Gujarat High Court
Bharatkumar Manilal Patel & 3 vs Kantibhai Ramubhai Patel & on 2 April, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/8380/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8380 of 2012
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BHARATKUMAR MANILAL PATEL & 3....Petitioner(s)
Versus
KANTIBHAI RAMUBHAI PATEL & 1....Respondent(s)
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Appearance:
MR.D K.PUJ, ADVOCATE for the Petitioner(s) No. 1 - 4
MR VIJAY H NANGESH, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 02/04/2014
ORAL ORDER
1. Heard Mr. Nanavati, learned Senior Counsel with Ms. Shah, learned advocate for Mr. D.K. Puj, learned advocate for the petitioners and Mr. Mehta, learned Senior Counsel with Mr. Vijay H Nangesh, learned advocate for the respondents.
2. In present petition the petitioners have prayed, inter alia, that:-
"10 (A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, order and / or directions in the nature of mandamus, quashing and setting aside the impugned order dated 13.6.2012 passed by the Ld. Adhoc Additional District Judge, Surat in Misc. Civil Appeal No. 100/2012, by holding that the said order is absolutely illegal, unlawful, contrary to the facts and Page 1 C/SCA/8380/2012 ORDER circumstances of the case, against the principles of law, equity and justice, based on extraneous consideration and passed after taking into consideration the irrelevant material and ignoring relevant documents on record."
3. The petitioners are aggrieved by order dated 13.6.2012 whereby learned First Appellate Court has set aside the order dated 9.3.2012 passed by learned trial Court below interim relief application.
3.1 It has emerged from the record and submissions by learned Counsel for petitioners and respondents that the petitioners herein are the original plaintiffs in Regular Civil Suit No. 5 of 2012 and the respondents herein are the original defendants.
3.2 The petitioners - plaintiffs have filed said suit seeking relief of declaration and permanent injunction alleging, inter alia that the defendants have made encroachment and made unauthorized construction over the suit land. 3.3 In the said suit after hearing the parties, learned trial Court passed order dated 9.3.2012 Page 2 C/SCA/8380/2012 ORDER whereby learned trial Court restrained the respondents - defendants from undertaking any construction contrary to the order by Taluka Panchayat dated 10.9.1983 over the suit land during the pendency of the suit.
3.4 Being aggrieved by the said order, the defendants carried said order dated 9.3.2012 in Appeal before learned First Appellate Court. 3.5 The said Appeal came to be registered as Misc. Civil Appeal No. 100 of 2012. 3.6 After hearing the parties, the learned First Appellate Court allowed the Appeal vide impugned order dated 13.6.2012 and set aside the order dated 9.3.2012 passed by learned trial Court. 3.7 Being aggrieved by the said order dated 13.6.2012 in Misc. Civil Appeal No. 100 of 2012 the original plaintiffs have preferred this petition.
4. After hearing the petitioners - plaintiffs, Page 3 C/SCA/8380/2012 ORDER this Court (Coram: Honourable Ms. Justice Sonia Gokani) passed order dated 25.6.2012. 4.1 Accordingly, as per the said order this Court granted ad-interim relief in terms of paragraph No. 10(B) of present petition. The said order dated 25.6.2012 reads thus:-
"In this writ petition, challenge is made to the order of the learned Addl. District Judge, Surat dated 13th June 2012 passed in Misc. Civil Appeal No. 100 of 2012 quashing and setting aside the order of the learned Principal Civil Judge, Olpad in Regular Civil Suit No. 5 of 2012. Learned advocate Shri Puj points out to this Court that subsequently obtained NA permission dated 27th April 2012 requires compliance of conditions no. 7 & 14 and urges that the construction which is going on is contrary to these conditions laid down in this NA permission. Issue notice to the respondents returnable on 3rd July 2012. In the meantime, there shall be ad interim relief in terms of paragraph 10 (B). Direct service is permitted."
4.2 Thereafter, on the ground that the defendants had committed breach of the order passed by the Court, petitioners - plaintiffs preferred Civil Application No. 7462 of 2012 under Order 39 Rule 2A. In the said Civil Application, the petitioners - plaintiffs heavily relied on the order dated 25.6.2012.
