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Gujarat High Court
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya & Hon’ble Mr. Justice J.B. Pardiwala
Lakshmanbhai Ukabhai Parmar & Anr.
Versus
Karmsibhai Lalabhai Parmar & Ors.
Special Civil Application No. 101 of 2014—Decided on 04/02/2014
Mamlatdar’s Court Act, 1906 — Sections 5, 5(3), 5(4), 5(b) — Civil Procedure Code, 1908 (Central Act 5 of 1908) — Section 9 — [Indian] Evidence Act, 1872 (Central Act 1 of 1872) — Section 3 — Constitution of India, 1950 — Articles 12, 14 and 226 — Petition to declare Mamlatdar Court Act, 1906 as ultar vires Constitution — Ground that question of easement right over immovable property should not be confirmed upon Mamlatdar Court where in right to appeal is also not provided — Finding as to — Adjudication of which has been conferred upon Mamlatadar is with in the competence of the State Legislation is not in dispute and can not be challenge — The Law is equally settled that the Legislature may take away the Jurisdiction of Civil Court in respect of matters which are ordinarily decided by civil Court — Besides it is equally well settled law that if by the action of the State any of the legal or fundamental rights of a citizen is infringed the aggrieved citizen has a right to move High Court under Article 226 of Constitution — Thus any order passed under the Act by Mamlatdar or the revisional authority Collector is subject to judicial review of High Court — Court thus held that there is no lack of legislative competence and it has also not violated any of the fundamental rights guaranteed or any other constitutional provisions — The petition has therefore no force and can not be sustained.
Held :
Court does not dispute for a moment that the subject-matter of the dispute, the adjudication of which has been conferred upon the Mamlatdar, is within the competence of the State Legislature and, thus, in this case, the legislative incompetency of the legislature of enactment of such a provision cannot be alleged. The law is equally settled that the Legislature may by express or implied words by way of enactment take away the jurisdiction of the Civil Court in respect of matters which are ordinarily decided by a civil court in terms of Section 9 of the Code of Civil Procedure. Court fail to appreciate the contention of Mr. Malkan that merely because by virtue of such adjudication by an executive, the legal right of a citizen can be affected, such fact will make the provision of such adjudication ultra vires the Constitution of India. By way of enactment of the statutes by a competent Legislature, right to decide questions relating to the subject-matters thereof are often given to the executives prescribed therein and, as a result of such adjudication, the legal rights of a person is definitely affected. It is equally well-established law that if by the action of a “State” within the meaning of Article 12 of the Constitution of India any of the legal or fundamental rights of a citizen is infringed, the aggrieved citizen has a right to move a High Court under Article 226 of the Constitution of India. [Para 10]
Court is also not impressed by the submission of Mr. Malkan that the absence of any right of appeal against the order of the original adjudicating authority will make the statute ultra vires. It is well-known that right of appeal is a creature of statute and such right may be even subject to various conditions but merely because there is no provision in the Act providing for appeal, such provision cannot be said to be ultra vires. [Para 12]
Moreover, as provided in the proviso to Section 5(b) of the Act, if in a case, the Mamlatdar considers it inequitable or unduly harsh to remove or course to be removed any such impediment or to give possession of any such property or to restore any such use to a person who has become entitled thereto merely by reason of the determination of any such tenancy or other right, or if it appears to him that such case can be more suitably dealt with by a Civil Court, he may in his discretion refuse to exercise the power aforesaid, but shall record in writing his reasons for such refusal. Thus, in the above circumstances, even Mamlatdar is vested with authority by exercising appropriate discretion in referring the matter to the decision of a Civil Court. If in a given case, under the circumstances mentioned in the proviso to Section 5(b), a Mamlatdar refuses to send the matter for adjudication by a Civil Court, the aggrieved party can approach either the Collector or even thereafter, if he is still aggrieved, can move the High Court under Article 226 of the Constitution of India complaining failure of the part of a Statutory Authority to exercise appropriate discretion in the facts of the said case. [Para 14]
On consideration of the entire materials on record, Court, therefore, find that the provisions contained in the Mamlatdar’s Court Act are not ultra vires any of the provisions of the Constitution of India. [Para 17]
Law Laid Down :
A Law made by Parliament or the Legislature can be struck down by Courts on two grounds viz. (I) lack of legislative competence and (II) Violative of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision there is no third ground.
Mr. Bhaskar Bhattacharya, CJ.—By this Special Civil Application, the writ-petitioners have not only prayed for a writ of mandamus declaring that the Mamlatdar’s Courts Act, 1906 as ultra vires Article 14 of the Constitution of India but have also prayed for a direction for quashing and setting aside the order dated 30th July 2012 passed by the Mamlatdar, Lathi, in Mamlatdar Court Case No. 11 of 2012 and also the order dated 25th February 2013 passed by the Deputy Collector, Lathi, in Revision Case No. 5 of 2012.
2. This Court, at the very outset, made it clear to the learned advocate for the petitioners that this Court will restrict its scrutiny only to the question whether, The Mamlatdar’s Court Act, 1906 (hereinafter referred to as “the Act”) is ultra vires the Constitution of India. However, for challenging the other orders impugned in this application, the petitioners are required to move the appropriate learned Single Judge vested with the jurisdiction to decide such question.
2.1 Accordingly, we have restricted our scrutiny only to the question whether the Act is in any way ultra vires the Constitution of India.
3. Mr. Malkan, the learned advocate appearing on behalf of the petitioners contended before us that the authority to decide the question of easement right over an immovable property should not be conferred upon the Mamlatdar’s Court as by the Act itself, no right of appeal against such decision has been given in favour of the litigant. According to Mr. Malkan, the complicated question of right of easement over the immovable property should be decided by the Civil Court and there being no provision of judicial review of such decision except a feeble remedy by way of revision before the Collector, who is also an executive officer, the vesting of such power in the executives is violative of the principles of natural justice and, at the same time, arbitrary.
4. Therefore, the only question that arises for determination in this Special Civil Application is whether the provision of the Act is violative of any of the provisions of the Constitution of India.
5. It may not be out of place to mention here that the Act was initially applicable in the erstwhile State of Bombay when the said Act was enacted as Bombay Act No. II of 1906. On formation of the State of Gujarat, the same was adopted and modified by the Gujarat Adaption of Laws (State of Concurrence Subject) Order, 1960 and was further amended by the Gujarat Legislative Assembly, vide Gujarat Act No. 15 of 1964. According to the provisions of the Act, the word “Mamlatdar” should include any Revenue Officer exercising for the time being the power of a Mamlatdar, or of a Mahalkari and any other person who may be specially authorized by the State Government to exercise the powers of a Mamlatdar under the Act.
6. Section 5 of the Act describes the powers of the Mamlatdar’s Court, which is quoted below:—
“5. Powers of Mamlatdars Courts.—(1) Every Mamlatdar shall preside over a Court, which shall be called a Mamlatdar’s Court, and which shall, subject to the provisions of Sections 6 and 26, have power, within such territorial limits as may from time to time be fixed by the State Government,—
(a) to remove or cause to be removed any impediment, erected otherwise than under due authority of law, to the natural flow in a defined channel or otherwise of any surface water naturally rising in or falling on any land used for agriculture, grazing, trees or crops, on to any adjacent land, where such impediment causes or is likely to cause damage to the land used for such purpose or to any such grazing trees or crops thereon;
(b) to give immediate possession of any lands or premises used for agriculture of grazing, or trees, or crops, or fisheries, or to restore the use of water from any well, tank, canal or water-course, whether natural or artificial used for agricultural purposes to any person who has been dispossessed or deprived thereof otherwise than by due course of law, or w
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