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SCA/3595/2008 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3595 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 ?
=========================================================
STATE
OF GUJARAT & 4 - Petitioner(s)
Versus
DHARAMSHIBHAI
ARJANBHAI & 2 - Respondent(s)
=========================================================
Appearance :
VIPUL
MISTRY AGP for Petitioner(s) : 1 -
5.
MR HARSHIT S TOLIA for Respondent(s) : 1,
MR HS MUNSHAW for
Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 27/08/2008
ORAL
JUDGMENT
1. By
way of this petition under Article 227 of the Constitution of India,
the petitioners-State of Gujarat original respondent Nos. 1,2,3,6 and
7 have prayed for an appropriate writ, direction and/ or order to
quash and set aside the order dated 3.7.2007 passed by the learned
Additional District Judge & Presiding Officers, Fast Track Court
No.2, Bhavnagar passed in Miscellaneous Civil Application No. 19 of
2007 in allowing the same partly and directing the parties, more
particularly, the petitioners to maintain status quo.
2.
The respondent No.1 original plaintiff had instituted Regular Civil
Suit No. 766 of 2006 before the learned trial Court for declaration
and permanent injunction submitting that he is possessing land
bearing Survey No. 29/3 paiki 7 acres 15 gunthas situated at Taluka
Shihor, which was purchased by his father and that they are in
possession since last more than 50 years. It was also submitted that
even in the village form No. 7/12, the name of the father was
mutated. It was submitted inspite of above the petitioners-original
defendants threatened to dispossess him and, therefore, suit came to
be filed and in the said suit the original-plaintiff submitted
application Exh. 5 for interim injunction. The said application was
resisted by the petitioners submitting that respondent No.1 original
plaintiff No.1 is not owner and there is no title in his favour. It
was also further submitted that the suit land is a Government Padatar
land .It is reserved for construction of Government offices and
quarters and Mamlatdar offices. It was also further submitted that
even part of the land was earlier allotted to some other persons. The
learned trial Court dismissed the application Exh.5 vide order dated
2.2.2007. Being aggrieved and dissatisfied by the order dated
2.2.2007 below Exh. 5 passed by the learned trial Court, the
respondent No.1 original plaintiff preferred Civil Miscellaneous
Appeal No. 19 of 2007, which came to be allowed by the learned
Additional District Judge & Presiding officer, Fast Track Court
No. 2, Bhavnagar by judgment and order dated 3.7.2007 directing to
maintain status quo. Being aggrieved and dissatisfied with order
passed by the learned Appellate Court in partly allowing the said
appeal and directing the parties to maintain status quo, the
petitioners original defendant Nos. 1,2,3,6 and 7 State of Gujarat
and others have preferred the present Special Civil Application under
Article 227 of the Constitution of India.
3. Shri
Vipul Mistry, learned AGP has vehemently submitted that the Appellate
Court has materially erred in partly allowing the appeal by directing
the parties to maintain status quo, as since 1984 the land in the
question is reserved by the Collector for construction of Government
offices and quarters. It is submitted that at least since 1972 the
land is in the name of Government and even prior thereto also the
some of the land was allotted by the Government / Collector. It is
submitted that the original plaintiff is claiming his right on the
basis of an unregistered sale deed, it can be said that same has no
evidentiary value. It is submitted that when the land in question is
in the name of Government and it is reserved by the Collector for
the purpose of construction of Government offices and quarters and
even the said entry of reservation is since 1984 and the suit came to
be filed in the year 2007 only, the learned Appellate Court has
materially erred in directing to maintain status quo. It is submitted
that as such earlier the encroachment was removed and, therefore,
when the plaintiff has no legal title and / or right over the land in
question and it is Government land, therefore, it is requested to
allow the present Special Civil Application by quashing and setting
aside the order passed by the learned Appellate Court in Civil
Miscellaneous Appeal No. 19 of 2007.
4. Petition
is opposed by Shri Harshit Tolia, learned advocate appearing for the
respondent No.1 original plaintiff. It is submitted that original
plaintiff is in possession of land in question since more than 30
years and the land in question was purchased by his father for a sale
consideration of Rs. 60,000/- and even the name of his father has
mutated in the revenue record. It is submitted that revenue entry was
made in the year 1984 entering the name of the Government illegally
and, therefore, the proceedings were initiated. It is submitted that
whether the plaintiff has title over the land in question or not is
required to be considered and decided in trial and, therefore, the
learned Appellate Court has rightly passed an order to maintain
status quo which is not required to be interfered by this Court in
exercise of the powers under Article 227 of the Constitution of
India. It is further submitted that even the plaintiff has also
produced the some receipts of land revenue paid by him to the Revenue
Authorities showing his possession in the year 1952 to 1968 and,
therefore, it is requested to dismiss the present Special Civil
Application.
5. Having
heard the learned advocate for the respective parties and considering
the village form No. 7/12 and village form No.6, it appears that the
land in question is a Government waste land and even as per the entry
of 30.9.1984 the land in question is reserved by the Collector for
construction of Government offices and and quarters. At least since
1971 in the revenue record the name of the Government is mentioned.
The original plaintiff claims right on the basis of the some
unregistered sale deed executed by one Damja Desung, however the said
document is unregistered and, therefore, same has no evidentiary
value. Even, considering the observation made by the learned trial
Court it appears from the said deed that only occupancy right and
possession was handed over by Damjibhai in favour of the plaintiff’s
father but no legal title has been passed in favour of the father of
the plaintiff. As rightly observed by the learned trial Court it is
not mentioned in the said deed under which capacity he was executing
the same. Against which there are documentary evidences and the
revenue records and the entries showing that the land in question is
a Government waste land and pursuant to the order passed by the
Collector the land in question is reserved for construction of
Government offices and quarters in the year 1984.It is also born out
from the record that earlier some encroachment on the land in
question was removed by the authority. Thus, the plaintiff has
miserably failed to substantiate his claim for possession as well as
legal title over the land in question. When the land is reserved by
the Collector for construction of Government offices and quarters
since 1984, they cannot be restrained from using the land for the
purpose for which, it is reserved and, therefore, the learned
Appellate Court has committed an error in directing to maintain
status quo while allowing the appeal in part and quashing and setting
aside the order passed by the learned trial Court passed below Exh.5.
In the facts and circumstances of the case, the order passed by the
learned trial Court passed below Exh. 5 was not required to be
interfered by the Appellate Court.
8. For
the reasons stated above, petition succeeds. The order dated 3.7.2007
passed by the learned Additional District Judge & Presiding
Officer, Fast Track Court No.2, Bhavnagar passed in Miscellaneous
Civil Application No. 19 of 2007 is hereby quashed and set aside and
the order passed by the learned trial Court below Exh. 5 in Regular
Civil Suit No. 766 of 2006 is hereby restored . Rule is made
absolute, there shall be no order as to cost.
(M.R.
Shah,J.)
Kaushik
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