Gujarat High Court
Pujya Baba Santokdas Panchayat Owners ... vs Ahmedabad Municipal Corporation on 3 February, 2025
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2500 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 2500 of 2024
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2025
In R/FIRST APPEAL NO. 2500 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
No
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PUJYA BABA SANTOKDAS PANCHAYAT OWNERS ASSOCIATION & ORS.
Versus
AHMEDABAD MUNICIPAL CORPORATION & ORS.
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Appearance:
MS. MEGHA JANI FOR MR NL RAMNANI(2400) for the Appellant(s) No.
1,2,3,4,5,6,7,8,9
MS. A. N. RAMNANI (14156) for the Appellant(s) No. 1,2,3,4,5,6,7,8,9
BHAVIN B THAKAR(9371) for the Defendant(s) No. 8
MR. NANDISH THACKAR FOR DR.ABHISST K THAKER(7010) for the
Defendant(s) No. 7
MR. SHIVAM DIXIT, AGP for the Defendant(s) No. 3,4
MR. ARCHIT P JANI(7304) for the Defendant(s) No. 2
NOTICE SERVED BY DS for the Defendant(s) No. 1
REFUSED SERVED (N)(10) for the Defendant(s) No. 5,6
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 03/02/2025
ORAL JUDGMENT
[1.] Today, when the matter is taken up for dictation of Page 1 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined judgment, learned AGP Mr. Shivam Dixit appearing for the respondent nos.3 and 4-State Authorities has placed on record the affidavit along with the list of documents, the copy of which, is served upon the respective parties. The same is permitted to be taken upon record. [2.] Learned advocate Mr. Bhavin B. Thakar appearing for the respondent no.8 has placed on record the copies of two registered agreements to sell in response to the apprehension expressed by the appellants. During the course of the arguments with regard to the third party rights being created, it is clarified by respondent no.8 that pending the present appeal, he has entered into a registered agreement to sell with two of the proposed purchasers. The same is also taken upon record.
[3.] The appellant association through its Secretary and the members have approached in the present appeal under Section 96 of the Code of Civil Procedure, 1908 being aggrieved and dissatisfied with the judgment and order dated 14.06.2024 passed by the learned City Civil Court, Ahmedabad in Civil Suit No.347 of 2020 ( hereinafter referred as 'impugned Judgment and order'). By the said judgment and order, the learned Judge has dismissed the suit preferred by the present appellants with cost of Rs.25,000/-, to be paid by the present appellants-original plaintiffs.
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NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined [4.] In order to appreciate the controversy raised in the present appeal, it would be appropriate to consider the facts as emerged on record:
[4.1] The dispute pertains to the government allotted plots bearing city survey no.808 and its adjoining land bearing city survey nos.807 and 809 allotted to the grandfathers of the present respondent nos.5 to 8 herein. The land bearing city survey no.808 is reserved for public purposes to be used as a garden in the final town planning scheme, and is open to be used by the public at large. The core issue involved in the matter, is the alleged encroachment over the aforesaid parcel of the land by the present respondent nos.5 to 8, who are otherwise the plot holders of the adjoining lands bearing city survey nos.807 and 809 respectively. The grievance is also voiced against the inaction on part of the respondents-State Authorities who are joined as original defendant nos.1 to 4-present respondent nos.1 to 4 herein.
[4.2] It is the case of the appellants that the Government had allotted a huge parcel of land known as the Sardarnagar Township in the heart of city of Ahmedabad with benevolent purpose to settle the migrated persons from Pakistan after partition. It is the case of the original plaintiffs that in the year-1981, one Kavitaben Arjundas Page 3 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined Goplani had preferred Civil Suit No.748 of 1981 before the learned Civil Court at Narol against the Administrator of Sardarnagar Township on the ground that she wanted to acquire 2000 yards of land, out of city survey no.808. As per the original plaintiffs, in the aforesaid suit, learned Assistant Government Pleader had filed an affidavit on 09.12.1981, whereby it was pointed out that the aforesaid parcel of land is an open land and is reserved in the master plan and hence, the said land cannot be disposed of. It was further pleaded that on 05.09.1981, the order was passed by the administrator of Sardarnagar Township, whereby a portion of city survey no.808 was allotted to one Mr. Meghomal Sejumal and Mr. Motomal Nanomal, who are also the erstwhile owners of survey no.807 and survey no.809 respectively. The aforesaid order was given effect to in the revenue record inasmuch as an entry came to be effected in the revenue record on 05.04.1982 in this regard. It is further pleaded that the order dated 05.09.1981 was challenged by one Mr. Peshumal Devumal Panjwani before the Collector, Ahmedabad in L.B./Appeal-218 of 88, wherein the Collector, Ahmedabad noted that the certified copies of the aforesaid alleged order dated 05.09.1981 and the entry dated 09.04.1982 are not available with the administrator of Sardarnagar Township as well as the City Surveyor. Page 4 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025
NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined [4.3] On the basis of the aforesaid observations, the learned Collector had referred the matter to the Assistant Collector for review. The aforesaid fact was also confirmed pursuant to the communication dated 29.06.1992 addressed by the Administrator Sardarnagar Township confirming the fact that no order was issued on 05.09.1981. It was further stated that the fabricated orders of sanad, were noticed with regard to the parcels of land of Sardarnagar Township. The learned City Deputy Collector, taking note of the aforesaid letter dated 29.06.1992, had set aside the order dated 05.09.1981 and the entry dated 09.04.1982. At that stage, the Office of City Survey was unable to verify as to the property card being prepared without any proper verification.
[4.4] Being aggrieved and dissatisfied with the aforesaid order, the original allottee approached in revision before the Collector Ahmedabad, which came to be dismissed on 20.04.1993. The heirs of the deceased allottee i.e. the owner of city survey no. 809 approached in revision before the Special Secretary Revenue Department (Disputes). In the revision, the Revenue Secretary refused to entertain such revision by observing that there did not exist any order dated 05.09.1981. In fact, no portion of survey no. 808 could have been disposed of as the same was reserved for garden use. As per the case Page 5 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined of the original plaintiffs, at that stage, the Revenue Secretary had in fact arrived at a conclusion that the Sanad issued, is a forged document.
[4.5] By referring to the aforesaid events, the plaintiffs have further pleaded that the notice under Section 61 of the Gujarat Land Revenue Code was issued by the City Surveyor, Ahmedabad on 24.01.2018 on defendant nos. 5 to 8, who are the owners of city survey nos. 807 and 809 respectively. It was noticed that the aforesaid defendants have encroached upon portions of city survey no. 808, which was reserved for garden use. The contents of the notice indicated that the owner of survey no. 809 had encroached upon the area to the extent of 116 sq. mtrs. of survey no. 808, whereas the owner of survey no. 807 had encroached to the extent of 30 sq. mtrs. of area of survey no. 808. The respective defendants were, therefore, called upon to remove such encroachment. It is further pleaded by the plaintiffs that the City Surveyor, Ahmedabad, on the basis of measurement conducted on site on 13.03.2019, opined that as per the records, the area of survey No. 808 should be 909 sq. mtrs. whereas on the spot, the open area was found only to the extent of 765 sq. mtrs. [4.6] By referring to the aforesaid proceedings, the plaintiffs have further pleaded that the Public Interest Litigation was pursued at Page 6 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined first instance before this Court, which was registered as Writ Petition (PIL) No. 219 of 2017, whereby the plaintiff-association had alleged encroachment by the aforesaid owners of survey nos. 807 and 809 over the reserved area of survey no. 808. In the aforesaid proceedings, the affidavit was submitted by the owner of survey no. 809, who was joined as party respondent nos. 1 to 3, wherein, they have admitted the encroachment to the extent of 116 sq. mtrs. of reserved land of survey no. 808. The assurance was given by the aforesaid respondents to clear the encroachment and to apply for appropriate proceedings for regularization. Insofar as some part of the land in question is concerned, the Honorable Division Bench considered the aforesaid assurance given by the owners of survey no. 809 as well as taking into consideration the position of the land in question in the final town planning scheme, was pleased to dispose of the P.I.L. vide order dated 20.03.2019. Subsequently, the original plaintiffs-association, who were the petitioners in the P.I.L., preferred Miscellaneous Civil Application whereby this Court, vide order dated 26.04.2019, had permitted the parties to approach competent authority for removal of the alleged encroachment.
