Sipai Firoj Ismailbhai vs Secretary, Revenue Department ...
2021 Latest Caselaw 17013 Guj

     C/LPA/911/2021                                ORDER DATED: 28/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/LETTERS PATENT APPEAL NO. 911 of 2021
                                    In
                R/SPECIAL CIVIL APPLICATION NO. 9409 of 2020

                                     With

                 CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                                           In
                   R/LETTERS PATENT APPEAL NO. 911 of 2021
==================================================================
                                SIPAI FIROJ ISMAILBHAI
                                         Versus
                 SECRETARY, REVENUE DEPARTMENT APPEALS
==================================================================
Appearance:
MR DHAIRYAWAN D BHATT(11817) for the Appellant(s) No. 1,2,3,4,5,6
for the Respondent(s) No. 2,3,4,5
MR K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER(1) for the Respondent No. 1
==================================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

                             and

         HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                               Date : 28/10/2021
                               ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This Letters Patent Appeal is directed against the order dated

25.08.2021 passed by learned Single Judge in Special Civil Application

No.9409 of 2020.

2. We have heard Mr. Dhairyawan D. Bhatt, learned counsel for the

appellants and Mr. K.M. Antani, learned Assistant Government Pleader

for respondent No.1.

3. Petitioners challenged the order dated 05.08.2019 passed by

Special Secretary (Appeals), Revenue Department under which revision

C/LPA/911/2021 ORDER DATED: 28/10/2021

application filed by the petitioners came to be dismissed and orders dated

05.08.2019 and 06.08.2019 were confirmed whereunder the Collector had

accepted the application filed by the contesting respondents, i.e.

respondent Nos.2 and 3 herein, by which they were granted permission of

N.A.

4. The grievance of the petitioners is that they had purchased land

abutting the land belonging to respondent Nos.2 and 3 by virtue of which

they had right of way through the land of respondent Nos.2 and 3 and, by

virtue of N.A. permission having been granted, there is likelihood of

respondent Nos.2 and 3 putting up construction and thereby defeating the

rights of the petitioners. The learned Single Judge, after having noticed

that petitioners have already filed Civil Suit No.130 of 2017 claiming

relief of easementary right over the land of respondent Nos.2 and 3, has

rightly refused to interfere with the order passed by the Special Secretary

(Appeals), Revenue Department on 05.08.2019 whereunder authorities

have held that petitioners have no locus standi to question the order of

granting N.A. permission. This observation made by Revenue Authorities

has also been rightly reiterated by the learned Single Judge that

petitioners have no locus standi to question N.A. order passed in favour

of respondent Nos.2 and 3, inasmuch as they have been claiming larger

relief of declaration of their right of way in the property belonging to

C/LPA/911/2021 ORDER DATED: 28/10/2021

respondent Nos.2 and 3, and in the event of petitioners succeeding in the

suit they would definitely be entitled to enjoy the fruits of the decree that

was obtained by them, irrespective of the fact whether land in question

has been converted to non-agricultural purposes or not. As such, learned

Single Judge has rightly observed that petitioners have no locus to

challenge N.A. permission granted to respondent Nos.2 and 3 by relying

upon the judgment of this Court in case of Bhayabhai Vajshibhai

Hathalia, reported in 2912 (2) GLR 1741. The said finding recorded by

the learned Single Judge is just and proper and it is needless to state that

petitioners whould be entitled to urge all grounds in the pending Civil

Suit No.130 of 2017 and it would be open for them to seek for

appropriate relief against respondent Nos.2 and 3 in the said pending suit.

Since we have not issued notice to respondent Nos.2 and 3, we are not

expressing any opinion on the merits and all contentions are kept open

including probable defence that would be raised by respondent Nos.2 and

3 in the pending suit. Hence, appeal stands dismissed.

5. In view of the appeal having been dismissed, Civil Application

No.1 of 2021 does not survive for consideration and same stands

consigned to record.

(ARAVIND KUMAR,CJ)

(MAUNA M. BHATT,J) Bharat