1. The present Civil Revision Application u/s.115 of the Code of Civil Procedure has been preferred by the applicants herein – original opponents to quash and set aside the impugned order dated 17/06/2009 passed by the Mamlatdar, Dhari in Mamlatdar Court Case No.4 of 2009 as well as impugned order dated 15/01/2011 passed by learned Assistant Collector, Rajula in Revision Case No.3 of 2010, by which, learned Revisional Authority has dismissed the said Revision Application confirming the order passed by Mamlatdar, Dhari in Mamlatdar Court Case No.4 of 2009.
2. It appears that respondent Nos.3 and 4 herein initiated the proceedings before Mamlatdar, Dhari u/s.5 of the Mamlatdar's Courts Act (hereinafter referred to as “the Act”) for appropriate order directing the petitioners herein – original opponents to remove obstruction, by which, natural flow of water/ water channel, which was alleged to have been passed from the land of the petitioners herein and for further appropriate order to open the same.
It appears that the said application was preferred on 30/03/2009. It also appears from the proceedings that statement of petitioner No.1 was recorded on 06/05/2009 and according to petitioner No.1 he also made grievance with respect to respondent No.1. It appears that thereafter statement of respondent No.4 was recorded by Mamlatdar on 08/05/2009 (in absence of the petitioners). It also appears from the impugned order passed by Mamlatdar that Mamlatdar directed the Circle Officer, Chalala to prepare Panchnama and Circle Officer, Chalala prepared panchnama dated 22/05/2009, which was prepared in absence of the petitioners as well as respondent Nos.3 and 4 and even copy of which was not given to the petitioners and relying upon the statement of petitioner No.1 dated 06/05/2009 and statement of respondent No.4 dated 08/05/2009 and relying upon the Panchnama prepared by Circle Officer, Chalala dated 22/05/2009, the Mamlatdar, Dhari passed impugned order dated 17/06/2009 directing the petitioners herein – original opponents to open Vokdu/ water channel and by further directing the petitioners herein- original opponents to remove obstruction/ wall, which was obstructing natural flow of water from the Vokdu from the respective land in question inclusive of the land of the petitioners i.e. land bearing Survey No.335.
3. Being aggrieved by and dissatisfied with the impugned order dated 17/06/2009 passed by Mamlatdar, Dhari, the petitioners herein – original opponents preferred Revision Case No.3/2010 u/s.23 of the Mamlatdar's Court Act before Deputy/Assistant Collector, Rajula and learned Revisional Authority / Assistant Collector, Rajula by impugned order dated 15/01/2011 has dismissed the said Revision Case confirming the order dated 17/06/2009 passed by Mamlatdar, Dhari in Mamlatdar Court Case No.4 of 2009.
Being aggrieved by and dissatisfied with the impugned orders passed by both the Courts below, the petitioners herein – original opponents have preferred the present Civil Revision Application u/s.115 of the Code of Civil Procedure.
4. Having heard learned advocates appearing on behalf of the respective parties and considering the fact that panchnama, which was prepared by Circle Officer, Chalala, which was prepared at the instance of the Mamlatdar, Dhari and which has been prepared at the back of the respective parties and even copy of which was not given to the respective parties and statements of the respective parties have been recorded behind back of the respective parties, it appears to the Court that there is non-compliance of the provisions of Section 19 of the Act and even considering the decision rendered in the case of Raisinh Dhirajsinh Boradhara V/s. State of Gujarat reported in 2006(1) GCD 136 taking view that if the panchnama and report prepared by Mamlatdar on inspection, which was in absence of the respective parties, he has relied upon the principles of natural justice and the matter has been remanded to the Mamlatdar. Under the circumstances, it appears to the Court that the impugned orders passed by both the authorities below are required to be quashed and set aside and the matter is required to be remanded to the Mamlatdar, Dhari to decide Mamlatdar Court Case No.4 of 2009 afresh in accordance with law and on merits, after giving an opportunity to the respective parties.
It is agreed between learned advocates appearing on behalf of the respective parties that now the respective parties are already having statements of the respective parties and even copy of Panchnama prepared by Circle Officer, Chalala, the parties may be permitted to make their submissions on the same before the Mamlatdar, Dhari and Mamlatdar, Dhari to consider the same in accordance with law and on merits. As the matter is remanded to the Mamlatdar, Dhari to decide the same afresh, learned advocates appearing on behalf of the respective parties do not invite any further reasoned order as observation of this Court may affect the case of either parties before Mamlatdar, Dhari. Therefore, while quashing and setting aside the impugned orders passed by both the Authorities and remanding the matter to the Mamlatdar,Dhari, this Court is not assigning any further reasoned order.
5. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds in part and the impugned order dated 17/06/2009 passed by the Mamlatdar, Dhari in Mamlatdar Court Case No.4 of 2009 as well as impugned order dated 15/01/2011 passed by learned Assistant Collector, Rajula in Revision Case No.3 of 2010 are hereby quashed and set aside and Mamlatdar Court Case No.4 of 2009 is hereby remanded to the Mamlatdar, Dhari to decide the same afresh, in accordance with law and on merits, after giving an opportunity of being heard to all the parties in presence of the respective parties and after giving an opportunity to the respective parties to meet with the statements made by respective parties as well as Panchnama prepared by the Circle Officer, Chalala, copy of which is already given to the respective parties and the same be considered in accordance with law and on merits.
It is made clear that this Court has not expressed anything on merits in favour of either of the parties and it is ultimately for the Mamlatdar, Dhari to consider the same considering position prevailing and to consider whether there is already a water channel or by any of the construction or increasing the height of the wall such a water channel has been obstructed or not and if it is found that water channel is obstructed by other persons, the same be considered by the Mamlatdar, Dhari after giving an opportunity to all the persons, who are likely to be affected and after giving an opportunity to them also. The aforesaid exercise shall be completed by the Mamlatdar,Dhari within a period of four weeks from the date of receipt of the copy of the present order. In the meantime, all the parties are directed to maintain status quo as on today. Rule is made absolute to the aforesaid extent. No costs.
Direct service is permitted.
[M.R.SHAH,J] *dipti