[4.7] The plaintiffs, by referring to the aforesaid orders, have further pleaded that the Office of Maintenance Surveyor was once Page 7 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined again approached voicing their grievance with regard to the encroachment being continued. In this regard, the Maintenance Surveyor, Ahmedabad, had undertaken the exercise of measurement of the site on 17.07.2019 with regard to the land in question i.e. survey no. 808. However, the Maintenance Surveyor had contradicted the earlier stand of the City Survey Superintendent Office about the encroachment by noting that the area of land of city survey no. 808 exceeds its allotment as appearing on record. This led the original plaintiff-association questioning the veracity of such measurement being prepared by the Maintenance Surveyor on 17.07.2019. By raising the objection on 19.08.2019 on the ground that the original sheet no. 37, survey no. 808 does not have survey nos. 828 to survey no.834, survey no.786 to survey no.793 as its boundaries, and had therefore, questioned the measurement sheet itself. To the aforesaid objections raised by the original plaintiff, Office of City Surveyor, Ahmedabad vide communication dated 03.08.2019, addressed to the Deputy Director of Land Records, Ahmedabad, had pointed out about the incorrect measurement sheet dated 17.07.2019. The grievance of the original plaintiff did not pacified inasmuch as, the Additional Collector by placing reliance upon such incorrect measurement sheet dated 17.07.2019 gave an opinion on 23.08.2019 to issue appropriate permission for construction as sought for by the owner of city survey Page 8 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined No. 807 before the Ahmedabad Municipal Corporation to commence construction activities for residential purpose on the aforesaid land. [4.8] By referring to the aforesaid events, the original plaintiffs have raised their cause of action to approach the City Civil Court by preferring Civil Suit No.347 of 2020 thereby seeking prayers for quashing of the communication dated 23.08.2019 issued by the Additional Collector giving his opinion to proceed with the issuance of appropriate permission for construction in respect of city survey no. 807 is concerned. The prayer was also sought for permanent injunction restraining the Ahmedabad Municipal Corporation as well as the Ahmedabad Urban Development Authority from approving any master plan giving assent to the commencement of the construction over survey no. 807 or survey no.809 inasmuch as to issue the directions to remove the encroachment made by the aforesaid owners of the respective survey nos. 807 and 809 over the land of survey no. 808, which was otherwise reserved for garden use. [5.] Taking note of the aforesaid pleadings in the plaint, the learned Judge has issued summons upon the respective defendants. The appearance was entered upon on behalf of defendant no.1- Ahmedabad Municipal Corporation as well as on behalf of the private defendants being defendant nos. 7 and 8. The written statements Page 9 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined have also been placed on record by the respective defendants. Defendant nos. 5, 6 and 7 have submitted their written statements at Exh.16, whereby specific contention has been raised on the issue of cause of action in a way challenging the locus of the plaintiff association.
[6.] Heavy reliance was placed on the order passed by the Hon'ble Division Bench in the Public Interest Litigation, to contend that the aforesaid facts had earlier fallen for consideration before the Hon'ble Division Bench, whereby ultimately the petition has been disposed of vide order dated 20.03.2019. It was further pointed out that the only liberty which was granted by the Division Bench as recorded in the order dated 26.04.2019, was to approach the competent authority with regard to alleged encroachment. It was also contended that they are the lawful owners and in possession of the respective allotted lands. As regards the alleged encroachment is concerned, the same has been removed and the Hon'ble Division Bench in the writ petition, having satisfied about the same, has disposed of the petition. The defendants have, therefore, objected to the entertaining of the suit in the present form. The original defendant no.8 had also submitted a written statement at Exh.37. It was pointed out that the maintenance surveyor had undertaken spot Page 10 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined inspection and in its opinion as clearly expressed that the area of land on site measures 939 sq. mtrs. as against 909 sq. mtrs. appearing in the record. It was also pointed out that the defendant no. 8 has purchased property by registered sale deed and the entry has also been certified in the property card. The reliance was placed on the approved plan dated 30.10.2021, whereby necessary permission has been taken from the defendant no.-1- Corporation, and therefore, has got every right to develop the property.
[7.] Noticing the aforesaid pleadings, the trial court had framed the issues at Exh. 46, which read as under:
"1. "Whether the plaintiff proves that the property card and sheet of Sardarnagar were manipulated and wrongs sanand were obtained ?
2. Whether the plaintiff proves that the defendants have made an illegal construction on government land city survey no.808 by encroachment?
3. Whether the defendants prove that the plaintiff has no right to file the present suit and the suit is barred by limitation ?
4. Whether the plaintiff proves, he is entitled to get relief as prayed for ?"
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NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined
5. What order and decree ?
[7.1] Before the trial court, the plaintiffs have produced various documentary evidences and have also examined two witnesses in support of their case. The details of which are reproduced hereunder:
ORAL EVIDENCES:-
Sr. Witness Exhibit No. Affidavit of evidence of witness Chairman
1. Mulchand Pahumal Ahuja on behalf of the 62 Plaintiff Affidavit of evidence of witness Secretary
2. Kamal Rameshlal Ranglani on behalf of 84 Plaintiff DOCUMENTARY EVIDENCES:-
Sr. Details Date Exhibit No. Copy of master plan of 1. 65 Sardarnagar Township Copy of order dismissing the Civil 2. 66 Suit No.748/81 Copy of order pass under Exhibit-5 3. in the matter of Civil Suit 20/01/1982 67 No.748/81 Copy of sanad of property bearing 4. 68 Survey Nos. 807, 809 Copy of application seeking information under the RTI Act and 5. 69 copy of the information supplied accordingly.6. Copy of application seeking 70
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NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined information under the RTI Act and copy of the information supplied accordingly.
Letter written by the Collector to
7. Kamal R. Ranglani regarding the 08/11/2017 71 copy Copy of reply in person of the 8. 30/01/2018 72 person committing encroachment Copy of the Government 9. 73 Resolution Copy of electricity bill of the 10. building situated in the property 74 bearing Survey No.809 Letter/report written by the City Survey Superintendent addressed 11. 18/08/2022 75 to the Government Pleader for submitting the report Undertaking submitted before the 12. 76 authority by Vishal Harendrasinh Certified copy of Rajachitthi issued by the Ahmedabad Municipal 13. Corporation obtained under the 77 RTI Act in respect of construction of Survey No.807 Copy of news item published in 14. Sandesh daily regarding fake 78 property card in Sardarnagar Copy of property register of survey 15. 90 No.809 Notice as per Section 2002 of the 16. 24/01/2018 91 Bombay Land Revenue Code
17. Copy of notice Acknowledgment Government of 18. 94 Gujarat Acknowledgment City Survey 19. 95 Superintendent 20. Unaccepted envelope of the 96 Page 13 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined Ahmedabad Municipal Corporation 21. Original Certificate of Registration 97 22. Original Resolution 98 Original property register of 23. 99 Survey No.807 Original property register of 24. 100 Survey No.809 Original property register of 25. 101 Survey No.808 26. Original Sheet No.37 102 Original injunction application of 27. 103 Plaintiff in Civil Suit No.748/1981 Original order of CTS/Review Case 28. 23/11/1992 104 No.2/1991 Original order of A.B. Appeal 29. 01/06/1988 105 No.218/1988 Original order No.PVV/HKM/AMD 30. 28/01/2000 106 48/93 Original reply of Administrator 31. Sardarnagar in Civil Suit 09/12/1991 107 No.748/1981 Original letter of Administrator, 32. Sardarnagar Township, 18/02/1993 108 Ahmedabad Copy of land allotment rules upon 33. formation of Sardarnagar 109 Township Copy of Deputy Secretary
34. Resolution No.JSM/1080/M.R. 21- 28/04/1982 110 98057-2 Copy of Hon'ble Gujarat High Court 35 26/04/2011 111 Writ Petition PIL No.219/2017 Original notice as per Section 2002 36 of the Bombay Land Revenue 24/01/2018 112 Code Original notice as per Section 61 of 37 16/11/2018 113 the Bombay Land Revenue Code Page 14 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined Original measurement sheet of 38 17/07/2017 114 City Survey No.808 of City No.37 Original measurement dated
39. 13/03/2019 of City Survey No.808 13/03/2019 115 of City No.37 40. Original map of Survey No.808 116 Letter dated 13/08/2018 addressed to the Settlement 41. 13/08/2019 117 Commissioner Director, Gandhinagar Original letter addressed to the 41 Settlement Commissioner Director 118 Gandhinagar Original measurement of City 42 Survey No.808 as per the 119 possession Copy of online news of the scandal 43 of crores of rupees of 200 bogus 120 sanad in Sardarnagar 44 Original of Sardarnagar Sheet-37 121 45 Copy of letter of administrator 122 Original opinion dated 13/08/1984 46 of the Collector regarding number 13/08/1984 123 807 47 Original notice dated 11/12/1919 11/12/2019 124 Original white receipt of RPAD 48 125 given by Gujarat Government Original white receipt of RPAD 49 given by City Survey 126 Superintendent Unaccepted and returned cover of 50 127 Ahmedabad Municipal Corporation Copy of property register of 51 172/A Survey No.807 [7.2] The plaintiffs have submitted their pursis at Exh. 132 Page 15 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined thereby declaring closure of their stage of evidence. As against the aforesaid evidence produced by the original plaintiff, the defendant no.7 has entered into the witness box. The evidence of defendant no.7 has come on record at Exh. 137. The defendant no. 7 has also led various documentary evidences. The details of which are reproduced hereunder:
ORAL EVIDENCES:-
Sr.
Witness Exhibit
No.
Affidavit of evidence of Respondent No.7 1. 137 Dilip Achalmal Gurnani DOCUMENTARY EVIDENCES:-
Sr.
Details Date Exhibit
No.
