CAV Judgment

1. Rule. Learned AGP Mr. Siddarth Desai and learned advocate Mr. Vidit Sharma waive service of notice of Rule for respondent Nos. 1 to 3 and respondent Nos. 4 to 6, respectively.

2. By way of preferring present petition, the petitioners have prayed for the following main relief/s:

          "A. That the honourable court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order annexure-L dated 06.05.2023 passed by Dy. Collector in the interest of justice.

          B. That the honourable court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction holding that the impugned order at Annexure L dated 06.05.2023 passed by Dy. Collector is illegal, against the revenue record, unjust and principles of natural justice and is required to be quashed and set aside."

3. Heard learned advocate Mr. I. M. Pandya for the petitioner - original defendant, learned AGP Mr. Siddarth Desai for respondent Nos.1 to 3 and learned advocate Mr. Vidit Sharma for respondent Nos. 4 to 6 - original plaintiffs.

4. Learned advocate Mr. Pandya submits that respondent Nos. 4 to 6 herein - original plaintiffs have instituted a suit under Section 5 of the Mamlatdars' Courts Act before the respondent No.3 - Mamlatdar, Bayad, inter alia, alleging that the petitioner herein - original defendant has created impediments by throwing and spreading thorns in the middle of the way and thereby blocked the public way which was used and utilized by the villagers since last 50 years and prayed to open the said road. It is the case of the private respondents herein that the said road was in existence since last more than 40 to 50 years and all the villagers used and utilized the said road to reach to their respective agricultural fields. Therefore, private respondents have instituted the suit before the Mamlatdar, inter alia, praying for opening the said way for the use of the public at large. Learned advocate Mr. Pandya submits that the petitioner is the owner and occupier of agricultural land bearing revenue survey No.45 (old survey No.12) and he is doing agricultural activities after his retirement. Learned advocate Mr. Pandya further submits that in the year 1982, the respondent Nos. 4 to 6 herein - original plaintiffs have purchased agricultural land bearing Survey Nos.26, 27 28 and 29 from original owners. He further submits that an alternative way for their ingress and egress is also found in Village Form No.7/12, which is passing from the southern side of the boundary of their agricultural lands. The said alternative road is being used by the plaintiffs since last many years. Learned advocate Mr. Pandya has read Section 5 of the Mamlatdars' Courts Act and submitted that Mamlatdar is empowerd to resolves the disputes affecting agricultural enjoyment including blocked pathways also but in the instant case, no such way, as alleged by the plaintiffs, is in existence and therefore the suit filed by the plaintiffs itself is not maintainable. Learned advocate Mr. Pandya further submits that not a single parcel of agricultural field of the plaintiffs is adjacent to the agricultural field of the petitioner and therefore there is no question of blockage of road of the plaintiffs at the hands of the petitioner. Learned advocate Mr. Pandya further submits that on account of inimical terms with the Sarpanch and Deputy Sarpanch, they have, in connivance with the plaintiffs and other villagers, created bogus documents and with the help of those documents, they tried to grab the agricultural land of the petitioner. Learned advocate Mr. Pandya further submits that in the village map as well in the Village Form No.7/12, the way in question does not exist. He further submits that the petitioner has not been intimated and no notice has been issued to the petitioner before carrying out the Panchnama by the Circle Officer. Learned advocate Mr. Pandya further submits that the Mamlatdar has not considered the aforesaid important aspects of the matter and allowed the suit and directed the petitioner to open the road, which is alleged to be blocked by the petitioner.

5. Learned advocate Mr. Pandya further submits that being aggrieved by and dissatisfied with the said order, the petitioner preferred a revision before the Deputy Collector, Bayad. He submits that though the said revision application came to be allowed by the Deputy Collector, in the operative part of the order, the order passed by the Mamlatdar has been upheld by the Deputy Collector. Learned advocate Mr. Pandya further submits that at the time of passing the order, the Deputy Collector has also tried to misguide the petitioner herein by stating that if at all petitioner is aggrieved with the said decision, in that event, he has got all valuable right to challenge the said order by way of preferring a suit before the competent Civil Court, despite the fact that there is specific bar in the statute itself as regards institution of a suit in this kind of dispute. Learned advocate Mr. Pandya submits that in view of the aforesaid overall facts of the present case, petition may be allowed.

