JAGDISH JAYVANT ARAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS petition arises in pursuance to Section 5 of the Mamlatdars' Courts Act, 1906 ( for short "the Act" ). An application dated 06.01.2005 produced at Annexure "C" came to be furnished by one Patel Bharatbhai Muljibhai and Rathod Upendrasinh Jaswantsinh who are respondents No.5 and 6 respectively. In that application it was contended that they have right to pass through the land bearing Survey No.427 and other survey numbers of Village Thari of Taluka Nandod, District Rajpipla. A grievance was made that the petitioner herein who is the owner of land bearing Survey No.432 had ploughed the way and thus obstructed the said respondents from having access to their agricultural land.

(2.) THE daily proceedings of Mamlatdar's Court have been produced at Annexure "G" to this petition, wherefrom it appears that, since 21.01.2005 until 02.6.2005 the matter was adjourned from time to time without effective hearing. However, the impugned order came to be passed on 03.6.2005 which is not even recorded in the daily proceedings. On 02.6.2005 the daily proceedings, recorded the absence of the applicant and presence of the respondent and then adjournment of the matter is recorded.

(3.) SENSING the injustice by Mamlatdar ­ respondent No.7 herein, who, upon service of rule, has preferred not to appear, an application dated 02.6.2005 was moved before the District Collector, Narmada seeking stay of the proceedings before the Mamlatdar, and on the next day, an application purported to be under Section 24 of the Code of Civil Procedure ( for short "CPC" ) came to be submitted to the District Collector for transfer of the case to another Mamlatdar. By an order dated 4.6.2005 stay was granted, however, on the preceding day i.e. 03.6.2005, the respondent No.7, without recording any evidence and without referring the said order in his daily proceedings, passed the impugned order granting the said application. In the petition in para 12 an averment is made to an effect that on 03.6.2005 the Collector, Narmada District passed an order and it was communicated telephonically to the respondent No.7. However, the order which is produced on record is dated 4.6.2005 as stated in para 13. It is also averred that, to circumvent the order passed by the Collector, the Mamlatdar illegally passed the order purportedly on 3.6.2005, produced at Annexure "M" to the petition.