Gujarat High Court
Pujya Baba Santokdas Panchayat Owners ... vs Ahmedabad Municipal Corporation on 3 February, 2025
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2500 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 2500 of 2024
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2025
In R/FIRST APPEAL NO. 2500 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================
Approved for Reporting Yes No
No
==========================================================
PUJYA BABA SANTOKDAS PANCHAYAT OWNERS ASSOCIATION & ORS.
Versus
AHMEDABAD MUNICIPAL CORPORATION & ORS.
==========================================================
Appearance:
MS. MEGHA JANI FOR MR NL RAMNANI(2400) for the Appellant(s) No.
1,2,3,4,5,6,7,8,9
MS. A. N. RAMNANI (14156) for the Appellant(s) No. 1,2,3,4,5,6,7,8,9
BHAVIN B THAKAR(9371) for the Defendant(s) No. 8
MR. NANDISH THACKAR FOR DR.ABHISST K THAKER(7010) for the
Defendant(s) No. 7
MR. SHIVAM DIXIT, AGP for the Defendant(s) No. 3,4
MR. ARCHIT P JANI(7304) for the Defendant(s) No. 2
NOTICE SERVED BY DS for the Defendant(s) No. 1
REFUSED SERVED (N)(10) for the Defendant(s) No. 5,6
==========================================================
CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 03/02/2025
ORAL JUDGMENT
[1.] Today, when the matter is taken up for dictation of
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
judgment, learned AGP Mr. Shivam Dixit appearing for the respondent
nos.3 and 4-State Authorities has placed on record the affidavit along
with the list of documents, the copy of which, is served upon the
respective parties. The same is permitted to be taken upon record.
[2.] Learned advocate Mr. Bhavin B. Thakar appearing for the
respondent no.8 has placed on record the copies of two registered
agreements to sell in response to the apprehension expressed by the
appellants. During the course of the arguments with regard to the
third party rights being created, it is clarified by respondent no.8 that
pending the present appeal, he has entered into a registered
agreement to sell with two of the proposed purchasers. The same is
also taken upon record.
[3.] The appellant association through its Secretary and the
members have approached in the present appeal under Section 96 of
the Code of Civil Procedure, 1908 being aggrieved and dissatisfied
with the judgment and order dated 14.06.2024 passed by the learned
City Civil Court, Ahmedabad in Civil Suit No.347 of 2020 ( hereinafter
referred as 'impugned Judgment and order'). By the said judgment
and order, the learned Judge has dismissed the suit preferred by the
present appellants with cost of Rs.25,000/-, to be paid by the present
appellants-original plaintiffs.
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
[4.] In order to appreciate the controversy raised in the
present appeal, it would be appropriate to consider the facts as
emerged on record:
[4.1] The dispute pertains to the government allotted plots
bearing city survey no.808 and its adjoining land bearing city survey
nos.807 and 809 allotted to the grandfathers of the present
respondent nos.5 to 8 herein. The land bearing city survey no.808 is
reserved for public purposes to be used as a garden in the final town
planning scheme, and is open to be used by the public at large. The
core issue involved in the matter, is the alleged encroachment over
the aforesaid parcel of the land by the present respondent nos.5 to 8,
who are otherwise the plot holders of the adjoining lands bearing city
survey nos.807 and 809 respectively. The grievance is also voiced
against the inaction on part of the respondents-State Authorities who
are joined as original defendant nos.1 to 4-present respondent nos.1
to 4 herein.
[4.2] It is the case of the appellants that the Government had
allotted a huge parcel of land known as the Sardarnagar Township in
the heart of city of Ahmedabad with benevolent purpose to settle the
migrated persons from Pakistan after partition. It is the case of the
original plaintiffs that in the year-1981, one Kavitaben Arjundas
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
Goplani had preferred Civil Suit No.748 of 1981 before the learned
Civil Court at Narol against the Administrator of Sardarnagar
Township on the ground that she wanted to acquire 2000 yards of
land, out of city survey no.808. As per the original plaintiffs, in the
aforesaid suit, learned Assistant Government Pleader had filed an
affidavit on 09.12.1981, whereby it was pointed out that the aforesaid
parcel of land is an open land and is reserved in the master plan and
hence, the said land cannot be disposed of. It was further pleaded that
on 05.09.1981, the order was passed by the administrator of
Sardarnagar Township, whereby a portion of city survey no.808 was
allotted to one Mr. Meghomal Sejumal and Mr. Motomal Nanomal,
who are also the erstwhile owners of survey no.807 and survey no.809
respectively. The aforesaid order was given effect to in the revenue
record inasmuch as an entry came to be effected in the revenue
record on 05.04.1982 in this regard. It is further pleaded that the order
dated 05.09.1981 was challenged by one Mr. Peshumal Devumal
Panjwani before the Collector, Ahmedabad in L.B./Appeal-218 of 88,
wherein the Collector, Ahmedabad noted that the certified copies of
the aforesaid alleged order dated 05.09.1981 and the entry dated
09.04.1982 are not available with the administrator of Sardarnagar
Township as well as the City Surveyor.
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
[4.3] On the basis of the aforesaid observations, the learned
Collector had referred the matter to the Assistant Collector for
review. The aforesaid fact was also confirmed pursuant to the
communication dated 29.06.1992 addressed by the Administrator
Sardarnagar Township confirming the fact that no order was issued on
05.09.1981. It was further stated that the fabricated orders of sanad,
were noticed with regard to the parcels of land of Sardarnagar
Township. The learned City Deputy Collector, taking note of the
aforesaid letter dated 29.06.1992, had set aside the order dated
05.09.1981 and the entry dated 09.04.1982. At that stage, the Office
of City Survey was unable to verify as to the property card being
prepared without any proper verification.
[4.4] Being aggrieved and dissatisfied with the aforesaid order,
the original allottee approached in revision before the Collector
Ahmedabad, which came to be dismissed on 20.04.1993. The heirs of
the deceased allottee i.e. the owner of city survey no. 809 approached
in revision before the Special Secretary Revenue Department
(Disputes). In the revision, the Revenue Secretary refused to entertain
such revision by observing that there did not exist any order dated
05.09.1981. In fact, no portion of survey no. 808 could have been
disposed of as the same was reserved for garden use. As per the case
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
of the original plaintiffs, at that stage, the Revenue Secretary had in
fact arrived at a conclusion that the Sanad issued, is a forged
document.
[4.5] By referring to the aforesaid events, the plaintiffs have
further pleaded that the notice under Section 61 of the Gujarat Land
Revenue Code was issued by the City Surveyor, Ahmedabad on
24.01.2018 on defendant nos. 5 to 8, who are the owners of city
survey nos. 807 and 809 respectively. It was noticed that the aforesaid
defendants have encroached upon portions of city survey no. 808,
which was reserved for garden use. The contents of the notice
indicated that the owner of survey no. 809 had encroached upon the
area to the extent of 116 sq. mtrs. of survey no. 808, whereas the
owner of survey no. 807 had encroached to the extent of 30 sq. mtrs.
of area of survey no. 808. The respective defendants were, therefore,
called upon to remove such encroachment. It is further pleaded by the
plaintiffs that the City Surveyor, Ahmedabad, on the basis of
measurement conducted on site on 13.03.2019, opined that as per the
records, the area of survey No. 808 should be 909 sq. mtrs. whereas on
the spot, the open area was found only to the extent of 765 sq. mtrs.
