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Judgment
G.R. Udhwani, J.—The parties are agriculturist having their agricultural field adjoining to each other. 1st respondent instituted an application u/s 5 of the Mamlatdars'' Courts Act, 1906 (for short the Act) claiming that in order to have access to his field bearing Survey No. 241 he had been using a way through the field of the petitioners since last more than 30 years and since the said way was obstructed, the above proceedings were instituted. By an order dated 08/12/2008 in Mamlatdar Case No. 1 of 2008 instituted by 1st respondent as above, Mamlatdar allowed the application against which revision application was preferred and by an order dated 09/11/2009 the Assistant Collector, Ankleshwar by an order in the said Revision Application No. 5 of 2009 remanded the matter after holding that no local inspection was done; nor a Panchnama was drawn to elucidate the fact as to existence or non-existence of such way; neither such facts were ascertained on the basis of the record; nor it was explored as to whether any alternative way was available to the 1st respondent.
On remand, a Panchnama came to be drawn on 30/10/2010 by Sarpanch of Gram Panchayat, Valner where the land in question was situated. The Mamlatdar also made a local inspection and relying upon the Panchnama as also local inspection concluded that there was no alternative way to access his field by the 1st respondent. The said order dated 06/07/2011 was again taken in revision and by order dated 02/04/2012 the Mamlatdar''s order was confirmed against which present petition is preferred.
The contention raised by the learned Counsel for the petitioners is that the Mamlatdar''s Court had exceeded the jurisdiction in approving easementary right which jurisdiction he did not have as issue of easementary right can be decided by the Civil Court only. In his submission, the Mamlatdar''s Court is empowered to remove only obstruction on the existing way and not to create fresh rights and that by impugned order such fresh rights were created. It was also contended that though in the remand order of the Assistant Collector, Mamlatdar''s Court was required to carry out the exercise mentioned therein; without carrying out such exercise, again same order came to be passed by the Mamlatdar''s Court. Learned Counsel would also submit that in fact in revision application existence of alternative way to Survey No. 283 was pointed out and that is why the matter was remanded and without considering the said aspect, the impugned order came to be passed.
As against that, learned Counsel for 1st respondent would submit that the disputed way to his field was being used by the 1st respondent since more than 30 years and that fact was not disputed before the Mamlatdar''s Court and that Panchkayas was considered and it was found that there was no other alternative way and that since the 1st respondent was claiming the right on the existing way and he did not ask for a fresh way, there was no question of easementary right. Learned Counsel would rely upon the following cases.
Harsukhbhai Ranchhodbhai Singala Vs. Deputy Collector [2010 (3) GCD 2562].
Kiritsinh Dharamvirsinh Vs. Kalubhai Shardulbhai and Others, .
Learned Assistant Government Pleader, Mr. Vishal Patel, would support the impugned order.
Having considered the arguments advanced by the parties, as also perused the relevant papers and keeping in view the legal provisions under the Mamlatdars'' Courts Act, the only issue that is required to be considered is as to whether the authorities below have committed a jurisdictional error warranting interference of this Court under Article 227 of the Constitution of India.
6.1. It cannot be disputed that in the event of grievance regarding obstructions having been put against the access to land of an agriculturist, the Mamlatdar''s Court under sub-section (2) of Section 5 is empowered to order removal of such obstruction. After the matter was remanded, the Panchnama of the disputed land was brought on record and the Mamlatdar also made a local inspection and opined that the way which the 1st respondent claimed to have been using since more than 30 years was the only way in existence. It is worthwhile to note that, although, in the revision application averments were made regarding existence of an alternative way, such issue was not pursued before the Mamlatdar''s Court and therefore the learned Counsel for the petitioners is not right in submitting that the material illegality was committed by the Mamlatdar''s Court by ignoring the said aspect.
6.2. It is also misconceived to say that the 1st respondent was claiming easementary right. In the first application, after making an averment that he was using the way since more than 30 years and it was obstructed, 1st respondent asserted that he had a easementary right to use the disputed way. As indicated above, sub-section (2) of Section 5 empowers the Mamlatdar''s Court to remove obstruction and there were averments saying that the 1st respondent was being obstructed by the petitioners in having access to his agricultural land. Thus, the case clearly fell within the jurisdiction of the Mamlatdar''s Court. By ordering removal of obstruction, it cannot be said that Mamlatdar''s Court had finally settled the civil rights between the parties. What the said Court has done is, only ordering of the removal of the obstruction. Such order cannot be said to be without jurisdiction or in excess of the jurisdiction vested in the Mamlatdar''s Court.
6.3. It also cannot be said that after remand, same order was passed by Mamlatdar''s Court, inasmuch as, the Panchkayas was brought on record and personal visit was also paid by Mamlatdar and thereupon he recorded the conclusion in the impugned order. What was expected from him by remand order was the consideration of the matter, particularly, the drawing of Panchnama and local inspection and that exactly was done by the Mamlatdar''s Court.
Under the above circumstances, this is not a case where the Court would exercise the powers under Article 227 of the Constitution of India. There is no substance in the petition. The same is therefore required to be dismissed; accordingly the petition is dismissed. Rule is discharged. Inter-relief, if any, shall stand vacated. There shall be no order as to costs.
It goes without saying that, if any of the parties are advised to resort to civil remedy on the subject matter, the Court hearing civil jurisdiction will not be influenced by the findings rendered herein above. In view of the fact that the matter is finally heard, learned Counsel for the petitioners submits that he does not press for any orders on the pending Civil Application/s. Accordingly, Civil Application/s is/are also disposed of.