Gujarat High Court
Raval Kamshibhai Kanjibhai vs District Collector Patan on 24 November, 2025
NEUTRAL CITATION
C/SA/566/2024 ORDER DATED: 24/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 566 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 566 of 2024
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RAVAL KAMSHIBHAI KANJIBHAI & ORS.
Versus
DISTRICT COLLECTOR PATAN & ORS.
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Appearance:
MR MAHESH BHAVSAR(1781) for the Appellant(s) No.
1,10,11,12,2,3,4,5,6,7,8,9
SONAL J BHAVSAR(7399) for the Appellant(s) No. 1,10,11,12,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/11/2025
ORAL ORDER
"Public office is a public trust; the Authority that comes with it, is not ornamental, but a solemn obligation to serve the law and the people."
1. By preferring the present Second Appeal, the appellants call into question the legality, propriety and correctness of the judgment and decree dated 24.10.2024 rendered in Regular Civil Appeal No. 40 of 2018 by the learned Principal District Judge, Patan, as also the impugned judgment and decree dated 28.05.2018 passed by the learned Additional Senior Civil Judge, Himmatnagar in Regular Civil Suit No. 71 of 2012.
2. Shorn of non-essential details, the brief factual matrix may be adumbrated thus: The appellants, belonging to the oppressed and downtrodden strata of society and engaged in quotidian labour, have been residing since 1974-1975 on Government Padatar land bearing Revenue Survey No.320 paiki / City Survey No.1370 (hereinafter Page 1 of 9 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:19:33 IST 2025 NEUTRAL CITATION C/SA/566/2024 ORDER DATED: 24/11/2025 undefined referred to as "the disputed land") by erecting kaccha structures thereon. Their earlier challenge to the proposed eviction was carried before this Court in Special Civil Application No.10383 of 1995, culminating in an order dated 18.12.1995 (Annexure-C), followed by Special Civil Application No.312 of 2012 which came to be withdrawn to avail an alternative remedy (order dated 12.01.2012, Annexure-D). The appellants thereafter instituted Regular Civil Suit No.71 of 2012 seeking a declaration and permanent injunction inter alia on the premise that the disputed land stood reserved by the Nagarpalika for residential purposes. The learned Principal Senior Civil Judge, Patan dismissed the suit, and the subsequent Regular Civil Appeal No.40 of 2018 preferred before the learned Principal District Judge, Patan met the same fate, the judgment and decree of the trial Court being affirmed in toto. Aggrieved thereby, the appellants have invoked the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, 1908 (for short, "the Code") by preferring the present Second Appeal.
3. The present Second Appeal has been instituted by canvassing the following substantial questions of law, which are asserted to arise for consideration within the narrow compass of jurisdiction under Section 100 of the Code:-
"i). Whether the lower appellate court has failed to follow the mandatory provisions of order 41, rule 31 of the Code of Civil Procedure while passing the impugned judgment and decree ?
ii). Whether the Ld. Courts below erred in not granting a permanent injunction in favor of the plaintiff/respondents, despite the appellant's continuous and unambiguous possessions of the suit properly since 1974-75 ?Page 2 of 9 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:19:33 IST 2025
NEUTRAL CITATION C/SA/566/2024 ORDER DATED: 24/11/2025 undefined
iii) Whether the Ld. Appellate Court, erred in deciding the appeal without properly framing the points for determination and without considering the legal and factual issues raised by the appellants ?
iv). Whether the judgments, orders and decrees passed by both the Courts below are perverse ?
v). Whether the appellants, having been in in continuous and uninterrupted possession of government land for the last about more than 45 years, can claim title by adverse possession against the government ?
vi). Whether the findings recorded by both the court's below based upon the evidence on record that no reasonable person could have come to that. conclusion or are illegal ?"
4. It is the foremost submission of the learned advocate for the appellants that the impugned judgments, decrees and orders rendered by both the courts below are vitiated by arbitrariness, illegality and patent perversity, being contrary to the settled canon of law; ergo, the entire adjudicatory exercise deserves to be quashed and set aside.
4.1. It is next urged that the appellants, having been in long- standing, continuous, open and peaceful possession of the suit land for several decades, were entitled to the protective mantle of the Court, and the failure of both courts below to safeguard such possession constitutes an error apparent on the face of the record.
4.2. It is further contended that the findings recorded by the courts below rest upon a manifest misreading, non-reading and misappreciation of material evidence and documents, culminating in conclusions which no reasonable or judicious mind, properly Page 3 of 9 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:19:33 IST 2025 NEUTRAL CITATION C/SA/566/2024 ORDER DATED: 24/11/2025 undefined instructed in law, could have arrived at; the findings are, thus, perverse in the legal sense of the term.