[4.6] By referring to the aforesaid proceedings, the plaintiffs
have further pleaded that the Public Interest Litigation was pursued at
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
first instance before this Court, which was registered as Writ Petition
(PIL) No. 219 of 2017, whereby the plaintiff-association had alleged
encroachment by the aforesaid owners of survey nos. 807 and 809
over the reserved area of survey no. 808. In the aforesaid proceedings,
the affidavit was submitted by the owner of survey no. 809, who was
joined as party respondent nos. 1 to 3, wherein, they have admitted
the encroachment to the extent of 116 sq. mtrs. of reserved land of
survey no. 808. The assurance was given by the aforesaid respondents
to clear the encroachment and to apply for appropriate proceedings
for regularization. Insofar as some part of the land in question is
concerned, the Honorable Division Bench considered the aforesaid
assurance given by the owners of survey no. 809 as well as taking into
consideration the position of the land in question in the final town
planning scheme, was pleased to dispose of the P.I.L. vide order dated
20.03.2019. Subsequently, the original plaintiffs-association, who were
the petitioners in the P.I.L., preferred Miscellaneous Civil Application
whereby this Court, vide order dated 26.04.2019, had permitted the
parties to approach competent authority for removal of the alleged
encroachment.
[4.7] The plaintiffs, by referring to the aforesaid orders, have
further pleaded that the Office of Maintenance Surveyor was once
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
again approached voicing their grievance with regard to the
encroachment being continued. In this regard, the Maintenance
Surveyor, Ahmedabad, had undertaken the exercise of measurement
of the site on 17.07.2019 with regard to the land in question i.e. survey
no. 808. However, the Maintenance Surveyor had contradicted the
earlier stand of the City Survey Superintendent Office about the
encroachment by noting that the area of land of city survey no. 808
exceeds its allotment as appearing on record. This led the original
plaintiff-association questioning the veracity of such measurement
being prepared by the Maintenance Surveyor on 17.07.2019. By raising
the objection on 19.08.2019 on the ground that the original sheet no.
37, survey no. 808 does not have survey nos. 828 to survey no.834,
survey no.786 to survey no.793 as its boundaries, and had therefore,
questioned the measurement sheet itself. To the aforesaid objections
raised by the original plaintiff, Office of City Surveyor, Ahmedabad
vide communication dated 03.08.2019, addressed to the Deputy
Director of Land Records, Ahmedabad, had pointed out about the
incorrect measurement sheet dated 17.07.2019. The grievance of the
original plaintiff did not pacified inasmuch as, the Additional Collector
by placing reliance upon such incorrect measurement sheet dated
17.07.2019 gave an opinion on 23.08.2019 to issue appropriate
permission for construction as sought for by the owner of city survey
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
No. 807 before the Ahmedabad Municipal Corporation to commence
construction activities for residential purpose on the aforesaid land.
[4.8] By referring to the aforesaid events, the original plaintiffs
have raised their cause of action to approach the City Civil Court by
preferring Civil Suit No.347 of 2020 thereby seeking prayers for
quashing of the communication dated 23.08.2019 issued by the
Additional Collector giving his opinion to proceed with the issuance of
appropriate permission for construction in respect of city survey no.
807 is concerned. The prayer was also sought for permanent
injunction restraining the Ahmedabad Municipal Corporation as well
as the Ahmedabad Urban Development Authority from approving any
master plan giving assent to the commencement of the construction
over survey no. 807 or survey no.809 inasmuch as to issue the
directions to remove the encroachment made by the aforesaid owners
of the respective survey nos. 807 and 809 over the land of survey no.
808, which was otherwise reserved for garden use.
[5.] Taking note of the aforesaid pleadings in the plaint, the
learned Judge has issued summons upon the respective defendants.
The appearance was entered upon on behalf of defendant no.1-
Ahmedabad Municipal Corporation as well as on behalf of the private
defendants being defendant nos. 7 and 8. The written statements
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
have also been placed on record by the respective defendants.
Defendant nos. 5, 6 and 7 have submitted their written statements at
Exh.16, whereby specific contention has been raised on the issue of
cause of action in a way challenging the locus of the plaintiff
association.
[6.] Heavy reliance was placed on the order passed by the
Hon'ble Division Bench in the Public Interest Litigation, to contend
that the aforesaid facts had earlier fallen for consideration before the
Hon'ble Division Bench, whereby ultimately the petition has been
disposed of vide order dated 20.03.2019. It was further pointed out
that the only liberty which was granted by the Division Bench as
recorded in the order dated 26.04.2019, was to approach the
competent authority with regard to alleged encroachment. It was also
contended that they are the lawful owners and in possession of the
respective allotted lands. As regards the alleged encroachment is
concerned, the same has been removed and the Hon'ble Division
Bench in the writ petition, having satisfied about the same, has
disposed of the petition. The defendants have, therefore, objected to
the entertaining of the suit in the present form. The original
defendant no.8 had also submitted a written statement at Exh.37. It
was pointed out that the maintenance surveyor had undertaken spot
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
inspection and in its opinion as clearly expressed that the area of land
on site measures 939 sq. mtrs. as against 909 sq. mtrs. appearing in
the record. It was also pointed out that the defendant no. 8 has
purchased property by registered sale deed and the entry has also
been certified in the property card. The reliance was placed on the
approved plan dated 30.10.2021, whereby necessary permission has
been taken from the defendant no.-1- Corporation, and therefore, has
got every right to develop the property.
[7.] Noticing the aforesaid pleadings, the trial court had
framed the issues at Exh. 46, which read as under:
"1. "Whether the plaintiff proves that the property
card and sheet of Sardarnagar were manipulated and
wrongs sanand were obtained ?
2. Whether the plaintiff proves that the defendants
have made an illegal construction on government
land city survey no.808 by encroachment?
3. Whether the defendants prove that the plaintiff
has no right to file the present suit and the suit is
barred by limitation ?
4. Whether the plaintiff proves, he is entitled to get
relief as prayed for ?"
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
5. What order and decree ?
[7.1] Before the trial court, the plaintiffs have produced various
documentary evidences and have also examined two witnesses in
support of their case. The details of which are reproduced hereunder:
ORAL EVIDENCES:-
Sr.
Witness Exhibit
No.
Affidavit of evidence of witness Chairman
1. Mulchand Pahumal Ahuja on behalf of the 62
Plaintiff
Affidavit of evidence of witness Secretary
2. Kamal Rameshlal Ranglani on behalf of 84
Plaintiff
DOCUMENTARY EVIDENCES:-
Sr.
Details Date Exhibit
No.
Copy of master plan of
Sardarnagar Township
Copy of order dismissing the Civil
Suit No.748/81
Copy of order pass under Exhibit-5
No.748/81
Copy of sanad of property bearing
Copy of application seeking
information under the RTI Act and
copy of the information supplied
accordingly.
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
information under the RTI Act and
copy of the information supplied
accordingly.
Letter written by the Collector to
7. Kamal R. Ranglani regarding the 08/11/2017 71
copy
Copy of reply in person of the
person committing encroachment
Copy of the Government
Resolution
Copy of electricity bill of the
bearing Survey No.809
Letter/report written by the City
Survey Superintendent addressed
to the Government Pleader for
submitting the report
Undertaking submitted before the
authority by Vishal Harendrasinh
Certified copy of Rajachitthi issued
by the Ahmedabad Municipal
RTI Act in respect of construction
of Survey No.807
Copy of news item published in
property card in Sardarnagar
Copy of property register of survey
No.809
Notice as per Section 2002 of the
Bombay Land Revenue Code
17. Copy of notice
Acknowledgment Government of
Gujarat
Acknowledgment City Survey
Superintendent
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
Ahmedabad Municipal Corporation
Original property register of
Survey No.807
Original property register of
Survey No.809
Original property register of
Survey No.808
Original injunction application of
Plaintiff in Civil Suit No.748/1981
Original order of CTS/Review Case
No.2/1991
Original order of A.B. Appeal
No.218/1988
Original order No.PVV/HKM/AMD
Original reply of Administrator
No.748/1981
Original letter of Administrator,
Ahmedabad
Copy of land allotment rules upon
Township
Copy of Deputy Secretary
34. Resolution No.JSM/1080/M.R. 21- 28/04/1982 110
98057-2
Copy of Hon'ble Gujarat High Court
Writ Petition PIL No.219/2017
Original notice as per Section 2002
Code
Original notice as per Section 61 of
the Bombay Land Revenue Code
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
Original measurement sheet of
City Survey No.808 of City No.37
Original measurement dated
39. 13/03/2019 of City Survey No.808 13/03/2019 115
of City No.37
Letter dated 13/08/2018
addressed to the Settlement
Commissioner Director,
Gandhinagar
Original letter addressed to the
Gandhinagar
Original measurement of City
possession
Copy of online news of the scandal
sanad in Sardarnagar
Original opinion dated 13/08/1984
46 of the Collector regarding number 13/08/1984 123
47 Original notice dated 11/12/1919 11/12/2019 124
Original white receipt of RPAD
given by Gujarat Government
Original white receipt of RPAD
Superintendent
Unaccepted and returned cover of
Ahmedabad Municipal Corporation
Copy of property register of
51 172/A
Survey No.807
[7.2] The plaintiffs have submitted their pursis at Exh. 132
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
thereby declaring closure of their stage of evidence. As against the
aforesaid evidence produced by the original plaintiff, the defendant
no.7 has entered into the witness box. The evidence of defendant no.7
has come on record at Exh. 137. The defendant no. 7 has also led
various documentary evidences. The details of which are reproduced
hereunder:
ORAL EVIDENCES:-
Sr.
Witness Exhibit
No.
Affidavit of evidence of Respondent No.7
Dilip Achalmal Gurnani
DOCUMENTARY EVIDENCES:-
Sr.
Details Date Exhibit
No.
Sanad issued in favour of Motumal
1. Nanumal in respect of City Survey May/1971 140
no.809
Conveyance deed executed through
2. the administrator by the President 01/06/1976 141
of India
passed by Managing Officer,
Administrator, Sardarnagar
Township
Receipt regarding payment of
Rs.1852/-
Registration Certificate issued by
5. the administrator and registering 13/04/1966 144
officer
Affidavit sworn by Motumal
Nanumal
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
Order passed by Hon'ble High Court
in Writ Petition (PIL) 219/2017
Copy of certificate issued by Bhavya
8. Spach League through Nrupesh 12/06/2013 147
Talati
Copy of property card of City Survey
No.809
CTS/Sardarnagar/807,809/2019 sent
to DLR, Ahmedabad
Order passed by City Deputy
Collector in CTS Appeal No.778/2022
Affidavit sworn under Section 65(V)
of the Indian Evidence Act
Original Ration Card No.0712263
issued by the Government of Gujarat
Original Ration Card No.0662387
issued by the Government of Gujarat
Original birth certificate of Pooja
Dilip Gurnani
Original birth certificate of Vikas
Dilip Gurnani
Copy of election card of Respondent
no.7
Copy of election card of Hemaben
Gurnani
Copy of order passed in Hon'ble
19. Gujarat High Court Writ Petition 20/03/2019 158
(PIL) No.219/2017
[7.3] The defendant No. 8 has also entered into the witness box
and his evidence has come on record at Exh.164. The supporting
documentary evidence has also been brought on record by the said
witness. The details of which are reproduced hereunder:
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
ORAL EVIDENCES:-
Sr.
Witness Exhibit
No.
Affidavit of evidence of Respondent No.8
Vishalkumar Harendrasinh Rahevar
DOCUMENTARY EVIDENCES:-
Sr.
Details Date Exhibit
No.
Copy of order passed in Hon'ble
Gujarat High Court PIL No.219/2017
Copy of affidavit submitted by City
Hon'ble High Court
Copy of report after clarification
letter at Sr.No.4.
[7.4] Considering the pursis tendered by the respective
defendant nos. 1, 7 and 8 declaring closure of evidence, the trial court
has permitted the respective parties to place on record the written
submissions. Upon overall appreciation of the afforested evidence
being brought on record, the trial court has answered the issues
framed at Exh. 46 against the plaintiffs, thereby dismissing the suit of
the plaintiffs in toto with further direction of awarding cost of
Rs.25,000/- to be borne by the original plaintiffs, to be paid to the
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
respective defendants. The trial Court has answered the Issues at EXH.
46 as under :
1. In negative.
2. In negative.
3. In affirmative.
4. In negative.
5. As per final order.
Hence being aggrieved and dissatisfied with the aforesaid
impugned judgment and order passed by the learned City Civil Court,
the original plaintiffs- present appellants have approached this Court
in appeal.
[8.] Heard learned advocate Ms. Megha Jani appearing with
Mr. N.L. Ramnani, learned advocate on record for the appellants,
learned advocate Mr. Bhavin B. Thakar for the respondent no.8,
learned advocate Mr. Nandish Thackar for learned advocate Dr.
Abhisst K. Thaker for the respondent no.7,and learned AGP Mr. Shivam
Dixit for the respondent nos.3 and 4.
[9.] The order sheets indicate that, noticing the grounds
raised in the appeal, this Court, vide order dated 12.07.2024, had
issued notice for final disposal. The respondents have been duly
served with the court's notice, and the learned counsels have entered
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
their appearance.
[10.] The matter was pressed for urgent hearing at the instance
of the appellants on the ground that respondent no. 8 is proceeding
with the construction, and they are apprehending that third-party
rights may be created in respect of the constructed property on
survey no. 807, which may affect their case. Pending the appeal, an
application seeking production of additional evidence was moved,
whereby the appellant intended to produce or record the fresh
measurement of the reserved plot i.e. city survey no. 808 undertaken
by the City Survey Superintendent Office, Ahmedabad, upon
application dated 21.08.2024, preferred by the present appellants.
[11.] Reliance was also placed on the original copy of the map
obtained by the present appellant. The reference was also made to
the application dated 03.08.2024 addressed by the appellant-
association to the Office of City Survey Superintendent, with regard to
the alleged encroachment and the construction in progress, with a
request to take necessary action against the illegal construction. The
reliance was also placed on the reply dated 09.09.2024, given by the
City Mamlatdar & Executive Magistrate, Ahmedabad, thereby
informing that the record as sought for was not available in the office
of City Mamlatdar. The reference was also made to the application
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
dated 18.09.2024, requesting the Office of City Survey
Superintendent, Ahmedabad, seeking a report dated 09.09.2024.
