Date : 14/08/2012 1.00. RULE. Ms.Rita Chandarana, learned Assistant Government Pleader waives the service of notice of rule on behalf of the respondent Nos.1 and 2 and Mr.N.V. Gandhin, learned advocate waives the service of notice of rule on behalf of the contesting respondent No.3. 2.00. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present application is taken up for final hearing today.
3.00. Present Civil Revision Application under section 115 of the Civil Revision Application has been preferred by the petitioner herein to quash and set aside the impugned order passed by the Mamlatdar, Mahuva in Mamlatdars’ Courts Act Remand Case No.3 of 2012 dtd.31/3/2012 as well as the impugned order passed by the Dy.Collector, Bardoli, District Surat in Mamlatdars’ Courts Act Revision/Appeal No.2 of 2012 dtd.4/7/2012, by which the petitioner and other land holders are directed to open the old road falling in Block Hos.153, 154, 156 and 162 of Village Gopala, Taluka Mahuva, District Surat, admeasuring 12 ft. broad and 1500 meters long in East West direction.
4.00. It is not in dispute that the impugned order passed by the Mamlatdar, Mahuva is under section 5 of the Mamlatdars’ Courts Act, 1906 which is confirmed by the Dy.Collector in Revision Application under section 23(2) of the Mamlatdars’ Courts Act. It is also not in dispute that as per section 5(3) of the Mamlatdars’ Courts Act, no suit shall be entertained by the Mamlatdars’ Courts unless it is brought/instituted within six months from the date on which cause of action arose. It is also not in dispute that the suit is required to be instituted for orders under section 5 of the Mamlatdars’ Courts Act in prescribed Form as provided under section 7 of the Mamlatdars’ Courts Act inclusive of the date on which the cause of action arose [section 7(d)]. It is also an admitted position that no suit has been filed by the respondent No.3 herein under section 5 of the Mamlatdars’ Courts Act and that too in prescribed Form as provided under section 7 of the Mamlatdars’ Courts Act. No thing has been mentioned on which date cause of action has arisen.
5.00. The learned advocate appearing on behalf of the respondent No.3 has fairly conceded that as such the respondent No.3 has not filed suit under section 5 of the Mamlatdars’ Courts Act and in fact it was not the intention on the part of the respondent No.3 to initiate proceedings under the provisions of the Mamlatdars’ Courts Act.
6.00. It is the case on behalf of the respondent No.3, as submitted by Mr.Gandhi, learned advocate appearing on behalf of the respondent No.3, that as the respondent No.3 wanted to initiate proceedings under section 105 of the Gujarat Panchayats Act, they intimated it to the Mamlatdar, but unfortunately, the Mamlatdar, Mahuva considered the said application as Suit under section 5 of the Mamlatdars’ Courts Act.
7.00. Considering the above facts and circumstances of the case when even according to the respondent No.3, the application filed by them was not the suit under section 5 of the Mamlatdars’ Courts Act, there was no question of passing any further order by the Mamlatdar, Mahuva under section 5 of the Mamlatdars’ Courts Act.
8.00. Even otherwise, even if the said application is treated as Suit under section 5 of the Mamlatdars’ Courts Act, even the Mamlatdar as well as Dy.Collector have held that the same was beyond the period of limitation under section 5(3) of the Mamlatdars’ Courts Act.
9.00. Under the circumstances the impugned order passed by the Mamlatdar confirmed by the Dy.Collector cannot be sustained and the same deserve to be quashed and set aside.
10.00. At this stage, Mr.Gandhi, learned advocate appearing on behalf of the respondent No.3 has requested to make suitable observation that it will be open for the respondent No.3 to initiate appropriate proceedings with respect to disputed road in question either under the provisions of the Gujarat Panchayats Act or by instituting a substantive civil suit and as and when such proceedings are initiated, the same be considered in accordance with law and on merits.
11.00. In view of the above and for the reasons stated above, present Civil Revision Application is allowed. The impugned order passed by the Mamlatdar, Mahuva in Mamlatdars’ Courts Act Remand Case No.3 of 2012 dtd.31/3/2012 as well as the impugned order passed by the Dy.Collector, Bardoli, District Surat in Mamlatdars’ Courts Act Revision/Appeal No.2 of 2012 dtd.4/7/2012, are hereby quashed and set aside. However, it is clarified that this Court has not expressed any opinion in favour of either of the parties with respect to disputed road in question and it will be open for the respondent No.3 to initiate appropriate proceedings with respect to the disputed road either under the Gujarat Panchayats Act or by way of instituting a substantive suit and as and when such proceedings are initiated, the same be considered and decided in accordance with law and on merits and after giving an opportunity of being heard to all the concerned. Rule is made absolute accordingly. No costs.
[M.R. SHAH, J.] rafik