RAISINH DHIRAJSINH BORADHARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr.Prachchhak, learned AGP appears for respondent No.1 and Mr.Majmudar, learned Counsel appears for respondent No.2, waive service of notice of rule. With the consent of the parties, the matter is taken up for final hearing today.

(2.) The short facts of the case are that the petitioner filed suit before the Mamlatdar claiming the right of way being Mamlatdar Act Case No.1 of 2004. The right of way was claimed over the land bearing Block No.408 and No.404 on the western side boundary and on southern side boundary of Block No.404. It appears that the petitioner also stated in the suit that the land in question is cultivated since the last one year by the Opponent therein. The Mamlatdar appears to have personally visited the site on 22/9/2004 and he has drawn the panchnama. However, the case of the petitioner is that the petitioner was not intimated about the same, nor is the panchnama drawn in his presence. It appears that the Mamlatdar found that there is a road up to Aghoreshwar Temple, however, he found that there is no road shown in the village map and ultimately he has dismissed the suit as per the order dated 24/9/2004. The petitioner carried the matter before the Dy. Collector in Appeal No.6/2004 and the Dy. Collector found that when the panchnama was prepared hearing was not given to the parties, but he found that when the inspection was made by the Mamlatdar himself, it was not necessary for the examination of the witnesses or recording of the statement and, therefore, the appeal was dismissed as per the order dated 23/11/2004. It is under these circumstances the petitioner has approached this Court by preferring this petition.

(3.) Mr.Rathod, learned Counsel appearing for the petitioner submitted that no opportunity was given to the petitioner to lead the evidence, nor for submitting objections after the panchnama and he further submitted that the other residents of the adjacent area have preferred application/suit before the Mamlatdar in connection with the very road. However, as the matter is pending before this Hon'ble Court, Mamlatdar has not taken further action in this regard. He, therefore, submitted that if the present case is remanded to the Mamlatdar for reconsideration, the petitioner would also be in a position to lead evidence in this regard and thereafter appropriate decision may be taken by the Mamlatdar.