Sanad issued in favour of Motumal
1. Nanumal in respect of City Survey May/1971 140
no.809
Conveyance deed executed through
2. the administrator by the President 01/06/1976 141
of India
Order No.RHB/CTS/ Grant/758/1/ 81
passed by Managing Officer,
3. 142
Administrator, Sardarnagar
Township
Receipt regarding payment of
4. 28/02/1983 143
Rs.1852/-
Registration Certificate issued by
5. the administrator and registering 13/04/1966 144
officer
Affidavit sworn by Motumal
6. 145
Nanumal
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NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
Order passed by Hon'ble High Court
7. 146
in Writ Petition (PIL) 219/2017
Copy of certificate issued by Bhavya
8. Spach League through Nrupesh 12/06/2013 147
Talati
Copy of property card of City Survey
9. 148
No.809
CTS/Sardarnagar/807,809/2019 sent
10. 149
to DLR, Ahmedabad
Order passed by City Deputy
11. 13/06/2023 150
Collector in CTS Appeal No.778/2022
Affidavit sworn under Section 65(V)
12. 151
of the Indian Evidence Act
Original Ration Card No.0712263
13. 152
issued by the Government of Gujarat
Original Ration Card No.0662387
14. 153
issued by the Government of Gujarat
Original birth certificate of Pooja
15. 11/09/1995 154
Dilip Gurnani
Original birth certificate of Vikas
16. 08/01/1998 155
Dilip Gurnani
Copy of election card of Respondent
17. 156
no.7
Copy of election card of Hemaben
18. 157
Gurnani
Copy of order passed in Hon'ble
19. Gujarat High Court Writ Petition 20/03/2019 158
(PIL) No.219/2017
[7.3] The defendant No. 8 has also entered into the witness box
and his evidence has come on record at Exh.164. The supporting documentary evidence has also been brought on record by the said witness. The details of which are reproduced hereunder: Page 17 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025
NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined ORAL EVIDENCES:-
Sr.
Witness Exhibit
No.
Affidavit of evidence of Respondent No.8 1. 164 Vishalkumar Harendrasinh Rahevar DOCUMENTARY EVIDENCES:-
Sr.
Details Date Exhibit
No.
Copy of order passed in Hon'ble
1. 170
Gujarat High Court PIL No.219/2017
Copy of affidavit submitted by City
2. Survey Superintendent before 171
Hon'ble High Court
Copy of report after clarification
3. dated 25/08/2022 mentioned in the 172
letter at Sr.No.4.
[7.4] Considering the pursis tendered by the respective
defendant nos. 1, 7 and 8 declaring closure of evidence, the trial court has permitted the respective parties to place on record the written submissions. Upon overall appreciation of the afforested evidence being brought on record, the trial court has answered the issues framed at Exh. 46 against the plaintiffs, thereby dismissing the suit of the plaintiffs in toto with further direction of awarding cost of Rs.25,000/- to be borne by the original plaintiffs, to be paid to the Page 18 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined respective defendants. The trial Court has answered the Issues at EXH. 46 as under :
1. In negative.
2. In negative.
3. In affirmative.
4. In negative.
5. As per final order.
Hence being aggrieved and dissatisfied with the aforesaid impugned judgment and order passed by the learned City Civil Court, the original plaintiffs- present appellants have approached this Court in appeal.
[8.] Heard learned advocate Ms. Megha Jani appearing with Mr. N.L. Ramnani, learned advocate on record for the appellants, learned advocate Mr. Bhavin B. Thakar for the respondent no.8, learned advocate Mr. Nandish Thackar for learned advocate Dr. Abhisst K. Thaker for the respondent no.7,and learned AGP Mr. Shivam Dixit for the respondent nos.3 and 4.
[9.] The order sheets indicate that, noticing the grounds raised in the appeal, this Court, vide order dated 12.07.2024, had issued notice for final disposal. The respondents have been duly served with the court's notice, and the learned counsels have entered Page 19 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined their appearance.
[10.] The matter was pressed for urgent hearing at the instance of the appellants on the ground that respondent no. 8 is proceeding with the construction, and they are apprehending that third-party rights may be created in respect of the constructed property on survey no. 807, which may affect their case. Pending the appeal, an application seeking production of additional evidence was moved, whereby the appellant intended to produce or record the fresh measurement of the reserved plot i.e. city survey no. 808 undertaken by the City Survey Superintendent Office, Ahmedabad, upon application dated 21.08.2024, preferred by the present appellants. [11.] Reliance was also placed on the original copy of the map obtained by the present appellant. The reference was also made to the application dated 03.08.2024 addressed by the appellant- association to the Office of City Survey Superintendent, with regard to the alleged encroachment and the construction in progress, with a request to take necessary action against the illegal construction. The reliance was also placed on the reply dated 09.09.2024, given by the City Mamlatdar & Executive Magistrate, Ahmedabad, thereby informing that the record as sought for was not available in the office of City Mamlatdar. The reference was also made to the application Page 20 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined dated 18.09.2024, requesting the Office of City Survey Superintendent, Ahmedabad, seeking a report dated 09.09.2024. [12.] By referring to the aforesaid documents, the learned advocate appearing for the appellants has prayed for urgent hearing of the application for stay. The aforesaid prayer of the learned advocate for the appellants, was initially objected by the learned advocates appearing for the private respondents, by contending that the civil application for stay was though pending for consideration, however, the court had proceeded to issue notice for final disposal. It was, therefore, suggested to proceed with the final adjudication of the appeal, to which, the learned advocate for the appellants had accepted.
[13.] With the consent of learned advocates for the respective parties, and noticing the fact that notice for final disposal was issued, the matter was taken up for hearing peremptorily. [14.] Learned advocate Ms. Megha Jani appearing with Mr. N.L. Ramnani, learned advocate on record for the appellants, at the outset, has invited attention of this court to the measurement sheet dated 23.08.2024 drawn by the maintenance surveyor of Sardarnagar Township, upon their application, to point out that it has clearly Page 21 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined transpired on record that the owners of plot nos. 807 and 809 have encroached upon the portion of city survey no. 808. She has further submitted that the construction was permitted upon survey no. 807 pursuant to the order passed by this court in an Appeal from Order preferred by the present appellants at appropriate stage, against the order of the trial court passed on Exh. 5 application. This Court upon consensus of respective parties being expressed with regard to measurement of city survey no. 808 had directed the office of DILR to undertake such exercise and accordingly in presence of respective parties the Maintenance Surveyor had carried out measurement and the deficit in the area of City survey no. 808 has come on record, which has been placed for consideration by way of additional documents in civil application for production.
[14.1] On merits, it was submitted that the learned Judge has not properly appreciated the evidence on record and has arrived at an erroneous conclusion, leading to dismissal of the suit preferred by the present appellants. The learned advocate has further submitted that in spite of cogent materials having been brought on record for consideration, the learned Judge has failed to analyze such documents before arriving at a conclusion that the plaintiffs have failed to establish their case of encroachment over the land in Page 22 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined question. The attention of this court was invited to the voluminous documents produced on record with a list of documents at Exhibit 4 and 64.
[14.2] It was pointed out that the statutory notice was issued by the competent authority under Section 61 of the Gujarat Land Revenue Code on 24.01.2018 by the Office of City Survey Superintendent, Ahmedabad, addressed to the present respondents- original defendant nos.5 to 8, directing them to remove the encroachment to the extent of 116 sq. mtrs. and 30 sq. mtrs. out of city survey no. 808. Such notice was produced on record at Exhibit 91. [14.3] The reference was made to the statement of defendant No. 9 recorded before the competent authority on 30.01.2018, whereby not only the defendant had admitted the encroachment over the land in question but had also prayed for regularization to the extent of 86 sq. Mtrs. of land in question. The defendant had also assured to clear the encroachment over the land in question. According to the learned advocate, a similar notice was also issued in case of adjoining land owner. The learned advocate has relied upon the order dated 20.03.2019 passed by the Hon'ble Division Bench of this court in Public Interest Litigation being Writ Petition (PIL) No. 219 of 2017 preferred by the appellant- association against the Page 23 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined respondents herein. In the aforesaid proceedings, after considering the affidavit in reply filed by the respondent nos. 1 to 3 therein, the present defendant nos.5 to 7 herein, the Hon'ble Division Bench was pleased to dispose of the aforesaid P.I.L. in light of the aforesaid affidavit assuring removal of encroachment. [14.4] By referring to the aforesaid affidavit reproduced in the said order, the learned advocate had submitted that the reference was made to the very show cause notice dated 08.01.2018 issued by the learned City Survey Superintendent, Ahmedabad under Section 61 of the Land Revenue Code, whereby the answering respondents were called upon to remove encroachment from the subject land. In the aforesaid affidavit, the respondents had submitted before the Hon'ble Division Bench about compliance with the aforesaid show cause notice. Thus, in light of the submissions made by the respondents, wherein having voluntarily removed the encroachment over city survey no. 808, the Hon'ble Division Bench was pleased to dispose of the PIL having become infructuous. It was further pointed out that the aforesaid order dated 20.03.2019 passed by the Hon'ble Division Bench has been placed for consideration before the learned Judge at Exh.146 on record. During the course of the argument, the learned advocate had submitted that the aforesaid order was passed in Page 24 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined absence of the learned advocate for the appellants who was on sick leave and therefore, subsequently, one Miscellaneous Civil Application was preferred by the appellants praying for recall of the aforesaid order disposing the PIL. The Hon'ble Division Bench, upon noticing the grievance of the original petitioners, though vide order dated 26.04.2019, had refused to recall the order of disposing the main PIL; however, had permitted the original petitioners to pursue the remedy before the competent authority for the alleged unauthorized encroachment, in accordance with law. Thus, it was submitted that liberty was given to the petitioners to approach the competent authority in case of any illegality being noticed. It was pointed out that such order has been placed on record at Exh.111 before the learned Judge in the trial court proceedings.
