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SCA/9771/2008 4/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9771 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
CHHAYABEN
PRAKASHBHAI PILLAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 5 - Respondent(s)
=========================================================
Appearance
:
MR
KH BAXI for
Petitioner(s) : 1,
MR VIPUL MISTRY AGP for Respondent(s) : 1,
None
for Respondent(s) : 2,5 - 6.
MR PRANAV G DESAI for Respondent(s) :
3 - 4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 29/07/2008
ORAL
JUDGMENT
Present
Special Civil Application is filed by the petitioner ? original
plaintiff under Article 227 of the Constitution of India for
appropriate writ, order and/or direction to quash and set aside the
judgement and order dtd.30/6/2008 passed by the learned Presiding
Officer, FTC No.10, Vadodara in Misc.Civil Appeal No.38 of 2008 in
allowing the appeal and by quashing and setting aside the order
dtd.16/2/2008 passed by the learned trial court below application
Ex.5 in Regular Civil Suit No. 957 of 2007.
The
petitioner herein ? original plaintiff filed Regular Civil Suit
No. 957 of 2007 against the respondents for declaration and
permanent injunction with a prayer to declare the plaintiff as owner
by adverse possession. It was the case on behalf of the petitioner
that one ?SSamrat Hotel?? is situated in Sayajiganj area, near
Railway Station, Vadodara and there was open portion of land on the
back side of the said Samrat Hotel, which was known as ?SGarden??
admeasuring 5 feet X 8 feet and the plaintiff was running her
business in the name and style as ?SSamrat Tava Center?? since
many years, which is not coming within road and it is not encroached
by land owners. It was the case of the plaintiff that the Vadodara
Municipal Corporation removed the structure / Tava Center, along
with other 142 Cabin Holders and the said Tava Center was removed by
the Corporation illegally and a notice was given to the Corporation
that their Tava Center has been removed/demolished illegally and
they will put the superstructures again and as there was no reply,
the plaintiff again put Tava Center and thereafter, she filed the
aforesaid suit. In the said suit an application at Ex.5 was
submitted for temporary injunction restraining the Corporation from
interfering and disturbing the use and occupation and in legal
possession of the plaintiff in respect of the suit place known as
?SSamrat Tava Center?? without due process of law. The learned
trial court allowed the application Ex.5 vide order dtd.16/2/2008 by
directing the original defendant No.3 Corporation to maintain
status-quo position of the suit property known as ?SSamrat Tava
Center?? till final disposal of the suit. Being aggrieved by the
said order passed by the learned trial court below application Ex.5
allowing the application Ex.5, the respondent Nos.3 and 4 ?
Vadodara Municipal Corporation and its Commissioner preferred Civil
Misc.Appeal No.39 of 2008 which came to be heard by the learned
Presiding Officer, FTC No.10, Vadodara, who vide his judgement and
order dtd.30/6/2008 allowed the said appeal by quashing and setting
aside the order passed by the trial court below application Ex.5.
Being aggrieved by and dissatisfied with the same, the petitioner ?
original plaintiff has preferred present Special Civil Application
under Article 227 of the Constitution of India.
Mr.K.H.
Baxi, learned advocate appearing on behalf of the petitioner has
vehemently submitted that the learned appellate court has
materially erred in allowing the appeal by quashing and setting
aside the order passed by the trial court below application Ex.5
when the plaintiff is already running the Tava Center on the suit
land/place. It is submitted that as such the trial court while
allowing the application Ex.5 directed to maintain status quo which
was not required to be interfered with, as the plaintiff was running
the Tava Center since many years. It is further submitted that as
such there was already a dispute between the railway authority and
the Corporation with regard to ownership of the suit land and
therefore, the Corporation had no authority to remove the Tava
Center. It is submitted that the Tava Center of the petitioner
came to be removed by the Corporation illegally along with other
142 cabin holders, who had approached this Court and lost. It is
submitted that so far as the petitioner is concerned her case
cannot be compared with the case of other 142 cabin holders who lost
before this Court. Therefore, it is requested to allow present
Special Civil Application.
Mr.Pranav
G.Desai, learned advocate appearing on behalf of the Corporation
has vehemently submitted that as such the son of the petitioner had
also filed Special Civil Application before this Court along with
other 142 cabin holders who lost and having lost before this Court,
the petitioner ? plaintiff ought not to have filed the suit. It is
submitted that even there was no reference of filing of the Special
Civil Application by the son of the plaintiff in the suit and there
was suppression of material facts. It is submitted that the Tava
Center of the petitioner was removed after the order passed by this
Honourable Court in Special Civil Application along with other 142
cabin holders. It is submitted that considering the above when the
appellate court has allowed the appeal and quashed and set aside the
order passed by the trial court below application Ex.5, it cannot be
said that the appellate court has committed any error.
Heard
the learned advocate appearing on behalf of the respective parties.
At
the outset, it is required to be noted that the petitioner had no
title over the land in question and is an encroacher on the land in
question. It is also required to be noted that the son of the
petitioner had filed Special Civil Application before this Court
along with other 142 cabin holders, who lost and the learned Single
Judge of this Court directed that it will be open for the
Corporation to take appropriate action and demolish the cabin.
Thereafter, the Tava Center run by the petitioner came to be
demolished/removed. However, the petitioner, again without any
authority restored the Tava Center. Filing of the Special Civil
Application by the son of the petitioner before this Court and
having lost, is not mentioned by the plaintiff in the plaint. It is
not the case of the petitioner that the son of the petitioner filed
Special Civil Application for some other cabin and/or place. Once
having lost before this Court, it was not open for the petitioner to
file the suit. At least filing of the petition and having lost
before this Court ought to have mentioned in the plaint as well as
in the application at Ex.5. Thus, there is suppression of the
material fact by the petitioner. A person who approaches the Court
and prays for discretionary relief, must come with clean hands.
Considering the above when the appellate court has allowed the
appeal by quashing and setting aside the order passed by the trial
court below application Ex.5, it cannot be said that the learned
appellate court has committed any error. In the facts and
circumstances of the case and considering the fact that the son of
the petitioner has lost before this Court in Special Civil
Application in respect of very suit land/place, present Special
Civil Application deserves to be dismissed and is accordingly
dismissed. Notice is discharged. In the facts and circumstances of
the case, there shall be no order as to costs.
[M.R.
SHAH, J.]
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