Gujarat High Court
Vashrambhai Arjanbhai Bharwad & 2 vs State Of Gujarat & 3 on 12 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/972/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 972 of 2017
With
CIVIL APPLICATION NO. 7426 of 2017
In SPECIAL CIVIL APPLICATION NO. 972 of 2017
With
CIVIL APPLICATION NO. 8748 of 2017
In SPECIAL CIVIL APPLICATION NO. 972 of 2017
With
CIVIL APPLICATION NO. 9148 of 2017
In SPECIAL CIVIL APPLICATION NO. 972 of 2017
With
CIVIL APPLICATION NO. 11966 of 2017
In SPECIAL CIVIL APPLICATION NO. 972 of 2017
With
CIVIL APPLICATION NO. 11489 of 2017
In SPECIAL CIVIL APPLICATION NO. 972 of 2017
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VASHRAMBHAI ARJANBHAI BHARWAD & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR KV SHELAT, ADVOCATE for the Petitioner(s) No. 1 - 3
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
JENIL M SHAH, ADVOCATE for the Respondent(s) No. 4
MR DEEP D VYAS, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/09/2017
COMMON ORAL ORDER
Draft amendment is allowed. The same shall be carried Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Sep 13 00:06:29 IST 2017 C/SCA/972/2017 ORDER out at the earliest.
By this writ-application under Article 226 of the Constitution of India, the writ-applicants have prayed for the following reliefs :
"(A) The Hon'ble Court be pleased to allow the present petition and, (B) The Hon'ble Court be pleased to issue writ of mandamus or any other writ, order or direction, directing the respondent no.1 Collector to exercise the power vested under Rule 43B of the Gujarat Land Revenue Code to declare the subject land being adjacent land as Gamtal land of the ownership and possession of the petitioners and other residents of the Piplaj village and be further pleased to pass appropriate writ, order or direction declaring that the subject land of village Piplaj is Gamtal land and is purchased in the name of the Piplaj Gram Panchayat on 14.2.2005 and from amongst that the occupation and possession of 5397 sq.meters of land is adjacent to the petitioners land at Survey No.7 as a Wada land for residences, wada and agricultural activities.
(B) The Hon'ble Court be pleased to pass appropriate writ, order or direction, directing the respondent authorities, their servants, agents, to maintain status quo and possession of the subject land at village Piplaj more particularly land admeasuring 18 acres 25 gunthas which is adjacent Gamtal without giving opportunity of personal hearing by following the principles of natural justice.Page 2 of 5
HC-NIC Page 2 of 5 Created On Wed Sep 13 00:06:29 IST 2017 C/SCA/972/2017 ORDER (C) The Hon'ble Court be pleased to pass appropriate writ, order or direction, declaring that the respondent no.2, its servatns, agents are estopped from acting contrary to the resolutions passed and acted upon with reference to the subject land of village Piplaj, more particularly adjacent Gamtal land admeasuring 18 acres 25 gunthas and be further pleased to declare that the respondent no.2 is already paid the purchase price of the said land as per their resolutions and therefore they have no authority to take law in their hands by trying to demolish the residential rooms, wadas, standing crop in the subject land and more particularly adjacent Gamtal land of 5397 sq.meters in occupation and possession of the petitioner no.1.
(D) Pending hearing and final disposal of the present petition, the Hon'ble Court be pleased to direct the respondents, their servants, agents to maintain status quo qua the occupation and possession of the subject land more particularly 18 acres 25 gunthas of Gamtal land in village Piplaj including the 5397 sq.meters of adjacent Gamtal land in occupation and possession of the petitioner no.1, in the interest of justice.
(E) Any other and further orders which are deemed fit and expedient in the interest of justice be passed;"
I heard the learned counsel appearing for the respective parties for quite some time. Having regard to the nature of the dispute and the materials on record, I am of the view that Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Sep 13 00:06:29 IST 2017 C/SCA/972/2017 ORDER there are highly disputed questions of fact involved in this matter. It is difficult for this Court to adjudicate such disputed questions of fact in exercise of the writ-jurisdiction under Article 226 of the Constitution of India.
I also take notice of the fact that in the past civil suits were also filed in the court of the City Civil Judge at Ahmedabad. It appears that such civil suits have been withdrawn on one ground or the other. Of course, with liberty to file fresh suits in accordance with law.
Having made myself clear that there being highly disputed questions of fact involved in this writ-application, the learned counsel appearing for the petitioner submitted that his client would file a fresh suit and agitate the dispute before the civil court by leading oral as well as documentary evidence. However, at this stage, the learned counsel appearing for the affected parties expressed an apprehension that by the time the affected persons would approach the civil court and obtain the necessary orders, the Corporation might take coercive steps and demolish the construction of few houses.
Mr.Prashant Desai, the learned senior counsel appearing for the Corporation, at this stage, pointed out that the construction, which is being shown, is not in the plot of land of the ownership of the Corporation. He, however, clarified that some construction is overlapping. Mr.Desai further submitted that when steps for demolition of unauthorized construction were being taken, the petitioner on their own made a statement that they would remove the construction. However, the same has not been removed till this date.Page 4 of 5
HC-NIC Page 4 of 5 Created On Wed Sep 13 00:06:29 IST 2017 C/SCA/972/2017 ORDER Mr.Shelat, at this stage, clarified that as the demolition drive was launched without any notice, such statement had to be made by his clients.
Be that as it may, it shall be open for the petitioners and other affected parties, who seek to be impleaded in the main matter, to file appropriate civil suits before the court concerned adducing necessary oral as well as documentary evidence to establish their claim over the disputed land in question.
The main petition as well as the connected civil applications are disposed of with the above observations.
The Corporation, before proceeding further with any further action, shall atleast inform the affected parties in advance.
It will be open for the petitioners in the civil suits to pray for a declaration that the Corporation has also no right, title or interest over the land in question.
Notice discharged. Ad-interim order earlier granted stands vacated with the above rider.
(J.B.PARDIWALA, J.) MOIN Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Sep 13 00:06:29 IST 2017