[14.5] By referring to the aforesaid orders, the learned advocate had further submitted that thereafter, various letters were exchanged with the Offices of the State Authorities, including the Office of City Survey Superintendent, Ahmedabad and the Collector Office, Ahmedabad, whereby relevant documents were sought for under the Right to Information Act. However, the respondent- State Authorities have refused to provide such documents on the ground of non- availability of the relevant records, which includes the sanad of the Page 25 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined subject lands being city survey nos. 807 and 809 of the respective respondents herein. The attention of this Court was invited to the aforesaid communications including the communication dated 14.10.2022 addressed by the Officer attached with Sardarnagar Township. Similar request was also made to the Office of the Collector, Ahmedabad, who, vide communication dated 08.11.2017, had refused to part with such documents on the ground of being part of old record and not traceable.
[14.6] By referring to the aforesaid letters, the learned advocate had contended that in absence of any cogent materials being traced acknowledging the title of the respective respondents in the subject lands and the entry being scrolled down in the inquiry register and measurement book maintained by the Office of the City Survey Superintendent, more particularly, reflecting the area of the respective lands, the plaintiffs have rightly raised their case of documents being forged and fabricated, more particularly, the sanads, which have not been provided by any of the Government Offices. The learned advocate has further pointed out that despite the aforesaid situation prevailing on record, the respondents- State Authorities have failed to take any action in this regard. To substantiate the aforesaid submissions, the learned advocate had placed reliance upon Page 26 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined sheet no. 37, which is produced on record at Exh. 25, indicating the original area of allotment of land to the respective allottees. According to the learned advocate, the original area of land allotted being city survey no. 807 was 214- 83-40 sq. mtrs. and 200- 40- 80 sq. mtrs. in case of city survey no. 809, which has been subsequently scrolled off by changing the area of land of allotment to the extent of 334- 87-50 sq. mtrs in case of city survey no. 807 and 335-50-00 sq. mtrs in case of city survey no. 809. At the same time, the record indicates that the original area of land bearing city survey no. 808 was reflected as 00-09-09-32 sq. mtrs., whereas after correction it was mentioned as 00-09-09 sq. mtrs. Thus, according to the learned advocate, the only inference which can be drawn from the comparison of the area of land of the subject lands leads to the conclusion that the area of city survey no. 808 was reduced and was later on included in city survey nos. 807 and 809 respectively. [14.7] According to the learned advocate, pursuant to the proceedings initiated by the appellant Society in the PIL, the Office of the City Survey Superintendent had inquired into the aforesaid grievance voiced by the association and after due verification of the record as against the inspection of the subject lands on spot, had come to the conclusion that the private respondents herein were in Page 27 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined unauthorized occupation of a portion of the reserved land of City Survey no. 808 and therefore, had proceeded with issuance of show cause notice under Section 61 of the Land Revenue Code. It was, at that stage, the respondents herein having admitted to the encroachment had assured before the court to remove such encroachment and in light of their assurance and the change notice in the final town planning scheme, the Hon'ble Division Bench had proceeded to dispose of the writ petition by holding it as infructuous. [14.8] The learned advocate further pointed out that once the proceedings before this court had stand disposed within period of few months, the Maintenance Surveyor attached with the Office of the City Survey Superintendent, had opined that that on spot verification, the measurement of the land is found in compliance with the record and had therefore, concluded that no encroachment is found on city survey no. 808. By referring to the aforesaid report produced on record at Exh.114, it was noted that in fact the measurement of city survey no 808 is found as 00-09-9-39 sq. mtrs. whereas, as per record, it admeasures 0-09-0 sq.mtrs. It is, in light of the aforesaid development in absence of any record of sanad being made available, as reported by the different Government Offices, the cause of action had arisen for the plaintiffs to approach the court of the learned Civil Page 28 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined Judge seeking appropriate directions. The appellant-original plaintiffs apprehended that the Officers were acting hand in gloves with the private respondents. Based on such a report from the Maintenance Surveyor, the opinion was found by the Office of the learned Additional Collector to proceed with the grant of development permission of city survey no. 807.
[14.9] It was further pointed out that during the course of the trial, an interim application seeking injunction was also prayed for, which was allowed by the learned Judge vide order dated 14.02.2022 passed below Exh.5, thereby directing the defendants to maintain status quo in respect of the land in question. The present respondent No. 8, being aggrieved and dissatisfied with the aforesaid directions, had approached this Court by preferring the Appeal from Order No. 77 of 2022. In the said proceedings, the respective parties have agreed before this Court to call for fresh measurement of city survey no. 808, to ascertain the status of any encroachment being made. Acceding to their prayer, this Court, vide order dated 19.07.2022, had directed the office of the DILR to measure the area of city survey no. 808. [14.10 ] In light of the aforesaid direction, the Maintenance Surveyor associated with the Office of the City Survey Superintendent submitted a report to the Office of the Government Pleader vide Page 29 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined letter addressed on 18.08.2022. The copy of which has been availed by the present appellants and has also been produced on record before the trial court at Exhibit 75. As against the aforesaid report dated 18.08.2022, on the same date, a second report was submitted by the same Officer with a different opinion. The second report dated 18.08.2022 was also produced on record at Exh. 172. Noticing the discrepancy, the explanation was sought for from the Maintenance Surveyor, who had tendered his affidavit on record in the aforesaid proceedings of Appeal from Order, whereby it was disclosed that in light of the receipt of the sanad issued in favour of the private respondents being received, the second opinion formed by him, was as per the provisions of law. It was thereby reported that there is no discrepancy in the measurement of the subject lands. However, it was maintained that so far as city survey no. 808 is concerned, it admeasures 909.32 sq. mtrs. instead of 919.32 sq. mtrs. as maintained in the record. By referring to the aforesaid documents, learned advocate had submitted that contradictory reports have emerged on record from time to time, which are forming part of the record. Indisputably, in all these reports, the Officers have consistently maintained the deficit in the area of the subject land being city survey no. 808 is concerned.
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NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined [14.11] To substantiate her case further, the learned advocate has referred to the recent report dated 23.08.2024. She has, therefore, submitted that looking to the aforesaid documents, the initial burden about encroachment on survey no. 808 stood established and the burden to establish the encroachment not being made on city survey no.808 is concerned, the onus shifted upon the respondents, and it was for the respondents to prove that they have not encroached on the portion of city survey no. 808. However, the learned Judge, without appreciating the aforesaid evidence and without assigning any reasons, has arrived at a conclusion that the plaintiffs had failed to prove their case of encroachment on city survey no.808. The learned advocate for the appellants, has therefore, prayed to accept the additional documents produced on record in the application seeking production of additional evidence, and to read it as an evidence, thereby to allow the prayer sought for in the suit by quashing and setting aside the impugned order.
[14.12] On the issue of locus, learned advocate has submitted that looking to the provisions of Order I Rule 8 of the Code of Civil Procedure, 1908, read with Section 91 of the Code of Civil Procedure, in light of the judgment of the learned Single Judge in the case of Mahulbhai Bipinbhai Tamboli And Others Vs. Akshaybhai Page 31 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined Ramanbhai Thakkar & Others reported in 2019 SCC OnLine Guj 6902, the trial court ought to have taken a liberal approach as the position of law stands that even pending the trial court, such permission can be granted by the Court. She has further submitted that once a civil wrong is brought to the notice of the court, the present appellant-association whose members are the citizens of this country and being residents of the lands of surrounding subject lands, their legal right having been violated has a remedy to approach civil court in the present form.
[15.] Per contra, Learned advocate Mr. Nandish Thackar appearing for Dr. Abhisst K. Thaker, learned advocate on record for respondent no.7, has vehemently objected to the aforesaid submissions made by the learned advocate for the appellants. It was submitted that defendant nos. 5 to 8 are in lawful possession of city survey nos. 807 and 809. According to him, the sanad was issued in the year-1971 in the name of the deceased father of the defendants, and thereafter, a conveyance deed has also been executed by the Administrator of Sardarnagar Township acknowledging the allotment of aforesaid parcels of land in favor of the defendants. In fact, according to him, since 1966, the lands are in possession of the forefathers of the defendants. The attention of this Court was invited Page 32 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined to the prayer sought for in the plaint to contend that there is no challenge to the sanad. However, in the pleadings, the plaintiffs have disputed the fact of allotment of land to the extent of 334 sq. mtrs. by making allegations that forged and fabricated documents of sanad have been created in collusion with the Revenue Officers. The learned advocate has pointed out that such an attempt on the part of the plaintiffs, is nothing but clever drafting to come out of the period of limitation.