4.3 Subsequently this Court (Coram:- Honourable Mr. Justice Anant S. Dave) passed order dated Page 4 C/SCA/8380/2012 ORDER 1.8.2012. The said order dated 1.8.2012 reads thus:-
"Heard learned advocates for the parties. Learned advocate for the respondent-original defendant submits that they will not carry out any further construction beyond what is shown in photograph dated 01.07.2012, till further order. Learned advocate for the petitioner has agreed to the above proposition. In view of the above, it is ordered that till further order the respondent - original defendant shall not carry out any further construction and any breach of this order will invite proceedings under the Contempt of Courts Act or any other law.
The photograph dated 01.07.2012, showing the status of the construction as on 01.07.2012, is ordered to be taken on record. (emphasis supplied) Post the matter on 21st August, 2012."
4.4 Learned Senior Counsel for the petitioners has also brought to the notice of this Court the order dated 7.11.2012 which is common order in Special Civil Application No. 8379 of 2012 and 8380 of 2012, which reads thus:-
1.Heard learned Counsels for the parties.
2.The old layout plan showing the proposed tenement on the residential plots on Block No.413 at Village Kudasan, Taluka Olpad, District Surat was only for the ground floor containing two bedrooms, open space, kitchen, bedroom and no permission was granted for construction of first Floor.
Hence, the Gram Panchayat has exceeded the jurisdiction and approved the plan for the first floor. In addition to the above, there is a clear breach of order passed by this Court on 01.08.2012 as well as the order passed by the City Civil Court.
3.In the aforesaid circumstances, the respondents herein are hereby directed and restrained not to carry out any construction till further orders.
5. It appears that the Court noticed, prima facie, that the order passed by this Court is Page 5 C/SCA/8380/2012 ORDER observed in breach by the respondents i.e. original defendants.
5.1 Learned Senior Counsel for the respondents submitted that subsequently the construction work is completed.
6. Learned Counsel for the petitioners submitted that the learned trial Court had, while passing the order dated 9.3.2012 considered all relevant aspects including the facts related to alleged breach of construction regulation framed by concerned authority and after considering all relevant aspects and after recording detailed reasons, the order dated 9.3.2012 was passed. 6.1 In this context it is relevant to take note of the order dated 25.6.2012 (Coram Honourable Ms. Justice Sonia Gokani) in Special Civil Application No. 8379 of 2012 and the common order dated 7.11.2012 (Coram Honourable Mr. Justice Anant S. Dave) in Special Civil Application No. 8379 of 2012 and Special Civil Application No. Page 6 C/SCA/8380/2012 ORDER 8380 of 2012.
7. The position which emerges is that the trial Court, by a reasoned order, granted interim relief in favour of the plaintiffs which came to be vacated by learned First Appellate Court.
8. At the time of hearing of present petition, various contentions as regards impugned order are raised by the contenting parties.
9. As mentioned above during pendency of this petition the Court has noticed, prima facie, that the defendants / respondents have acted in breach of orders / statements made during the hearing of the petition and the Court was constrained to pass a restrain order (i.e. order dated 1.8.2012) against the respondents. The Court was, then, also constrained to pass order dated 7.11.2012.
10. In view of the contentions which are raised against the impugned order and in light of the above mentioned aspects and the above mentioned Page 7 C/SCA/8380/2012 ORDER orders dated 1.8.2012, 25.6.2012 and 7.11.2012 the petition deserves consideration.
11. Learned advocate for the contesting parties have jointly clarified that the correct date of the trial Court's order below Exh. 5 is 9.3.2012 (and not 29.3.2012 as mentioned in the Appeal Court's order) and that the correct number of the Appeal against the trial Court's order dated 9.3.2012 wherein the impugned order dated 13.6.2012 is passed is Misc. Civil Appeal No.100 of 2012 (and not 188 of 2005 as mentioned in the copy of the order placed on record).
12. In view of the facts and circumstances of the case and the previous orders passed by this Court and rival submission, below mentioned order is passed:-
Rule returnable on 19.6.2014. Mr. Nangesh, learned advocate has waived service of Notice of Rule on behalf of the respondents. In the meanwhile the order dated 25.6.2012 and order Page 8 C/SCA/8380/2012 ORDER dated 1.8.2012 will continue to remain in operation until final hearing or until any other or further order is passed.
(K.M.THAKER, J.) Suresh* Page 9