Gujarat High Court
Manjulaben Khushilal Koshti & 9 vs Collector - Ahmedabad & 2 on 19 September, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/15747/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15747 of 2016
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MANJULABEN KHUSHILAL KOSHTI & 9....Petitioner(s)
Versus
COLLECTOR - AHMEDABAD & 2....Respondent(s)
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Appearance:
MS ANUJA S NANAVATI, ADVOCATE for the Petitioner(s) No. 1 - 10
MS. ASMITA PATEL, AGP, for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 19/09/2016
ORAL ORDER
[1] Notice for final disposal be issued to respondents. Ms. Asmita Patel, learned Assistant Government Pleader waives service of notice on behalf of respondent No.1.
[2] By way of present petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 18.07.2016 passed below Exh.16 in Misc. Civil Appeal No.16 of 2016 by the learned 3rd Additional District Judge, Ahmedabad Rural.
[3] Upon perusal of impugned order and after hearing the submissions made at bar, it appears that present petitioners have filed CMA No.16 of 2016, wherein order passed below injunction application Exhs.5, 15 and 20 came to be challenged before the learned appellate Judge and the same is pending for final disposal alongwith appeal. The petitioners also preferred stay application below Exh.5, wherein, the learned appellate Judge directed to maintain status-quo Page 1 of 3 HC-NIC Page 1 of 3 Created On Wed Sep 21 06:53:24 IST 2016 C/SCA/15747/2016 ORDER position qua subject matter of plaint till final adjudication of CMA No.16 of 2016. Such order below stay application Exh.5 came to be passed on 12.04.2016. Thereafter, pending hearing of CMA No.16 of 2016, the respondent-State moved an application below Exh.16 and sought modification of order passed below Exh.5. The learned appellate Judge allowed the said application preferred by respondent-State on 18.07.2016 and modified the order, whereby the respondent-State permitted to initiate any legal proceedings or follow due process of law for recovery of possession of suit property from the present petitioners. On 06.08.2016, the respondent-State issued notice to petitioner Nos.4 to 8, interalia, directed them to show cause for the encroachment done by them on the suit land. Once the learned appellate Judge is already seized with the order passed by learned trial Judge below injunction application Exh.5 with regard to the subject matter, the modification of order below Exh.16 as granted, is not necessary or at least required to pass such order without deciding appeal finally.
[4] Under the circumstances, impugned order passed below Exh.16 requires to be quashed and set aside qua petitioner Nos.4 to 8 only and the same is hereby quashed and set aside. Meanwhile, petitioner Nos.4 to 8 and respondent-State are hereby directed to maintain status-quo position as granted as per order passed below stay application Exh.5 in CMA No.16 of 2016. The learned appellate Judge is further directed to expedite the hearing of pending CMA No.16 of 2016 and decide the same as expeditiously as possible but not later than two months from the date of receipt of copy of this order. It is made clear that this Court has not examined the merits of the Page 2 of 3 HC-NIC Page 2 of 3 Created On Wed Sep 21 06:53:24 IST 2016 C/SCA/15747/2016 ORDER appeal and therefore, the learned trial Judge shall decide the same in accordance with law and after hearing both the sides and uninfluenced by the observations recorded in the order passed below Exh.16 and also present order.
[5] In view of the above observation and direction, present petition stands disposed of. Direct service is permitted.
(S.H.VORA, J.) siddharth Page 3 of 3 HC-NIC Page 3 of 3 Created On Wed Sep 21 06:53:24 IST 2016