[15.1] As regards the allegation made by the plaintiffs about inaction on part of the respondent authorities is concerned, the learned advocate has invited the attention of this Court to the Section 61 notice produced on record at Exh.19 as well as the order dated 20.03.2019 passed by the Hon'ble Division Bench in the PIL proceedings, to contend that the Officers have, in fact, acted upon their representation, which has ultimately resulted into disposal of the PIL and having failed to get it restored, the plaintiffs have diverted to the present proceedings. Such attempt on part of the appellants, is nothing but an abuse of process of law. It was, therefore, submitted that the assertions about the alleged encroachment being made by the respondents is rightly not entertained by the learned Judge by raising the issue of locus cause of action. In absence of any damages or Page 33 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined injuries being sustained by the plaintiffs, at this stage, the learned advocate has pointed out that specific defence was raised in this regard in the written statements, which led the court to frame the issues accordingly.
[15.2] The learned advocate has placed heavy reliance upon the report produced on record at Exh. 147 to point out that after the disposal of the PIL, once again, the Maintenance Surveyor had carried out spot inspection and on 03.08.2019, after verification of the record as against the measurements done on the spot, has opined that the area of the subject lands tally as per the record. It was further pointed out that no challenge has been made to the aforesaid orders at the instance of the original plaintiffs and such measurements having attained finality, the Court had rightly concluded the issue of encroachment.
[15.3] By referring to the proceedings of Appeal from Order preferred at the instance of respondent no. 8 against the order passed below Exh.5, it was pointed out that the order of this Court was restricted to verification of the area of city survey no. 808 only. However, the attempt is now made by the original plaintiffs- appellants herein to contend that two contradictory reports in this regard, have been placed on record. According to the learned Page 34 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined advocate, in light of the affidavit produced on record by the Maintenance Surveyor, it has been justified by the Officer and as such there does not lie any discrepancy in the reports, thereby brushing aside the contradictions.
[15.4] Learned advocate has, therefore, submitted that as per final report, it has clearly transpired on record that city survey no. 808 has not been encroached upon by either of the plot holders of city survey nos. 807 and 809. On the issue of locus and cause of action, the learned advocate referred to the pleadings of the plaint, to point out that at no stage, it was mentioned that the suit was to be treated as being filed under Section 91 of the Code of Civil Procedure. In the pleadings, there is no whisper about public nuisance. He has, therefore, submitted that not every encroachment is to be treated as a public nuisance, as there are instances day in day out, where the encroachments have been regularized by the State Authorities. It was submitted that has it been a case of a public garden being developed and by encroachment there is some hindrance in the enjoyment of the public place, the same could have been a subject matter to be considered under Section 91 of the Code of Civil Procedure. [15.5] With regard to the judgment of the learned Single Judge of this Court, as relied upon, the learned advocate has tried to Page 35 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined distinguish by submitting that it was at the stage of Order VII Rule 11 of the Code that the Court had held that during pendency of suit, the necessary permission can be applied for and the same can be considered by the court. Whereas, in the facts of the case, all throughout, the original plaintiffs had not applied for such permission of Court. It is for the first time they have made such a request at the appeal stage. He has, therefore, submitted that such permission cannot be permitted to be taken at the stage of appeal, which defeats the valuable rights of the defendants as regards the maintainability of the suit itself.
[15.6] By referring to the grounds raised in the memo of appeal, the learned advocate has submitted that the original plaintiffs have now tried to project a case that they have equal rights in the subject land. In fact, what is actually challenged, looking at the tenor of the plaint, is the sanad issued in favor of the defendants, which, according to him, has become time-barred beyond the prescribed period of limitation. He has, therefore, objected to the entertaining of the present appeal.
[16.] Mr. Bhavin Thakar, learned advocate for the respondent no. 8, has placed on record the copy of property cards to indicate that he is a bona fide purchaser of the subject land bearing city survey no. Page 36 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025
NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined 807 by register sale deed dated 31.01.2019. According to him, the respondent no. 8 was not aware about any proceedings being pending. It was only realized when his application seeking development permission was considered by the Ahmedabad Municipal Corporation, whereby he was called upon to tender an affidavit thereby undertaking to proceed with the development subject to the outcome of the suit proceedings. It was further submitted that being aggrieved and dissatisfied with the order of status quo being granted by the court below on Exh.5, the present respondent no. 8 had approached in appeal by way of Appeal from Order No. 77 of 2022. The attention of this court was invited to the order dated 08.09.2022 passed by this Court (Coram : Hon'ble Mr.Justice Hemant M. Prachchhak) whereby the respondent no.8 was permitted to proceed with construction subject to the outcome of the proceedings, and at the same time, the trial court was directed to expedite the hearing of the suit proceedings.
[16.1] Learned advocate Mr. Bhavin Thakar had adopted the arguments made by learned advocate Mr. Nandish Thackar for the respondent no. 7 and has submitted that the present respondent no. 8 is facing SARFAESI proceedings and is financially not well, having invested his hard-earned money by putting a construction, this court Page 37 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined may not interfere with the impugned judgment and order, where the locus of the strangers to the proceedings has rightly been considered by the trial court. During the course of the hearing, this Court had inquired from the learned advocate with regard to any third-party rights being created in respect of the constructed property, whereby, at the end of the conclusion of the arguments, learned advocate has placed on record two registered agreements to sell, whereby the present respondent no. 8 has agreed to sell two of the premises of the constructed properties of city survey no. 807, which has been permitted to be taken upon record.
[17.] Learned Assistant Government Pleader Mr. Shivam Dixit has appeared on behalf of the respondent nos. 3 and 4- State Authorities. Pursuant to the request made by this Court, the available record with respect to the subject lands has been sought to be placed on record by way of an affidavit filed in the First Appeal. Considering the fact that the aforesaid documents are relevant for the purpose of deciding the controversy involved and in absence of any objection being raised by the learned advocates for their respective parties, the same have been permitted to be taken upon record. [17.1] Learned Assistant Government Pleader, under instructions of the officers namely Ms. Avani Chauhan from City Page 38 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined Survey Sub-2, Ahmedabad and Mr. Dhruvang Soni, Deputy Mamlatdar (representative of Mamlatdar Office, Asharva), has referred to the aforesaid documents, which mainly includes the extract of the inquiry register, the measurement book, the copy of sheet no. 37 and the copy of the sanad of city survey no. 809. Noticing the aforesaid documents, this court, while perusing the original record, found that the original sanad of city survey no. 807 has not been brought on record. In other words, neither the respondent no. 8 nor the State Authorities have placed on record the original sanad of city survey no. 807 is concerned. In such circumstances, this Court had inquired from the learned advocates appearing for the respective parties. However, they had failed to produce on record the original sanad of city survey no. 807. In absence of the sanad being placed on record, the learned advocate for the respondents has placed heavy reliance upon the conveyance deed. By referring to the aforesaid conveyance deed as against the record produced by the office of City Survey Superintendent, in the present appeal, learned Assistant Government Pleader had contended that the area corrected as per the survey settlement way back in the year 1966 matches with the area reflected in the sanad by city survey no. 809 and the conveyance deed of survey nos. 807 and 809. In other words, the office of City Survey Superintendent had supported the case of the defendants. In such Page 39 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined circumstances, this Court had inquired about the contradictory reports brought on record by the original plaintiffs- Association with regard to the area of the subject lands. Learned Assistant Government Pleader was unable to explain the discrepancy or rather the deficit in the area of reserved government land i.e. city survey no. 808. However, under instructions, he had prayed to issue appropriate directions to carry out a fresh survey and had assured to submit the report in this regard before the next date of hearing. The Court, having invested with the hearing of the matter, has not entertained such prayer of the learned Assistant Government Pleader. During the course of the hearing, it has transpired that the Officers, who have remained present in the proceedings, were unable to meet with the queries of the Court as regards the different reports being brought on record of Maintenance Surveyor/ City Survey Superintendent Office. Learned Advocate appearing for respondent no.2 had not made any submissions. No submission of learned [18.] Per contra, in re-joinder, learned advocate Ms. Megha Jani appearing for the appellants has strongly objected to the submissions made by learned advocates for the respective parties. She has pointed out that indisputably the measurement of city survey no.808 is reported to be 909.32 sq. mtrs. as is also evident from the copy of the property card produced on record. She has also pointed out that it is Page 40 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined an admitted position that city survey no.808 is reserved for public purpose i.e. earmarked to be used as a garden. She has, thereafter, pointed that in the past, the encroachment has been made by the adjoining land owners of city survey nos. 807 and 809. The sanad of city survey no.807 has not come on record. The original plaintiffs have corroborated their case of issuance of forged and fabricated sanad of city survey no.809, inasmuch as the inquiry register and the measurement book, the original entries have been tampered as being scrolled of and increased area of city survey nos.807 and 809 being corrected. As against the area of city survey no.808 being corrected, the competent authorities have chosen not to appear and explain before the trial court the discrepancies noted in the different reports produced on record.
[18.1] According to her, the property card produced at page no.153 has not been admitted to be read as evidence. Thus, no cogent material has been brought on record by the respondents to establish their case. The rajachitthi produced on record at Exh.77 in respect of city survey no.807 is based on a false declaration being made by the respondent no.8 by stating that no litigation is pending. According to her, respondent no.8 cannot be treated as a bona fide purchaser as the affidavit filed before the Corporation mentions that such Page 41 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined construction shall be subject to outcome of proceedings. On the other hand, the Corporation, though being joined as a defendant, chose not to appear before the trial court. In such circumstances, the learned Judge committed serious error in not granting the relief of setting aside the opinion no. RHB/ ATC/AMC / opinion/ c.s. No. 807 S.R./6/18 vashi 751/18, dated 23.08.2019 of the Assistant Collector, based on which, the Corporation had granted permission to construct on the subject land.
