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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NIRZAR S. DESAI, J.
THAKARDA HIRABEN BADARJI – APPELLANT
Versus
STATE OF GUJARAT – RESPONDENT
SPECIAL CIVIL APPLICATION NO. 17422 of 2021
Decided On : 09-12-2021
Mamlatdar Courts Act, 1906 - Section 5 - Creating big obstacle on the road - Digging it up and by using JCB machine - Respondent case under Section 5 of the Mamlatdar Courts Act, 1906 being Mamlatdar Court Act - present respondents claimed that land of present respondents is situated - They were using road passing through land bearing which belongs to present petitioners since many years and petitioners – Original respondents before Mamlatdar all of sudden stopped aforesaid road and denied access of said road by creating big obstacle on the road and petitioners prayed for opening of said road – Held, Mamlatdar & ALT has, in his order, rightly stated about contents of the panch Rojkam which is main basis as it can be seen from order that on the basis of same ultimately Mamlatdar came to conclusion that there was road in existence which is blocked by the petitioners - Land which is also part which belongs to the present petitioners - Mamlatdar & ALT has also in Rojkam categorically observed that it can clearly be seen that petitioners have obstructed road by constructing Pala. These are findings and as the manner in which panch was carried out is not disputed by petitioners, this Court does not find any reason to disbelieve aforesaid facts which are also believed by Deputy Collector - Strip clearly indicates that there is road as can be seen from satellite images which is also produced on record in petition by the present petitioners which makes it clear that road was in existence and Mamlatdar & ALT and Deputy Collector both have rightly considered the existence of road - Court deems it appropriate not to interfere with te findings recorded by both authorities i.e. Mamlatdar & ALT and the Deputy Collector - Court are based upon the orders & ALT and the Deputy Collector and the same are tentative in nature – petition dismissed.
ORDER :
1. By way of this petition, the petitioner has prayed for following reliefs:
b. Your Lordships be pleased to issue writ of certiorari or any other appropriate writ, orders, directions holding that the order passed in Mamlatdar Court Case No.20/2020 Dt.08-04- 2021 by Mamlatdar, Himmatngar and confirmed by the Deputy Collector, Himmatnagar in Mamlatdar Court Revision No.5 of 2021 by order Dt.07-07-2021 are bad in law and those be quashed and set aside and it be declared that the private respondents have no right of way as claimed in the suit.
b - 1. Your Lordships be pleased to hold that the forceful execution of the order by the respondents on 18/11/2021 is ultra virus and bad in law. Your Lordships be further pleased to pass appropriate orders to restore the situation before such execution.
c.Your Lordships be pleased stay the execution and implementation of the judgment and order passed in the Mamlatdar Court Case No.20/2020 Dt.08-04-2021 by Mamlatdar, Himmatnagar and confirmed by the Deputy Collector, Himmatnagar in Mamlatdar Court Revision No.5 of 2021 by order Dt. 07-07-2021 pending admission, hearing and final disposal of this petition.
c-1. Your Lordships be further pleased to direct that the respondents be restrained from using the land of the petitioners being survey No.502 for passage or is of way pending admission, hearing and final disposal of this petition.
d. Your Lordships be pleased to grant any other relief/s as may be deemed fit in the facts and circumstances of the case.”
2. It is the case of the petitioner that the Respondent Nos.4 to 20 had filed the case under Section 5 of the Mamlatdar Courts Act, 1906 (‘the Mamlatdar Court Act’, for short) being Mamlatdar Court Act / Case No.20 of 2020. In the aforesaid application, the present respondents claimed that the land of the present respondents is situated at Survey No.514, 516, 566, 561, 584, 585, 586, 587, 590, 513, 595, 511, 565, 589, 592, 593, 594, 596, 597 and 598 of Mouje Jambudi, Tal.Himmatnagar and Survey No.502 belongs to the present petitioner – original respondents. They were using the road passing through land bearing Survey No.502 which belongs to the present petitioners since many years and the petitioners – original respondents before the Mamlatdar, Himmatnagar all of sudden stopped the aforesaid road and denied access of the said road by creating big obstacle on the road and the petitioners, therefore, prayed for opening of the said road.
2.1 Pursuant to the aforesaid application, notice was issued to the present petitioners and the present petitioners – original respondents, in that proceedings also preferred reply. The panchnama was also drawn on 08.01.2021. Ultimately, after the bids were over, the Mamlatdar & ALT, Himmatnagar, after taking into consideration the material available on record as well as by considering the photographs of the land, maps and satellite maps also, came to the conclusion that the road passing through the land bearing Survey No.502 which belongs to the present petitioner was in existence. However, aforesaid road was blocked by the present petitioners by digging it up and by using JCB machine and thereby denied access of the aforesaid road to the present respondent and ultimately allowed the application filed by private respondent nos.4 to 20 being Mamlatdar Court Case No.20 of 2020 by issuing direction to the present petitioner to open the road.
2.2 The aforesaid order was passed on 08.04.2021 which was subsequently challenged by the present petitioners by preferring Appeal under Section 23(2) of the Mamlatdar Court Act Case No.5 of 2021 before the Deputy Collector, Himmatnagar.
2.3 The Additional Collector, Himmatnagar Division, Himmatnagar, vide order dated 07.07.2021 rejected the Revision Application preferred by the present petitioners and confirmed the order dated 08.04.2021 passed by the learned Mamlatdar & ALT, Himmatnagar in Mamlatdar Court Case No.20 of 2
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