DHIRUBHAI JASMATBHAI RUDANI Vs. NANUBHAI GOVABHAI VADODARIA

JUDGEMENT

(1.) The petitioners have challenged the order of the Deputy Collector dated 12-9- 1994 dismissing the appeal of the petitioners which was filed against the order of the Mamlatdar dated 31-1-1994 by which the Mamlatdar acting under the provisions of Section 5 of the Mamlatdar Court Act, 1906, restrained them from obstructing passage referred to in the said order.

(2.) It was contended on behalf of the petitioners that the order of the Mamlatdar could not have been made under Section 5 of the said Act since a suit was already pending in the Civil Court having bearing on the question of right of way which was sought to be claimed by the respondents. It was further submitted that the order of the Mamlatdar was made in violation of the principle of natural justice inasmuch as he had relied on the evidence of persons who were not offered for cross-examination to the petitioners. Furthermore, the Mamlatdar did not decide the application made by the petitioners by which he was requested not to proceed with the matter further in view of the pending suit. It was also contended that panchnama and map were relied upon by the Mamlatdar even though neither the Panch nor the Circle Inspector was examined. It was submitted that the Mamlatdar proceeded as if the burden lay on the petitioners to prove the negative that no one had a right of way through the land.

(3.) The orders of the Mamlatdar and the Collector made under Sections 5 and 23(2) of the said Act were challenged before this Court by these petitioners by filing Civil Revision Application No. 660 of 1994. The Revision Application was preferred presumably on the basis of Section 23(3) of the said Act which provides that the Collector, Assistant Collector or Deputy Collector shall be deemed to be a court when he takes any proceedings under the Act. That Revision Application came up for hearing before Hon'ble Justice Mr. N. J. Pandya. The following order was made therein: COURT'S ORDER: