Sureshbhai Devrajbhai Motadiya vs District Magistrate, Rajkot ...
2021 Latest Caselaw 10736 Guj

     C/LPA/1087/2018                            ORDER DATED: 05/08/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/LETTERS PATENT APPEAL NO. 1087 of 2018
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 12594 of 2018
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
                                   In
              R/LETTERS PATENT APPEAL NO. 1087 of 2018

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                   SURESHBHAI DEVRAJBHAI MOTADIYA
                                Versus
                 DISTRICT MAGISTRATE, RAJKOT DISTRICT
==========================================================
Appearance:
MR BM MANGUKIYA(437) for the Appellant(s) No. 1,2,3
MS BELA A PRAJAPATI(1946) for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 2,3,4,5
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI


                            Date : 05/08/2021


                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. This appeal under Clause 15 of the Letters Patent is at the instance of the original writ applicants and is directed against the judgment and order passed by a learned Single Judge of this Court dated 14.08.2018 in the Special Civil Application No.12594 of 2018, by which, the learned Single Judge declined to interfere and rejected the writ application.

C/LPA/1087/2018 ORDER DATED: 05/08/2021

2. The facts, giving rise to this appeal, may be summarized as under;

2.1 The writ applicants came before this Court by filing the Special Civil Application No.12594 of 2018 with the following prayers;

"(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and hold and declare that the respondent nos. 1 and 2 have no power, authority or competence to take physical and actual possession from the third parties of the property bearing Plot No.31 of Survey No.129/1 situated at Shivshakti Society Behind HDFC Bank, Jasdan, Taluka- Jasdan, District: Rajkot;

(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that unless and until third parties are heard no proceedings can be initiated and concluded under section 13(4) of the Act;

(C ) Pending admission and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned order passed by the respondent nos.1 and 2 dated June 15, 2018 and June 18, 2018 respectively, with a direction that the respondents, their agents and servants shall not take possession from the petitioners of the premises situated in Plot No.31 of Survey No.1292/1 situated at Shivshakti Society Behind HDFC Bank, Jasdan, Taluka: Jasdan, District: Rajkot;

(D) Be pleased to pass such other and further orders as may be deemed fit and proper"

C/LPA/1087/2018 ORDER DATED: 05/08/2021

2.2 It appears from the materials on record that the subject matter of challenge before the Single Judge was to the action of the Bank in taking over the possession of the mortgaged property on the strength of an order passed by the District Magistrate in exercise of his powers under Section 14 of the SARFAESI Act. The case before the learned Single Judge, as put up by the writ applicants, was that they are tenants in the property in question and their tenancy rights should be protected. This claim of the writ applicants was examined by the learned Single Judge and the following findings have been recorded in the impugned order;

" It is the settled position of law that once tenancy is created, the tenants could be evicted only by following due process of law as prescribed under the provisions of Rent Control Act and he cannot be arbitrarily evicted. As that would amount to stultifying statutory right of protection given to the tenant.

In the instant case, there is not an iota of evidence indicating that petitioner No.1 has any relation with the ownership of the property ,which is already mortgaged nor is he in a position to show by any material his claim of being a tenant. He is the brother of the guarantor who has released his right in favour of the guarantor. This act of his approaching this Court the previous day of exercise of powers under section 14 by the authorities concerned is nothing but a clear attempt to thwart the proceedings, on the ground of mercy when in fact, he has no business to meddle in the mortgaged property of his brother. So far as petitioner Nos.2 and 3 are concerned

C/LPA/1087/2018 ORDER DATED: 05/08/2021

except those three documents as mentioned of the year 2017 of Gujarat Cooperative Milk Marketing Federation Limited which are the tax invoices and that too, transporters' copies indicating the parties' details this wise, Maruti Enterprise and address as mentioned hereinabove is of 2, Kailashnagar behind Vivekanand School, Jasdan which has no match to the address of the respondent No.5 which 1292/1, plot No.31, near Shiv Shakti Society, behind HDFC Bank, Jasdan. Moreover, even without matching this address there is no other document indicating that these persons were tenants prior to the property having been mortgaged to the Bank. It appears that only with a view to take a benefit of this decision of the Apex Court, the petitioners have rushed to this Court at the eleventh hours since 16th August,2018 is the date scheduled for taking possession of the property by the Executive Magistrate under Section 14 of the SARFAESI Act."

3. Having regard to the findings recorded in Paras-6 and 7 respectively of the impugned judgment, referred to above, if the learned Single Judge declined to interfere and rejected the writ application, then, in our opinion, no error not to speak of any error of law could be said to have been committed by the learned Single Judge in passing the impugned order.

4. Even otherwise, Mr. B.M. Mangukiya, the learned counsel appearing for the appellants made a statement that the possession of the property in question has already been taken over long time back and he has no further instructions in the matter.

5. In view of the aforesaid, this appeal fails and is

C/LPA/1087/2018 ORDER DATED: 05/08/2021

hereby dismissed. The connected civil application also stands disposed of.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J)

Vahid