Gujarat High Court
Mohammad Hanif Nasirmohammad Jariwala vs State Of Gujarat on 15 November, 2022
C/SCA/18739/2014 ORDER DATED: 15/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18739 of 2014
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MOHAMMAD HANIF NASIRMOHAMMAD JARIWALA
Versus
STATE OF GUJARAT & 5 other(s)
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Appearance:
MR RR MARSHALL, SENIOR ADVOCATE ASSISTED BY MR HARSHAD J
SHAH(752) for the Petitioner(s) No. 1
MS JYOTI BHATT, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MAYANK K TRIVEDI(7906) for the Respondent(s) No. 5,6
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 2,3
MR KK TRIVEDI(934) for the Respondent(s) No. 4,5,6
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 15/11/2022
ORAL ORDER
1. The present writ petition has been filed by the petitioner praying for the following reliefs:
"8(A) Your Lordship may be pleased to admit and allow this petition.
(B) Your Lordship may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction to direct the respondents no.1 to 3 to take prompt action on the representation of the petitioner dated 14/10/2014.
(C) Your Lordship may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction to direct the respondents to comply with the Page 1 of 4 Downloaded on : Fri Nov 18 20:48:56 IST 2022 C/SCA/18739/2014 ORDER DATED: 15/11/2022 direction issued by the Division Bench of this Hon'ble High Court dated 10/10/2011 rendered in Special Civil Application No. 3301 of 2010.
(D) Your Lordship may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction to direct the respondents to remove the illegal construction/s made by the respondents no. 4 to 6 herein in Ward No.4, Nani Begumwadi, Salabatpura, Surat.
(E) Pending the admission, hearing and till the final disposal of the present petition, Your Lordship may be pleased to direct the respondents to remove the illegal construction/s made by the respondents no. 4 to 6 herein in Ward No.4, Nani Begumwadi, Salabatpura, Surat.
(F) Pending the admission, hearing and till the final disposal of the present petition, Your Lordship may be pleased to direct the respondents no. 1 to 3 to produce the action taken report to comply with the direction issued by the Division Bench of this Hon'ble High Court dated 10/10/2011 rendered in Special Civil Application No. 3301 of 2010.
(G) Your Lordship may be pleased to pass such other and further reliefs as may be deemed just and proper in the interest of justice."
2. The pleadings in the matter are complete. RULE. Rule Page 2 of 4 Downloaded on : Fri Nov 18 20:48:56 IST 2022 C/SCA/18739/2014 ORDER DATED: 15/11/2022 returnable forthwith.
3. Heard the learned counsel for the parties.
4. After going through the record and the papers, it is seen that several disputed questions of facts are raised in the writ petition.
5. The disputed issues raised between the parties pertain to whether the road in question is a public road or is a private road alongwith other issues with respect to encroachment and unauthorised construction by the private respondents herein. By the present petition the dispute is sought to be given a colour of inaction on the part of the concerned authority so as to bring the petition within the purview of Article 226 of the Constitution of India. The respondent body herein has categorically stated in the affidavit-in-reply that the alleged road is within the society and a private road. This fact is disputed by the petitioner alleging that the said road is a public road. On the basis of this contention the petitioner herein is alleging inaction on the part of the respondents No.2 and 3 in removing the encroachment made by the private respondents.
6. It is well settled that the disputed questions of fact cannot be gone into under Article 226 of the Constitution of India which is meant for exercising the extra-ordinary power. Once the concerned authority has approved the plan, and if in the opinion of one party, any person is deviating from such plan, it is always open for the person aggrieved of such deviation to initiate civil proceedings in an appropriate civil Page 3 of 4 Downloaded on : Fri Nov 18 20:48:56 IST 2022 C/SCA/18739/2014 ORDER DATED: 15/11/2022 court to establish his right qua another deviating citizen, trust or institution.
7. In view of the aforesaid observations, the petitioner is relegated to pursue his remedy by way of civil proceedings in appropriate civil court. The petitioner is also at liberty to raise all the contentions as available to him in law in the said civil proceedings.
It is made clear that this Court has not expressed any opinion on the merits of the case and it will be open for the parties herein to raise all the contentions which are available to them in law as well as the contentions therein before the appropriate civil court/authority.
8. Mr. R.R. Marshall, learned Senior Advocate for the petitioner submits that the petitioner may also be granted liberty to make representation to the respondents No.2 and 3 - authorities which may be decided by them in accordance with law. It is directed that if such a representation is made by the petitioner, the respondents No.2 and 3 - authorities shall decide such representation in accordance with law and on its own merits.
9. With the aforesaid observations, the present writ petition stands disposed of with no order as to costs.
(ANIRUDDHA P. MAYEE, J.) A.M.A. SAIYED Page 4 of 4 Downloaded on : Fri Nov 18 20:48:56 IST 2022