[12.] By referring to the aforesaid documents, the learned
advocate appearing for the appellants has prayed for urgent hearing
of the application for stay. The aforesaid prayer of the learned
advocate for the appellants, was initially objected by the learned
advocates appearing for the private respondents, by contending that
the civil application for stay was though pending for consideration,
however, the court had proceeded to issue notice for final disposal. It
was, therefore, suggested to proceed with the final adjudication of
the appeal, to which, the learned advocate for the appellants had
accepted.
[13.] With the consent of learned advocates for the respective
parties, and noticing the fact that notice for final disposal was issued,
the matter was taken up for hearing peremptorily.
[14.] Learned advocate Ms. Megha Jani appearing with Mr. N.L.
Ramnani, learned advocate on record for the appellants, at the outset,
has invited attention of this court to the measurement sheet dated
23.08.2024 drawn by the maintenance surveyor of Sardarnagar
Township, upon their application, to point out that it has clearly
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
transpired on record that the owners of plot nos. 807 and 809 have
encroached upon the portion of city survey no. 808. She has further
submitted that the construction was permitted upon survey no. 807
pursuant to the order passed by this court in an Appeal from Order
preferred by the present appellants at appropriate stage, against the
order of the trial court passed on Exh. 5 application. This Court upon
consensus of respective parties being expressed with regard to
measurement of city survey no. 808 had directed the office of DILR to
undertake such exercise and accordingly in presence of respective
parties the Maintenance Surveyor had carried out measurement and
the deficit in the area of City survey no. 808 has come on record, which
has been placed for consideration by way of additional documents in
civil application for production.
[14.1] On merits, it was submitted that the learned Judge has
not properly appreciated the evidence on record and has arrived at an
erroneous conclusion, leading to dismissal of the suit preferred by the
present appellants. The learned advocate has further submitted that
in spite of cogent materials having been brought on record for
consideration, the learned Judge has failed to analyze such
documents before arriving at a conclusion that the plaintiffs have
failed to establish their case of encroachment over the land in
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
question. The attention of this court was invited to the voluminous
documents produced on record with a list of documents at Exhibit 4
and 64.
[14.2] It was pointed out that the statutory notice was issued by
the competent authority under Section 61 of the Gujarat Land
Revenue Code on 24.01.2018 by the Office of City Survey
Superintendent, Ahmedabad, addressed to the present respondents-
original defendant nos.5 to 8, directing them to remove the
encroachment to the extent of 116 sq. mtrs. and 30 sq. mtrs. out of
city survey no. 808. Such notice was produced on record at Exhibit 91.
[14.3] The reference was made to the statement of defendant
No. 9 recorded before the competent authority on 30.01.2018,
whereby not only the defendant had admitted the encroachment over
the land in question but had also prayed for regularization to the
extent of 86 sq. Mtrs. of land in question. The defendant had also
assured to clear the encroachment over the land in question.
According to the learned advocate, a similar notice was also issued in
case of adjoining land owner. The learned advocate has relied upon
the order dated 20.03.2019 passed by the Hon'ble Division Bench of
this court in Public Interest Litigation being Writ Petition (PIL) No. 219
of 2017 preferred by the appellant- association against the
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
respondents herein. In the aforesaid proceedings, after considering
the affidavit in reply filed by the respondent nos. 1 to 3 therein, the
present defendant nos.5 to 7 herein, the Hon'ble Division Bench was
pleased to dispose of the aforesaid P.I.L. in light of the aforesaid
affidavit assuring removal of encroachment.
[14.4] By referring to the aforesaid affidavit reproduced in the
said order, the learned advocate had submitted that the reference
was made to the very show cause notice dated 08.01.2018 issued by
the learned City Survey Superintendent, Ahmedabad under Section 61
of the Land Revenue Code, whereby the answering respondents were
called upon to remove encroachment from the subject land. In the
aforesaid affidavit, the respondents had submitted before the Hon'ble
Division Bench about compliance with the aforesaid show cause
notice. Thus, in light of the submissions made by the respondents,
wherein having voluntarily removed the encroachment over city
survey no. 808, the Hon'ble Division Bench was pleased to dispose of
the PIL having become infructuous. It was further pointed out that the
aforesaid order dated 20.03.2019 passed by the Hon'ble Division
Bench has been placed for consideration before the learned Judge at
Exh.146 on record. During the course of the argument, the learned
advocate had submitted that the aforesaid order was passed in
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
absence of the learned advocate for the appellants who was on sick
leave and therefore, subsequently, one Miscellaneous Civil Application
was preferred by the appellants praying for recall of the aforesaid
order disposing the PIL. The Hon'ble Division Bench, upon noticing the
grievance of the original petitioners, though vide order dated
26.04.2019, had refused to recall the order of disposing the main PIL;
however, had permitted the original petitioners to pursue the remedy
before the competent authority for the alleged unauthorized
encroachment, in accordance with law. Thus, it was submitted that
liberty was given to the petitioners to approach the competent
authority in case of any illegality being noticed. It was pointed out that
such order has been placed on record at Exh.111 before the learned
Judge in the trial court proceedings.
[14.5] By referring to the aforesaid orders, the learned advocate
had further submitted that thereafter, various letters were exchanged
with the Offices of the State Authorities, including the Office of City
Survey Superintendent, Ahmedabad and the Collector Office,
Ahmedabad, whereby relevant documents were sought for under the
Right to Information Act. However, the respondent- State Authorities
have refused to provide such documents on the ground of non-
availability of the relevant records, which includes the sanad of the
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
subject lands being city survey nos. 807 and 809 of the respective
respondents herein. The attention of this Court was invited to the
aforesaid communications including the communication dated
14.10.2022 addressed by the Officer attached with Sardarnagar
Township. Similar request was also made to the Office of the
Collector, Ahmedabad, who, vide communication dated 08.11.2017,
had refused to part with such documents on the ground of being part
of old record and not traceable.
[14.6] By referring to the aforesaid letters, the learned advocate
had contended that in absence of any cogent materials being traced
acknowledging the title of the respective respondents in the subject
lands and the entry being scrolled down in the inquiry register and
measurement book maintained by the Office of the City Survey
Superintendent, more particularly, reflecting the area of the
respective lands, the plaintiffs have rightly raised their case of
documents being forged and fabricated, more particularly, the sanads,
which have not been provided by any of the Government Offices. The
learned advocate has further pointed out that despite the aforesaid
situation prevailing on record, the respondents- State Authorities
have failed to take any action in this regard. To substantiate the
aforesaid submissions, the learned advocate had placed reliance upon
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
sheet no. 37, which is produced on record at Exh. 25, indicating the
original area of allotment of land to the respective allottees.
According to the learned advocate, the original area of land allotted
being city survey no. 807 was 214- 83-40 sq. mtrs. and 200- 40- 80 sq.
mtrs. in case of city survey no. 809, which has been subsequently
scrolled off by changing the area of land of allotment to the extent of
334- 87-50 sq. mtrs in case of city survey no. 807 and 335-50-00 sq.
mtrs in case of city survey no. 809. At the same time, the record
indicates that the original area of land bearing city survey no. 808 was
reflected as 00-09-09-32 sq. mtrs., whereas after correction it was
mentioned as 00-09-09 sq. mtrs. Thus, according to the learned
advocate, the only inference which can be drawn from the comparison
of the area of land of the subject lands leads to the conclusion that
the area of city survey no. 808 was reduced and was later on included
in city survey nos. 807 and 809 respectively.
