Gujarat High Court
Dipakbhai Sohanlal Sharma vs State Of Gujarat on 19 June, 2023
Bench: J. C. Doshi
C/LPA/634/2022 ORDER DATED: 19/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 634 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 7197 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 634 of 2022
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DIPAKBHAI SOHANLAL SHARMA
Versus
STATE OF GUJARAT
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Appearance:
MR CHINMAY M GANDHI(3979) for the Appellant(s) No. 1,10,2,3,4,5,6,7,8,9
MR L.B.DABHI, AGP for the Respondent(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
NISARG S SHAH(8886) for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 19/06/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocate Mr.M.B.Gandhi for the appellant.
2. The present Letters Patent Appeal preferred under Clause
15 of the Letters Patent takes an exception to judgment and
order of learned single Judge dated 29.11.2021 whereby the
prayers in the petition were negatived and petition was
dismissed by learned single Judge observing that the aspects
arising out of the controversy cannot be subjected to exercise of
jurisdiction under Article 226 of the Constitution.
C/LPA/634/2022 ORDER DATED: 19/06/2023
3. It was in all 10 petitioners who filed Special Civil
Application. They were the residents of apartments named
Ronak Apartments. Essentially the case before the learned single
Judge was that the redevelopment of their flats were required to
be acted upon under the provisions of Gujarat Ownership Flats
Act. 1973. It was the case of the petitioner that two main
conditions for opting of redevelopment of the property, namely
the consent of 75% of the members and that the property was
old beyond 25 years, were satisfied. Therefore the flat property
was subjected for redevelopment for which necessary steps were
taken, it was submitted. It was further the case that out of 12
members, who were residents of flats, 10 members had
consented for redevelopment, however respondent Nos.3 and 4
refused to give consent.
3.1 In light of the above facts, the prayers which were made in
the main petition deserves to be noticed. It was prayed thus,
"(a) Directing respondent Nos.1 & 2 herein to
call upon present respondent Nos.3 & 4 to
vacate their property i.e. Flat Nos.1 & 3 of
Ronak Apartments situated at Maninagar Cross
Roads, Maninagar, Ahmedabad- 8 forthwith as
per the contract with the Shreeji Developers.
(b) In the alternative, this Court may be pleased
to direct respondent Nos.3 & 4 to vacate their
property i.e. Flat Nos.1 & 3 of Ronak
Apartments situated at Maninagar Cross Roads,
Maninagar, Ahmedabad- 8 forthwith as per the
intimation given to them and co-operate with
the redevelopment of the flats."
3.2 Learned single Judge closely took into account the
pleadings in the petition, read with the affidavit-in-reply, nature
C/LPA/634/2022 ORDER DATED: 19/06/2023
of the prayers and the issues arising thereby to hold inter alia
that disputed questions of fact were arising which could not be
gone into in the writ jurisdiction.
3.3 Learned senior advocate reiterated the contentions which
were canvassed before learned single Judge. He submitted that
Resolution for redevelopment was passed. He further submitted
that the main two conditions were satisfied as above. He also
submitted that the properties were 34 years old and was
required to be redeveloped in the interest of occupants-
residents. He further submitted that the residents would be
getting better property and that the redevelopment was to be
beneficial.
3.4 Learned senior advocate in support of his submission
relied on the decision of Division Bench of this court in Sarojben
Kiritbhai Shah, through heirs Vs. Ahmedabad Municipal
Corporation dated 23.1.2023 delivered in Letters Patent Appeal
No.1075 of 2022. Having considered the said decision, it is to be
observed that the facts and contentions thereof were different
than the facts and the controversy in the present case, as
discussed and highlighted herein below.
4. Learned single Judge noticed certain material aspects
relevant to exercise of extra-ordinary jurisdiction of the court,
which are recorded in para 5, mainly that the eviction could be
granted after adjudication of the civil rights, that the co-owners
were not joined and further that in respect of flat No.2 which
was originally owned by Shri Sohanlal Devidas Sharma, father of
petitioner No.1, the names are mutated and some pedigree was
C/LPA/634/2022 ORDER DATED: 19/06/2023
produced giving rise to the dispute about the ownership.
Additional affidavit was also noticed by learned single Judge to
record that the dispute regarding ownership was controverted
by producing revenue entries and sale deed in question.
4.1 Finally learned single Judge in para 8 came to the
following conclusion,
"Perusing the petition, the records of the reply
and the rejoinder filed would indicate that
several disputed questions of fact and cross
contentions have been raised by the parties on
the question of ownership of the flats in
question. The ownership of flat No.4 is disputed
in context of a Civil Suit pending before the
Civil Court, Ahmedabad, so also, with the
ownership of flat and its requisite permission
being granted by one co-owner and not by the
other co-owners. The heirs of Mr.Sohanlal
Devidas Sharma is also a matter of dispute."
4.2 Learned single Judge thereafter recorded finding that on
conjoint reading of the pleadings, replies and rejoinders,
reflected that in the guise of seeking prayers in the petition, the
court was called upon to enter into the fishing inquiry to decide
on the ownership of flats. Learned single Judge took the view
that inquiry could not be gone into where disputed question of
ownership were arising. The petition was therefore dismissed.
5. While this court is in complete agreement with the view
taken and findings recorded by learned single Judge, it is to be
further and additionally noticed that the prayers in the petition
were only in respect of directing the respondent Nos.3 and 4 to
vacant their properties that is Flat Nos.1 and 3. The vacating of
C/LPA/634/2022 ORDER DATED: 19/06/2023
property and the prayer for eviction from the property required
adjudication of civil rights. It is in the realm of fact finding
inquiry about the ownership. No other prayer is made.
6. Though the contentions are advanced about redevelopment
procedure and the need for subjecting the apartments for
redevelopment, the prayer is confined to eviction, which could
not be prayed in the writ jurisdiction. From this standpoint also
and also in light of reasoning of learned single Judge, the
dismissal of the petition for the reasons stated in the impugned
order could be said to be eminently just, proper and legal.
7. The challenge in the Letters Patent Appeal is meritless. No
ground exists or arises to exercise the Letters Patent
jurisdiction. The appeal is summarily dismissed.
The Civil Application will not survive in view of the
dismissal of the appeal. Accordingly, it is disposed of.
(N.V.ANJARIA, J)
(J. C. DOSHI,J)
Manshi
