SHANTABEN KALABHAI GONDALIYA vs MAMLATDAR AND EXECUTIVE MAGISTRATE

C/SCA/1783/2022 JUDGMENT DATED: 21/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1783 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No

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SHANTABEN KALABHAI GONDALIYA & ORS.
Versus
MAMLATDAR AND EXECUTIVE MAGISTRATE & ORS.
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Appearance:
MR BHAVIN S RAIYANI(3855) for the Petitioner(s) No. 1,2,3
MR.KUNAL R.DESAI(3899) for the Petitioner(s) No. 1,2,3
MS. HIMANI SHAH, LD. ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
MR YOGESHKUMAR A RATANPARA(7260) for the Respondent(s) No. 3,4,5
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CORAM: HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

Date : 21/07/2026

ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.
Ratanpara waives service of notice of rule for and on behalf of
the respondent Nos.3 to 5 and learned AGP Ms. Shah waives
service of notice of rule for and on behalf of the State-
respondents.
2. By this writ application under Article 226 of the
Constitution of India, the writ applicants have prayed for the
following reliefs;
“(A) This Hon’ble Court may be pleased to issue a writ or
in the nature of, Certiorari or any other appropriate writ,
order or direction, quashing and setting aside order dated
08.06.2021 vide order no.JMN/RFMS No.12351136 &
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order dated 29.06.2021 order no.JMN/RFMS/
No.12633838 (Annexure A & Annexure B respectively).
(B) Pending admission, disposal and final hearing of the
above numbered special civil application, this Hon’ble
Court may be pleased to direct the stay of orders dated
08.06.2021 vide order no..JMN/RFMS No.12351136 &
order dated 29.06.2021 order no.JMN/RFMS/
No.12633838 (Annexure A & Annexure B respectively)
passed by the Mamlatdar, Jetpur.
(C ) Ad interim relief in terms of aforesaid clause may
kindly be granted in the interest of justice;
(D) Such other(s) and further relief(s) which this Hon’ble
Court may deem fit to be granted in the interest of
justice’.
3. Facts, in brief, giving rise to the filing of the present
application may be summarized as under;
3.1 The writ applicants are the agriculturists having an
agricultural land admeasuring 1-55-78 at Survey No.166 paiki
of Mouje Village: Mota Gundana, Taluka: Jetpur.
3.2 The private respondents herein filed a suit under Section
5 of the Mamlatdar’s Courts Act, 1906 (for short “the Act,
1906”) before the Mamlatdar, Jetpur, praying thereby to
remove the alleged impediment created by the writ applicants
herein in the natural flow of rain water. It was the case of the
private respondents that, the aforesaid natural stream of rain
water is passing from more than 39 years from east to west of
the respondents’ land and the writ applicants by putting
hurdles in between the said stream of rain water, diverted the
same to the southern side of the land.
3.3 The writ applicants appeared before the Mamlatdar and
filed their written statement, thereby denying all the
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allegations made by the private respondents.
3.4 The respondent No.1-Mamlatdar, vide its order dated
28.07.2020, rejected the suit filed by the private respondents
herein.
3.5 Being aggrieved, the private respondents preferred
revision application before the Deputy Collector, Gondal being
Revision Application No.09 of 2020-21, which also came to be
rejected by the Deputy Collector, Gondal vide its order dated
28.01.2021.
3.6 Thereafter, despite the concurrent findings given by both
the revenue authorities, on 05.07.2021, the Mamlatdar along
with one police constable came to the agricultural field of the
writ applicants and forcefully removed the structure of the
sewer and damaged natural stream of rain water by digging
three feet deep sewer on the land of the writ applicants.
3.7 Against such an illegal and arbitrary action at the behest
of the Mamlatdar, the writ applicants written a letter dated
06.07.2021 to the office of the Mamlatdar, asking for a copy of
the order, granting permission to the Mamlatdar for taking
such an illegal action.
3.8 However, thereafter, vide letter dated 08.06.2021 being
No.JMN/RFMS No.12351136, the Mamlatdar, directed the
parties to maintain the status quo in respect of the land in
question.
3.9 Thereafter, again the writ applicants, vide letter dated
25.06.2021, requested the Mamlatdar to reconsider the
aforesaid letter dated 08.06.2021, since the proceedings
initiated by the private respondents herein have attained
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finality by way of revisional order passed by the Deputy
Collector dated 28.01.2021.
3.10 However, the Mamlatdar, again vide its letter dated
29.06.2021 reiterated the same thing by directing the parties
to maintain status quo.