[14.7] According to the learned advocate, pursuant to the
proceedings initiated by the appellant Society in the PIL, the Office of
the City Survey Superintendent had inquired into the aforesaid
grievance voiced by the association and after due verification of the
record as against the inspection of the subject lands on spot, had
come to the conclusion that the private respondents herein were in
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
unauthorized occupation of a portion of the reserved land of City
Survey no. 808 and therefore, had proceeded with issuance of show
cause notice under Section 61 of the Land Revenue Code. It was, at
that stage, the respondents herein having admitted to the
encroachment had assured before the court to remove such
encroachment and in light of their assurance and the change notice in
the final town planning scheme, the Hon'ble Division Bench had
proceeded to dispose of the writ petition by holding it as infructuous.
[14.8] The learned advocate further pointed out that once the
proceedings before this court had stand disposed within period of few
months, the Maintenance Surveyor attached with the Office of the
City Survey Superintendent, had opined that that on spot verification,
the measurement of the land is found in compliance with the record
and had therefore, concluded that no encroachment is found on city
survey no. 808. By referring to the aforesaid report produced on
record at Exh.114, it was noted that in fact the measurement of city
survey no 808 is found as 00-09-9-39 sq. mtrs. whereas, as per record,
it admeasures 0-09-0 sq.mtrs. It is, in light of the aforesaid
development in absence of any record of sanad being made available,
as reported by the different Government Offices, the cause of action
had arisen for the plaintiffs to approach the court of the learned Civil
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
Judge seeking appropriate directions. The appellant-original plaintiffs
apprehended that the Officers were acting hand in gloves with the
private respondents. Based on such a report from the Maintenance
Surveyor, the opinion was found by the Office of the learned
Additional Collector to proceed with the grant of development
permission of city survey no. 807.
[14.9] It was further pointed out that during the course of the
trial, an interim application seeking injunction was also prayed for,
which was allowed by the learned Judge vide order dated 14.02.2022
passed below Exh.5, thereby directing the defendants to maintain
status quo in respect of the land in question. The present respondent
No. 8, being aggrieved and dissatisfied with the aforesaid directions,
had approached this Court by preferring the Appeal from Order No. 77
of 2022. In the said proceedings, the respective parties have agreed
before this Court to call for fresh measurement of city survey no. 808,
to ascertain the status of any encroachment being made. Acceding to
their prayer, this Court, vide order dated 19.07.2022, had directed the
office of the DILR to measure the area of city survey no. 808.
[14.10 ] In light of the aforesaid direction, the Maintenance
Surveyor associated with the Office of the City Survey Superintendent
submitted a report to the Office of the Government Pleader vide
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
letter addressed on 18.08.2022. The copy of which has been availed
by the present appellants and has also been produced on record
before the trial court at Exhibit 75. As against the aforesaid report
dated 18.08.2022, on the same date, a second report was submitted
by the same Officer with a different opinion. The second report dated
18.08.2022 was also produced on record at Exh. 172. Noticing the
discrepancy, the explanation was sought for from the Maintenance
Surveyor, who had tendered his affidavit on record in the aforesaid
proceedings of Appeal from Order, whereby it was disclosed that in
light of the receipt of the sanad issued in favour of the private
respondents being received, the second opinion formed by him, was
as per the provisions of law. It was thereby reported that there is no
discrepancy in the measurement of the subject lands. However, it was
maintained that so far as city survey no. 808 is concerned, it
admeasures 909.32 sq. mtrs. instead of 919.32 sq. mtrs. as maintained
in the record. By referring to the aforesaid documents, learned
advocate had submitted that contradictory reports have emerged on
record from time to time, which are forming part of the record.
Indisputably, in all these reports, the Officers have consistently
maintained the deficit in the area of the subject land being city survey
no. 808 is concerned.
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
[14.11] To substantiate her case further, the learned advocate has
referred to the recent report dated 23.08.2024. She has, therefore,
submitted that looking to the aforesaid documents, the initial burden
about encroachment on survey no. 808 stood established and the
burden to establish the encroachment not being made on city survey
no.808 is concerned, the onus shifted upon the respondents, and it
was for the respondents to prove that they have not encroached on
the portion of city survey no. 808. However, the learned Judge,
without appreciating the aforesaid evidence and without assigning
any reasons, has arrived at a conclusion that the plaintiffs had failed to
prove their case of encroachment on city survey no.808. The learned
advocate for the appellants, has therefore, prayed to accept the
additional documents produced on record in the application seeking
production of additional evidence, and to read it as an evidence,
thereby to allow the prayer sought for in the suit by quashing and
setting aside the impugned order.
[14.12] On the issue of locus, learned advocate has
submitted that looking to the provisions of Order I Rule 8 of the Code
of Civil Procedure, 1908, read with Section 91 of the Code of Civil
Procedure, in light of the judgment of the learned Single Judge in the
case of Mahulbhai Bipinbhai Tamboli And Others Vs. Akshaybhai
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
Ramanbhai Thakkar & Others reported in 2019 SCC OnLine Guj
6902, the trial court ought to have taken a liberal approach as the
position of law stands that even pending the trial court, such
permission can be granted by the Court. She has further submitted
that once a civil wrong is brought to the notice of the court, the
present appellant-association whose members are the citizens of this
country and being residents of the lands of surrounding subject lands,
their legal right having been violated has a remedy to approach civil
court in the present form.
[15.] Per contra, Learned advocate Mr. Nandish Thackar
appearing for Dr. Abhisst K. Thaker, learned advocate on record for
respondent no.7, has vehemently objected to the aforesaid
submissions made by the learned advocate for the appellants. It was
submitted that defendant nos. 5 to 8 are in lawful possession of city
survey nos. 807 and 809. According to him, the sanad was issued in the
year-1971 in the name of the deceased father of the defendants, and
thereafter, a conveyance deed has also been executed by the
Administrator of Sardarnagar Township acknowledging the allotment
of aforesaid parcels of land in favor of the defendants. In fact,
according to him, since 1966, the lands are in possession of the
forefathers of the defendants. The attention of this Court was invited
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
to the prayer sought for in the plaint to contend that there is no
challenge to the sanad. However, in the pleadings, the plaintiffs have
disputed the fact of allotment of land to the extent of 334 sq. mtrs. by
making allegations that forged and fabricated documents of sanad
have been created in collusion with the Revenue Officers. The learned
advocate has pointed out that such an attempt on the part of the
plaintiffs, is nothing but clever drafting to come out of the period of
limitation.
[15.1] As regards the allegation made by the plaintiffs
about inaction on part of the respondent authorities is concerned, the
learned advocate has invited the attention of this Court to the Section
61 notice produced on record at Exh.19 as well as the order dated
20.03.2019 passed by the Hon'ble Division Bench in the PIL
proceedings, to contend that the Officers have, in fact, acted upon
their representation, which has ultimately resulted into disposal of the
PIL and having failed to get it restored, the plaintiffs have diverted to
the present proceedings. Such attempt on part of the appellants, is
nothing but an abuse of process of law. It was, therefore, submitted
that the assertions about the alleged encroachment being made by
the respondents is rightly not entertained by the learned Judge by
raising the issue of locus cause of action. In absence of any damages or
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
injuries being sustained by the plaintiffs, at this stage, the learned
advocate has pointed out that specific defence was raised in this
regard in the written statements, which led the court to frame the
issues accordingly.
