Rajeshkumar Kailashchandra ... vs State Of Gujarat
2023 Latest Caselaw 5846 Guj

                                                                                              NEUTRAL CITATION




      C/LPA/1074/2023                                          ORDER DATED: 10/08/2023

                                                                                               undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO.                  1074 of 2023

        In R/SPECIAL CIVIL APPLICATION NO. 9020 of 2022
                              With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
           In R/LETTERS PATENT APPEAL NO. 1074 of 2023
                              With
         R/SPECIAL CIVIL APPLICATION NO. 9020 of 2022
==========================================================
                    RAJESHKUMAR KAILASHCHANDRA TIMBRA
                                  Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR VIRAT POPAT with MR. NISHIT P GANDHI(6946) for the
Appellant(s) No. 1
 for the Respondent(s) No. 10,11,12,2,3,4,5,6,7,8,9
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
           AGARWAL
           and
           HONOURABLE MR. JUSTICE N.V.ANJARIA

                              Date : 10/08/2023

                                ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

Heard learned advocate for the appellant and perused the record.

2. This intra court appeal has arisen out of interim judgment and order dated 25.07.2022 passed by the learned Single Judge whereby the interim application seeking stay of the order dated 10.11.2017 of the Collector directing to the private respondents to stop the construction has been

NEUTRAL CITATION

C/LPA/1074/2023 ORDER DATED: 10/08/2023

undefined

rejected.

3. The appellant herein claims right in the property in question for an area of 81.30 sq. mtrs. based on a sale deed allegedly executed by the original owner in the year 2018. The sale deed for an area of 615 sq. mtrs., that is, the entire area of property in question was executed in favour of the private respondents on 13.12.2013. The appellant herein claims that the names of his predecessor in interest were recorded in the revenue record, but admittedly, the name of the appellant herein has never been entered in the revenue record based on the alleged sale deed executed in the year 2018. Moreover, Civil Suit No. 155 of 2018 filed by the appellant herein, seeking for cancellation of the sale deed in favour of the respondents, executed in the year 2013, is pending. The learned Single Judge having taken note of the above facts, has rightly come to the conclusion that no prima facie case has been made out against the respondents. We do not find any infirmity in the order impugned.

4. Further, on a prayer made by learned counsel for the appellant, we have summoned the record of Special Civil Application No.9020 of 2022 wherein the order impugned has been passed by the learned Single Judge. The perusal of the relief claimed in the Special Civil Application shows that challenge was made to the order of permission granted in favour of

NEUTRAL CITATION

C/LPA/1074/2023 ORDER DATED: 10/08/2023

undefined

respondents no.9 to 12 of using the land in question for non-agricultural purposes. Having noted the fact that the private respondents herein are claiming their rights on the basis of a sale deed of the year 2013, which is a registered sale deed, for the entire area of the property in question, we do not find any ground to sustain the challenge to the order dated 22.03.2022 of the Secretary, Revenue Department, by invoking our extraordinary discretionary jurisdiction under Article 226 of the Constitution, more so in view of the pendency of the Civil Suit.

5. At this stage, learned counsel for the appellant submits that the appellant proposes not to press the Special Civil Application itself. However, he has an apprehension that the findings returned by the learned Single Judge in the order impugned will prejudice him in the pending Civil Suit.

6. In view of the above statement, we permit the writ petitioner to withdraw the Special Civil Application with a liberty to approach the Civil Court for redressal of his grievances.

7. It is clarified that the observations made by the learned Single Judge to reject the interim prayer made by the petitioner will not come in the way of the petitioner in the pending Civil Suit. The Civil Court shall be under obligation to deal with the matter on merits without being influenced by the

NEUTRAL CITATION

C/LPA/1074/2023 ORDER DATED: 10/08/2023

undefined

observations made hereinabove or by the learned Single Judge.

8. The Special Civil Application stands dismissed of as withdrawn.

9. In view of the withdrawal of the Special Civil Application, appeal stands disposed of.

Civil Application also stands disposed of accordingly.

(SUNITA AGARWAL, CJ )

(N.V.ANJARIA, J) BIJOY B. PILLAI