Gujarat High Court
Sumitkumar Sureshbhai Patel vs Mafatlal Devji Barot on 12 September, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/CA/4753/2025 ORDER DATED: 12/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR LEAVE TO APPEAL) NO. 4753
of 2025
In F/LETTERS PATENT APPEAL NO. 23949 of 2025
With
F/LETTERS PATENT APPEAL NO. 23949 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6597 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025 In
F/LETTERS PATENT APPEAL NO. 23949 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 6597 of 2024
=============================================
SUMITKUMAR SURESHBHAI PATEL & ORS.
Versus
MAFATLAL DEVJI BAROT & ORS.
=============================================
Appearance:
MR MEET D KAKADIA(11896) for the Applicant(s) No. 1,2,3,4,5
MR SP MAJMUDAR(3456) for the Applicant(s) No. 1,2,3,4,5
MS.HETAL PATEL, ASST.GOVERNMENT PLEADER for the
Respondent(s) No. 11,4,5,7,8
MR KEYUR A VYAS(3247) for the Respondent(s) No. 9
MR VIJAY H NANGESH(3981) for the Respondent(s) No. 10,6
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 1,2,3
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 12/09/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA-
AGARWAL) Having heard the learned counsel for the appellants and perused the record, pertinent is to note that the present application seeking leave to appeal to assail the judgment and order dated 30.06.2025 passed by the learned Single Judge, has been filed by five (5) persons impleaded as applicants in the leave to appeal application.
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2. With regard to the claim of the applicants to maintain the application seeking leave to appeal, only this much is stated in paragraph No. '2' of the application that the applicant No.1 is holder of plot No.76 in Pragatinagar Society situated at Dhanera, District Banaskantha, which is an unregistered society and that he is developer of Madhusudan Villa Society. The other appellants are claiming to be residents of Madhusudan Villa Society and it is contended that they are representing the interest of Madhusudan Villa Society.
3. Pertinent is to note that there is no averment in the application as to the registration of the Madhusudan Villa Society and further as the society has not come forward, it is difficult for us to accept that three applicants (applicant Nos. 2 to 4) herein are representing the cause or interest of Madhusudan Villa Society.
4. It, thus, seems that the applicants are agitating their own rights to use a particular piece of land, which is claimed to be a public street or road having access to the Pragatinagar Society and Madhusudan Villa Society (developed by the applicant No.1). The contention in the leave to appeal application is that the issue pertaining to the approach road passing through Pragatinagar Society to Plot No.76 as well as Madhusudan Villa Society came up for consideration before this Court in Special Civil Application No.13096 of 2022, wherein initially by order dated 10.04.2022, the learned Single Judge had quashed the show cause notice as well as the order dated 23.05.2022 passed by the Nagarpalika, against the petitioners therein for removal of encroachment.
5. The applicant No.1 herein was impleased as respondent No.4 therein and the claim of the petitioner before the writ court was that they are residents of Pragatinagar Society and had Page 2 of 6 Uploaded by C.M. JOSHI(HC01073) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:38:23 IST 2025 NEUTRAL CITATION C/CA/4753/2025 ORDER DATED: 12/09/2025 undefined constructed a boundary wall on their plot namely, survey No.196, where internal road of the society ends and the same cannot be said to be an encroachment on the public road.
6. It seems that on a further challenge in the Letters Patent Appeal, the Division bench, while setting aside the judgment and order dated 10.04.2022 passed by the learned Single Judge relegated the matter to the Collector for making an inquiry as to the existence of the approach road, the public street claimed to be access road for the residents of the society, while liberty was granted to the writ petitioners therein to furnish their response to the impugned show cause notice therein. It seems that pursuant to the order of this Court, some inquiry was made by the Collector and the order dated 21.12.2023 has been passed with the directions as under:-
"ORDER The wall constructed on Survey No. 196 (Pragatinagar Society) at Moje Dhanera, Taluka Dhanera, bearing Plot Nos. 76 to 82, on the western side, running parallel to the plots up to Plot No. 76, which is located on the road leading till the boundary wall of Madhusudan Villa (from Survey No. 198), is ordered to be demolished. The aforementioned road, as per the description provided, is an approach road, which should be opened. The Chief Officer of the Municipality is directed to ensure that the road is cleared and the report of the same should be submitted to this office within ten days."