[15.2] The learned advocate has placed heavy reliance upon the
report produced on record at Exh. 147 to point out that after the
disposal of the PIL, once again, the Maintenance Surveyor had carried
out spot inspection and on 03.08.2019, after verification of the record
as against the measurements done on the spot, has opined that the
area of the subject lands tally as per the record. It was further pointed
out that no challenge has been made to the aforesaid orders at the
instance of the original plaintiffs and such measurements having
attained finality, the Court had rightly concluded the issue of
encroachment.
[15.3] By referring to the proceedings of Appeal from
Order preferred at the instance of respondent no. 8 against the order
passed below Exh.5, it was pointed out that the order of this Court
was restricted to verification of the area of city survey no. 808 only.
However, the attempt is now made by the original plaintiffs-
appellants herein to contend that two contradictory reports in this
regard, have been placed on record. According to the learned
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
advocate, in light of the affidavit produced on record by the
Maintenance Surveyor, it has been justified by the Officer and as such
there does not lie any discrepancy in the reports, thereby brushing
aside the contradictions.
[15.4] Learned advocate has, therefore, submitted that as per
final report, it has clearly transpired on record that city survey no. 808
has not been encroached upon by either of the plot holders of city
survey nos. 807 and 809. On the issue of locus and cause of action, the
learned advocate referred to the pleadings of the plaint, to point out
that at no stage, it was mentioned that the suit was to be treated as
being filed under Section 91 of the Code of Civil Procedure. In the
pleadings, there is no whisper about public nuisance. He has,
therefore, submitted that not every encroachment is to be treated as
a public nuisance, as there are instances day in day out, where the
encroachments have been regularized by the State Authorities. It was
submitted that has it been a case of a public garden being developed
and by encroachment there is some hindrance in the enjoyment of the
public place, the same could have been a subject matter to be
considered under Section 91 of the Code of Civil Procedure.
[15.5] With regard to the judgment of the learned Single
Judge of this Court, as relied upon, the learned advocate has tried to
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
distinguish by submitting that it was at the stage of Order VII Rule 11
of the Code that the Court had held that during pendency of suit, the
necessary permission can be applied for and the same can be
considered by the court. Whereas, in the facts of the case, all
throughout, the original plaintiffs had not applied for such permission
of Court. It is for the first time they have made such a request at the
appeal stage. He has, therefore, submitted that such permission
cannot be permitted to be taken at the stage of appeal, which defeats
the valuable rights of the defendants as regards the maintainability of
the suit itself.
[15.6] By referring to the grounds raised in the memo of
appeal, the learned advocate has submitted that the original plaintiffs
have now tried to project a case that they have equal rights in the
subject land. In fact, what is actually challenged, looking at the tenor
of the plaint, is the sanad issued in favor of the defendants, which,
according to him, has become time-barred beyond the prescribed
period of limitation. He has, therefore, objected to the entertaining of
the present appeal.
[16.] Mr. Bhavin Thakar, learned advocate for the respondent
no. 8, has placed on record the copy of property cards to indicate that
he is a bona fide purchaser of the subject land bearing city survey no.
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
807 by register sale deed dated 31.01.2019. According to him, the
respondent no. 8 was not aware about any proceedings being
pending. It was only realized when his application seeking
development permission was considered by the Ahmedabad Municipal
Corporation, whereby he was called upon to tender an affidavit
thereby undertaking to proceed with the development subject to the
outcome of the suit proceedings. It was further submitted that being
aggrieved and dissatisfied with the order of status quo being granted
by the court below on Exh.5, the present respondent no. 8 had
approached in appeal by way of Appeal from Order No. 77 of 2022.
The attention of this court was invited to the order dated 08.09.2022
passed by this Court (Coram : Hon'ble Mr.Justice Hemant M.
Prachchhak) whereby the respondent no.8 was permitted to proceed
with construction subject to the outcome of the proceedings, and at
the same time, the trial court was directed to expedite the hearing of
the suit proceedings.
[16.1] Learned advocate Mr. Bhavin Thakar had adopted the
arguments made by learned advocate Mr. Nandish Thackar for the
respondent no. 7 and has submitted that the present respondent no. 8
is facing SARFAESI proceedings and is financially not well, having
invested his hard-earned money by putting a construction, this court
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
may not interfere with the impugned judgment and order, where the
locus of the strangers to the proceedings has rightly been considered
by the trial court. During the course of the hearing, this Court had
inquired from the learned advocate with regard to any third-party
rights being created in respect of the constructed property, whereby,
at the end of the conclusion of the arguments, learned advocate has
placed on record two registered agreements to sell, whereby the
present respondent no. 8 has agreed to sell two of the premises of the
constructed properties of city survey no. 807, which has been
permitted to be taken upon record.
[17.] Learned Assistant Government Pleader Mr. Shivam Dixit
has appeared on behalf of the respondent nos. 3 and 4- State
Authorities. Pursuant to the request made by this Court, the available
record with respect to the subject lands has been sought to be placed
on record by way of an affidavit filed in the First Appeal. Considering
the fact that the aforesaid documents are relevant for the purpose of
deciding the controversy involved and in absence of any objection
being raised by the learned advocates for their respective parties, the
same have been permitted to be taken upon record.
[17.1] Learned Assistant Government Pleader, under
instructions of the officers namely Ms. Avani Chauhan from City
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
Survey Sub-2, Ahmedabad and Mr. Dhruvang Soni, Deputy Mamlatdar
(representative of Mamlatdar Office, Asharva), has referred to the
aforesaid documents, which mainly includes the extract of the inquiry
register, the measurement book, the copy of sheet no. 37 and the
copy of the sanad of city survey no. 809. Noticing the aforesaid
documents, this court, while perusing the original record, found that
the original sanad of city survey no. 807 has not been brought on
record. In other words, neither the respondent no. 8 nor the State
Authorities have placed on record the original sanad of city survey no.
807 is concerned. In such circumstances, this Court had inquired from
the learned advocates appearing for the respective parties. However,
they had failed to produce on record the original sanad of city survey
no. 807. In absence of the sanad being placed on record, the learned
advocate for the respondents has placed heavy reliance upon the
conveyance deed. By referring to the aforesaid conveyance deed as
against the record produced by the office of City Survey
Superintendent, in the present appeal, learned Assistant Government
Pleader had contended that the area corrected as per the survey
settlement way back in the year 1966 matches with the area reflected
in the sanad by city survey no. 809 and the conveyance deed of survey
nos. 807 and 809. In other words, the office of City Survey
Superintendent had supported the case of the defendants. In such
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
circumstances, this Court had inquired about the contradictory reports
brought on record by the original plaintiffs- Association with regard to
the area of the subject lands. Learned Assistant Government Pleader
was unable to explain the discrepancy or rather the deficit in the area
of reserved government land i.e. city survey no. 808. However, under
instructions, he had prayed to issue appropriate directions to carry out
a fresh survey and had assured to submit the report in this regard
before the next date of hearing. The Court, having invested with the
hearing of the matter, has not entertained such prayer of the learned
Assistant Government Pleader. During the course of the hearing, it has
transpired that the Officers, who have remained present in the
proceedings, were unable to meet with the queries of the Court as
regards the different reports being brought on record of Maintenance
Surveyor/ City Survey Superintendent Office. Learned Advocate
appearing for respondent no.2 had not made any submissions.
