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FA/714/2010 1 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 714 of 2010
With
CIVIL
APPLICATION No. 3240 of 2010
In
FIRST APPEAL No. 714 of
2010
=========================================================
STATE
OF GUJARAT THROUGH DISTRICT COLLECTOR & 1 - Appellant(s)
Versus
M/S
I B PATEL BUILDERS PVT.LTD - Defendant(s)
=========================================================
Appearance
:
MR
JIRGA JHAVERI ASST. GOVERNMENT PLEADER
for
Appellant(s) : 1 - 2.
MR DC DAVE for Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 10/05/2010
ORAL ORDER
Heard
Ms. Jhaveri, learned AGP for the appellants, and Mr. D.C.Dave,
learned advocate for the respondent.
Ms.
Jhaveri has requested for time to place certain material on record
and to add certain grounds in the appeal. She has requested for time
until 13th May, 2010 for the aforesaid purpose.
After
the order dated 22nd April, 2010, the respondent has filed
affidavit opposing the application seeking interim relief.
The
subject matter of the appeal and the suit (which was filed by present
opponent) No.249 of 2006 is a parcel of land situate in Vadodara city
admeasuring about 13616 sq. fts. at City Survey Nos.1270 to 1274 and
Survey No. 65. The appellants-original defendants contested the suit
on the ground that the ownership rights of the property in question
vests in the Government and not Mrs. Moud Joseph Santan Menenzes with
whom present respondent had, allegedly entered into an agreement to
develop the property in question. Differently put, the title and
ownership of the property in question and the rights associated with
the title and ownership of the property in question are in dispute.
By the impugned judgment and decree, the suit has been decreed in
favour of the plaintiff-present respondent. Aggrieved by the decree,
the appellants are before this Court.
The
impugned judgment has been delivered on 31st March, 2009.
There was some delay in preferring the appeal, which came to be
condoned by order dated 30th March, 2010. In light of the
date of the impugned judgment and decree and in light of the delay
caused in filing the appeal, the opponent has claimed that it has
resumed the construction activity over the suit property since 31st
March, 2009. It is also averred that earlier also the opponents had
put up certain constructions and the said work had continued until
17th April, 1995. Though it is conveniently not expressly
spelt out in the affidavit but on conjoint reading of para 4(A), (B)
& (C) of the affidavit, it emerges that atleast between 17th
April, 1995 and 31st March, 2009 any construction activity
was not carried out and the said activity remained stayed /
suspended. The reason for such stoppage of activity is not disclosed
in the affidavit. Be that as it may, Mr. Dave, learned advocate for
the respondent has at this stage submitted that in the interregnum
i.e. during the aforesaid period, there was stay order issued by the
Collector against the construction activity. Mr. Dave has, during the
hearing, submitted that after the judgment came to be delivered,
there is no such order in operation. Ms. Jhaveri, learned AGP, is not
in position to either confirm or deny or clarify the said aspect.
It
is a matter of record that the judgment and decree came to be
delivered on 31st March, 2009 and in response to the
application dated 2nd April, 2009 for certified copy, the
appellants were provided a certified copy on 23rd June,
2009 and the appeal came to be filed on or around 7th
December, 2009. In view of the time-lag the opponent has claimed that
it has already resumed construction activity and substantial work on
ground floor is over.
In
view of the request by Ms. Jhaveri for time and in view of the fact
that at present, the Civil Application for stay is also being
adjourned along with the appeal, any order of interim nature cannot
be passed at this stage and the same will be considered on the next
date of hearing. It is, however, clarified that if any activities
including construction activities are carried out, it will be subject
to the orders that may be passed hereafter on the next date in the
Civil Application and/or in the Appeal.
The
First Appeal and the Civil Application are adjourned to 15th
June, 2010.
[K.M.Thaker,
J.]
kdc
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