Gujarat High Court
Rajendrakumar Amrutlal Mendha vs State Of Gujarat on 26 February, 2021
Bench: Dr. Justice Kothari, Gita Gopi
C/LPA/1061/2016 JUDGMENT DT. 26.02.2021
RAJENDRAKUMAR AMRUTLAL MENDHA V. STATE OF GUJARAT AND OTHERS
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/LETTERSPATENTAPPEALNO. 1061of 2016
In
R/SPECIALCIVILAPPLICATIONNO. 802 of 2012
With
CIVILAPPLICATION(FORSTAY) NO. 1 of 2016
In
R/LETTERSPATENTAPPEALNO. 1061of 2016
FORAPPROVALANDSIGNATURE:
HONOURABLEDR. JUSTICEVINEETKOTHARI
and
HONOURABLEMS. JUSTICEGITAGOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAJENDRAKUMAR AMRUTLAL MENDHA
Versus
STATE OF GUJARAT & 5 other(s)
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Appearance:
MR. ANSHIN DESAI, SR. ADVOCATEWITH MR. ZALAK B PIPALIA (6161)for the
Appellant(s)No. 1
MR. APURVA K JANI (7057)for the Respondent(s)No. 5
MR MEET THAKKAR, ASST. GOVERNMENTPLEADER(1)for the Respondent(s)No.
1,2,3
MR Y J PATEL(3985)for the Respondent(s)No. 4
Page 1 of 6
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C/LPA/1061/2016 JUDGMENT DT. 26.02.2021
RAJENDRAKUMAR AMRUTLAL MENDHA V. STATE OF GUJARAT AND OTHERS
NOTICE SERVED(4) for the Respondent(s)No. 5
RULESERVED(64)for the Respondent(s)No. 6
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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date: 26/02/2021
ORALJUDGMENT
( PER : HONOURABLE MS. JUSTICE GITA GOPI)
1. This Letters Patent Appeal is filed against the judgment and order
passed by the learned Single Judge in Special Civil Application No.802
of 2012 dated 02.09.2016 by which the said petition was dismissed.
2. The facts in brief are that the land bearing Survey No.7, ad-
measuring 9 Acres and 20 Gunthas, situated at Ratanpar, Taluka
Wadhwan, District Surendranagar, was of the ownership of one
Khimchand Chaturbhai Shah. On an application preferred by the owner,
the said land was converted into Non-Agricultural land by order dated
24.05.1961. Thereafter, the said land was purchased by a Partnership
Firm, named M/s.Shah Chaganlal Umedchand on or about 09.06.1969.
The said Firm submitted a residential lay-out plan with the competent
authority, which was duly sanctioned. As per the said plan, Plot No.5 was
reserved as common plot for public purpose whereas, the other Plots were
to be utilized for residential purpose.
2.1 The said Firm, thereafter, sold the land in question to Respondent
No.4 by way of Registered Sale Deed dated 28.05.1975. It is the say of
the Appellant-Petitioner that though the Firm could not have transferred
the land bearing Plot No.5, being the common plot reserved for public
purpose, it transferred the said plot also in favour of Respondent No.4 by
C/LPA/1061/2016 JUDGMENT DT. 26.02.2021
RAJENDRAKUMAR AMRUTLAL MENDHA V. STATE OF GUJARAT AND OTHERS
way of the aforesaid Sale Deed. It appears that Respondent No.6-Society
passed a Resolution on 21.09.1975 permitting the Respondent No.4 to put
up construction of a Jain Temple on Plot No.5 and to give all facilities for
the Temple. The Appellant-Petitioner made several representations /
applications to the respondent-authorities against such transfer of
common plot of land in favour of the Respondent No.4. The Appellant-
Petitioner brought it to the notice of the respondent-authorities that
Respondent No.4 has carried out some construction work over the said
plot of common land and also over Plot No.4. However, by order dated
07.06.2000 and subsequent Corrigendum dated 31.08.2000, the
Respondent-District Collector granted regularization of the construction
work carried out over Plot No.5. Against the order dated 07.06.2000, the
Appellant-Petitioner preferred Revision Application before Respondent
No.2, Special Secretary, Revenue Department; however, the said revision
came to be rejected by order dated 18.05.2005.
2.2 Against the above orders, the Appellant-Petitioner had earlier
preferred Special Civil Application No.11452 of 2005 before the learned
Single Judge of this Court, which came to be partly allowed by order
dated 07.07.2005 whereby, the matter was remanded back to Respondent,
Special Secretary, Revenue Department. Pursuant to the order of remand,
the Respondent, Special Secretary, Revenue Department, considered the
matter and by order dated 20.05.2006, it set aside the order dated
07.06.2000 passed by the Respondent-District Collector and remanded
the matter back to the Respondent-District Collector for consideration
afresh. After such remand, the Respondent-District Collector considered
the matter and by order dated 03.02.2009, it confirmed the earlier order
dated 07.06.2000 and thereby, confirmed the regularization of the use of
the Plot of land for religious purpose. The said order dated 03.02.2009
was unsuccessfully challenged by the Appellant-Petitioner before the
C/LPA/1061/2016 JUDGMENT DT. 26.02.2021
RAJENDRAKUMAR AMRUTLAL MENDHA V. STATE OF GUJARAT AND OTHERS
Respondent, Special Secretary, Revenue Department in Revision
Application. Being aggrieved by the said orders, the Appellant-Petitioner
preferred Special Civil Application No.802 of 2012 before the learned
Single Judge, which came to be dismissed, by way of the impugned
judgment and order. Hence, this Letters Patent Appeal.