[18.2] As regards the controversy of two contradictory reports dated 18.08.2022 is concerned, the learned advocate had pointed out that on bare comparison of the aforesaid two reports, the contents of the previous pages remains the same, whereas in the new report, the opinion has been formed merely on the basis of the sanad being produced to come to a conclusion that the area of the subject land matches as per the record whereas the position remains that no original sanad has been produced by the plot holder of city survey no.807 is concerned. She had, therefore, submitted that it clearly goes to suggest that the respondent-State Authorities are acting hand in gloves with the plot holders. She had, once again, reiterated that the discrepancy in the reports submitted by the Maintenance Surveyor of the Office of City Survey Superintendent, demonstrates the manner Page 42 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined in which different stances are being taken at different stages. At the stage of pending the proceedings before the Hon'ble Division Bench, it was reported that the encroachment was noticed and the appropriate actions in this regard under Section 61 were undertaken. Once the proceedings stood disposed immediately within a few months, it was reported that there is no encroachment of city survey nos.807 and 809, on the contrary the area of city survey no.808 is found more as compared to the area reflected in the record. In such circumstances, there was a cause of action for the appellant- association to approach the Hon'ble Civil Court. She had, once again, relied upon the report submitted recently by the Maintenance Surveyor of the respondent-Office, and has urged this Court to allow such production of additional documents for consideration before the trial court and to remand the matter back to the trial court. She had further submitted that no reasons have been assigned by the learned Judge while considering the issue of encroachment and that according to her superficial reasons have been assigned to dismiss the suit, which calls for interference in the present appeal. [19.] Having heard the learned advocates for the respective parties at length and having perused the impugned judgment and order, noticing the controversy involved, this Court had called for Page 43 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined record and proceedings at the end of the conclusion of arguments of learned advocates. The record and proceedings have been closely examined, in light of the submissions made by learned advocates for the respective parties.
[20.] Looking to the submissions made, the questions, which falls for consideration before this Court in the present appeal, are:
"(I) Whether the learned Judge committed an error in not entertaining the suit, in view of Section 91 of the Code of Civil Procedure, 1908 and Section 34 of the Specific Relief Act, 1963?
(II) Whether the learned Judge committed any error in finding that the plaintiff had no locus standi and no cause of action to file the suit and to seek reliefs as prayed for?
(III) Whether the learned Judge committed any error in finding that the plaintiff had failed to prove that there is encroachment made by defendant nos.5 to 8 on city survey no.808."
[21.] In the opinion of this Court, the issue of entertaining of Page 44 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined the suit of such nature, in light of Section 91 of the Code of Civil Procedure, 1908 as well as Section 34 of Specific Relief Act, 1963, vis- a-vis the locus of the appellant-association and the cause of action to file the suit for such prayer, are of preliminary nature which are required to be dealt with at the first instance before examining the merits of the case.
[22.] Section 91 of of the Code of Civil Procedure, 1908 and Section 34 of Specific Relief Act, 1963:
Before examining the aforesaid issues, it would be appropriate to consider the prayer sought for in the original suit. The present appellants who are the original plaintiffs have preferred suit for seeking declaratory relief against the defendants, essentially challenging the opinion dated 23.08.2019 forwarded by the learned Assistant Collector, Ahmedabad, defendant nos.3 and 4 to defendant no.1-Corporation has false and illegal. The prayer is also sought to direct the defendant nos.5 to 7 and defendant no.8, occupants and owners of city survey no.807 and 809 respectively to remove their encroachment. Insofar as portion of city survey no.808 is concerned, the plaintiffs have also prayed for injunction against the defendant nos.1 and 2 from sanctioning development plan in respect of city survey nos. 807 and 809 as well as have prayed for restraining the Page 45 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined defendant nos.5 to 7 and defendant no.8 from developing the aforesaid lands by raising any construction. In light of the prayer sought for in the suit proceedings, the locus of the appellants being questioned indisputably, the plaintiff-association consists of members who are residents of Sardarnagar Township. It is also undisputed that city survey no.808 is forming part of Sardarnagar Township and it is reserved for garden purposes in the master plan as well as in the final town planning scheme. Hence, the subject land is admittedly a public property which is accessible to the public at large. [23.] Looking to the controversy raised in the present appeal as rightly pointed out by learned advocate for the respondent nos. 5 to 7, the specific issue has been framed by the trial court in this regard. From the pleadings though the original plaintiffs-association has not made reference to the term 'public nuisance'. However, it cannot be ignored that the core issue raised is with regard to encroachment made by the private respondents on a public property. This Court had inquired from the learned advocates for the respondents-plot holders as to whether the encroachment made on a public property would amount to a public nuisance or not, to which, learned counsels for the respective respondents had fairly conceded that the encroachment made on public property does fall in the category of public nuisance. Page 46 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025
NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined However, they have tried to advance the argument that in the facts of the case, where no actual hindrance is caused to the plaintiff- association, it does not fall in the category of public nuisance. The term 'public nuisance' has not been defined in the Code of Civil Procedure. As per Section 268 of the Indian Penal Code, the term 'public nuisance' means a person is guilty of public nuisance who does any act or is guilty of any illegal omission which causes any common injury, danger or annoyance to the pubic or to the people in general who dwell or occupy property in the vicinity. [24.] Interestingly, the peripheral note of Section 91 needs to be taken into consideration at this stage which reads as "public nuisance and other wrongful acts affecting the public." Thus, the Courts are vested with the powers to consider other wrongful acts beside strictly speaking public nuisance which may cause distress and bother to people in general.
[25.] Certainly, plain reading of sub-section (1) of Section 91 of the Code, mandates that the suit is to be initiated by two or more individuals on permission of Court. However, reading of proviso 2 of Section 91 does permit any individual to approach the civil court in case of any injury or damage caused to the person. The issue locus standi is also required to be addressed at this stage as a preliminary Page 47 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined issue. The learned Judge has come to the conclusion that the plaintiff has no right and interest in the subject lands. Hence, no legal right of plaintiff-Association has been violated which gives them any cause of action to seek such declaratory relief, in view of Section 34 of the Specific Relief Act. The learned Judge has also noted that alternatively even in suit preferred under Section 91 of the Code of Civil Procedure, 1908, it was mandatory to take approval of the Advocate General or the permission of the Court was required to be sought for before instituting a suit of such nature. The learned Judge has further noticed that the suit is not filed under Section 91 of the Code of Civil Procedure nor any permission has been sought for in case it is to be treated for public nuisance. Hence, the learned Judge has arrived at a conclusion that the suit is filed without any right or authority . [26.] In the opinion of this Court, the aforesaid findings and the reasons assigned by the learned Judge do not match the spirit of Section 91 of the Code. The view taken by the learned Judge undermines the scope of Section 91 of the Code. The aforesaid issue has fallen for consideration before the Hon'ble Madras High Court in the case of Munuswami v. Kuppusami, reported in AIR 1939 Madras 691, wherein the Court held that any individual member of the public was entitled to maintain a suit for establishing a public right of way Page 48 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined and for removal of obstruction which constituted a public nuisance without obtaining sanction of the Advocate General under Section 91 of the Code of Civil Procedure and the plaintiffs were, thus, entitled to maintain a suit.
[27.] A similar view has been taken by the Kerala High Court in the case of Saina vs. Konderi reported in 1984 KLT 428, whereby the Court held that a citizen has a right to institute a suit if a person constructs a building in violation of the Municipalities Act and Rules. It was held as follows:-
"Having regard to the peculiar conditions relating to the enforcement of well conceived municipal measures, it is a liberal view that has to be preferred and the restricted view would be a definitely retrograde step. A citizen has a right to institute a suit with a view to ensure effective implementation of the Municipal Regulations, such as the Buildings Rules in the present case, even in the absence of a specific personal injury to the person suing".
[28.] The aforesaid decisions have followed by the learned Single Judge of this Court in the case of Mahulbhai Bipinbhai Tamboli And Others Vs. Akshaybhai Ramanbhai Thakkar & Others reported in 2019 SCC OnLine Guj 6902 as relied upon by the learned advocate for the appellants, it would be fit to reproduce the relevant Page 49 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined observation of this Court, which read as under:
"34. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the courts below committed an error in rejecting the plaint.
35. Let me first consider the substantial question of law with respect to Order 1 Rule 8 CPC. Order 1 Rule 8 CPC reads thus:
"Order 1 Rule 8:-. One person may sue or defend on behalf of all in same interest (1) Where there are numerous persons having the same interest in one suit,--
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
Page 50 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025
NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined (2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in Page 51 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. Explanation.--For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be."
36. Section 91 of the CPC reads thus:
"91. Public nuisances and other wrongful acts affecting the public.-(1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,-
(a) by the Advocate General, or
(b) with the leave of the Court, by two or more Page 52 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provision".
