IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16304 of 2011 For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI =================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law
4 as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================= PATEL VASTABHAI MALABHAI - Petitioner(s) Versus KODI JAWABHAI DHARMABHAI & 7 - Respondent(s) ================================================= Appearance :
M/S S G ASSOCIATES for Petitioner(s) : 1,MR. JAY M THAKKAR for Petitioner(s) : 1, MR MAHENDRA U VORA for Respondent(s) : 1 - 6.
MR.A J.OZA for Respondent(s) : 1 - 6.
- for Respondent(s) : 0.0.0,0.0.0 ================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 07/08/2012 CAV JUDGMENT
1. This petition under Article 227 of the Constitution of India, originally filed as Civil Revision Application No.169 of 2011, was permitted to be converted into writ petition under Article 227 of the Constitution of India by an order dated 14.10.2008.
2. Petitioner challenges the legality, validity and propriety of the order of Mamlatdar respondent No.7 dated 30.6.2011 passed in Mamlatdar Court Act Case No.9 of 2010, Tharad under Mamlatdars' Courts Act (to be referred to as “the Act” hereinafter) and confirmed in Appeal vide order dated 20.7.2011 in Mamlatdar Court Appeal No.3 of 2011. The respondents No.1 to 5 are the applicants before the Mamlatdar Court, who are the owners of the agricultural land bearing Survey No.4 admeasuring 16 acres and 18 gunthas. It is their case that permanent way was available to them since it is an ancestral property. Their forefathers used this way to reach to their land bearing Survey No.4 and they also passed through Survey No.3 belonging to the present petitioner. The petitioner defendant obstructed their way by doing plotting of the land, and there being no alternative way, the respondents approached Mamlatdar's Court which registered Case No.9 of 2010. Mamlatdar conducted the proceedings of the suit under Section 5 of the Act. He also got the Panchnama prepared and recorded the statement through Circle Inspector. On the basis of these proceedings, he passed an order dated 30.6.2010 granting permanent injunction against the petitioner, restraining him from causing any obstruction to respondents No.1 to 5 or by preventing them to enter and use the land bearing Survey Nos. 3 to reach their land bearing Survey No.4.
3. When this was challenged before the Deputy Collector, Tharad in Mamlatdar Court Appeal No.3 of 2011, seeking stay against the execution and operation of the order impugned, such stay was refused on the ground of possible difficulty to the respondents. He also did not stay the order of Mamlatdar and vide his order dated 20.7.2011 confirmed the order of Mamlatdar.
4. According to the petitioner herein, the act of the Mamlatdar in a suit, which was ex facie time barred, was contrary to the powers given by the statute under Section 5(2) of the Act. It is also further challenged that non-grant of the interim stay by the Deputy Collector, on totally irrelevant considerations and on the issue not germane in the appeal. Therefore, that would entitle the present petitioner to approach this Court under Article 227 of the Constitution of India.
5. Learned advocate Mr. Jay Thakkar has been heard for and on behalf of M/s. S.G. Associates and Mr. M.U.Vora for the respondents.
6. On having heard learned advocates for the parties and on closely perusing the material on record along with the orders impugned, it can be noted that main challenge to this petition is because when the Circle Inspector recorded the statement, there is a mention of such obstruction having been caused for the past 3 years. Therefore, the entertainment of such suit by the Mamlatdar under the Act is challenged by the petitioner.
It is fervently submitted to this Court by the learned advocate for the petitioner that there cannot arise any question of maintaining the suit beyond the period of 6 months by the Mamlatdar and, therefore, illegality is committed apparent on the face of record.
7. As against that learned advocate Mr. Vora has attempted to point out from various documents that this was sheer slip of pen. There is overwhelming material to show that the obstruction has been caused for the past 3 (three) months only. As can be seen from the plaint preferred before the Mamlatdar's Court, there is clear averment to the effect that the right of way claimed by the respondents herein is used for past many years. The property being ancestral, this disputed way to pass through Survey No.3 to enter their own property of Survey No.4 was being used for bullock cart as well as for tractor. They have also pleaded that there is no alternative way. It is also further pleaded that 5 days prior to filing of the suit the petitioner defendant has started causing obstruction and the petitioner Vastabhai Malabhai Patel also threatened them that they cannot pass through the said way and thus has caused obstruction in enjoying easmentary right of the way.
This plaint dated 6.10.2010 categorically makes a mention of observation from the date of filing which is 6.10.2010. Panchnama which had been drawn is suggestive of the way and it also further states that the same has been obstructed by the present petitioner. This of course, makes a mention of the respondents being stopped for the past 2 to 3 years. According to the petitioner, this was done in his absence. The fact remains that the Panchnama mentions that he was enquired about. However, since he was not found, Panchnama was drawn. In the reply given by the respondents also there is reference that the way has been closed for the past 3 years. In the cross-examination, it has been mentioned that the plotting had been done 12 months before. Initially there was a way for tractor and, thereafter, for the walkers and due to the plotting, it became difficult to pass through the said land. In the petitioner's examination he said that the plotting has been done 3 years before. From the documentary evidence what emerges is that Dhanera road is an alternative road which is a very long route. It also further emerges that this entire issue has arisen on account of the plottings, whereby the way meant for the walkers also was obstructed and Dhaner road is a very long route as noted hereinabove. From the order impugned, it emerges that plotting was done by the petitioner herein 10 to 15 days prior to the filing of the suit. Mamlatdar was also of the opinion that the respondents were passing through the land of the petitioner herein as a part of their easmentary right.
When challenged in the appeal before the Deputy Collector, the application for injunction against such an order was denied.
8. There does not appear to be any finality attached to the appeal preferred against such an order. This appeal No.3 of 2011 still awaits adjudication on merits. This challenge is made against the order of non-grant of stay of Mamlatdar's order. With regard to the use and enjoyment of the way for tractors and the bullock cart, though the pleadings is done, there is specific reference of a plotting having been made 10 days before the filing of the suit before the Mamlatdar's Court in which there is a finding of obstruction in enjoying the easmentary right even for the purpose of passing through the land. And thus, in the said background, the denial on the part Deputy Collector of interim relief staying the order of Mamlatdar and thereby preventing respondents to pass through the land is justifiable.
9. This Court does not find any justification in entertaining this petition for the following reasons:-
10. Though there is a reference of 3 years in blocking the way of tractor and the bullock cart for which the respondents moved the Court, as the jurisdiction available is for 6 (six) months right of way of respondents to walk with animals as well as walkers appears to have been obstructed (nearly) 10 days prior to the filing of the suit. The Mamlatdar's Court, therefore, restrained the present petitioner from obstructing the respondents from enjoying their way. The reasons may have blurred the clarity of the length of period of such obstruction. It is amply clear prima facie that period of initial blockage of way for tractors/bullock cart and that of walkers is completely different. This fresh obstruction due to plotting lends clear jurisdiction to the Mamlatdar's Court.
11. This Court is of the opinion that with their being specific mention of plotting having been made for the past 10 days, no interference is required. Moreover, all those issues can be agitated before the Deputy Collector in appeal. At this stage, the Court does not require to entertain this petition. Resultantly, the same is dismissed.
(Ms.Sonia Gokani, J.) sudhir