JUDGMENT :

Biren Vaishnav, J.

1. Heard Mr. Ankur Oza, learned advocate for the petitioner, Mr. Kurven Desai, learned Assistant Government Pleader for respondents Nos. 1, 2 and 3, Mr. A.B. Gateshaniya, learned advocate for respondents Nos. 5, 6 & 7.

2. Rule returnable forthwith. With the consent of the learned advocates appearing for the respective parties, this petition is taken up for final hearing today.

3. In this petition under Article 226 of the Constitution of India, the petitioner, who is the original defendant before the Mamlatdar's Court, has challenged the orders dated 27.05.2015 passed by the Mamlatdar in Mamlatdar Court Case No. 5/2014 and the order in Revision Case No. 2/2014-2015 passed by the Deputy Collector, Wadhwan dated 15.09.2016.

4. Facts in brief are that the respondents Nos. 4 to 7 had approached the Mamlatdar's Court, inter alia contending that they had their right of way from the fields of the petitioner. The Mamlatdar allowed the application on the basis of the Panchnama drawn by the Circle officer on 27.03.2015. It is the case of the petitioner that while arriving at a conclusion against the petitioner, the Panchnama of the Circle officer was relied upon which was made in absence of the petitioner.

5. Mr. Ankur Oza, learned advocate for the petitioner, would submit that a contention was raised even before the Revisional Authority that the entire exercise of carrying out the Panchnama was in the absence of the petitioner. He would draw support from the copy of the Panchnama annexed to the petition at page 60.

6. Mr. Gateshaniya, learned advocate appearing for the private respondents Nos. 4 to 7 submit that such a contention was neither raised before the Mamlatdar nor before the Revisional Authority and even otherwise in view of the decision rendered in Special Civil Application No. 513 of 2016 in the case of Jamatsing Kalusing Thakor v. Mamlatdar, Dantiwada & Ors., dated 18.01.2017, wherein, this Court had held that merely because there was a flaw in the Panchnama, such evidence cannot be discarded.

7. Having considered the submissions made by the learned counsels appearing for the respective parties and in deference to the decision rendered by this Court in the case of Jamatsing (supra), the facts on hand would indicate that the reasons assigned by the Mamlatdar as well as the Revisional Authority have been arrived at solely on the basis of the Panchnama drawn by the Circle officer on 27.03.2015 which appears to have been so drawn in absence of the petitioner.

8. Accordingly, the orders dated 27.05.2015 passed by the Mamlatdar in Mamlatdar Court Case No. 5/2014 and the order in Revision Case No. 2/2014-2015 passed by the Deputy Collector, Wadhwan dated 15.09.2016, are hereby quashed and set aside. The Circle officer shall after due notice to the parties to the proceedings, draw a fresh Panchnama in presence of the parties in accordance with law and the Mamlatdar, Wadhwan, shall decide the application No. 5/2014 afresh in accordance with the Panchnama so drawn in the presence of the petitioner and the private respondents (original plaintiff and the defendant before the Mamlatdar's Court). The entire exercise shall be completed preferably within a period of eight weeks from the date of receipt of copy of this order.

In the meantime, the status quo as it exists today to be maintained.

Needless to say that the matter has been remanded for a fresh decision and the authority shall take a decision in accordance with law without being influenced by any of the observations made hereinabove. The petition is accordingly, allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.