3. We have heard learned counsels on both the sides. In this Letters
Patent Appeal, learned Senior Counsel Mr. Anshin Desai appearing for
the Appellant-Petitioner submitted that in the Writ Petition before the
learned Single Judge, the Respondents had not produced any material on
record to substantiate the claim that necessary permission had been
granted by the authority concerned for carrying out construction work of
the Temple over the Plot in question. Further, the construction carried out
was in excess of the prescribed limit of 1/6th portion of the total area of
land, which was against the opinion given by the Mamlatdar concerned to
the Respondent-District Collector. However, the learned Single Judge lost
sight of the above aspects of the case and has, thereby, erred in rejecting
the writ petition filed by the Appellant-Petitioner.
4. It appears from the record that the Appellant-Petitioner had filed a
suit being Regular Civil Suit No.21 of 2003 before the competent Court
at Surendranagar against Respondent Nos.4 and 5 seeking a declaration
that Respondent No.4 has no right to put up any construction over Plot
Nos.4 and Plot No.5 and also a permanent injunction that Respondent
No.4 be restrained from putting up any construction over the said plots of
land. Along with the said suit, an application for interim injunction was
also filed, which was dismissed by the trial Court concerned, on merits,
by order dated 31.03.2003. It further appears that against the order dated
31.03.2003 passed by the trial Court concerned, the Appellant-Petitioner
had preferred an appeal before the lower appellate Court, which also
C/LPA/1061/2016 JUDGMENT DT. 26.02.2021
RAJENDRAKUMAR AMRUTLAL MENDHA V. STATE OF GUJARAT AND OTHERS
came to be dismissed. Subsequently, Regular Civil Suit No.21 of 2003
came to be dismissed on 20.11.2008 for want of prosecution. The
Appellant-Petitioner does not appear to have made any efforts for
restoration of the aforesaid suit and for its adjudication on merits.
5. It is pertinent to note that the interim injunction application filed in
Regular Civil Suit No.21 of 2003 was dismissed on merits on 31.03.2003
and the suit itself came to be dismissed for want of prosecution on
20.11.2008. After having agitated his rights before the competent Civil
Court, where the Appellant-Petitioner was unsuccessful, the Appellant-
Petitioner had approached this Court by filing Special Civil Application
No.11452 of 2005, which came to be disposed of by order dated
07.07.2005 whereby, the matter was remanded back to the Respondent,
Special Secretary, Revenue Department (Appeals) for fresh
consideration. After such order of remand, the concerned Respondent-
authority decided the matter again and passed an order confirming the
earlier order whereby, the use of the plot of land for religious purpose had
been regularized. Thus, even in Regular Civil Suit No.21 of 2003 as also
in the earlier round of litigation initiated before this Court, the Appellant-
Petitioner was unable to make out a case that the construction in question
carried out over the lands in question was illegal and / or contrary to the
relevant rules and hence, it was not open to the Appellant-Petitioner to re-
agitate the issues again.
6. It could be noticed from the record that Respondent No.5-Society
has passed a Resolution in the year 1975 whereby, it had resolved to
provide all facilities to Respondent No.4 for constructing the Temple at
the site in question. Pursuant to such Resolution, the Respondent No.4
was granted necessary permission by the Respondent No.5 to carry out
construction work over the plot in question by orders dated 04.02.1983 /
C/LPA/1061/2016 JUDGMENT DT. 26.02.2021
RAJENDRAKUMAR AMRUTLAL MENDHA V. STATE OF GUJARAT AND OTHERS
07.09.1983. The Appellant-Petitioner has exhausted all possible remedies
against the said construction of Temple and has lost the legal battle. The
disputed questions of fact cannot be agitated in Writ jurisdiction and in an
Appeal arising out of the order passed by the learned Single Judge under
Article 226 of the Constitution of India, this Court would not enter into
such questions of fact.
7. Considering the above aspects of the case, we are of the opinion
that the learned Single Judge was completely justified in rejecting the
Writ Petition filed by the Appellant-Petitioner. We are in complete
agreement with the reasonings given by the learned Single Judge in the
impugned judgment and hence, find no reasons to entertain this appeal.
8. In the result, the appeal is dismissed. No costs.
( DR. VINEET KOTHARI, J )
( GITA GOPI, J )
PRAVIN KARUNAN
