Gujarat High Court
Keshabhai Amthabhaui Nadiya vs Indira Gandhi Cooperative Housing ... on 12 January, 2022
Author: A.J.Desai
Bench: A.J.Desai
C/LPA/398/2017 ORDER DATED: 12/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 398 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 7792 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 398 of 2017
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KESHABHAI AMTHABHAUI NADIYA & 1 other(s)
Versus
INDIRA GANDHI COOPERATIVE HOUSING SOCIETY THROUGH
PRESIDENT KESHAVLAL BECHARDAS PARMAR & 8 other(s)
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Appearance:
MR NS SHETH(840) for the Appellant(s) No. 1,2
MR BHARGAV PANDYA AGP for the Respondent(s) No. 3
MS BANNA S DUTTA(315) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4,5,7.1,8,9.1
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 6
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 12/01/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way of present appeal under Clause 15 of the Letters Patent, the original respondent Nos.4 and 8 have challenged oral interim order dated 13.02.2017 by which the learned Single Judge has directed that the petition which was filed by the respondent society shall be treated as complaint by the police and FIR shall be registered with regard to the dispute in question. Further directions were also issued by interim order.
2. The appeal was listed before the Division Bench on 16.03.2017. While issuing notice to the respondents, the implementation of the impugned order was stayed and the same has been continued till date.
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3. Learned advocate Mr. Harsh Shah appearing for the respondent - Municipal Corporation has placed on record the oral order dated 22.03.2017 passed in the captioned petition and submitted that the petition is not entertained and the same has been disposed of.
4. Learned advocate Mr. Sheth appearing for the appellants would submit that the learned Single Judge by interim order has passed an order beyond the scope of the prayers made in the writ petition which was filed at the instance of the respondent society. He would submit that even the petition filed by the society is dismissed and the parties are remitted to raise the grievances with regard to the encroachment before the appropriate forum. He would therefore submit that the order be quashed and set aside.
5. On the other hand, learned advocate Ms. Banna Dutta has opposed this appeal and would submit that the disputes are pending before the authority. She would submit that the present appellants have encroached the property time and again even though they were removed from the plot and therefore, the order does not call for any interference.
6. Heard learned advocates appearing for the respective parties. The prayers which were made in the petition read as under:-
"(A) YOUR LORDSHIPS may be pleased to
admit and allow the present petition;
(B) YOUR LORDSHIPS may be pleased to
issue a writ of mandamus and/or writ in the nature of mandamus and/or order, directions directing the respondent corporation to remove the encroachment from the common plot of the petitioner society situated at Final Plot No.217, T P Scheme No.30, Asarwa Ward, Ahmedabad and further be directed to mark the boundaries of the vacated common plot and Page 2 of 4 Downloaded on : Thu Jan 13 21:11:10 IST 2022 C/LPA/398/2017 ORDER DATED: 12/01/2022 hand over the vacant and peaceful possession of the subject premises to the petitioner;
(C) Pending hearing and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent authority to remove the encroachment from the common plot of the petitioner society situated at Final Plot No.217 T P Scheme No.30, Asarwa Ward, Ahmedabad.
(D) Pending hearing and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent authority to restrain the respondent no.3 to 8 from creating any further encroachments on the common plot of the petitioner society situated at Final Plot no.217, T P Scheme NO.30, Aswarwa Ward, Ahmedabad.
(E) Ad-interim relief in terms of para-C and D may kindly be granted;
(F) Any other and further reliefs as deemed fit in the interest of justice may kindly be granted."
7. Without going into the merits or examining the case and the issues raised by the parties, the learned Single Judge accepted that the appellants have committed criminal trespass and therefore passed the impugned order. The final direction issued by the learned Single Judge reads as under :-
"7. In view of the aforementioned circumstances, the present petition will be treated as a complaint by the Police and FIR in this regard will be registered. Thereafter, investigation will be conducted, and if it is found that the unauthorized hutment dwellers have entered the premises, after they were evicted by the Corporation, they will be proceeded against as per the provisions of law. Learned AGP will hand over copy of this petition to the concerned Police Station for further necessary action in the matter. This entire exercise will be completed before the next date. The matter to come up on 1.3.2017. Copy of this order be also sent to the Principal Home Secretary, Home Department, Sachivalaya, Gandhinagar for further necessary action in the matter."
8. Having heard learned advocates for the respective parties and having gone through the order impugned and Page 3 of 4 Downloaded on : Thu Jan 13 21:11:10 IST 2022 C/LPA/398/2017 ORDER DATED: 12/01/2022 subsequent order dated 22.03.2017 by which the writ petition itself has been disposed of, we are of the opinion that the learned Single Judge had traveled beyond the scope of writ jurisdiction and the prayers made by the petitioners. Hence, the order dated 13.02.2017 is quashed and set aside. LPA is accordingly allowed
9. Consequently, connected Civil Application for stay does not survive and it also stands disposed of.
(A.J.DESAI, J) (ANIRUDDHA P. MAYEE, J.) cmk Page 4 of 4 Downloaded on : Thu Jan 13 21:11:10 IST 2022