Gujarat High Court
Legal Heirs And Representative Of ... vs State Of Gujarat & 7 on 13 October, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/11195/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11195 of 2014
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LEGAL HEIRS AND REPRESENTATIVE OF DECEASED
JYOTSNABEN JAGDISHBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 7....Respondent(s)
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Appearance:
MR MRUGEN K PUROHIT, ADVOCATE for Petitioner Nos.11.3
MS ASMITA PATEL, AGP for the Respondent(s) No.14
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 13/10/2014
ORAL ORDER
(1) By way of this petition under Article 226 of the Constitution of India, the petitioners have, inter alia, prayed for the following reliefs:
"(A) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction to direct respondent Nos.2 to 6 to take appropriate steps for removal of illegal construction made by private respondents in Revenue Survey Nos.862 and 863 of Village Lakhavad Party, Taluka Nadiad, DistrictKheda and further may be pleased to direct the respondent authorities to implement the notice dated 01st June, 2012 and communication dated 31st May, 2014;
(B) Pending the admission, hearing and final disposal of this petition, this Honourable Court may be pleased to grant interim relief in terms of Paragraph 7(A);
(C) xxx xxx xxx"
(2) Heard Mr.Mrugen K. Purohit, learned advocate for the petitioners. It is submitted by learned advocate for the petitioners that Page 1 of 5 C/SCA/11195/2014 ORDER even though a notice has been issued way back on 01.06.2012 the respondent authorities, more particularly respondent No.5Nadiad Municipality is neither implementing the said notice nor it is adhering to the instructions given by the respondentDistrict Collector vide communication dated 31.05.2014.
(3) If the case of the petitioners is described in short, it is the case of the petitioners that private respondent No.8 has carried out some illegal construction, which is de hors the provisions of building byelaws.
(4) At this juncture it would be appropriate to note that the petitioners are heirs of deceased Jyotsnaben Jagdishbhai Patel, who have already instituted Special Civil Suit No.12 of 2011, which is pending before learned Principal Senior Civil Judge, Nadiad. Record of the petition indicates that the application for interim injunction Exh.5 moved in the aforesaid suit came to be rejected vide order dated 30.08.2012 by learned 7th Additional Senior Civil Judge, Nadiad. It is further noteworthy that the petitioners thereafter preferred Appeal from Order under Order 43 Rule 1 of the Code of Page 2 of 5 C/SCA/11195/2014 ORDER Civil Procedure, 1908, which came to be registered as Civil M.A. No.147/2012 wherein order by consent has been passed by the learned appellate court and, inter alia, recorded that order dated 30.08.2012 passed below application Exh.5 in Special Civil Suit No.12 of 2011 is confirmed without going into merits. It is further provided by the learned appellate court that the aforesaid suit be disposed of latest by 30.04.2015.
(5) Considering the prayers prayed for it would be appropriate to refer to the Division Bench judgment of this Court dated 15.03.2012 rendered in Letters Patent Appeal No.47 of 2012, wherein it is observed as under (Paragraph Nos.34):
"3. We have gone through the papers of petition along with civil application and affidavitinreply 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 affidavitinreply 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 Page 3 of 5 C/SCA/11195/2014 ORDER 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 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 nittygritty of fine rights existing between respondent no.4 and the petitioner. Examination of plans, correctness of plans, examination of rajachithy, correctness of rajachithi 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 Page 4 of 5 C/SCA/11195/2014 ORDER 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."
(6) In light of the aforesaid binding decision, the prayers prayed for in this petition cannot be granted, as essentially it is a private dispute between the petitioners and private respondent Nos.7 and 8. It goes without saying that any observation made in this order shall not prejudice to the rights of the petitioners and respondent Nos.7 and 8 before the civil court.
(7) Petition is therefore rejected. There shall be no order as to costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh[pps]* Page 5 of 5