Gujarat High Court
Gurmukhdas Keshavdas Jivani vs State Of Gujarat & 5 on 22 December, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/18536/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18536 of 2014
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GURMUKHDAS KESHAVDAS JIVANI....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR DEEPAK P SANCHELA, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/12/2014
ORAL ORDER
1. Heard Mr. Deepak Sanchela, learned advocate for the petitioner.
2. By way of present petition, under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:
"8(a) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ direction respondent- municipality to stop the further construction of respondents no.3-6 in the interest of justice.
8(b) To Pending admission hearing and final disposal of this petition, it may be directed to the respondents- municipality to stop the further construction of respondents o.3-6 in the interest of justice.
8(c) Any other appropriate relief grantable by this Hon'ble Court may kindly be granted in the interest of justice.Page 1 of 7 C/SCA/18536/2014 ORDER
3. Mr. Deepak Sanchela, learned advocate for the petitioner has invited attention of this Court to the order dated 30/06/2014 passed by learned Second Additional Senior Civil Judge, Veraval below Exh.5 in Regular Civil Suit No.50 of 2014, more particularly operative para-3 of the said order. Learned advocate for the petitioner contended that respondent municipality be directed to stop further construction of respondent no.3 to 6, in the interest of justice, as prayed for. He further invited attention of this Court to the fact that on an application made by the power of attorney of the present petitioner, respondent municipality has given reply that as the case is pending before the Civil Court and the judgment has not been rendered and as no permission is granted, no copy is required to be given.
4. No other or further submissions are made by learned advocate for the petitioner.
5. Before referring to the submissions made by learned advocate for the petitioner, it is required to be noted that the petitioner had earlier filed writ petition being Special Civil Application No.14133 of 2014 wherein the petitioner inter alia prayed as under:
"9(A) admit this petition.
9(B) issue appropriate writ, order or direction and be pleased to direct the respondent-1 authorities to consider and decide the objection and application preferred by the petitioner (Annexure-C) and further be pleased to direct the respondent no.1 authorities to permit the petitioner to submit documents including sale Page 2 of 7 C/SCA/18536/2014 ORDER deed and other documents which would clarify the actual boundary and location of the land of the petitioner and therefore, the respondent no.1 may be directed to give reasonable opportunity to the petitioner to produce necessary documents and the respondent no.1 may be further directed to consider the objection/application of the petitioner in respect of the construction plant submitted by respondent nos.2 to 5 and suitable direction be issued in this regard upon the respondent no.1 authorities to consider the objection lodged by the petitioner before considering the sanction of plans submitted by the respondent nos.2 to 5 in respect of the land bearing Survey No.1536 (1529 as per the case of the respondent nos.2 to 5) situated in the City of Veraval, Dist:Gir Somnath being Ward No.4 i.e. Jyoti Sale,- shop of the petitioner.
9(C) grant of interim relief and be pleased to direct the respondent no.1 authorities to consider and decide the application/objections dated 22/8/2014 and 25/08/2014 preferred by the petitioner, pending admission and final hearing of this petition.
9(D) pass such orders as thought fit in the interest of justice.
6. In the said petition, this Court passed following order on 09/10/2014:
"With a view to approach the competent authority, Mr. N.K. Majmudar, learned advocate for the petitioner does not press this petition. It is, however, clarified that this Court has not examined the matter on merits. Accordingly, this petition stands disposed of."
7. It appears from the record that thereafter the petitioner has approached the Town Planning Officer, Junagadh as well as the Deputy Executive Engineer, PWD, Veraval by an application dated 25/08/2014 and 18/10/2014 respectively. In addition to that, on the inquiry made by this Court, learned advocate for the petitioner has candidly pointed out that the Page 3 of 7 C/SCA/18536/2014 ORDER petitioner made an application in the suit filed by the private respondents being Regular Civil Suit No.50 of 2014 which is pending before the Court of learned Principal Civil Judge, Veraval wherein by an order dated 10/11/2014, the petitioner has been added as party defendant no.2. He further submitted that the petitioner also filed an application against the private respondents who are accidentally plaintiff of that suit and the said application below Exh.22 is pending for its adjudication before the Civil Court, Veraval.
8. Considered the submissions made by learned counsel appearing for the petitioner so also the prayers prayed for in the earlier writ petition and the order passed by this Court.
