Skip to content


Pathan Mukhtyarkhan Ajamkhan Vs. Pathan Usmankhan Rehmatkhan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1973)14GLR607
AppellantPathan Mukhtyarkhan Ajamkhan
RespondentPathan Usmankhan Rehmatkhan
Excerpt:
- - the power of directing removal of any obstruction or impediment is only conferred upon the mamlatdar in cases arising under section 5(1)(a), but the case of the plaintiff clearly does not fall under section 5(1)(a) since there is no question of any impediment created in the flow of any surface water. the only conclusion that can be drawn on the facts of this case is that the mamlatdar has exceeded his jurisdiction under section 5(2) in passing the order that he has done and the prant officer who dismissed the revision application of the present petitioner failed to exercise his jurisdiction in revision when he came to the conclusion that the mamlatdar had followed the procedure prescribed by law......provisions of the mamlatdars' courts act, 1906 (bombay act no. ii of 1906). the petitioner in this revision application is the original defendant and the respondent is the original plaintiff. in 1963, the plaintiff filed a suit in the court of the mamlatdar, mehsana, under the provisions of section 5 of the mamlatdars' courts act complaining of an obstruction created in an alleged public way and the plaintiff contended that he had a right to pass along that public way; but because of the hedge put up by the defendant, that right of his was obstructed. the plaintiff is the owner of survey no. 338 of tundali village in mehsana taluka; whereas the defendant is the owner of survey no. 337 of the same village and the plaintiff contended in his plaint that between survey nos. 337 and 338,.....
Judgment:

B.J. Divan, J.

1. This revision application has been filed under Section 115 of the Code of Civil Procedure against the orders passed in the first instance by the Mamlatdar and in revision by the Deputy Collector under the provisions of the Mamlatdars' Courts Act, 1906 (Bombay Act No. II of 1906). The petitioner in this revision application is the original defendant and the respondent is the original plaintiff. In 1963, the plaintiff filed a suit in the Court of the Mamlatdar, Mehsana, under the provisions of Section 5 of the Mamlatdars' Courts Act complaining of an obstruction created in an alleged public way and the plaintiff contended that he had a right to pass along that public way; but because of the hedge put up by the defendant, that right of his was obstructed. The plaintiff is the owner of survey No. 338 of Tundali village in Mehsana Taluka; whereas the defendant is the owner of survey No. 337 of the same village and the plaintiff contended in his plaint that between survey Nos. 337 and 338, there was a public 'Nelia' along which he had a right to pass in order to approach his own survey No. 338. The Mamlatdar exercising the powers under the Mamlatdars' Courts Act heard the matter and he came to the conclusion that the 'Nelia' between survey Nos. 337 and 338 was a public 'Nelia' and he held that there was a public road in the shape of this 'Nelia' on the northern side of survey No. 337, that is between the two survey numbers. It appears that after the suit was filed, two successive Mamlatdars who were seized of the matter inspected the disputed site and the Notes made by them on the map were to the effect that there was a 'Nelia' between survey Nos. 337 and 338. It appeared that the conclusion of the Mamlatdar was that the defendant had closed the road of the plaintiff by removing the hedge and cultivating the 'Nelia'. Thereupon he passed the following order : 'The defendant should open the 'Nelia' which is to the north of survey No. 337 and he should immediately open the road of the plaintiff for having access to his survey No. 338 and the defendant should immediately remove whatever obstruction he might have put up to that right of way. In this matter, an order in Schedule 'C' as mentioned in Section 21(2) should be issued to the defendant and intimation should be sent to the Circle Inspector to enforce the order.' In pursuance of this judgment of the Mamlatdar, an order was issued to the following effect to the defendant : 'You Pathan Mukhtyarkhan Ajamkhan who are defendant herein, are informed...in the occupation of the plaintiff there is survey No. 338 of Tundali village. It is being shown in the records in the plaintiffs name as the occupant and you are creating an obstruction therein. Hence you are informed that you should not create any obstruction in the above-mentioned property in the occupation of the plaintiff, nor should you make any disturbance therein. To the north of survey No. 337, there is a 'Nelia'. That 'Nelia' should be opened. The right of way for access to survey No. 338 of the plaintiff has been closed. That road should be immediately opened and whatever obstruction has been created should be immediately removed. This order will remain in force until an order of a Court of competent jurisdiction alters the above order.' A copy of this order was sent to the Circle Inspector, Jotana, for making the necessary arrangement in connection with the order.