37. The plaintiffs in their pleading in the plaint has made themselves very clear that the dispute is directly affecting them and also the public interest and, in such circumstances, the suit has few ingredients of Order 1 Rule 8 of the CPC too. Thus, this is not a case in which the plaintiffs are absolutely aliens and have nothing to do with the grievance redressed against the defendants. Their case is that the area in which they are residing is declared as a residential zone and the defendant No.1 having purchased a plot in the very same area could not have utilized it for any other purpose other than the residence. The case of the plaintiffs is that the Corporation could not have granted permission to the defendant No.1 to put up a commercial building.
38. I am of the view that as the plaintiffs themselves are affected by the action of the Page 53 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined defendants, the plaint could not have been rejected on the ground of alleged non-compliance of the provisions of Order 1 Rule 8 of the CPC. In the aforesaid context, I may refer to and rely upon a decision of the Supreme Court in the case of Hari Ram vs. Jyoti Prasad & Anr., AIR 2011 SC 952. I may quote the relevant observations:
"20. The next plea which was raised and argued vehemently by the learned senior counsel appearing for the appellant was that the suit was bad for non compliance of the provisions of Order I Rule 8 of the CPC. The said submission is also found to be without any merit as apart from being a representative suit, the suit was filed by an aggrieved person whose right to use public street of 10 feet width was prejudicially affected. Since affected person himself has filed a suit, therefore, the suit cannot be dismissed on the ground of alleged noncompliance of the provisions of Order I Rule 8 of the CPC.
21. In this connection, we may appropriately refer to a judgment of the Supreme in Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur Vs. Smt. Chhoti and Ors. reported in AIR 1990 SC 396. In paragraph 13 of the said judgment, this Court has Page 54 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined held that suit could be instituted by representative of a particular community but that by itself was not sufficient to constitute the suit as representative suit inasmuch as for a representative suit, the permission of Court under Order I Rule 8 of the CPC is mandatory.
22. In paragraph 14 of the said judgment, it was also held that any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachment therefrom and that in such a suit he need not comply with the requirements of Order I Rule 8 CPC. It was further held in the said case that the suit against alleged trespass even if it was not a representative suit on behalf of the community could be a suit of this category.
23. In that view of the matter and in the light of the aforesaid legal position laid down by this Court, we hold that the suit filed by the plaintiff/respondent No. 1 was maintainable. "
39. So far as section 91 of the C.P.C. is concerned, it deals with "public nuisance" which is the combination of a civil and criminal characters and Page 55 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined no mention need be necessary that under both the civil and criminal forums, the public nuisance could be dealt with for actions and prosecutions.
"Nuisance" is an obstruction, risk or injury caused to any person and if the same is caused in a public place it becomes "public nuisance". Such a wrongful act affecting the general public, according to Section 91 CPC, could be challenged or testified filing a suit for declaration and injunction and for such other reliefs by the Advocate General or with the leave of the Court by two or more persons though no special damage has been caused to such persons by reason of such public nuisance.
40. However, clause (2) of Section 91 C.P.C. makes it clear that this Section would not limit or otherwise affect any right of suit which may exist independently of its provisions thereby meaning that if any individual gets affected by such public nuisance being caused, he or she, would have the same right to file a suit for declaration and injunction and for mandatory injunction and therefore since the plaintiffs are residing in the same area or rather the society, they are personally affected by the unlawful construction Page 56 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined put up by the defendant No.1 of a commercial nature. It cannot be said that no individual will have the right to question the validity of such a wrongful act alleged to have been committed on the part of the defendants in view of the fact that section 91 CPC does not create a bar on any individual from resorting to the Court for the relief in such matters and, therefore, this substantial question of law regarding the capacity of the plaintiffs to maintain a suit of this character has to be decided only against the defendants.
41. In Saina v. Konderi (1984 KLT 428), it was held that a citizen has a right to institute a suit if a person constructs a building in violation of the Municipalities Act and Rules. It was held as follows:-
"Having regard to the peculiar conditions relating to the enforcement of well conceived municipal measures, it is a liberal view that has to be preferred and the restricted view would be a definitely retrograde step. A citizen has a right to institute a suit with a view to ensure effective implementation of the Municipal Regulations, such as the Buildings Rules in the present case, even in the absence of a specific personal injury to the Page 57 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined person suing".
42. I may refer to and rely upon one decision of the Kerala High Court in the case of D.L. Walton vs. Cochin Stock Exchange Ltd. & Ors., AIR 1995 Kerala 106. P.K. Balasubramaniyan, J. (as his Lordship then was) has very succinctly explained the provisions of Order 1 Rule 8 and section 79 of the CPC. I quote the relevant observations:
" The present suit is filed by the plaintiff claiming to be a recognised Stock Exchange to enforce a right in itself to prevent another organisation from carrying on a similar business within the area of its operation. The suit is filed on the basis that by attempting to carry on similar operation within the area of Ernakulam District the defendants are violating the provisions of the Securities Contracts (Regulation) Act and thereby interfering with the exclusive right of the plaintiff and that therefore the defendants are liable to be restrained by a decree of injunction from so doing. It cannot be said that the plaintiff is only one among the numerous persons having an interest in the subject-matter of the suit. I am not therefore in a position to accept the argument based on Order 1, Rule 8 of the Code of Civil Procedure to the effect Page 58 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined that the plaintiff ought to have obtained sanction under that provision so as to enable it to maintain the suit. The plaintiff is an incorporated company under the Indian Companies Act and is suing another incorporated company under that Act and its Directors. In my view there is no impediment in the plaintiff maintaining the suit for itself without recourse to Order 1, Rule 8 of the Code of Civil Procedure. It is also not possible to accept the argument that when the plaintiff is seeking to restrain the defendants from running a parallel exchange they are claiming an interest in common with others within the meaning of Order 1, Rule 8 of the Code of Civil Procedure. The argument based on Section 91 of the Code of Civil Procedure is also to some extent sought to be linked with the contention based on Order 1, Rule 8 of the Code of Civil Procedure. According to the learned counsel when the plaintiff seeks to prevent the defendants from carrying on their business they are in fact seeking a relief in respect of an act that is likely to affect the public. In my view there is no question of any public right involved in the nature of the present suit and therefore Section 91(1) of the Code of Civil Procedure will also have no application. On the other hand it appears to me Page 59 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined that even assuming that Section 91(1) of the Code Civil Procedure is attracted this would be a case where the plaintiff itself may have a right of suit existing independently of Section 91(1) of the Code of Civil Procedure. I am of the view that in any view this will be a case coming under Section 91(2) of the Code of Civil Procedure and the argument based on Section 91(1) of the Code of Civil Procedure and Order 1, Rule 8 of the Code of Civil Procedure have only to be overruled."
43. Thus, his Lordship took the view that even assuming that section 91(1) of the CPC is attracted, that by itself, would not come in the way for the plaintiff to institute the suit independently of section 91(1) of the CPC.
44. I may also refer to and rely upon a decision of the Madras High Court in the case of S.K. Murugesa Mudaly vs. Baruda Arunagiri Mudaly & Ors., reported in AIR 1951 Madras 498, wherein, in para-6, his Lordship observed as under:-
"6. It will be seen, however, on a careful scrutiny of that decision that in holding as it does that it is open to an individual member of the public to maintain a suit for removal of obstruction to a Page 60 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined public highway which constitutes a nuisance without the sanction of the Advocate-General under Section 91, Civil P. C., and even without proof of special damage, it founds itself upon a prior decision--that of Wadsworth J. to the same effect reported in Munuswami v. Kuppusami, I. L. Rule (1939) Mad. 870 : (A.i.r. (26) 1939 Mad. 691). The case before Wadsworth J. was not itself a case of a suit instituted under Order 1, Rule 8, Civil P. C., but only in the individual capacity of the plaintiff who was entitled to maintain the suit. After all, the provision of Order 1, Rule 8, is only an enabling provision, and there is no reason why merely because the plaintiff happens to share the same inconvenience by the obstruction to the highway as other people do he should be debarred of his right to seek relief, when once in view of the Privy Council decision in Manzur Hasan v. Maham- mad Zaman, 47 ALL. 151 : (A. I. R. (12) 1925 P. C.
36) it is realised that the distinction between indictment and action in regard to what is done on a highway which is a distinction peculiar to English law ought not to be applied to India. I am of opinion therefore that even if the damage suffered by the plaintiff in the present case is one which is shared by other residents of the same Page 61 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined locality he is still entitled to maintain the present suit. I am also of opinion that the ruling in Subbamma v. Narayanamurthi, 1949-1 M. L. J. 56 :
(A. I. R. (86) 1949 Mad. 634) governs the present case in so far aa it lays down that even if proof of special damage is otherwise necessary in a case of this kind, it becomes unnecessary because the wrong complained of in the present case does not constitute a public nuisance. As pointed out in that decision, once it is appreciated that infringement of the rights of the residents of a village in respect of a public street does not constitute a public nuisance in the sense of a nuisance caused to the public in general, such infringement can well be sued upon by any member of the public who suffers from the wrong complained of. The case cannot, in that view, be regarded as one of public nuisance within Section 91, Civil P. C., and the sanction of the Advocate-General accordingly is not required. Nor is it necessary to compel a person that suffers from such wrong to have recourse to the procedure prescribed by Order 1, Rule 8, which, as already stated, is after all only an enabling and not a compulsory provision."