9. In light of the fact that the competent court has passed the order dated 30/06/2014 which is in operation as no party has challenged the same as pointed out by Mr. Deepak Sanchela, learned advocate for the petitioner. The prayers prayed for in this petition cannot be granted. In addition to that, the petitioner is already made a party defendant in a suit and his application for relief which is almost on the same line is pending for its adjudication before the Civil Court at Veraval and hence present petition cannot be entertained under Article 226 of the Constitution of India. Considering the stay granted which is not challenged by the municipality, present writ petition is not a way to challenge the said order by differently wording the prayers prayed for in the writ petition as well as earlier writ petition. The petitioner has dispute with the private respondents herein.
10. Considering the judgment dated 15/03/2012 of the Page 4 of 7 C/SCA/18536/2014 ORDER Hon'ble Division Bench of this Court rendered in Letters Patent Appeal No.47 of 2012, present petition is required to be dismissed.
11. It transpires that the petitioner has dispute with the construction made by private respondents for which the suit is already pending where the petitioner is party. Considering the ratio laid down by the Division Bench of this Court in Letters Patent Appeal No.47 of 2012 wherein while deciding the matter, the Honourable Division Bench observed as under:
"3. We have gone through the papers of petition along with civil application and affidavit-in-reply filed on behalf of respondent No.4 by which several sale deeds have been produced by which the appellant and respondent No.4 had purchased the part of property. Learned counsel for the respondent No.4 has also produced photographs along with the affidavit-in-reply which shows that no fresh construction is carried out by the respondent No.4 as alleged by the appellant. It appears from the photographs that the construction which has been alleged to have been made by the respondent No.4 is of a compound wall, and from the documentary evidence, it appears that the compound wall is constructed since 1981. By way of present petition, the original petitioners prayed that the direction may be issued to the Corporation to take steps to remove the so- called encroachment of the common plot by respondent No.4 on common open plot. The learned Single Judge has observed in para 2 which reads as under.
"Thus, essentially the dispute between the petitioner and respondent no.4, if any, is sought to be given colour of inaction on the part of the concerned authorities so as to bring the petitioner within the purview of Article 226 of the Constitution of India. In my view, the petitioner who has not cared to mention in the memo of the petition as to what is the nature of the petitioner association, could not have maintained the writ petition against respondent no.4 on the spacious Page 5 of 7 C/SCA/18536/2014 ORDER plea of inaction on the part of the authorities. Article 226 of the Constitution of India is meant for exercising power which is in terms "extraordinary" and if the Courts starts exercising power at the instance of one party who has roped in the agency of the State under semblance of so called inaction on their part, such petition cannot be said to be a petition maintainable under Article 226 of the Constitution of India. Article 226 of the Constitution is not meant for examining the nitty- gritty of fine rights existing between respondent no.4 and the petitioner. Examination of plans, correctness of plans, examination of raja-chithy, correctness of raja-chithi would certainly not fall under the purview of the Courts jurisdiction. Courts rather would relegate party to the civil proceedings. In the instant case plain reading of the petition would imminently show that the petitioner has grievance only against respondent no.4. Concerned authority has done its job by approving plan and, if somebody is deviating from the plan, it is always open to the concerned person who is aggrieved of the deviation to approach the Court, i.e. the civil court and establish his right qua the another deviating citizen, trust or institution. The authority if in such a case is called upon to act, then, the authority will assume the role of adjudication which is not essentially the role of the authority under the BPMC Act. The petition being hopelessly meritless deserves rejection and is accordingly rejected with cost."
4. The dispute between the private parties cannot be decided in a writ petition. We are in agreement with the observations made by the learned Single Judge. We do not find any infirmity in the impugned order passed by the learned Single Judge. The appeal is devoid of any merits and is accordingly dismissed."
12. The petition is therefore, not entertained. However, while not entertaining the petition, learned Principal Senior Civil Judge before whom the proceedings of Regular Civil Suit No.50 of 2014 are pending is hereby directed to expedite the hearing of Exh.22, the application which filed by the Page 6 of 7 C/SCA/18536/2014 ORDER petitioner as per the statement of learned advocate Mr. Deepak Sanchela for the petitioner as expeditiously as possible without in any manner being influenced by the present order preferably within a period of eight weeks from the date of receipt of this order.
13. Present petition is thus dismissed. No order as to costs.
(R.M.CHHAYA, J.) ila Page 7 of 7