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2021 Supreme(Guj) 418

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, Vaibhavi D. Nanavati, JJ.
Ilaba Devendrasinh Jadeja – Appellant
Versus
State Of Gujarat – Respondent
R/Letters Patent Appeal No. 1130 of 2018 In R/Special Civil Application No. 9762 of 2018 With Civil Application (For Stay) No. 1 of 2018 With Civil Application (For Vacating Interim Relief) No. 1 of 2020
Decided On : 23-06-2021

Advocates:
Advocate Appeared:
For the Appellant : Mr M B Parikh
For the Respondent: Mr. Chintan Dave, Ld. Asst. Government Pleader/PP Dhara P Bhatt, Mr. Parth H Bhatt

Point of Law: bar of jurisdiction of Mamlatdar’s Court under Section 26(b), operates only when it is pointed out that the civil suit was filed prior to the institution of proceedings under Section 5 of the said Act.

Headnote:
Letters Patent - Clause 15 - Mamlatdar Courts Act, 1906 - Sections 5 , 26 and 26 (b) - Removal of obstruction - Permanent injunction order is passed - Respondent No.5 herein initiated proceedings in Court of Mamlatdar, Rajkot under Section 5 of Mamlatdar Courts Act, 1906 dispute between appellant herein and respondent No.5 is one of removal of obstruction and right of way - Case of respondent No.5 that he has his own agricultural farm adjacent to farm of appellant and there is a passage or a road passing through land of appellant - Appellant that there is no such road passing through his farm, on the strength respondent No.5 wants to enter into his farm - Appellant as there is no road or any passage - Permanent injunction order is passed that respondent shall not in any manner prevent or create any obstruction with regard to accessing land or transporting agricultural equipments, bullocks, carts - Plaintiff residing at Hadmatiya Bedi village - It is ordered that the wire fencing done by them shall be removed
Finding of the Court: Civil Court to entertain try and decide suit in respect of matters covered by clause (b) of Section 26 - On contrary, if it shown that a Civil Suit is filed in respect of matter covered by Section 26 (b) of the said Act - Mamlatdars' Courts Act, then there is a bar to entertain the suit under provisions of Mamlatdars' Courts Act - It also cannot be urged that Section 26 (b) would be attracted only in case where there is already a decision of a Civil Court, as the phraseology used that has been subject of previous proceedings – Court may only observe that bar of jurisdiction of Mamlatdar’s Court under Section 26(b), operates only when it is pointed out that civil suit was filed prior to institution of proceedings under Section 5 of the said Act - Sub-section (1) of Section 5 empowers Mamlatdar's Courts to refuse to exercise power under said provision, if it appears to him that such a case can be more suitably dealt with by Civil Court - Mamlatdar under Section 5, but the Act of 1906 attaches finality, either to order passed under Section 5 by Mamlatdar on merits or to order passed in Revision under Section 23 of said Act - jurisdiction of the Civil Court cannot be held to be impliedly barred, merely because Act provides a separate machinery for getting grievance redressed - Ouster of plenary jurisdiction of Civil Court should not be readily inferred and such jurisdiction remains in-tact and available to be exercised either against order under Section 5 or against the order of revision under Section 23 of said Act
Result: Appeal is dismissed

JUDGMENT :

J.B.PARDIWALA, J.

1. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ applicant of a writ application and is directed against the order passed by a learned Single Judge of this Court dated 28th June, 2018 in the Special Civil Application No.9762 of 2018, by which, the learned Single Judge rejected the writ application filed by the appellant herein affirming the orders passed by the Mamlatdar and the Deputy Collector under the provisions of the Mamlatdar Courts Act, 1906.

2. We have heard Mr. M.B. Parikh, the learned counsel appearing for the appellant (original writ applicant), Mr. Parth Bhatt, the learned counsel appearing for the respondent (original respondent No.5) and Mr. Chintan Dave, the learned AGP appearing for the State-respondents.

3. It appears from the materials on record that the respondent No.5 herein initiated proceedings in the Court of the Mamlatdar, Rajkot under Section 5 of the Mamlatdar Courts Act, 1906 (for short “the Act, 1906”). The dispute between the appellant herein and the respondent No.5 is one of removal of obstruction and the right of way. It is the case of the respondent No.5 that he has his own agricultural farm adjacent to the farm of the appellant and there is a passage or a road passing through the land of the appellant, with the aid of which, the respondent No.5 can enter into his farm. On the other hand, it is the case of the appellant that there is no such road passing through his farm, on the strength of which, the respondent No.5 wants to enter into his farm. According to the appellant as there is no road or any passage, there is no question of creating any obstruction.

4. The suit under the Mamlatdar Courts Act filed under Section 5 of the Act instituted by the respondent No.5 was adjudicated and ultimately the Mamlatdar vide order dated 11th April, 2011 passed the following order;

“Permanent injunction order is passed that the respondent Ms. Ilaba Devendrasinh shall not in any manner prevent or create any obstruction with regard to accessing the land or transporting agricultural equipments, bullocks, carts etc. to the agricultural land at revenue survey nos. 55/1, 55/2 and 55/3 owned by the plaintiff Shri Hareshbhai Govindbhai Rakholiya etc. residing at Hadmatiya Bedi village. It is ordered that the wire fencing done by them shall be removed. It is ordered that the holders of revenue survey No. 45/1 shall immediately remove the obstruction raised by them. The plaintiff shall use the passage for commuting or transporting equipments and bullock-carts in such a manner that no damage is caused to the laod the plaintiffs.”

5. The appellant, being dissatisfied with the order passed by the Mamlatdar, referred to above, preferred a revision application before the Deputy Collector, Rajkot (City-II). The appeal was heard by the Deputy Collector and vide order dated 25th April, 2018, dismissed the same thereby affirming the order passed by the Mamlatdar. The findings recorded by the Deputy Collector reads thus;

“The land of Survey No.55/1, 55/2 and 55/3 of Village: Hadmatiya Bedi of Rajkot Taluka belonged to one Hareshbhai Govindbhai Rakholiya and others. Dispute was raised when the applicant closed the right of way of the said land. The case was conducted under Section-5 of the Mamlatdar Courts Act, wherein the Mamlatdar, Rajkot Taluka passed an Order on 11/04/2011. Against the same, the present applicant Ms. Ilaba Devendrasinh Jadeja had preferred an appeal before this authority and by order dated 13/06/2014, the said case was remanded back to the Mamlatdar, Rajkot Taluka. Being aggrieved by the said order, Mr. Hareshbhai Govindbhai Rakholiya filed Appeal/Revision Application being SCA No.15039/2014 in the Hon’ble High Court of Gujarat. As per the Order dated 18/11/2014 of the Hon’ble High Court of Gujarat, the said matter was remanded back to the Mamlatdar, Rajkot Taluka with a direction to hear the matter afresh without prejudice and giving suf

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