3.11 Being aggrieved, the writ applicants are here before this
Court with the present application.
4. Learned advocate Mr. Bhavin Raiyani appearing for the
writ applicants has reiterated the facts narrated herein above,
and submits that the orders impugned in the present
application is unjust, illegal, arbitrary and unsustainable in the
eye of law, and therefore, the same deserves to be quashed
and set aside. He further submits that, the act and action on
the part of the Mamlatdar concerned is not justified in law and
is in defiance of the order passed by the Deputy Collector while
rejecting the revision application filed by the private
respondents herein, confirming the order passed by the
Mamlatdar. Learned advocate Mr. Raiyani also submits that,
the earlier orders passed by the Mamlatdar and the Deputy
Collector are just, legal and proper being passed after
appreciating the evidence and materials available on record,
and as such, once the Mamlatdar has passed an order, which
has been confirmed by the Deputy Collector, the Mamlatdar
does not have any power and jurisdiction to rectify or review
his own order without any direction being issued by the higher
authority.
5. Learned advocate Mr. Raiyani further submits that, after
the earlier proceedings attained finality in favour of the writ
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applicants, the private respondents herein again preferred an
application before the Mamlatdar with the same set of facts,
wherein taking completely contrary view from its earlier order,
the Mamlatdar entertained the said application of the private
respondents and directed to maintain the status quo, which is
absolutely illegal and suffers from vice of non-application of
mind. He also submits that, the order passed by the Deputy
Collector dated 28.01.2021, confirming the order of the
Mamlatdar dated 28.07.2020, has not been challenged before
any of the forums including this Court, and thus, the said order
has attained finality, and as such, the Mamlatdar ought to
have appreciated the fact that once the proceedings have
attained finality under the Act, 1906, any rectification or
review of its own order would amount to overreach the
revisional order passed by the Deputy Collector. Learned
advocate Mr. Raiyani further submits that, it is pertinent to
note that, before passing the impugned orders directing to
maintain status quo, no notice has been issued to the writ
applicants herein, thereby they were deprived of their rights of
being heard.
6. In such circumstances, referred to above, learned
advocate Mr. Raiyani prays that, there being merit in the
present application, the same be allowed, and the relief, as
prayed for, be granted.
7. On the other hand, the present application has been
vehemently opposed by learned advocate Mr. Ratanpara
appearing for the private respondents. He submits that, no
error, not to speak of any error of law, could be said to have
been committed by the Mamlatdar in passing the impugned
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orders. He further submits that, it is true that, the earlier
proceedings instituted by the private respondents herein have
attained finality in favour of the writ applicants, however,
subsequently, some developments took place and a new cause
of action arose for the private respondents, compelling them to
again file a new suit before the Mamlatdar with the fresh cause
of action. Learned advocate Mr. Ratanpara also submits that,
with a sole intent to bring those facts and subsequent
developments, an application was preferred by the private
respondents, by narrating those particular facts before the
Mamlatdar, which was also verified by the Mamlatdar, and
after such verification, has passed the impugned orders,
granting status quo. Learned advocate Mr. Ratanpara has
drawn the attention of this Court to the operative part of the
impugned orders, and submits that, even those particular facts
or developments, also reflects from the operative part of the
Mamlatdar’s order, and as such, the impugned orders passed
by the Mamlatdar are just and proper, and as such, do no
require any interference. Moreover, the writ applicants, instead
of approaching the SSRD, have directly come before this Court,
and therefore, it can easily be said that there is an alternative
remedy available for the writ applicants to be availed. He,
therefore, prays to dismiss the present application.
8. Learned AGP Ms. Himani Shah appearing for the
respondents-State fairly conceded that, it seems that there is a
misconception of facts on the part of the revenue authority
concerned while passing the impugned orders. She submits
that, even the officer concerned, who has passed the
impugned orders, has already retired from the service, and
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therefore, under the aforesaid scenario, appropriate order may
be passed.
9. Having heard the learned counsel appearing for the
respective parties, and having gone through the materials
available on record, the only question that falls for my
consideration is whether the Mamlatdar can re-agitate the
same issue between the same parties in a subsequent
proceedings?
10. In answer to the aforesaid, let me, at the outset, start
with a maxim ‘ Nemo debet lis vexari pro eadem causa’. This maxim,
if translated, says that " No man should be vexed twice for
the same cause. " It reflects the idea that no individual should
be subjected to multiple lawsuits for the same issue,
emphasizing fairness and the avoidance of repetitive litigation.
