BELEVIEW ASSOCIATIONS Vs. AMBALAL HIRABHAI PRAJAPATI

JUDGEMENT

(1.) The petitioner ? Beleview Associations, described as registered non-trading corporation is before this Court challenging the order passed by the Deputy Collector, Viramgam Prant dated 23rd February 1996 in Mamlatdars' Courts Act/Revision/Case No.2/94-95. The Deputy Collector was pleased to dismiss the appeal filed by the present petitioner against the order passed by the Mamlatdar, Daskroi dated 09.01.1995 in Mamlatdars' Courts Case No.2/94.

(2.) Mr.M.A.Parekh, the learned advocate for the petitioner vehemently contended that the Mamlatdar, Daskroi has committed a grave error in passing an order directing the petitioner to open the 'way' leading to land bearing block No.371 through the land bearing block No.372 of village 'Lapkaman', Taluka 'Daskroi'. He submitted that under Sub-section 2 of Section 5 of Mamlatdars' Courts Act, 1906, the Mamlatdar has no power to pass such order. He submitted that this Court in the matter of PATHAN MUKHTYARKHAN AJAMKHAN VS. PATHAN USMANKHAN REHMATKHAN, reported in (1973). has observed in paragraph No.3 that: "3. The powers of the Mamlatdar functioning under the Mamlatdars' Courts Act, 1906, hereinafter referred to as "the Act", are to be found in sec. 5. Under sub-sec. 5(1) of the Act, the Mamlatdar has the power under clause (a) to deal with impediments, erected otherwise than under due authority of law, to the natural flow in a defined channel or otherwise of any surface water. Under clause (b), he has to jurisdiction to give immediate possession of any lands or premises used for agriculture or grazing to any person who has been dispossessed or deprived thereof otherwise than by due course of law. It was not the case of the plaintiff that there was any impediment to natural flow of any surface water, nor was it his contention that he was deprived of possession of any agricultural land and, therefore, the case of the plaintiff would not fall under either of the two clauses of sub-sec. (1) of sec. 5 of the Act. Sub-sec. (2) of sec. 5 confers power on the Mamlatdar to issue injunction. Under sub-sec. (1), the Mamlatdar can remove the impediment or cause the same to be removed and in the case of dispossession, can give immediate possession; whereas, under sub-sec. (2), the Mamlatdar can only issue an injunction requiring the person concerned to refrain from doing one or the other thing mentioned in the section. In light of the facts of this particular case, the relevant provisions of sub-sec. (2) read as follows :

(3.) One Ambalal Hiralal Prajapati filed an application (which was registered as Mamlatdars' Courts Case No.2/94 under Section 5 of the Mamlatdars' Courts Act, 1906) praying that the 'way' leading to his agricultural land bearing block No.371 be ordered to be opened, which according to him, was closed by encroaching upon by the present petitioner (opponent in Mamlatdars' Courts Case No.2/94). The application was filed on 08.09.1993. It was registered as Mamlatdars' Courts Case No.2/94. It was decided on 09.01.1995. During the entire proceedings, the petitioner herein did not remain present before the Mamlatdar. The Mamlatdar, on receipt of the application, got the matter investigated by Talati-cum-Mantri. The report prepared by Talati-cum-Mantri was verified by Circle Inspector. On the receipt of the report, the case was registered (Mamlatdars' Courts Case No.2/94). The notices were issued to the parties. The applicant ? respondent No.1 herein remained present and submitted his case that there was a 'way' on the 'southern end' of block No.372 using which he was going to his land bearing block No.371, but for last 3 years, owners of block No.372 have obstructed that way by making a wire fencing, as they have got the land converted in NA and have sold the same after plotting to different parties. The applicant submitted that he is not able to cultivate his land for last two years. He, therefore, prayed that an order to open the 'way' be made. The applicant examined one Mr.Chaheraji Laxmanji Thakor, a farmer from the same village 'Lapkaman' alongwith one Mr.Baldevbhai Aatmaram Patel. The Mamlatdar has recorded that despite issuance and service of notice to the present petitioner (respondent in Mamlatdars' Courts Case No.2/94) of various dates of hearing, he has not remained present. The Mamlatdar has recorded that on the following dates, i.e. 29.06.1994, 12.05.1994, 24.06.1994, 22.07.1994, 22.08.1994 and 30.11.1994, the hearing was fixed. It is on record that on 01.05.1994 and 22.05.1994, the intimation was sent by Registered Post A.D., of which A.D. slip is on record, but the petitioner did not remain present on any of the dates of hearing. Finally, the hearing was kept on 09.01.1995 and the case was decided on merits. The Mamlatdar has recorded that the land bearing block No.371 is in the names of Ranchodbhai Hirabhai, Ambalal Hirabhai etc. In the land records, the land bearing block No.372 is in the name of Beleview Association and it is non-agricultural. Though it is averred by the applicant that block No.372 is divided in various plots and sold to different persons, but no names are entered in the record. But then, factually, at the site, owners of sub-plot Nos.45 and 46 have closed the way to go the block No.371 by making wire fencing. The adjoining land holders, viz. Chaheraji Laxmanji Thakor and Baldevbhai Aatmaram Patel have supported the case of the applicant and in their deposition, they have prayed that the 'way' be made open. They have stated in their deposition that from time immemorial (Para Purva Thi), there was a way and it was used not only by pedestrians, but also for taking bullocks, bullock carts, other vehicles. It was on the southern end of block No.372 and it is closed. Therefore, for last two years, the owner of block No.371 is not able to cultivate his land. The Mamlatdar after taking into consideration the aforesaid facts, decided the matter on 09.01.1995 and passed an order that the 'way' leading to block No.371 from block No.372 be opened.