No submission of learned
[18.] Per contra, in re-joinder, learned advocate Ms. Megha Jani
appearing for the appellants has strongly objected to the submissions
made by learned advocates for the respective parties. She has pointed
out that indisputably the measurement of city survey no.808 is
reported to be 909.32 sq. mtrs. as is also evident from the copy of the
property card produced on record. She has also pointed out that it is
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
an admitted position that city survey no.808 is reserved for public
purpose i.e. earmarked to be used as a garden. She has, thereafter,
pointed that in the past, the encroachment has been made by the
adjoining land owners of city survey nos. 807 and 809. The sanad of
city survey no.807 has not come on record. The original plaintiffs have
corroborated their case of issuance of forged and fabricated sanad of
city survey no.809, inasmuch as the inquiry register and the
measurement book, the original entries have been tampered as being
scrolled of and increased area of city survey nos.807 and 809 being
corrected. As against the area of city survey no.808 being corrected,
the competent authorities have chosen not to appear and explain
before the trial court the discrepancies noted in the different reports
produced on record.
[18.1] According to her, the property card produced at page
no.153 has not been admitted to be read as evidence. Thus, no cogent
material has been brought on record by the respondents to establish
their case. The rajachitthi produced on record at Exh.77 in respect of
city survey no.807 is based on a false declaration being made by the
respondent no.8 by stating that no litigation is pending. According to
her, respondent no.8 cannot be treated as a bona fide purchaser as
the affidavit filed before the Corporation mentions that such
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
construction shall be subject to outcome of proceedings. On the other
hand, the Corporation, though being joined as a defendant, chose not
to appear before the trial court. In such circumstances, the learned
Judge committed serious error in not granting the relief of setting
aside the opinion no. RHB/ ATC/AMC / opinion/ c.s. No. 807 S.R./6/18
vashi 751/18, dated 23.08.2019 of the Assistant Collector, based on
which, the Corporation had granted permission to construct on the
subject land.
[18.2] As regards the controversy of two contradictory reports
dated 18.08.2022 is concerned, the learned advocate had pointed out
that on bare comparison of the aforesaid two reports, the contents of
the previous pages remains the same, whereas in the new report, the
opinion has been formed merely on the basis of the sanad being
produced to come to a conclusion that the area of the subject land
matches as per the record whereas the position remains that no
original sanad has been produced by the plot holder of city survey
no.807 is concerned. She had, therefore, submitted that it clearly goes
to suggest that the respondent-State Authorities are acting hand in
gloves with the plot holders. She had, once again, reiterated that the
discrepancy in the reports submitted by the Maintenance Surveyor of
the Office of City Survey Superintendent, demonstrates the manner
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
in which different stances are being taken at different stages. At the
stage of pending the proceedings before the Hon'ble Division Bench,
it was reported that the encroachment was noticed and the
appropriate actions in this regard under Section 61 were undertaken.
Once the proceedings stood disposed immediately within a few
months, it was reported that there is no encroachment of city survey
nos.807 and 809, on the contrary the area of city survey no.808 is
found more as compared to the area reflected in the record. In such
circumstances, there was a cause of action for the appellant-
association to approach the Hon'ble Civil Court. She had, once again,
relied upon the report submitted recently by the Maintenance
Surveyor of the respondent-Office, and has urged this Court to allow
such production of additional documents for consideration before the
trial court and to remand the matter back to the trial court. She had
further submitted that no reasons have been assigned by the learned
Judge while considering the issue of encroachment and that according
to her superficial reasons have been assigned to dismiss the suit,
which calls for interference in the present appeal.
[19.] Having heard the learned advocates for the respective
parties at length and having perused the impugned judgment and
order, noticing the controversy involved, this Court had called for
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
record and proceedings at the end of the conclusion of arguments of
learned advocates. The record and proceedings have been closely
examined, in light of the submissions made by learned advocates for
the respective parties.
[20.] Looking to the submissions made, the questions, which
falls for consideration before this Court in the present appeal, are:
"(I) Whether the learned Judge committed an error in
not entertaining the suit, in view of Section 91 of the
Code of Civil Procedure, 1908 and Section 34 of the
Specific Relief Act, 1963?
(II) Whether the learned Judge committed any error in
finding that the plaintiff had no locus standi and no
cause of action to file the suit and to seek reliefs as
prayed for?
(III) Whether the learned Judge committed any error in
finding that the plaintiff had failed to prove that there
is encroachment made by defendant nos.5 to 8 on city
survey no.808."
[21.] In the opinion of this Court, the issue of entertaining of
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
the suit of such nature, in light of Section 91 of the Code of Civil
Procedure, 1908 as well as Section 34 of Specific Relief Act, 1963, vis-
a-vis the locus of the appellant-association and the cause of action to
file the suit for such prayer, are of preliminary nature which are
required to be dealt with at the first instance before examining the
merits of the case.
[22.] Section 91 of of the Code of Civil Procedure, 1908 and
Section 34 of Specific Relief Act, 1963:
Before examining the aforesaid issues, it would be appropriate to
consider the prayer sought for in the original suit. The present
appellants who are the original plaintiffs have preferred suit for
seeking declaratory relief against the defendants, essentially
challenging the opinion dated 23.08.2019 forwarded by the learned
Assistant Collector, Ahmedabad, defendant nos.3 and 4 to defendant
no.1-Corporation has false and illegal. The prayer is also sought to
direct the defendant nos.5 to 7 and defendant no.8, occupants and
owners of city survey no.807 and 809 respectively to remove their
encroachment. Insofar as portion of city survey no.808 is concerned,
the plaintiffs have also prayed for injunction against the defendant
nos.1 and 2 from sanctioning development plan in respect of city
survey nos. 807 and 809 as well as have prayed for restraining the
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
defendant nos.5 to 7 and defendant no.8 from developing the
aforesaid lands by raising any construction. In light of the prayer
sought for in the suit proceedings, the locus of the appellants being
questioned indisputably, the plaintiff-association consists of members
who are residents of Sardarnagar Township. It is also undisputed that
city survey no.808 is forming part of Sardarnagar Township and it is
reserved for garden purposes in the master plan as well as in the final
town planning scheme. Hence, the subject land is admittedly a public
property which is accessible to the public at large.
[23.] Looking to the controversy raised in the present appeal as
rightly pointed out by learned advocate for the respondent nos. 5 to 7,
the specific issue has been framed by the trial court in this regard.
From the pleadings though the original plaintiffs-association has not
made reference to the term 'public nuisance'. However, it cannot be
ignored that the core issue raised is with regard to encroachment
made by the private respondents on a public property. This Court had
inquired from the learned advocates for the respondents-plot holders
as to whether the encroachment made on a public property would
amount to a public nuisance or not, to which, learned counsels for the
respective respondents had fairly conceded that the encroachment
made on public property does fall in the category of public nuisance.
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
However, they have tried to advance the argument that in the facts of
the case, where no actual hindrance is caused to the plaintiff-
association, it does not fall in the category of public nuisance. The
term 'public nuisance' has not been defined in the Code of Civil
Procedure. As per Section 268 of the Indian Penal Code, the term
'public nuisance' means a person is guilty of public nuisance who does
any act or is guilty of any illegal omission which causes any common
injury, danger or annoyance to the pubic or to the people in general
who dwell or occupy property in the vicinity.
[24.] Interestingly, the peripheral note of Section 91 needs to
be taken into consideration at this stage which reads as "public
nuisance and other wrongful acts affecting the public." Thus, the
Courts are vested with the powers to consider other wrongful acts
beside strictly speaking public nuisance which may cause distress and
bother to people in general.
