ORAL JUDGMENT

Mr S. P. Majmudar, learned advocate appearing for the petitioners has tendered the draft amendment. Amendment is allowed in terms of the draft. The same shall be carried out forthwith.

2. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal. Issue Rule, returnable forthwith. Ms Asmita Patel, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent State. Mr Nishit P. Gandhi, learned advocate waives service of notice of rule on behalf of respondent no.1 and Mr Zalak Pipalia, learned advocate waives service of notice of rule on behalf of respondent nos. 2 to 4.

3. This petition, under Articles 226 and 227 of the Constitution of India, seeks to challenge the order dated 5.6.2020 passed by the Mamlatdar as well as the order dated 24.7.2020 passed by the Deputy Collector in revision application no.10 of 2020.

4. The facts are that the respondent no.1 had filed an application before the Mamlatdar under Section 5 of the Mamlatdars’ Courts Act, 1906 (hereinafter referred to as the “Act of 1906”). According to the respondent no.1, she is the owner of revenue survey No.532 and nearby, the fields of the petitioners are situated. The claim of the respondent no.1 is that she has a right of way from the lands of the petitioners. The application of the respondent no.1 was registered as application no.3 of 2018 and the Mamlatdar, after hearing all the parties has passed the order dated 5.6.2020 allowing the application. Being aggrieved, the petitioners preferred a revision application no.10 of 2020 before the Deputy Collector who, rejected the same vide order dated 24.7.2020. The petitioners are aggrieved by the aforesaid two orders and hence the present petition.

5. Mr S. P. Majmudar, learned advocate appearing for the petitioners submitted that the plaint of the respondent no.1, was not in consonance with the provisions of the Act of 1906 inasmuch as, it was time barred. It is also submitted that there was no right of way from the fields of the petitioners and that the respondent no.1 has an alternative way available to her. It is submitted that as per the provisions of sub-section (3) of Section 5 of the Act of 1906, the suit, is to be filed within six months inasmuch as, no suit can be entertained by the Mamlatdar unless it is brought within six months from the date on which the cause of action arose.

5.1 It is submitted that Section 19 of the Act of 1906 provides for points to be decided by the Mamlatdar and therefore, framing the issues by the Mamlatdar, was inevitable. In the present case, the Mamlatdar, has not framed issues and therefore, the procedure adopted by the Mamlatdar is erroneous. In support of such contention, reliance is placed on the judgment in the case of Chhitubhai Budhiyabhai Patel v. Chandubhai Kuvarji Kalia Patel passed in Civil Revision Application No.1280 of 2000. While inviting the attention to paragraph 11, it is submitted that this Court, has discussed the provisions of Section 19 and more particularly, the aspect of framing of issues and findings to be recorded on the said issues. It has been held that framing of issues is condition precedent for deciding the matter under the Act of 1906. This Court, has held and observed that in view of the principles enunciated by the Apex Court, it cannot be said that Section 19, is available on the statute book without any purpose. Even if it is assumed that the same is procedural provision, even then law requires substantial compliance of such procedural provision. It is submitted that this Court, when found that no issues were formulated by the Mamlatdar, while deciding the matter, which the Mamlatdar is otherwise obligated in terms of provisions of Section 19, held the action of the Mamlatdar as illegal and bad.

5.2 It is further submitted that there is another lacuna in the procedure before the Mamlatdar inasmuch as, the panchnama, prepared was withou