4.3. Lastly, it is submitted that the impugned findings suffer from gross perversity and fall foul of the trite posit of law governing appreciation of evidence. Thus, it is prayed to allow the present Second Appeal.
5. Upon a circumspect perusal of the orders passed by the learned Courts below, it becomes noticeable that the appellants had earlier instituted Special Civil Application No.10383 of 1995 along with connected Special Civil Applications Nos.10648 to 10692 of 1995, which came to be decided by order dated 18.10.1995. The outcome of the said proceedings is delineated hereinbelow:
"In this batch of petitions, the petitioners have, inter alia, contended that they are residing on the disputed land bearing city survey No.1370 situated, at Patan city since more than 25, years. Therefore, the petitioners have prayed that the impugned order dated 21.11.95 as at annexure "A' should. be quashed.
During the course of the submissions, the learned counsel appearing for the petitioners Mr B.G.Patel, submitted that the "petitioners would like to avail the alternative remedy before the appropriate authority of the Revenue Department. Therefore, it is prayed that the petitions may be permitted to be/withdrawn at this stage.
In view of the aforesaid statement, permission to withdraw the petitions granted. Accordingly, this batch of petitions shall stand disposed of as withdrawn at the admission stage."
6. It is indubitable that the plaintiff-appellant had never invoked Page 4 of 9 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:19:33 IST 2025 NEUTRAL CITATION C/SA/566/2024 ORDER DATED: 24/11/2025 undefined the jurisdiction of the competent authorities of the Revenue Department, save and except approaching the District Collector. It further emerges from the factual milieu that the appellant-plaintiff, having failed to procure any relief from this Court in earlier proceedings, thereafter instituted the Civil Suit seeking, inter alia, a declaration that the defendants viz. the District Collector and other revenue authorities be restrained from interfering with the disputed land, and further, that such encroachment be regularised, a relief wholly alien to the statutory framework.
6.1. In the aforesaid backdrop, the learned Civil Court proceeded to frame the following issues at Exhibit 32:--
"a. Whether the plaintiff proves that the notices dated 23/02/2012 and 21/02/1972 issued to him by defendants Nos. 1 to 3, directing removal of the alleged encroachment over the disputed property, are illegal?
b. Whether the plaintiff proves that he is in lawful possession of the disputed property?
c. Whether the plaintiff proves that defendants Nos. 1 to 3 had allotted the disputed land to defendant No. 4 in the year 1990, and whether such allotment is illegal?
d. Whether the plaintiff proves that his suit is not barred by limitation and is not barred for want of jurisdiction?
e. Whether the defendants prove that the plaintiffs failed to vacate the encroached portion of land despite alternative arrangements being offered?
f. Whether the plaintiff proves that his suit is not barred for non-compliance with the requirement of notice under Section 80 of the Code of Civil Procedure?
Page 5 of 9 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:19:33 IST 2025 NEUTRAL CITATION C/SA/566/2024 ORDER DATED: 24/11/2025 undefined g. Whether the plaintiff is entitled to the reliefs prayed
for in the plaint as well as in the application for injunction?
h. What order and decree?"
7. After affording both sides full opportunity to adduce their respective evidence, the learned Civil Court proceeded to render its judgment and decree, answering Issue No.6 in the affirmative while returning negative findings on all remaining issues. The plaintiff failed to discharge the burden of proving that the notices issued by defendant Nos.1 to 3 were illegal, and likewise failed to establish that he was in lawful or juridical possession of the disputed land.
8. In view of the aforesaid circumstances, this Court finds that the plaintiff has miserably failed to make out any sustainable case. The plaintiff, actuated by an oblique motive and having earlier failed to obtain any relief from this Court, instituted the present civil suit only with a view to perpetuate his illegal occupation of the disputed land. The plaintiff, indubitably, has no right, title or entitlement whatsoever to continue upon the suit land.
9. In Tinabhai Lakhmanbhai Harijan & Ors. v. State of Gujarat, 2006 (0) AIJEL-HC 217027, this Court has enunciated the legal position in the following terms:-
8. The reliance placed upon the decision of the Apex Court in case of Olga Tellis & Ors. Vs. Bombay Municipal Corporation and Ors.
reported at AIR 1986 SC 180 and the equivalent reported at at 1985(3) SCC 545, is ill-founded, inasmuch as subsequently, the said decision is considered by the Apex Court in case of Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan & Ors. reported at 1997(3) GLR 1998, and the Apex Court observed inter alia at para 28 as under:
Page 6 of 9 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:19:33 IST 2025NEUTRAL CITATION C/SA/566/2024 ORDER DATED: 24/11/2025 undefined "Encroachment of public property undoubtedly obstructs and upsets planned development, ecology and sanitation. Public property needs to be preserved and protected. It is but the duty of the State Government and the local bodies to ensure the same. This would answer the second question. As regards the fourth question, it is to reiterate that judicial review is the basic structure of the Constitution. Every citizen has a fundamental right to redress the perceived legal injury through judicial process. The encroachers are no exceptions to that Constitutional right to judicial redressal. The Constitutional Court, therefore, has a Constitutional duty as sentinel qui vive to enforce the right of a citizen when he approaches the Court for perceived legal injury, provided he establishes that he has a right to remedy. When an encroacher approaches the Court, the Court is required to examine whether the encroacher has any right and to what extent he would be given protection and reljef. In that behalf, it is the statutory duty of the State or the local bodies or any instrumentality to assist 15 ptthe Court by placing necessary factual position and legal setting for adjudication and for granting/refusing relief appropriate to the situation. Therefore, the mere fact that the encroachers have approached the Court would be no ground to dismiss their cases. The contention of the appellant-Corporation that the intervention of the Court would aid impetus to the encroachers to abuse the judicial process is tenable. As held earlier, if the appellant-Corporation or any local body or the State Government or the State acts with vigilance and prevents encroachment immediately, the need to follow the procedure enshrined as an inbuilt fair procedure would be obviated. But, if they allow the encroachers to remain in settled possession suficiently for long time, which would be a fact to be established in an appropriate case, necessarily suitable procedure would be required to be adopted to meet the fact situation and that, therefore, it would be for the respondent concerned and also for the petitioner to establish the respective claims and it is for the Court to consider as to what would be the appropriate procedure required to be adopted in the given facts and circumstances."
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It was further observed by the Apex Court at para 29 as under:
"It is true that in all cases it may not be necessary, as a condition for ejectment of the encoracher, that he should be provided with an alternative accommocation at the expense of the State which if given due credence, is likely to result in abuse of the judicial process. But no absolute principle of universal application would be laid in this behalf. Each case is required to be examined on the given set of facts and appropriate direction or remedy be evolved by the Court suitable to the facts of the case. Normally, the Court may not, as a rule, direct that the encroacher should be provided with an alternative accommodation before ejectment when they encroached public properties, but as stated earlier, each case requires examination and suitable direction appropriate to the facts require modulation."
"11. The approach of the authority for removal of the encroachment over the public road may not be the same as it is required for the property other than the public road or street or pavement or both. In my view, if the matter pertains to the residential accommodation or shelter of hutments, some humanitarian approach may be required for providing some reasonable time to the persons concerned to shift their belongings and to vacate the land. Of course, such time may be provided, if the person concerned of his own undertakes to remove the encroachment and vacates the land by shifting his belongings to any other place. Otherwise in normal circumstances, for residential accommodation, six weeks time may be sufficient to the persons concerned to remove the encroachment and shift his belongings."
10. In view of the foregoing ratiocination, this Court finds no warrant or justification to entertain the present Second Appeal, which accordingly stands dismissed. Consequently, the Civil Application does not survive and is disposed of.
10.1. This Court deems it necessary to remind the District Collector, Patan, that the authority conferred upon him under the relevant Page 8 of 9 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:19:33 IST 2025 NEUTRAL CITATION C/SA/566/2024 ORDER DATED: 24/11/2025 undefined statutory provisions is, indubitably, coupled with a corresponding duty to act. The protection of public land is not a matter of administrative convenience but a legal imperative, nay, a solemn obligation that inheres in the office he holds. Any supine inaction in identifying and removing illegal encroachments amounts to an abdication of statutory duty and, pro tanto, erodes the public's faith in the efficacy of governance. Ergo, once an encroachment upon government land is found, it is the Collector's bounden duty to forthwith resume such land to the State, for any failure to do so pales into insignificance the very purpose for which such powers have been vested in him.
10.2. The learned AGP-Mr. Bharat Vyas is directed to forthwith communicate a copy of this order to the Collector, Patan, to ensure its scrupulous compliance.
(J. C. DOSHI,J) MANISH MISHRA Page 9 of 9 Uploaded by MANISH MISHRA(HC01776) on Wed Nov 26 2025 Downloaded on : Wed Nov 26 21:19:33 IST 2025