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Gujarat High Court
Judgename :Jayant Patel
RAISINH DHIRAJSINH BORADHARA - Appellant
Versus
STATE OF GUJARAT - Respondent
S.C.A. 17057 of 2004
Decided On : 03/16/2005
Mamlatdars Courts Act 1906 (Bombay Act 2 of 1906) - Section 5 - Right of way - Suit for - Limitation - Absence of opportunity of hearing and to lead evidence - Finding and order - Sustainability - Mamlatdar rejected the suit of petitioner for a right of way on basis of a Panchnama drawn by him on having inspected the site - The order of Mamlatdar was upheld by Dy. Collector in appeal - But it is not disputed that petitioner was neither associated at the time of inspection nor he was given any opportunity of hearing before rejecting his application - Petitioner had also pleaded customary right of way, therefore, case could not have been decided with giving opportunity to lead evidence and hearing to the parties - The impugned order of rejecting petitioner claim of right of way being in violation of principles of natural justice same could not be sustained - Court, therefore, restored the proceeding on the face of Mamlatdar and directed to decide the matter after giving opportunity to lead evidence and hearing to the parties - Court also considered the contention of limitation raised by respondent and observed that parties shall be at liberty to raise all the contentions which may be available in accordance with law before Mamlatdar where applications filed by other residence of adjustant land are also pending decision.
Held :
It appears that the order has been passed by the Mamlatdar by drawing the Panchnama and by relying upon the panchnama in breach of the principles of natural justice and, therefore, when the Dy. Collector found that the hearing has not been given to the parties to the proceedings, it was required for the Dy. Collector to allow the appeal to that extent and to remand the matter to the Mamlatdar. Instead of the same, the Dy. Collector has confirmed the order of the Mamlatdar by dismissing the appeal, even though it was found by the Dy. Collector that no statements are recorded of the parties to the proceedings. Therefore, Court finds that both the lower authorities have committed error of jurisdiction in passing the order without giving proper opportunity to the parties to the proceedings to make their submissions in respect to the Panchnama and/or to lead the evidence. [Para 6]
The contention raised on behalf of respondent No. 2 by Mr. Majmudar that the suit is barred also appears to have not been considered by the Mamlatdar, nor by the Dy. Collector while considering the matter. Therefore, in the event the matter is reconsidered by the Mamlatdar, respondent No. 2 may have liberty to raise all the contentions which may be available in accordance with law, but on such ground, it cannot be said that the order passed by the Mamlatdar and its confirmation thereof by the Dy. Collector, which is in breach of the principles of natural justice should be allowed to operate. The aforesaid is coupled with the circumstances that similar applications have been filed by the residents of the adjacent land, claiming right of way and they are pending before the Mamlatdar and, therefore, when the matter is, if ultimately, to be considered by the Mamlatdar, it would be just and proper to allow the petitioner also to make submissions before the Mamlatdar and to lead evidence, if any, pertaining to the road for which the right is claimed by the petitioner in the suit proceedings. [Para 7]
Law Laid Down :
Where there is a plea of customary right of way, same cannot be decided without giving opportunity to parties to lead evidence to support their case.
Decided in Favour of :
Petition by way of Remand
Petition Allowed Accordingly
( 1 ) RULE. Mr. Prachchhak, learned AGP appears for respondent No. 1 and Mr. Majmudar, learned Counsel appears for respondent No. 2, waive service of notice of rule. With the consent of the parties, the matter is taken up for final hearing today.
( 2 ) THE short facts of the case are that the petitioner filed suit before the Mamlatdar claiming the right of way being Mamlatdar Act Case No. 1 of 2004. The right of way was claimed over the land bearing Block No. 408 and No. 404 on the western side boundary and on southern side boundary of Block No. 404. It appears that the petitioner also stated in the suit that the land in question is cultivated since the last one year by the Opponent therein. The Mamlatdar appears to have personally visited the site on 22. 9. 2004 and he has drawn the panchnama. However, the case of the petitioner is that the petitioner was not intimated about the same, nor is the panchnama drawn in his presence. It appears that the Mamlatdar found that there is a road up to Aghoreshwar Temple, however, he found that there is no road shown in the village map and ultimately he has dismissed the suit as per the order dated 24. 9. 2004. The petitioner carried the matter before the Dy. Collector in Appeal No. 6/2004 and the Dy. Collector found that when the panchnama was prepared hearing was not given to the parties, but he found that when the inspection was made by the Mamlatdar himself, it was not necessary for the examination of the witnesses or recording of the statement and, therefore, the appeal was dismissed as per the order dated 23. 11. 2004. It is under these circumstances the petitioner has approached this Court by preferring this petition.
( 3 ) MR. RATHOD, learned Counsel appearing for the petitioner submitted that no opportunity was given to the petitioner to lead the evidence, nor for submitting objections after the panchnama and he further submitted that the other residents of the adjacent area have preferred application/suit before the Mamlatdar in connection with the very road. However, as the matter is pending before this Honble Court, Mamlatdar has not taken further action in this regard. He, therefore, submitted that if the present case is remanded to the Mamlatdar for reconsideration, the petitioner would also be in a position to lead evidence in this regard and thereafter appropriate decision may be taken by the Mamlatdar.
( 4 ) MR. PRACHCHHAK, learned AGP has supported the order passed by the authority.
( 5 ) MR. MAJMUDAR, learned Counsel appearing for respondent No. 2 while supporting the order passed by the authority further contended that as such on the basis of the averments made in the plaint the suit was barred by Section 5 of the Mamlatdar Court Act. He further submitted that in such a case, where the suit is barred and is filed after the expiry of the period of six months from the date of cause of action, the Mamlatdar has to reject the plaint. He submitted that as per the averments made in the plaint itself since one year respondent No. 2 is cultivating the land and, therefore, the suit was barred. He also submitted that when the Mamlatdar himself made inspection it may not be required that in all cases opportunity should be given to the parties and, therefore, he submitted that when there are two concurrent findings of both the authorities, this Court may not interfere or upset the order passed by the Mamlatdar and its confirmation thereof by the Dy. Collector.
( 6 ) IT appears that the Dy. Collector in appeal has also found that the Mamlatdar has drawn the panchnama on the basis of inspection, but opportunity of hearing for such purpose was not given by the Mamlatdar and, therefore, if the inspection was made by the Mamlatdar without giving intimation to the parties to the proceedings or if the panchnama is drawn in absence of the parties to the proceedings, even if such panchnama is to be taken into consideration by the Mamlatdar for the purpose of deciding the ma
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