Court’s Decision
The Bombay High Court held that orders passed by Mamlatdars under Section 5(2) of the Mamlatdars’ Courts Act, 1906—as well as revisional orders passed under Section 23(2)—are not final adjudications of rights and can be challenged before a civil court. The Court concluded:
“The jurisdiction of civil court is not excluded to ascertain correctness or otherwise of orders passed by the Mamlatdar.”
Accordingly, the Court dismissed the writ petitions on the ground that the petitioners had an alternative, efficacious remedy by way of a civil suit.
Facts
All the petitions involved challenges to orders passed by Mamlatdars under Section 5(2) of the Mamlatdars’ Courts Act, 1906. In each case, the Mamlatdar directed removal of obstruction from roads claimed by the respondents (original plaintiffs). The petitioners—original defendants—challenged these orders, as well as the rejection of their revision applications under Section 23(2) by the respective Sub-Divisional Officers, through writ petitions under Articles 226 and 227 of the Constitution.
The petitioners argued that the Mamlatdar’s orders were passed in contravention of mandatory procedural provisions and beyond the scope of jurisdiction, particularly as the alleged roads were not proven to exist and alternate roads were available.
Issues
- Whether orders passed under Section 5(2) and confirmed in revision under Section 23(2) of the Mamlatdars’ Courts Act can be challenged by way of a civil suit?
- Whether the writ petitions were maintainable despite the existence of an alternative civil remedy?
- Whether the orders under challenge created new roads, thus exceeding the Mamlatdar’s jurisdiction?
Petitioner’s Arguments
The petitioners contended that:
- The orders passed by the Mamlatdar and upheld in revision were procedurally defective.
- There was no existing road; rather, the impugned orders effectively created a new road, which is beyond the Mamlatdar’s jurisdiction under Section 5.
- Panchanamas were improperly conducted.
- Civil courts could not be used to challenge orders passed under the Mamlatdars’ Act, as the Act is a self-contained code.
- They relied on Mangalabai Vitthal Jadhav and Baban @ Nainsukh Dagadu Kurandale to argue that the civil court could only decide the underlying dispute afresh, but not review or sit in appeal over Mamlatdar’s orders.
Respondent’s Arguments
The respondents raised a preliminary objection to the maintainability of the writ petitions, arguing that:
- Orders passed under the Mamlatdars’ Courts Act are not final and can be challenged in a civil suit.
- The Act does not bar civil court jurisdiction.
- Section 22 specifically states that the Mamlatdar’s orders are subject to orders or decrees of civil courts.
- Hence, writ petitions should be rejected in favour of pursuing civil remedies.
- They relied on Rajendra Shendge, Mohommad Khan, Digambar v. Vasant, and Alka Ghongade to support the proposition that civil court jurisdiction is available and appropriate.
Analysis of the Law
The Court undertook a detailed review of the Mamlatdars’ Courts Act, particularly Sections 5, 22, and 23. It emphasized:
- Section 22 makes clear that Mamlatdar’s orders are subject to any decree or order of the civil court.
- Section 23 bars appeals but permits revision to the Collector.
- The Act does not provide finality to the orders passed.
- The Act is only meant for summary adjudication of pre-existing rights like easements.
The Court also discussed the Constitution Bench decision in Dhulabhai v. State of Madhya Pradesh (AIR 1969 SC 78), which laid down principles for determining when civil court jurisdiction is barred:
“An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.”
The Court noted that the Mamlatdars’ Act neither expressly nor impliedly bars civil court jurisdiction. It only provides for a temporary arrangement to prevent obstruction on existing roads.
Precedent Analysis
The Court considered several precedents:
- Mohommad Khan v. Shankar Dhage (2017) – Held that civil court jurisdiction to challenge Mamlatdar’s orders is not barred.
- Rajendra Shendge v. Shobhatai Ravate (2007) – Mamlatdar’s jurisdiction is summary; civil court’s jurisdiction remains intact.
- Digambar v. Vasant (2022) – Civil court may grant relief contrary to Mamlatdar’s order.
- Mangalabai Jadhav (2018) – Civil court can decide the underlying rights but cannot function as an appellate court.
- Dhulabhai v. State of MP (AIR 1969 SC 78) – Unless finality is given to orders and alternative remedies are adequate, civil court jurisdiction remains.
Court’s Reasoning
The Court found that:
- There is no express or implied exclusion of civil court jurisdiction under the Mamlatdars’ Courts Act.
- The Act only deals with pre-existing rights of easement and provides temporary relief through summary procedure.
- Mamlatdar’s orders do not bind civil courts and can be overridden.
- If a Mamlatdar’s order suffers from procedural violations or is ultra vires, it can be declared null and void in civil court.
The Court further relied on a Division Bench ruling in Huseinmiya Dosumiya v. Desai Khandubhai Jethabhai (AIR 1954 Bom 239), which held that even if a statute provides for an appellate mechanism, a civil suit is maintainable where the original order is a nullity.
Conclusion
The High Court concluded that:
“Jurisdiction of the civil court to ascertain correctness or otherwise of orders passed by the Mamlatdar is neither expressly nor impliedly excluded.”
Accordingly, the Court dismissed the writ petitions on the ground of availability of an adequate and more appropriate remedy by way of a civil suit.
Implications
- The judgment reiterates the supremacy of civil courts in adjudicating substantive civil rights, even when administrative/quasi-judicial orders are passed.
- Litigants aggrieved by Mamlatdar’s orders under Section 5(2) must seek remedy through civil suits rather than writ petitions.
- This will reduce writ petitions flooding the High Court in disputes involving village roads and rights of way.
- The decision encourages final adjudication of such disputes through full-fledged civil proceedings.
Cases Referred and Their Significance
- Mohommad Khan v. Shankar Dhage (2017) – Established that orders under Section 5 or 23 can be challenged in civil court.
- Rajendra Shendge v. Shobhatai Ravate (2007) – Explained that Mamlatdar has only summary powers; civil courts retain full authority.
- Dhulabhai v. State of MP (AIR 1969 SC 78) – Laid foundational principles for determining when civil court jurisdiction is ousted.
- Huseinmiya Dosumiya (AIR 1954 Bom 239) – Held that even if appellate remedy exists, a suit is maintainable where order is ultra vires.
- Mangalabai Jadhav & Baban Kurandale – Held that civil courts may not sit in appeal over Mamlatdar’s orders but can adjudicate disputes afresh.
FAQs
1. Can a Mamlatdar’s order under Section 5(2) be challenged in a civil suit?
Yes, the Bombay High Court held that such orders are summary and do not bar civil court jurisdiction.
2. Is a writ petition maintainable against orders passed under the Mamlatdars’ Courts Act?
No, not ordinarily. The Court emphasized that writ petitions are not maintainable where an efficacious remedy of a civil suit exists.
3. What happens if Mamlatdar creates a new road under Section 5(2)?
The Court clarified that Mamlatdar can only order removal of obstructions on pre-existing roads. If a new road is created, it exceeds jurisdiction and must be challenged before the civil court.