NEUTRAL CITATION
C/LPA/1070/2023 ORDER DATED: 17/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1070 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 13096 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/LETTERS PATENT APPEAL NO. 1070 of 2023
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SUMITKUMAR SURESHBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
SHRI MEET D KAKADIA(11896) for the Appellant(s) No. 1
SHRI SP MAJMUDAR(3456) for the Appellant(s) No. 1
SHRI NISHIT GANDHI for the Respondent(s) No. 2,3,4,5,6,7,8
SHRI K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 17/08/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. This intra-court appeal is directed against the judgment and order dated 10.4.2022 passed in Special Civil Application No. 13096 of 2022 by the learned Single Judge whereby while allowing the writ petition, quashing the show cause notice as Page 1 of 7 Downloaded on : Sun Sep 17 01:26:10 IST 2023 NEUTRAL CITATION C/LPA/1070/2023 ORDER DATED: 17/08/2023 undefined well as order dated 23.5.2022 issued by the Nagarpalika, Dhanera, District: Banaskantha, it was observed in paragraph 11 of the judgment impugned that the disputed street is not a public street because it is being used by the residents of the society named as Pragatinagar Society, as the said road is only for the purpose of reaching the respective residents of Pragatinagar Society. The observation in the judgment impugned is that the Nagarpalika, Dhanera viz. respondent No.3 therein cannot insist or allege that there is an encroachment on the public street. While returning the said findings, the learned Single Judge has taken note of the orders passed in the earlier round of litigation initiated by respondent No.4 viz. appellant herein. It was noted that in the previous round of litigation, respondent No.4 relegated to approach the Civil Court for redressal of his grievance and as such, in the subsequent or second round of dispute, it is not open for the Nagarpalika to allege that it is a public street.
2. To assail this finding, it is argued by the counsel for the appellant that any observation made by this Court in the previous round of litigation will have no bearing on the dispute Page 2 of 7 Downloaded on : Sun Sep 17 01:26:10 IST 2023 NEUTRAL CITATION C/LPA/1070/2023 ORDER DATED: 17/08/2023 undefined before us, inasmuch as the notice dated 8.7.2022 was issued by the Nagarpalika concerned asking the writ petitioners to remove encroachment made on the public land. The show cause notice dated 23.5.2022 issued by the Collector also states the said fact. The writ petitioners, instead of replying to the said notice by approaching the competent authority, had straightaway come to this Court to challenge the notice by taking a plea that the said notice was issued at the instance of respondent No.4 viz. appellant herein, who had lost in the earlier round of litigation. The submission is, thus, that even from the findings returned by the learned Single Judge, it is evident that the road in question is being used by the residents of the society and hence, it cannot be said to be a private land. Any encroachment of the said land would be required to be removed as the street in question is being maintained by the Nagarpalika and it is vested in the Nagarpalika by virtue of Section 147 read with Section 2(22)(b) of the Municipalities Act.
3. Learned counsel appearing for the writ petitioners - respondents herein would vehemently submit that the entire proceeding initiated against the writ petitioners at the behest of Page 3 of 7 Downloaded on : Sun Sep 17 01:26:10 IST 2023 NEUTRAL CITATION C/LPA/1070/2023 ORDER DATED: 17/08/2023 undefined the appellant herein viz. respondent No.4 before the writ court was an abuse of process of law. The appellant having lost in the first round of litigation cannot stand before this Court to assail the order passed by the learned Single Judge. The submission is that the Nagarpalika itself has not come forward to challenge the order passed by the learned Single Judge and in view of the findings returned by the learned Single Judge in the writ petition and the Letters Patent Appeal filed by respondent No.4 herein, the present appeal cannot survive.
4. It is further submitted that the appellant herein is a developer and for his vested interest only, he is trying to get the existing wall of the writ petitioners removed so that he can develop the land adjoining the society by using the street-in- question which is termed as public street. The submission, thus, is that this Court may not come to the rescue of the appellant who is guided by his personal benefit.
5. Dealing with these submissions of the learned counsels appearing for the parties and having perused the record, suffice it to say that the writ petition has been filed challenging the Page 4 of 7 Downloaded on : Sun Sep 17 01:26:10 IST 2023 NEUTRAL CITATION C/LPA/1070/2023 ORDER DATED: 17/08/2023 undefined notice dated 8.7.2022 which was issued by the Nagarpalika, Dhanera stating therein that the writ petitioners had encroached upon the public land because the encroachments are not removed, the proceedings under the Gujarat Land Grabbing Act would be initiated. Another challenge to the communication 23.5.2022 issued by respondent No.2 viz. Resident Additional Collector, District Land Grabbing (Prohibition) Committee, which was incorporated by way of amendment. It is an admitted fact of the matter that the writ petitioners did not submit any reply to the show cause notice dated 8.7.2022 issued by the Nagarpalika, Dhanera. A perusal of the order impugned passed by the learned Single Judge also indicates that while quashing the notice dated 8.7.2022 it has returned the finding on factual aspects which could not have been examined within the scope of Article 226 of the Constitution of India.
6. The question as to whether the writ petitioners had made encroachment over the public street, which is for access to the residents of the society, is required to be examined by the competent authority after the reply to the notice dated 8.7.2022 Page 5 of 7 Downloaded on : Sun Sep 17 01:26:10 IST 2023 NEUTRAL CITATION C/LPA/1070/2023 ORDER DATED: 17/08/2023 undefined is furnished by the writ petitioners. In order to ensure an independent inquiry into the matter, we provide that the District Collector shall examine the matter as to the nature of the encroachment alleged in the show cause notice dated 8.7.2022 issued by the Nagarpalika, Dhanera. We permit the writ petitioners to submit an application along with the copy of this order before the District Collector within a period of two weeks from today.
7. On the presentation of the said application, a notice be issued by the Collector to the Nagarpalika, Dhanera and other residents of the society including the appellant herein giving them opportunity to submit their comment / reply to the contents of the application moved by the writ petitioners. In case of need, physical measurement or spot inspection of the site shall be carried out in the presence of all the concerned parties including the officers of the Nagrpalika, Dhanera.
8. The entire exercise shall be completed by passing a reasoned and speaking order dealing with the application moved by the writ petitioners within a period of six weeks from Page 6 of 7 Downloaded on : Sun Sep 17 01:26:10 IST 2023 NEUTRAL CITATION C/LPA/1070/2023 ORDER DATED: 17/08/2023 undefined the date of the application.
9. It is further clarified that any observation made, by this Court in the previous round of litigation or by the learned Single Judge in the judgment impugned or by us hereinabove, will not come in the way of the parties in the determination to be made by the Collector under the above directions.
10. The judgment and order dated 10.4.2022 passed in Special Civil Application No. 13096 of 2022 by the learned Single Judge is hereby quashed and set aside. The appeal stands dismissed. In view of the dismissal of appeal, civil application does not survive and is accordingly disposed of.
(SUNITA AGARWAL, CJ ) (N.V.ANJARIA, J) Bharat Page 7 of 7 Downloaded on : Sun Sep 17 01:26:10 IST 2023