2. Against this judgment and order of the Mamlatdar, a revision application was preferred under Section 23 of the Mamlatdars' Courts Act to the Collector and the revision application was disposed of by the Prant Officer, Mehsana. The Prant Officer did not assign any reasons, but has merely mentioned 'After perusing the papers, it appears that Mamlatdar, Mehsana, has followed the procedure prescribed by law and hence there is no reason to revise the order of the Mamlatdar. The result, therefore, is that this application is rejected.' The reason why he found that the procedure prescribed by law had been followed by the Mamlatdar, has not been mentioned by the Prant Officer.

3. The powers of the Mamlatdar functioning under the Mamladars' Courts Act, 1906, hereinafter referred to as 'the Act', are to be found in Section 5. Under Sub-section 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 the 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-section (1) of Section 5 of the Act. Sub-section (2) of Section 5 confers power on the Mamlatdar to issue injunction. Under Sub-section (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-section (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-section (2) read as follows:

The said Court shall also, subject to the same provisions, have power within the said limits...when any person is otherwise than by due course of law disturbed or obstructed...in the use of roads or customary ways thereto, to issue an injunction to the person causing, or who has attempted to cause, such disturbance or obstruction, requiring him to refrain from...causing or attempting to cause any further such disturbance or obstruction.

This is the extent of the jurisdiction of the Mamlatdar under Sub-section (2) of Section 5 of the Act. It is, therefore, obvious that the Mamlatdar has no jurisdiction to issue any order directing removal of the obstruction or to cause the obstruction to be removed. Under these circumstances, the Mamlatdar, when he directed that the defendant should remove the alleged obstruction created by him in the alleged public 'Nelia', was not acting within the four corners of the jurisdiction conferred upon him under Sub-section (2) of Section 5 of the Act. In the course of the arguments before me, the provisions of Section 19, Clause (c) were referred to; but that section deals with points to be decided by the Mamlatdar at the hearing and Section 19 does not deal with the power of the Mamlatdar to pass the appropriate order. Mr. Zaveri for the respondent, original plaintiff, drew my attention to the provisions of Section 21(2) and also to the Form in Schedule 'C' which lays down the form of injunction to be issued under Section 21, Sub-section (2). Section 21, Sub-section (2) mentions:

Where the Mamlatdar's decision is for granting an injunction, he shall cause the same to be prepared in the form of Schedule BB or C, as the case may be, and shall deliver or tender the same then and there to the defendant, if present, or if the defendant is not present, shall send it to the village-officers, or to any subordinate under his control, to be served upon the defendant.

In the instant case, the Mamlatdar directed that an order under Section 21, Sub-section (2) in form C should be issued and the second paragraph of the form of injunction in Schedule 'C' mentions : 'You are hereby prohibited from making any further attempt to disturb or obstruct...the said plaintiff in his possession of the said property...otherwise than in execution of the decree of a competent Civil Court.' It also refers to the obstruction of the enjoyment of the right of way when Form 'C is read as a whole. It is, therefore, clear that the order which has been actually issued by the Mamlatdar in the instant case is not actually in the form in Schedule 'C inasmuch as it directs the petitioner, in terms, to remove the obstruction put up by him. The power of directing removal of any obstruction or impediment is only conferred upon the Mamlatdar in cases arising under Section 5(1)(a), but the case of the plaintiff clearly does not fall under Section 5(1)(a) since there is no question of any impediment created in the flow of any surface water. The only conclusion that can be drawn on the facts of this case is that the Mamlatdar has exceeded his jurisdiction under Section 5(2) in passing the order that he has done and the Prant Officer who dismissed the revision application of the present petitioner failed to exercise his jurisdiction in revision when he came to the conclusion that the Mamlatdar had followed the procedure prescribed by law.

4. Under these circumstances, this revision application is allowed and the order passed by the Mamlatdar in the first instance and the further order passed in revision by the Prant Officer, Mehsana, are both set aside. I must make it clear that I am not passing this order on the merits of the case and I am not deciding the merits of the dispute between the plaintiff and the defendant. This decision is based solely on the lack of power in the Mamlatdar to pass the order that he did.

Civil Revision Application is allowed and the rule is made absolute with costs. The order of the Mamlatdar, dated December 22, 1967, and the order passed in revision on July 29, 1968 by the Prant Officer, Mehsana, are both set aside.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //