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SCA/9366/2008 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9366 of 2008
=========================================================
MAHESHBHAI
RAGHUBHAI THORAT & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
LR PATHAN for
Petitioner(s) : 1 - 2.
MR HUKAMSINGH,AGP for Respondent(s) :
1,2,3
MR HRIDAY BUCH for Respondent(s) :
4,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 17/07/2008
ORAL
ORDER
Leave
to amend.
Heard
learned advocate Shri L.R. Pathan for the petitioners, learned AGP
Shri Hukamsingh for respondents Nos. 1 to 3 and learned advocate
Shri Buch for respondent No.4 on caveat.
The
petitioners’ challenge an order dated 15.1.2008 passed by Deputy
Collector, Valsad by which he was pleased to uphold an order dated
30.9.2005 passed by Mamlatdar, Kaprada. Issue pertains to right of
way asserted by respondent No.4 to reach to his field through the
field of the petitioners. Respondent No.4 holds Survey No. 157 of
village Ozar. They contend that through the agricultural field of
the petitioners bearing survey No.19, they have been enjoying right
of way since long. Since the petitioners are obstructing their right
of way, respondent No.4 had approached the Mamlatdar under Section
5 of the Mamlatdar Courts Act. Mamlatdar in above-mentioned order
granted relief to respondent No.4 which aggrieved the present
petitioners.
In
the earlier round of litigation, Deputy Collector had held in favour
of respondent No.4 upon which the petitioners had approached this
Court by filing Special Civil Application No.22768/2006. Learned
Single Judge of this Court in order dated 15.1.2007, finding that
order of Deputy Collector is not a reasoned order, remanded the
proceedings to the Deputy Collector. In the second round, Deputy
Collector passed his impugned order dated 15.1.2008 and once again
confirmed the order of Mamlatdar.
Learned
advocate Shri L.R. Pathan for the petitioners is perhaps justified
in pointing out that even the present order of Deputy Collector
though apparently run into 10 pages, it is not elaborately giving
reasons nor considers detailed submissions made by both the sides.
However, it may be noted that earlier also between the Mamlatdar and
Deputy Collector, proceedings were remanded and as noted High Court
also once remanded the proceedings before the Deputy Collector. In
that view of the matter, I do not find it appropriate to toss the
proceedings from one place to another only to achieve the purpose of
eliciting or extracting reasons from the Deputy Collector. I have
therefore, heard the parties on merits of the matter also.
I
find that Mamlatdar had come to factual finding that respondent No.4
has a right of way through the field of the petitioner to reach his
own agricultural land. Learned advocate for the petitioner was
unable to point out that field of respondent No.4 abuts on any
public road. He contended that field of respondent No.4 is
landlocked and that respondent No.4 would have to pass through
agricultural filed of someone or other to access his land.
Apparently, accessing through the filed of the petitioners, is the
shortest route to the village road. On this ground and on the ground
that Mamlatdar and Deputy Collector had come to factual findings
which do not call for interference in writ jurisdiction, I see no
reason to interfere. Though Deputy Collector’s order is not
elaborate in terms he has upheld the findings of the Mamlatdar in
this regard. It may be recalled that proceedings under Section 5 of
the Mamlatdar Courts Act are of summary nature and are meant to
summarily remove obstructions in agriculturist accessing his field
through conventionally used passage from the field of others. If the
petitioners have any grievance they can always establish their right
through detailed civil proceedings.
Writ
petition is therefore, not entertained. Same is dismissed.
The
above observations are meant only for deciding the present
proceedings and will not come in way of the petitioners in
establishing their rights through other legal machinery.
(Akil
Kureshi,J.)
(raghu)
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