45. Let me proceed on the footing that the Page 62 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined provisions of Order 1 Rule 8 of the CPC are applicable to the case on hand and the plaintiffs failed to obtain appropriate permission of the court to institute the suit. Ordinarily, if the provisions of Order 1 Rule 8 CPC are applicable, the plaintiff is obliged to prefer an application seeking appropriate permission from the Court to institute the suit. If any such application is preferred, then it is the duty of the Court to dispose it of. However, the important principle of law which the courts below missed to consider is that the omission to do so can be remedied at any stage during the trial of the suit. Ordinarily, the leave under Order 1. Rule 8 should be sought and its grant considered when the suit is instituted.
But the omission to obtain leave at the commencement of the suit cannot serve as a reason for rejecting the plaint. No question of jurisdiction is involved. Leave can be granted at any stage after the suit has been filed. That was the view taken by a Full Bench of the Bombay High Court, in Fernandez v. Rodriques, (1897) JLR 21 Bom 784 (FB), and that view was followed by the Allahabad High Court in Baldec Bhartbi v. Bir Gir, (1900) ILR 22 All 269, and by the Madras High .Court in Chennu Menon v. Krishnan, (1902) Page 63 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined ILR 25 Mad 399. It was reaffirmed by the Bombay High Court in Hubli Panjarapole v. Saraswateyya Bayappa Kala Ghatki, AIR 1953 Bom 334. The rule has been extended even to appeals : Mookka Pillai v. Valavanda Pillai, AIR 1947 Mad 205.
46. I may quote the relevant observations made by Justice P.B. Gajendragadkar (as his Lordship then was) in Hubli Panjarapole (supra) as under:
"(4) It is true that ordinarily leave has to be and should be obtained under Order 1, Rule 8, at the time of, the institution of the suit. Where there are numerous persons having the same interest in one suit, the Court should be invited at the outset to give leave to bring the suit in a representative capacity. If there are numerous defendants having the same interest, leave has to be obtained to bring the suit against them in a representative capacity, and when leave is granted, notice of the institution has to be issued to all persons as may be directed by the Court. Even so, it cannot be disputed that the suit would not be dismissed only on the ground that the requisite leave has not been obtained under Order 1, Rule 8, at the commencement of the proceedings; it would be opon to a party to apply for such leave and to take Page 64 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined such further action as is required by Order 1, Rule 8, even during the pendency of the suit. In --
'Fernandez v. Rodrigues', 21 Bom 784 (D), a Full Bench of this Court has held that the permission requisite under Section 30 of the Code of 1882, which corresponds to Order 1, Rule 8, can be granted even after the suit was filed. The point which was raised before the Full Bench was whether there was jurisdiction in the Court to entertain a suit where no leave has been obtained previously under Section 30 of the old Code, and the Full Bench held that there was no question of jurisdiction involved and it would be open to the Court to grant leave even after the suit is filed. Incidentally we may refer to the statement made by Mr. Justice Tyabji in his judgment wherein the learned Judge observed (P. 786) :
"It is really a question of adding parties (when leave is granted under the said section).
47. The object of Rule 1 Rule 8 is only to prevent multiplicity of litigations. Because when persons seek to represent a particular community or association, the right and interest of others have to be taken into account and that is why publication is ordered and permission is also Page 65 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined sought for to represent others. In such cases, there is a chance for multiplicity of litigation by persons who wants to sue others, instead of the persons who seek to represent others. In a case of this nature where the plaintiffs are themselves interested and are affected parties, there was no necessity to file an appropriate application seeking permission to obtain leave of the Court to file the suit in a representative capacity.
48. Thus, I am convinced that the plaint could not have been rejected on the ground of noncompliance of the provisions of Order 1 Rule 8 of the CPC."
[29.] Applying the aforesaid legal principles in the facts of the case, in the opinion of this Court, the learned Judge once having sense of the grievance voiced with regard to the public nuisance and the representative suit being preferred by the appellant-association, it was incumbent upon ld. Judge to give an opportunity to the original plaintiff- association to seek permission with regard to the suit filed seeking actions with regard to public nuisance. The Court, being guardian of rule of law, cannot ignore the violation of provisions of law by taking technical stance, more particularly, when the citizens approached the Court demonstrating the encroachment on public Page 66 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined property. As regards relief sought in the nature of declaratory in nature, the plaintiffs being citizens of this country and more particularly, the residents of the same society have established their right to use the reserved c.s. No. 808 for garden purposes. It is also evident from their evidence their aforesaid right was jeopardized in as much as the encroachment is alleged by the surrounding plot holders of c.s.no. 807 and 809. The different survey reports produced on record at Exh. 115 and 119 clearly indicates that the deficit area of c.s.no. 808 has been encroached by occupants and allottees of c.s.no. 807 and 809. It further evident from the letters addressed by the plaintiff association on 13.08.2019 (Exh. 118) and 19.09.2019 (Exh. 117 ) , the grievance is voiced about corrections being made in the original survey report dated 13.03.2019 as against the copy of survey report issued on 30.07.2019. Admittedly, the deficit in the area of city survey no.808 has clearly transpired on record, the burden was upon the private respondents to demonstrate and to prove their case that they were in lawful occupation of the area allotted and earmarked, the occupants and the owners of city survey nos.807 and 809 being immediately adjacent to the city survey no.808 owned, the obligation sharing the boundaries owned an explanation in this regard. [30.] In the opinion of this Court, the original plaintiffs having Page 67 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined demonstrated the deficit in the area of reserved government plot city survey no.808, the onus had shifted upon the defendants to demonstrate and to explain as to how they have not encroached. [31.] Having opined so, this court also notices that no reasons has been assigned by the learned Judge while analysing the issue of encroachment. It is a settled legal position of law that reasons are the heart of the judgment. A non speaking order not dealing with the relevant facts of the case and the evidence brought on record in light of the submissions made and the relevant provisions of law has always been deprecated in various judicial pronouncements. As rightly pointed out by learned advocate for the appellant, voluminous documentary evidence has been brought on record, discrepancies are highlighted in the measurement of the subject lands which is evident on bare comparison of the different reports. The office of city survey superintendent owns an explanation. None of the above aspects has been dealt with by the learned Judge while deciding the issue of encroachment. In the opinion of this Court, the burden of proof was equally upon the private defendants to explain that they were occupying the area to the extent earmarked. The learned Judge has failed to appreciate that original Sanand of city survey no. 807 has not been brought on record and on other hand the construction has Page 68 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined progressed in full swing. Essentially challenged was also the construction permission over said plot. The question therefore certainly arises for consideration as to how a positive opinion was submitted by the learned Assistant Collector to the Ahmedabad Municipal Corporation to grant permission for construction. All the aforesaid aspects need to be examined and in absence of aforesaid determination being gone into, the matter deserves to be remanded back for fresh consideration.
[32.] For the reasons assigned, the present First Appeal is allowed. The matter is remanded back to the learned trial court. The respondents-State Authorities are directed to appear before the trial court explaining their stance and to produce the relevant documents with regard to the deficit found in the area of city survey no.808 is concerned. Pending the trial, the respondents are restrained from proceeding with the development of land in question. Considering the fact the original suit is of year-2020, the trial court is directed to expedite the hearing of the suit preferably within a period of one year from the date of receipt of the order.
[33.] With these observations and directions, present appeal stands disposed of. As regards production of additional documents, it is a report carried out by the office of City Survey Superintendent at Page 69 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined the instance of the plaintiff association in absence of private respondents. The same is therefore not accepted to be taken up on record in present appeal however, it would be open for the parties to place on record documentary evidence before the Court to meet with the stance of the office of City Survey Superintendent. Hence, connected civil applications also stand disposed of, accordingly. Record and proceedings, called for, be sent back to the concerned court forthwith.
(NISHA M. THAKORE,J) FURTHER ORDER After the order was pronounced, learned advocate Mr. Nandish Thackar appearing for Mr. Abhisst Thaker, learned advocate for the respondent no.7 and Mr. Bhavin Thakar, learned advocate for the respondent no.8 prays for stay of the order pronounced for a period of six weeks as they intends to challenge before the higher forum.
Mr. Ramnani, learned advocate for the appellants vehemently objects to grant of stay as according to learned advocate the respondent no.7, who is allotted of city survey no.807 has proceeded with the construction over the land in question pending the Page 70 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025 NEUTRAL CITATION C/FA/2500/2024 JUDGMENT DATED: 03/02/2025 undefined proceedings as it has also come on record that he has created third parties rights. He has therefore, submitted that great hardships would be caused in case if the construction is over and further third parties rights are created. Issue of encroachment ultimately even found would make exercise futile as said land would not be recoverable.
Considering the submissions made by the learned advocates for respective parties, the order pronounced is stayed for a period of four weeks from the date of obtaining certified copy of the order pronounced today. However, the respondents are directed not to progress with the construction/ development on subject lands or create any third party rights in respect of lands in question.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 71 of 71 Uploaded by SUYASH KUMAR SRIVASTVA(HC01570) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:00:09 IST 2025