6. On the other hand, learned advocate Mr. Vidit Sharma appearing on behalf of respondent Nos. 4 to 6 - original plaintiffs submits that in fact just few days before the institution of a suit by the plaintiffs, the petitioner herein has blocked the way in question, which was being used and utilized by the villagers since last more than 50 years, by spreading thorns in 50 feet area. He further submits that pursuant to the institution of suit by the plaintiffs, after issuing notice to the respective parties, the concerned revenue authority had gone to the place for spot inspection and carried out spot inspection and recorded the statements of the witnesses and prepared Panchnama. He further submits that if the Hon'ble Court would make cursory glance upon the village map, in that event, it would have been found out that the road passing through the field of the present petitioner is in existence. He further submits that the petitioner has created obstructions by spreading thorns in the middle portion of the way in question and thereby blocked the said road with a sole intent to disturb the smooth movement of the villagers. He further submits that the Circle Officer has also carried out spot inspection and prepared a Panchnama and if the Hon'ble Court would make cursory glance upon the contents of the said Panchnama, in that event, it would have been found out that the way in question is in existence which is blocked by the petitioner by spreading thorns. He further submits that the Mamlatdar has also considered the Panchnama as well as statements of the witnesses and thereafter jumped to the conclusion that the existing road which was used and utilized by the villagers since last decades has been blocked by the petitioner by spreading thorns and therefore allowed the suit filed by the plaintiff and directed to open the way in question by removing the impediments created by the petitioner. He further submits that the Deputy Collector has also not entertained the revision preferred by the petitioner. Thus, the scope of interference of this Court in the matter of concurrent findings of fact recorded by the concerned Revenue Authorities is very limited. He further submits that the Mamlatdar has, while allowing the suit, also assigned the reason that the TDO had also issued work order for the construction of new underpass at village Azadkampa which irresistibly goes on to show that the way in question passing through the agricultural field of the petitioner is in existence and the said way has been used and utilized by the villagers since last more than 50 years. He further submits that in fact Sarpanch, Deputy Sarpanch and other villagers have also filed an affidavit narrating all those facts before the Mamlatdar during the course of hearing of the suit. He further submits that after the institution of the suit, the Circle Officer as well as Talati-cum-Mantri have also paid visit to the place and found that the way has been blocked by the petitioner with a sole intent to harass the villagers. He, therefore, submits that the order passed by the Mamlatdar which is confirmed by the Deputy Collector is just, fair and legal and based upon the sound principle of law and therefore the same is not required to be interfered with by this Court.

7. Learned AGP Mr. Siddarth Desai submits that no error of facts and/or law could be said to have been committed by the revenue authorities while passing the impugned orders, which warrants any interference by this Hon'ble Court. He further submits that the revenue authorities have passed just, fair and reasonable orders after appreciating and considering the documents and materials available on record. He further submits that even during the pendency of the present proceedings, a latest map is prepared and if the Hon'ble Court would make cursory glance upon the said map, in that event, it would have been found out that the way in question, which is passing through the agricultural field of the petitioner, is already existed and middle portion of the way is blocked. He has tendered the said map across the Bar, which is directed to be taken on record. He further submits that even the statements of the villagers have also been recorded and they have very specifically stated that the way in question is used and utilized by the villagers since last many decades and the said way has been blocked by the petitioner by creating impediments. He further submits that it is well settled that the public road should not be blocked and/or obstructed on the ground of existence of an alternative way. He submits that when both the revenue authorities have come to the conclusion that the way in question, which is being used by the villagers since last many decades, has been blocked by the petitioner by throwing and spreading thorns and therefore it is required to be opened for the use of public at large, in that event, the said finding recorded by the revenue authorities concerned may not be disturbed. He, therefore, submits that present petition being devoid of merit, may be dismissed.

8. Having heard learned advocates appearing for the parties and having considered the materials available on record, it is found out that the respondent Nos. 4 to 6 herein have instituted a suit under Section 5 of the Mamlatdars' Courts Act, inter alia, praying for issuance of direction to the defendant - petitioner herein to open the way in question, which is being used and utilized by the villagers since last many decades, by removing the obstructions created by the petitioner. It is also found out from the record that after the institution of the suit, Panchnama of the place has been carried out by the In-charge Circle Officer. Having gone through the contents of the Panchnama, it transpires that the way, which is passing through survey No.45 (old survey No.12 i.e. the field of the petitioner), has been blocked by throwing and spreading thorns in the middle of the way. It also transpires from the record that the said way is being used and utilized by the villagers since last many decades. Moreover, during the pendency of the present proceedings, a latest map is also prepared. Having considered the said map, it appears that the way in question is passing through the field of the present petitioner and therefore the argument canvassed by learned advocate Mr. Pandya for the petitioner that in fact the way in question is not in existence, is not believable. I have also considered the satellite map of the village from which also it transpires that the way in question is already existed and the middle portion of the said road is blocked. It is also found out from the record that Sarpanch of Navalpur Gram Panchayat has also issued a certificate on 05.08.2022 to the effect that since 1981, the way which is passing through Survey No.12 of Azadkampa village and connected with Modasa- Ahmedabad Highway is being used and utilized by the villagers of village Azadkampa whereupon one underpass is also constructed. It is the case of the petitioner that one alternative way is available for the use of the original plaintiffs and therefore the suit filed by the plaintiffs ought not to have been allowed by the Mamlatdar. The said argument is misconceived in view of the settled proposition of law that a public way should not be blocked and/or obstructed under the pretext of existence of an alternative way.

9. I have also considered the certificate issued by the Sarpanch, Navalpur Gram Panchayat, Panch Rojkam carried out by the In-charge Circle Officer on 22.08.2022, the written statement of the petitioner, report of the In-charge Circle Officer, village map, latest map tendered during the course of hearing of this petition as well as satellite map of the village tendered by the learned advocate for the respondent Nos. 4 to 6, the reasons assigned by the Mamlatdar as well as Deputy Collector while passing the impugned orders and considering the materials and documents available on record, I am of the view that no error is committed by the revenue authorities while passing the impugned orders, which warrants any interference by this Court. It is also well settled that the Court must be slow in interfering with the concurrent findings of fact recorded by the authorities concerned.

10. In view of the aforesaid discussion, the petition being devoid of merit is required to be dismissed. Accordingly, it is dismissed. Rule discharged.