of land records and even if the panchnama is found to be defective, the Deputy Collector can always examining the entire issue with regard to any right of way by placing reliance on such documents. He has further submitted that the Deputy Collector has also placed reliance on the measurement report carried by the District Inspector of land records and even if the panchnama is found to be defective, the Deputy Collector can always examining the entire issue with regard to any right of way by placing reliance on such documents. It is submitted that in fact, the private respondents had assailed the order passed by the Mamlatdar Court since it did not contain any reason and the relevant documents were neither called for nor examined and the order has been cursorily passed by the Mamlatdar Court. 7. Learned advocate Mr.Majmudar, while placing reliance on the provisions of sub-section (2) of Section 19 of the Act, has submitted that it is not mandatory for the Mamlatdar Court to undertake necessary exercise and also to prepare a panchnama or personally inspect the property in question and the Deputy Collector can always exercise his powers on the documents, which have been placed reliance by the respondent Nos.3 to 7 in the revision application filed by them against the order passed by the Mamlatdar Court. Finally, learned advocate Mr.Majmudar, while placing reliance on the judgment in the case of Kiritsinh Dharamvirsinh Vs. Kalubhai Shardulbhai, 2006 (3) GLR 2031 , has submitted that since a suit is already preferred by the family members of one of the private respondents and the civil proceedings are pending, the impugned order may not be set aside. CONCLUSION: 8. The fact, which is established from the pleading is that the Mamlatdar Court by the order dated 21.02.2022 rejected the suit filed by the respondent Nos.3 to 7, wherein and whereby the respondent Nos.3 to 7 were claiming their right of way from the land existing between Survey Nos.757 and 765 and also by holding that no cause of action has arisen. It is not in dispute that even prior to issuance of the notice to the petitioners, a panchnama was carried out on 02.06.2021 for the land in question i.e. Survey Nos.757 and 765. Thus, the very first mistake which was committed by the Mamlatdar Court is to order for undertaking panchanma before issuing notice or taking cognizance of the plaint. 9. I have perused the aforesaid panchnama also. Thus, the very first mistake which was committed by the Mamlatdar Court is to order for undertaking panchanma before issuing notice or taking cognizance of the plaint. 9. I have perused the aforesaid panchnama also. A bare perusal of the same reveals that the same is not appropriately undertaken, as it is does not bear the signature of the Mamlatdar. This was the second error committed by the Mamlatadar Court. 10. I have also perused the order passed by the Mamlatdar dated 21.02.2022. A bare perusal of the aforesaid order reveals that it is bereft of material particulars and even the panchnama is not appropriately considered. There are no findings given by the Mamlatdar in the order dealing with the contention raised by the petitioners or the respondents hence, being aggrieved, the private respondent Nos.3 to 7 filed a revision application before the Deputy Collector being Revision Case No.6 of 2022. The Deputy Collector by a comprehensive order, after examining the documents produced therein including the measurement sheet of the DILR as well as the revenue records has set aside the order passed by the Mamlatdar Court. It is pertinent to note that the Deputy Collector in his order has specifically recorded that there is no mention of the panchnama which was undertaken by the Mamlatdar Court. After making such observation and recording definite findings on the documents produced by the private respondents, the revision application has been allowed. In the considered opinion of this Court, if the higher authority or the Deputy Collector has found the procedure adopted by the Mamlatdar Court being defective in nature and de hors the statute, the appropriate approach which is required to be adopted by the Deputy Collector is to remand the matter to the Mamlatdar, so that the facts of the panchnama and the documents, on which the reliance is placed by the Deputy Collector, while allowing the revision application could have been examined by the Mamlatdar Court by leading evidence. 11. At this stage, it would be apposite to refer to the provisions of Sections 19 (2) and (3) of the Act, the same are incorporated as under : - “19. 11. At this stage, it would be apposite to refer to the provisions of Sections 19 (2) and (3) of the Act, the same are incorporated as under : - “19. (2) The Mamlatdar may, after due notice to and in the presence of, the parties, summon and examine as a witness any person who has not been summoned or produced, and may call for and cause to be proved any document which has not been applied for or produced, by either of the parties, where he considers it expedient in the interests of justice so to do, and may, if he thinks fit, make a personal inspection of the property in dispute in the presence of, or after due notice to, the parties. He shall without unnecessary delay record a memorandum after hearing the parties on the spot if present, of any relevant facts observed at such inspection. The memorandum shall form part of the record of the case. (3) The Mamlatdar shall with his own hand make or sign a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds, and briefly record his reasons for his finding.” 12. The explicit reading of the provisions of sub-section (2) of Section 19 of the Act, clarifies that the Statute castes a duty on the Mamlatdar to examine witness and inspect the property in dispute. It is specifically stipulated that the Mamlatdar, after due notice to the parties and in presence of such parties summon and examine any person as a witness in person and after making personal inspection of the property in dispute in presence of the parties, who are issued such notice, shall without unnecessary delay record a memorandum after hearing the parties “on the spot”, It is further provided that such memorandum shall form part of the record of the case. 13. Sub-section (3) of Section 19 of the Act also mandates that the Mamlatdar “shall” with his own hand make or sign a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds, and briefly record his reasons for his finding. 14. 13. Sub-section (3) of Section 19 of the Act also mandates that the Mamlatdar “shall” with his own hand make or sign a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds, and briefly record his reasons for his finding. 14. Thus, in the present case, it was mandatory and a statutory obligation on the part of the Mamlatdar to undertake a necessary spot inspection of the property in dispute and after such a memorandum is prepared after hearing the parties on the spot, he was required with his own hand writing to make such memorandum or sign a memorandum of the substance of the evidence of each witness. The submission advanced by the private respondents with regard to the aforesaid procedure as prescribed under the statute being not mandatory does not merit acceptance. The second part of the Section 19(2) uses the expression “He shall without …., and sub-section(3) to Section 19 also uses the expression “The Mamlatdar shall….” .The said provisions are required to be read in harmony with the main section 19(1), and not in isolation. Thus, it is mandatory and not discretionary for the Mamlatdar to follow the procedure as directed in the aforementioned provision. 15. Indubitably in the present case, the Mamlatdar has failed to exercise its powers as mentioned as prescribed by the Statute. Since, the Deputy Collector found the procedure adopted by the Mamlatdar Court being defective and de hors the statute, he was obligated to remand the matter to the Mamlatdar to undertake the necessary exercise as prescribed in the Statute, since the Statute does not in any manner empowers the Deputy Collector to carry out the exercise under the provisions of Section 19(2)(3) of the Act. Thus, the only option, which was left to the Deputy Collector, was to remand the matter to the Mamlatdar Court for undertaking fresh exercise of carrying out the spot inspection of the property and preparing the necessary panchnama. After collecting the evidence and after hearing the necessary parties, the Mamlatdar is required to pass a reasoned order by dealing with the evidence and the contents of the panchnama. After collecting the evidence and after hearing the necessary parties, the Mamlatdar is required to pass a reasoned order by dealing with the evidence and the contents of the panchnama. In absence of such exercise undertaken by the Mamlatdar, the Deputy Collector, merely because on the documentary evidence which was in the form of revenue records as well as the report of the District Inspector of land records could not have decided the lis between the parties. The most important aspect in deciding the dispute is the ‘spot inspection’ and the carrying out the necessary panchnama which can reveal the actual right of pathway from the land in question. The procedure prescribed in Section 19 of the Act cannot be bypassed or ignored by taking shelter under other documents like the DILR report or the revenue record. The veracity of such documents can only be examined by the spot visit of the land in question and preparing the necessary panchanama, since there is a possibility that the documents of the land in question may not reveal the actual ground reality, hence the Legislature in its wisdom has provided the procedure in section 19 of the Act so that the actual scenario of the rival claims can be ascertained. 16. Under the circumstances since the initiation of the proceedings, the manner in which the an unreasoned order has been passed by the Mamlatar Court coupled with the fact, that there is breach of the statutory provisions, more particularly provisions of Section 19(2)(3) of the Act, the Deputy Collector was required to remand the matter back to the Mamaltdar Court. 17. Reliance placed by the learned advocate Mr.Majmudar, in the case of Kiritsinh Dharamvirsinh (supra), cannot rescue in wake of the statutory breach, which is committed by the Mamlatdar as well as the Deputy Collector in exercising of their powers. Merely because a civil suit is pending, which is filed by some family members of the respondents, who are not the parties to the proceedings either before the Mamlatdar or the before Deputy Collector, such pendency of the suit by some other person cannot absolve or dilute the proceedings under the Mamlatdars’ Courts Act, 1906. 18. In view of above factual background of the case, the writ petition succeeds. The impugned order passed by the Deputy Collector is hereby quashed and set aside. 18. In view of above factual background of the case, the writ petition succeeds. The impugned order passed by the Deputy Collector is hereby quashed and set aside. The matter is remanded to the Mamlatdar Court to undertake fresh proceedings. The entire proceedings shall be initiated and completed by strictly following the provisions of the Act within a period of three months from the date of receipt of writ of order of this Court. 19. At this stage, learned advocate Mr.Majmudar, requests for stay of this order. The same is refused in view of the preceding observations made by this Court. 20. Rule is made absolute to the aforesaid extent.