11. At this stage, let me revert to the facts of the present
case. It emerges that the private respondents herein instituted
suit under Section 5 of the Act, 1906 against the writ
applicants, seeking easementary rights. The said suit was
rejected by the Mamlatdar, and the said order of the
Mamlatdar was later confirmed by the Deputy Collector. It
further emerges that, after the concurrent findings by both the
authorities, surprisingly, the Mamlatdar along with one
constable went to the field of the writ applicants and forcefully
removed the structure of the sewer and digged three feet deep
sewer on the field of the writ applicants. It also emerges that
upon such an arbitrary action on the part of the Mamlatdar, the
writ applicants addressed a letter to the Office of the
Mamlatdar, asking them to provide a copy of the order,
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granting permission to the Mamlatdar for taking such an illegal
action. In reply, the Mamlatdar by the impugned
communication, directed the parties to maintain the status
quo.
12. From the above, it is clear that, after the issue got
adjudicated by the Mamlatdar as well as by the Deputy
Collector in favour of the wit applicants, later on, the private
respondents again made an application before the Mamlatdar
on the exact set of facts and for the same cause of action.
13. It further emerges from the record that, the earlier orders
passed by the Mamlatdar as well as by the Deputy Collector,
rejecting the suit of the private respondents herein, has not
been challenged either before this Court or before any other
competent forum, and as such, it seems that, those orders
have already attained finality. Thus, once an order by a
competent revenue authority or Mamlatdar is finalized through
non-challenge or exhaustion of appeals, it prevents the same
parties from re-agitating identical issues on the same facts.
14. Moreover, the Mamlatdar or the higher revenue authority,
being a quasi judicial authorities, cannot arbitrarily take a
contrary view on the same subject matter between the same
parties without a material change in circumstances or
statutory backing. Here in the case on hand, though it is
argued by the learned counsel for the private respondents that
the subsequent application was filed with the fresh cause of
action, however, a perusal of the impugned orders nowhere
reflects any such fresh ground, based upon which, the
impugned orders have been passed. Thus, in my opinion, once
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an issue has already been adjudicated and attains finality
under the Act , 1906, repeating the same application to get a
contradictory outcome is nothing but an abuse of process of
law.
15. Further, the Mamlatdar Courts conduct summary
proceedings, and their orders do not permanently bar a regular
civil suit on title or permanent rights, and therefore, the
authority itself cannot blow hot and cold on identical and
contemporaneous facts. If the private respondents herein were
aggrieved with the orders passed by the Mamlatdar and the
Deputy Collector, they ought to have availed appropriate
remedy by assailing those orders before the highest revenue
authority, rather than filing an application before the same
authority under the pretext of fresh cause of action.
16. At this stage, it will be appropriate to briefly refer to the
scheme of the Act. The Mamlatdar is a revenue officer. The Act
confers jurisdiction on him to pass appropriate orders in a
summary proceeding. The orders passed under the Act are not
meant to decide the rights of parties finally and conclusively.
The proceeding before the Mamlatdar is called a suit. The
person who invokes the jurisdiction is called plaintiff and other
side is called defendant. The proceedings are commenced with
presentation of plaint which is required to be filed in
compliance of Section 7. The plaint must amongst other things
disclose the nature of right, particulars regarding infringement
of right and the relief sought. The plaintiff is also required to
file list of documents and witnesses, if any. In case of any
technical defects in the plaint, the Mamlatdar is required to
remove the defects by following procedure prescribed under
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Sections 8 to 11 of the Act. The Mamlatdar is also authorized to
summon and examine witnesses on oath. The Mamlatdar also
has authority to enforce and execute his orders. However, as
will be apparent from reading of Section 22 of the Act, the
order of Mamlatdar is subject to any decree or order to the
contrary to be passed by the Civil Court. Thus, in the opinion of
this Court, taking a diametrically opposite stance on the
identical materials by the Mamlatdar itself without recording
distinguishing facts leaves the subsequent order vulnerable to
being set aside by the Deputy Collector or the High Court for
non-application of mind and arbitrariness.
17. Further, taking altogether contrary view by the
Mamlatdar in the subsequent proceedings on the same subject
matter, than which has already been taken by it in the earlier
proceedings, without there being any explicit legal backing,
would amount to an impermissible review of an earlier order.
Under Indian revenue law, the Mamlatdar or the quasi-judicial
revenue officer has no inherent power of review unless it is
expressly granted by statute.
