Chemabhai Radtiyabhai Gamit vs State Of Gujarat on 28 February, 2020

[Cites 3, Cited by 0]

Gujarat High Court

Chemabhai Radtiyabhai Gamit vs State Of Gujarat on 28 February, 2020

Bench: A.G.Uraizee

          C/SCA/5173/2020                                  ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 5173 of 2020

================================================================
                      CHEMABHAI RADTIYABHAI GAMIT
                                 Versus
                          STATE OF GUJARAT
===============================================================
Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3,4,5
MR KRUTIK PARIKH AGP(99) for the Respondent(s) No. 1
===============================================================

 CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE

                             Date : 28/02/2020

                              ORAL ORDER

1. Heard Mr. N.K. Majmudar, learned advocate for the petitioners and Mr. Krutik Parikh, learned AGP for respondent Nos.1 and 2.

2. Following substantial prayer is made in this petition:

"(B)Your lordship may be pleased to issue appropriate writ, order or direction upon the concerned respondent authority to decide the application of the petitioner dated 12.11.2019 as well as be pleased to issue appropriate writ, order or direction upon the concerned respondent authority to take strict action against Sarpanch of Village: Gunsada gram Panchayat under the Gujarat Panchayat Act, 1993."

3. The petitioners had preferred one Special Civil Application No.2499 of 2019 for the similar prayer, which came to be dismissed by order dated 18.02.2019, which reads as under:

Page 1 of 4 Downloaded on : Fri Feb 28 22:40:38 IST 2020 C/SCA/5173/2020 ORDER

"1. By way of the present petition under Articles 14 and 226 of the Constitution of India, the petitioner has prayed as under:

"7(A) This Hon'ble Court be pleased to admit / allow this petition;

(B) Be pleased to issue appropriate writ, order or directions and be pleased to direct the respondent nos.1 to 3 authorities to initiate inquiry in respect of serious illegality and irregularity committed by the panchayat authorities including respondent nos.8 and 9 by way of carving out the pakka road/ tar road/ dammar road between Ukai Gamtal to Chacharbunda Highway I.e. through the agricultural land of the petitioner being Block/ Survey No.441, agriculture Account No.182, Old Survey No.367 and 369 admeasuring HectorAreSq. Mtrs. 64809 situated at Village:

Gunsada, Tal.: Songadh, Dist.: Tapi, which is owned, occupied and possessed by the petitioner herein, and therefore, the said action of carving out the diversion/ pakka road by the panchayat authorities may be ordered to be inquired and appropriate action may be ordered to be initiated against the panchayat authorities including respondent nos.8 and 9 including disciplinary action may kindly be ordered to be initiated against erring respondent officers and further be pleased to take appropriate action against the concerned erring officers including respondent nos.8 and 9 of lodging/ registration of the prosecution under the provisions of the Act, for the reasons stated in the memo of the petition, in the interest of justice;

(C) Be pleased to grant interim relief and by way of interim order be pleased to direct the respondent nos.1 to 3 authorities to take appropriate action against the erring officers including respondent nos.8 and 9 who have committed serious irregularities and illegalities in carving out the road from the land of the petitioner Block/ Survey No.441, agriculture Account No.182, Old Survey No.367 and 369 admeasuring Page 2 of 4 Downloaded on : Fri Feb 28 22:40:38 IST 2020 C/SCA/5173/2020 ORDER HectorAreSq. Mtrs. 64809 situated at Village:

Gunsada, Tal.: Songadh, Dist.: Tapi, pending admission, hearing and final disposal of the present petition;

(D) Be pleased to pass such orders as thought fit in the interest of justice."

2. It is brought to the notice of this Court by Mr.J.K.Shah, learned Assistant Government Pleader that with regard to the property in question, the petitioner himself has filed a suit being Special Civil Suit No.33 of 2017 pending in the court of learned Principal Civil Judge (S.D.), Vyara.

3. In view of the above facts, no reliefs, as prayed for by the petitioner, can be granted. Hence, this petition is disposed of. It is hereby made clear that this Court has not gone into the merits of the case.

Direct service is permitted."

4. The petitioners assailed above order by preferring Letters Patent Appeal No.1452 of 2019, which was disposed of on 24.07.2019 by passing following order.

"Mr.N.K.Majmudar, learned advocate for the appellant, seeks permission to withdraw this appeal, with a view to avail appropriate remedy in accordance with law, including to represent higher authorities about alleged action on the part of the respondent - panchayat.

Permission as sought for, is hereby granted.

The appeal stands disposed of, as withdrawn."

5. As the liberty was preserved in favour of petitioners to avail appropriate remedy in accordance with law to represent higher Authority about the alleged action on the part of Panchayat, the petitioners preferred representation dated 12.11.2019 (Annexure E) to the Collector, Tapi, District Development Officer, Tapi. Taluka Development Officer, Page 3 of 4 Downloaded on : Fri Feb 28 22:40:38 IST 2020 C/SCA/5173/2020 ORDER Songadh, Dist. Tapi and Mamlatdar, Songadh, Ta. Tapi.

6. Mr. Majmudar, learned advocate for the petitioners submits that as the representation is preferred by the petitioners in light of the order dated 24.07.2019 passed in Letters Patent Appeal No.1452 of 2019, the respondent Authorities may be directed to consider the representation within certain time limits in accordance with law.

7. Submissions of Mr. Majmudar, learned advocate for the petitioners cannot be accepted for simple reason that the petitioners themselves have preferred Special Civil Suit No.33 of 2017 in the Court of learned Principal Senior Civil Judge, Vyara, which is still pending. The petitioners have produced the copy of plaint at Annexure A, which reveals that the prayers in the Suit are also similar to the prayers, which are made in the present petition.

8. In that view of the matter, as the Suit is still pending, no fruitful purpose would be served by directing the respondents to consider the representation of the petitioners. Hence, the petitioners have failed to make out any prima facie case for consideration of the petition. Hence, the petition is dismissed at threshold.

9. It is clarified that this Court has not examined merits of the case. The Civil Court in which Civil Suit preferred by the petitioners is pending, shall decide strictly in accordance with law on the basis of ocular and documentary evidence that maybe adduced by the parties.

(A.G.URAIZEE, J) YNVYAS Page 4 of 4 Downloaded on : Fri Feb 28 22:40:38 IST 2020

Unlock Advanced Research with PRISMAI

Gujarat High Court