The necessity of compliance with procedural norms in remand for fresh hearings regarding evidence collection in land access disputes.

1. This petition under Art.227 of the Constitution of India is filed challenging the order dated 2 August 2022 passed by the Deputy Collector, Anand, in Revision Application No.1 of 2022 under the provisions of the Mamlatdars' Courts Act .

2. It is the case where the respondent had claimed a right of way through the agricultural fields belonging to the petitioner through Survey Nos.461 and 468 to get access to his own land bearing Survey No.467 of village Adas, Taluka and District Anand. Originally, the Mamlatdar's Court rejected the application of the respondent. Against which, the respondent preferred a revision application. The Deputy Collector, while accepting the revision application, remanded the matter back to the Mamlatdar for a fresh hearing.

3. It appears that after the remand, once again, the Mamlatdar rejected the suit of the respondent by order dated 30th October, 2021. Against which, the respondent filed yet another revision being Revision Application No.1 of 2022. The Deputy Collector, Anand, was pleased to allow the revision application holding the right of the respondent to use the subject pathway for ingress and egress running between Survey Nos.461 and 468 to reach Survey No.467.

4. At the outset, learned advocate for the petitioner has raised a short point and sought remand as the directions given by the Deputy Collector at the time of remand were not complied with and thereafter the impugned order itself is inconsistent with the earlier direction of remand.

5. Learned advocate for the petitioner submitted that while remanding the matter, the Mamlatdar, in the first round of litigation, had relied upon the panchnama prepared at the relevant time and, upon relying the said panchnama, had allowed the suit of the respondent. However, in the revision application before the Deputy Collector, the Deputy Collector had categorically remanded the matter back to the Mamlatdar, on the ground that the panchnama was not prepared in presence of the petitioner and, therefore, it could not be relied upon. Therefore, upon remand, it was necessary for the Mamlatdar to undertake the exercise of preparing a fresh panchnama. As against this, learned advocate for the respondent has submitted that the panchnama that was prepared was a reliable panchnama and there could not have been any objection, and even if upon remand, another panchnama would have been prepared, then the same would have reflected the same set of situation. In that view of the matter, the Mamlatdar was justified in proceeding with the remand and coming to the said conclusion, which is in consistent.

6. Having considered rival submissions of the parties and having perused the documents on record, it appears that the respondent had filed a suit bearing No.59 of 2018 under S.5 of the Mamlatdars' Courts Act before the Mamlatdar, Anand (Rural), claiming that the respondent has a right of way to pass and carry agricultural equipment through a pathway between Survey Nos.461 and 468 to reach to his agricultural field bearing Survey No.467. The said suit was allowed in favour of the respondent vide order dated 5 November 2018. Hence, the petitioner filed Revision Application No.14 of 2016 before the Deputy Collector under S.23(2) of the Mamlatdars' Courts Act .

7. From the order dated 17 February 2020 passed by the Deputy Collector, it appears that a contention was raised by the petitioner that the panchnama was not drawn in presence of the petitioner and still the same was made the basis for allowing the suit of the respondent. Therefore, by order dated 17 February 2020, the Deputy Collector had partly allowed the revision application and remanded the matter back to t