7. It seems that pursuant to the order passed by the Collector, some proceeding had been initiated for demolition of the compound wall raised by the residents of the society namely, the petitioners of the previous writ petition. They, therefore, approached this Court in the second round in Special Civil Application No.6597 of 2024 challenging the action of the respondent Nagarpalika in demolition of the compound wall of the society on 02.01.2024.
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8. The learned Single Judge, in the judgment impugned, has recorded that the compound wall of the petitioner society was never subject matter of the dispute nor there was any specific direction to remove the same. The demolition of the compound wall of the society for access to be provided from internal road of the petitioner society was uncalled for. While saying so, the learned Single Judge has directed for restoration of the compound wall holding that the officers of the Nagarpalika namely, respondent Nos. 3 and 6 had wrongly interpreted the order of the Collector. The learned Single Judge has further clarified in paragraph No. '13' as under:-
"13. In view of the above, petition is partly allowed by permitting the petitioners to reconstruct the compound wall by keeping small portion of internal access to plot No.76 open. In other words, reconstruction is not permitted for demolition done on 01.01.2024, and panchnama to that effect has been prepared. Whereas demolition done on 02.01.2024 is permitted reconstruction at the cost of the petitioners. The present petition is allowed to the aforesaid extent."
9. It is, thus, evident that by the judgment impugned, the learned Single Judge has permitted the petitioners therein to reconstruct the compound wall by keeping small portion of internal access to plot No.76 open and further clarified that reconstruction is not permitted for the demolition done on 01.01.2024 and Panchnama prepared to that effect, whereas the compound wall demolished on 02.01.2024 has been permitted to be reconstructed at the cost of the petitioners.
10. It is sought to be submitted by Mr. S. P. Majmudar, the learned counsel for the applicants that the writ petitioners have succeeded in obtaining the impugned order from the learned Single Judge by non-impleadment of the necessary parties. It is submitted Page 4 of 6 Uploaded by C.M. JOSHI(HC01073) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:38:23 IST 2025 NEUTRAL CITATION C/CA/4753/2025 ORDER DATED: 12/09/2025 undefined that once in the first round of litigation initiated by the original petitioner herein, the applicant No.1 was impleaded as respondent No.4, in the writ petition out of which the present appeal has arisen, the applicant No.1 was necessary party and further that the other applicants were represented before the Collector and as such they were also necessary and proper party to the writ proceedings. Thus, to challenge the judgment impugned, the only issue raised is about the non-impleadment of necessary parties before the writ court.
11. These submissions made by the learned Counsel for the leave applicants do not find merit on a careful consideration for the simple reason that the learned Single Judge has permitted restoration of the demolished portion of the compound wall to a limited extent. A perusal of the operative portion of the order passed by the Collector pursuant to the directions issued by this Court also shows that there was no order of demolition of the compound wall of the society to give access to all from the disputed plot as an access road/public road.
12. The learned counsel for the applicants has also made submission during the course of arguments that the writ petition itself was not maintainable as the issue pertaining to the restoration or raising of the compound wall could have been raised only before the Civil Court.
13. For the aforesaid, we do not find any good ground to interfere in the order of the learned Single Judge. In our considered opinion, for any dispute relating to the right of the applicants herein over the plot in question to use the same as a public road to provide access to plot No.76 or the Madhusudan Villa Society, the applicants are at liberty to approach the Civil Page 5 of 6 Uploaded by C.M. JOSHI(HC01073) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 23:38:23 IST 2025 NEUTRAL CITATION C/CA/4753/2025 ORDER DATED: 12/09/2025 undefined Court, inasmuch as, intricate questions of fact would be required to be looked into to ascertain the nature of the land, over which the constructions / compound wall raised by the society is permitted to be restored by the learned Single Judge.
14. It goes without saying that, in case, any civil suit is filed, the Civil Court shall be under obligation to take an independent decision without being influenced by any of the observations made by any of the statutory authorities or this Court in any of the proceedings.
15. The reliance placed on the decision of the Apex Court in the case of Udit Narain Singh Malpaharia v. Addl. Member Board of Revenue, [1962 SCC OnLine SC 130] is of no benefit to the writ petitioners for the peculiar facts and circumstances of the present case.
16. The application seeking leave to appeal stands dismissed, accordingly. No order as to costs. Necessary consequence to follow.
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