18. In the aforesaid context, I would like to quote with profit
several decisions of the Supreme Court on this aspect of the
controversy. In Patel Narshi Thakarshivs. Praduman Singhji,
(1971) 3 SCC 844: AIR 1970 SC 1273 at p.1275 para 4, It has
been held by the Hon'ble Supreme as follows:
"It is well settled that the power to review is not an
inherent power. It must be conferred by law either
specifically or by necessary implication. No provision
in the Act was brought to our notice from which it
would be gathered that the Government had power to
review its own order. If the Government had no power
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to review its own order, it is obvious that its delegate
could not have reviewed its order."
19. Again in Chunibhai vs. Narayan Rao, AIR 1965 SC 1457,
in para 23, the same view has been reiterated by the Hon'le
Apex Court, which is as follows:-
"These orders passed by the Collector in the exercise
of his revisional powers were quasi-judicial and were
final. The Act does not empower the Collector to
review an order passed by him under Section 76-A. In
the absence of any power of review, the Collector
could not subsequently reconsider his previous
decisions and hold that there were grounds for
annulling or reversing the Mahalkar's order. The
subsequent order dated February 17, 1959 reopening
the matter was illegal, ultra vires and without
jurisdiction."
20. The power of review of quasi judicial authority in absence
of any specific provision under the statute has been dealt with
by the Hon'ble Apex Court in the case of Dr. (Smt.) Kuntesh
Gupta v. Management of Hindu Kanya Mahavidyalaya,
Sitapur, U.P. and Ors ., reported in MANU/SC/0104/1987:
(1987) 4 Supreme Court Cases 525 : (AIR 1987 SC 2186),
wherein it has been held that unless power of Review is
expressly conferred on the authority by any statute under
which it derives its' jurisdiction, the authority concerned has no
power to Review its' earlier order. In para-11 of the aforesaid
judgment following observations have been made:
“A quasi-judicial authority cannot review its own
order, unless the power of review is expressly
conferred on it by the statute under which it derives
its jurisdiction. The Vice-Chancellor in considering the
question of approval of an order of dismissal of the
Principal, acts as a quasi- judicial authority. The
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provisions of the U.P. State Universities Act, 1973 or of
the Statutes of the University do not confer any power
of review on the Vice-Chancellor. In the
circumstances, it must be held that the Vice-
Chancellor acted wholly without jurisdiction in
reviewing, his/her earlier order. The review order of
the Vice- Chancellor was, therefore, a nullity. "
21. In the case of Syed Madadgar Husain Rizvi and Anr.
v. State of U.P. and Ors., reported in MANU/UP/1034/2007 :
2007 (9) ADJ 581 (DB) : (2007 (6) ALJ (NOC) 1097 (All), it has
been held as under;
"A quasi judicial authority is not permitted to review
its order unless it is so expressly conferred by the
Statute itself. "
22. From an overview of the judgments cited above, it is
clear that the Mamlatdar cannot recall and/or review its own
order as no such power has been conferred upon it by the
statute. A quasi-judicial authority is limited in its functionality
inasmuch as it has to act within the four corners of the statute
from which it derives its authority. If the statute does not
provide for a particular act, the same cannot be undertaken by
that authority. Any such action taken de hors the legislative
intent would amount to an overreach and beyond the power of
the said authority.
23. So far as the contention raised by learned counsel Mr.
Ratanpara for the private respondents with regard to
availability of an alternative remedy is concerned, it would be
apt to refer to and rely upon the decision of the Hon’ble
Supreme Court in the case of Whirlpool Corporation vs.
Registrar of Trade Marks, AIR 1999 SC 22 , wherein the
Hon’ble Supreme Court was of the view that under Article 226
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of the Constitution, the High Court, having regard to the facts
of the case, has the discretion to entertain or not to entertain a
writ petition. But the High Court has imposed upon itself
certain restrictions one of which is that if an effective and
efficacious remedy is available, the High Court should not
normally exercise its jurisdiction. But the alternative remedy as
has been consistently held by this Court not to operate as a
bar in at least three contingencies, namely, where the writ
petition has been filed for the enforcement of any of the
fundamental rights or where there has been a violation of the
principle of natural justice or where the order or proceedings
are wholly without jurisdiction or the vires of the act is
challenged.
24. For the foregoing reasons, the present writ application
succeeds and is hereby allowed. The order dated 08.06.2021
being No.JMN/RFMS No.12351136 & order dated 29.06.2021
being No.JMN/RFMS/ No.12633838 (Annexure A & Annexure B
respectively), are hereby quashed and set aside. Rule is made
absolute to the aforesaid extent.
(DIVYESH A. JOSHI,J)
VAHID
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