Sumitkumar Sureshbhai Patel vs State Of Gujarat
2023 Latest Caselaw 5958 Guj

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     C/LPA/1070/2023                             ORDER DATED: 17/08/2023

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         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/LETTERS PATENT APPEAL NO. 1070 of 2023
                               In
          R/SPECIAL CIVIL APPLICATION NO. 13096 of 2022

                                   With

            CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                                In
            R/LETTERS PATENT APPEAL NO. 1070 of 2023
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                       SUMITKUMAR SURESHBHAI PATEL
                                  Versus
                             STATE OF GUJARAT
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Appearance:
SHRI MEET D KAKADIA(11896) for the Appellant(s) No. 1
SHRI SP MAJMUDAR(3456) for the Appellant(s) No. 1
SHRI NISHIT GANDHI for the Respondent(s) No. 2,3,4,5,6,7,8
SHRI K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE N.V.ANJARIA

                             Date : 17/08/2023
                               ORAL ORDER

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

1. This intra-court appeal is directed against the judgment

and order dated 10.4.2022 passed in Special Civil Application

No. 13096 of 2022 by the learned Single Judge whereby while

allowing the writ petition, quashing the show cause notice as

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well as order dated 23.5.2022 issued by the Nagarpalika,

Dhanera, District: Banaskantha, it was observed in paragraph

11 of the judgment impugned that the disputed street is not a

public street because it is being used by the residents of the

society named as Pragatinagar Society, as the said road is only

for the purpose of reaching the respective residents of

Pragatinagar Society. The observation in the judgment

impugned is that the Nagarpalika, Dhanera viz. respondent No.3

therein cannot insist or allege that there is an encroachment on

the public street. While returning the said findings, the learned

Single Judge has taken note of the orders passed in the earlier

round of litigation initiated by respondent No.4 viz. appellant

herein. It was noted that in the previous round of litigation,

respondent No.4 relegated to approach the Civil Court for

redressal of his grievance and as such, in the subsequent or

second round of dispute, it is not open for the Nagarpalika to

allege that it is a public street.

2. To assail this finding, it is argued by the counsel for the

appellant that any observation made by this Court in the

previous round of litigation will have no bearing on the dispute

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before us, inasmuch as the notice dated 8.7.2022 was issued by

the Nagarpalika concerned asking the writ petitioners to

remove encroachment made on the public land. The show cause

notice dated 23.5.2022 issued by the Collector also states the

said fact. The writ petitioners, instead of replying to the said

notice by approaching the competent authority, had

straightaway come to this Court to challenge the notice by

taking a plea that the said notice was issued at the instance of

respondent No.4 viz. appellant herein, who had lost in the

earlier round of litigation. The submission is, thus, that even

from the findings returned by the learned Single Judge, it is

evident that the road in question is being used by the residents

of the society and hence, it cannot be said to be a private land.

Any encroachment of the said land would be required to be

removed as the street in question is being maintained by the

Nagarpalika and it is vested in the Nagarpalika by virtue of

Section 147 read with Section 2(22)(b) of the Municipalities Act.

3. Learned counsel appearing for the writ petitioners -

respondents herein would vehemently submit that the entire

proceeding initiated against the writ petitioners at the behest of

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the appellant herein viz. respondent No.4 before the writ court

was an abuse of process of law. The appellant having lost in the

first round of litigation cannot stand before this Court to assail

the order passed by the learned Single Judge. The submission is

that the Nagarpalika itself has not come forward to challenge

the order passed by the learned Single Judge and in view of the

findings returned by the learned Single Judge in the writ

petition and the Letters Patent Appeal filed by respondent No.4

herein, the present appeal cannot survive.

4. It is further submitted that the appellant herein is a

developer and for his vested interest only, he is trying to get the

existing wall of the writ petitioners removed so that he can

develop the land adjoining the society by using the street-in-

question which is termed as public street. The submission, thus,

is that this Court may not come to the rescue of the appellant

who is guided by his personal benefit.

5. Dealing with these submissions of the learned counsels

appearing for the parties and having perused the record, suffice

it to say that the writ petition has been filed challenging the

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notice dated 8.7.2022 which was issued by the Nagarpalika,

Dhanera stating therein that the writ petitioners had

encroached upon the public land because the encroachments

are not removed, the proceedings under the Gujarat Land

Grabbing Act would be initiated. Another challenge to the

communication 23.5.2022 issued by respondent No.2 viz.

Resident Additional Collector, District Land Grabbing

(Prohibition) Committee, which was incorporated by way of

amendment. It is an admitted fact of the matter that the writ

petitioners did not submit any reply to the show cause notice

dated 8.7.2022 issued by the Nagarpalika, Dhanera. A perusal of

the order impugned passed by the learned Single Judge also

indicates that while quashing the notice dated 8.7.2022 it has

returned the finding on factual aspects which could not have

been examined within the scope of Article 226 of the

Constitution of India.

6. The question as to whether the writ petitioners had made

encroachment over the public street, which is for access to the

residents of the society, is required to be examined by the

competent authority after the reply to the notice dated 8.7.2022

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is furnished by the writ petitioners. In order to ensure an

independent inquiry into the matter, we provide that the District

Collector shall examine the matter as to the nature of the

encroachment alleged in the show cause notice dated 8.7.2022

issued by the Nagarpalika, Dhanera. We permit the writ

petitioners to submit an application along with the copy of this

order before the District Collector within a period of two weeks

from today.

7. On the presentation of the said application, a notice be

issued by the Collector to the Nagarpalika, Dhanera and other

residents of the society including the appellant herein giving

them opportunity to submit their comment / reply to the

contents of the application moved by the writ petitioners. In

case of need, physical measurement or spot inspection of the

site shall be carried out in the presence of all the concerned

parties including the officers of the Nagrpalika, Dhanera.

8. The entire exercise shall be completed by passing a

reasoned and speaking order dealing with the application

moved by the writ petitioners within a period of six weeks from

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the date of the application.

9. It is further clarified that any observation made, by this

Court in the previous round of litigation or by the learned Single

Judge in the judgment impugned or by us hereinabove, will not

come in the way of the parties in the determination to be made

by the Collector under the above directions.

10. The judgment and order dated 10.4.2022 passed in Special

Civil Application No. 13096 of 2022 by the learned Single Judge

is hereby quashed and set aside. The appeal stands dismissed.

In view of the dismissal of appeal, civil application does not

survive and is accordingly disposed of.

(SUNITA AGARWAL, CJ )

(N.V.ANJARIA, J) Bharat