[25.] Certainly, plain reading of sub-section (1) of Section 91 of
the Code, mandates that the suit is to be initiated by two or more
individuals on permission of Court. However, reading of proviso 2 of
Section 91 does permit any individual to approach the civil court in
case of any injury or damage caused to the person. The issue locus
standi is also required to be addressed at this stage as a preliminary
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
issue. The learned Judge has come to the conclusion that the plaintiff
has no right and interest in the subject lands. Hence, no legal right of
plaintiff-Association has been violated which gives them any cause of
action to seek such declaratory relief, in view of Section 34 of the
Specific Relief Act. The learned Judge has also noted that alternatively
even in suit preferred under Section 91 of the Code of Civil Procedure,
1908, it was mandatory to take approval of the Advocate General or
the permission of the Court was required to be sought for before
instituting a suit of such nature. The learned Judge has further noticed
that the suit is not filed under Section 91 of the Code of Civil
Procedure nor any permission has been sought for in case it is to be
treated for public nuisance. Hence, the learned Judge has arrived at a
conclusion that the suit is filed without any right or authority .
[26.] In the opinion of this Court, the aforesaid findings and the
reasons assigned by the learned Judge do not match the spirit of
Section 91 of the Code. The view taken by the learned Judge
undermines the scope of Section 91 of the Code. The aforesaid issue
has fallen for consideration before the Hon'ble Madras High Court in
the case of Munuswami v. Kuppusami, reported in AIR 1939 Madras
691, wherein the Court held that any individual member of the public
was entitled to maintain a suit for establishing a public right of way
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
and for removal of obstruction which constituted a public nuisance
without obtaining sanction of the Advocate General under Section 91
of the Code of Civil Procedure and the plaintiffs were, thus, entitled to
maintain a suit.
[27.] A similar view has been taken by the Kerala High Court in
the case of Saina vs. Konderi reported in 1984 KLT 428, whereby the
Court held that a citizen has a right to institute a suit if a person
constructs a building in violation of the Municipalities Act and Rules. It
was held as follows:-
"Having regard to the peculiar conditions relating to the
enforcement of well conceived municipal measures, it is a
liberal view that has to be preferred and the restricted
view would be a definitely retrograde step. A citizen has a
right to institute a suit with a view to ensure effective
implementation of the Municipal Regulations, such as the
Buildings Rules in the present case, even in the absence of
a specific personal injury to the person suing".
[28.] The aforesaid decisions have followed by the learned
Single Judge of this Court in the case of Mahulbhai Bipinbhai
Tamboli And Others Vs. Akshaybhai Ramanbhai Thakkar & Others
reported in 2019 SCC OnLine Guj 6902 as relied upon by the learned
advocate for the appellants, it would be fit to reproduce the relevant
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
observation of this Court, which read as under:
"34. Having heard the learned counsel appearing
for the parties and having gone through the
materials on record, the only question that falls
for my consideration is whether the courts below
committed an error in rejecting the plaint.
35. Let me first consider the substantial question
of law with respect to Order 1 Rule 8 CPC. Order 1
Rule 8 CPC reads thus:
"Order 1 Rule 8:-. One person may sue or defend
on behalf of all in same interest
(1) Where there are numerous persons having the
same interest in one suit,--
(a) one or more of such persons may, with the
permission of the Court, sue or be sued, or may
defend such suit, on behalf of, or for the benefit
of, all persons so interested;
(b) the Court may direct that one or more of such
persons may sue or be sued, or may defend such
suit, on behalf of, or for the benefit of, all persons
so interested.
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
(2) The Court shall, in every case where a
permission or direction is given under sub-rule (1),
at the plaintiff's expense, give notice of the
institution of the suit to all persons so interested,
either by personal service, or, where, by reason of
the number of persons or any other cause, such
service is not reasonably practicable, by public
advertisement, as the Court in each case may
direct.
(3) Any person on whose behalf, or for whose
benefit, a suit is instituted, or defended, under
sub-rule (1), may apply to the Court to be made a
party to such suit.
(4) No part of the claim in any such suit shall be
abandoned under sub-rule (1), and no such suit
shall be withdrawn under sub-rule (3), of rule 1 of
Order XXIII, and no agreement, compromise or
satisfaction shall be recorded in any such suit
under rule 3 of that Order, unless the Court has
given, at the plaintiff's expense, notice to all
persons so interested in the manner specified in
sub-rule (2).
(5) Where any person suing or defending in any
such suit does not proceed with due diligence in
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
the suit or defence, the Court may substitute in his
place any other person having the same interest in
the suit.
(6) A decree passed in a suit under this rule shall
be binding on all persons on whose behalf, or for
whose benefit, the suit is instituted, or defended,
as the case may be. Explanation.--For the purpose
of determining whether the persons who sue or
are sued, or defend, have the same interest in one
suit, it is not necessary to establish that such
persons have the same cause of action as the
persons on whose behalf, or for whose benefit,
they sue or are sued, or defend the suit, as the
case may be."
36. Section 91 of the CPC reads thus:
"91. Public nuisances and other wrongful acts
affecting the public.-(1) in the case of a public
nuisance or other wrongful act affecting, or likely
to affect, the public, a suit for a declaration and
injunction or for such other relief as may be
appropriate in the circumstances of the case, may
be instituted,-
(a) by the Advocate General, or
(b) with the leave of the Court, by two or more
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
persons, even though no special damage has been
caused to such persons by reason of such public
nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit
or otherwise affect any right of suit which may
exist independently of its provision".
37. The plaintiffs in their pleading in the plaint has
made themselves very clear that the dispute is
directly affecting them and also the public interest
and, in such circumstances, the suit has few
ingredients of Order 1 Rule 8 of the CPC too. Thus,
this is not a case in which the plaintiffs are
absolutely aliens and have nothing to do with the
grievance redressed against the defendants. Their
case is that the area in which they are residing is
declared as a residential zone and the defendant
No.1 having purchased a plot in the very same area
could not have utilized it for any other purpose
other than the residence. The case of the plaintiffs
is that the Corporation could not have granted
permission to the defendant No.1 to put up a
commercial building.
38. I am of the view that as the plaintiffs
themselves are affected by the action of the
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
defendants, the plaint could not have been
rejected on the ground of alleged non-compliance
of the provisions of Order 1 Rule 8 of the CPC. In
the aforesaid context, I may refer to and rely upon
a decision of the Supreme Court in the case of Hari
Ram vs. Jyoti Prasad & Anr., AIR 2011 SC 952. I may
quote the relevant observations:
"20. The next plea which was raised and argued
vehemently by the learned senior counsel
appearing for the appellant was that the suit was
bad for non compliance of the provisions of Order
I Rule 8 of the CPC. The said submission is also
found to be without any merit as apart from being
a representative suit, the suit was filed by an
aggrieved person whose right to use public street
of 10 feet width was prejudicially affected. Since
affected person himself has filed a suit, therefore,
the suit cannot be dismissed on the ground of
alleged noncompliance of the provisions of Order I
Rule 8 of the CPC.
21. In this connection, we may appropriately refer
to a judgment of the Supreme in Kalyan Singh,
London Trained Cutter, Johri Bazar, Jaipur Vs. Smt.
Chhoti and Ors. reported in AIR 1990 SC 396. In
paragraph 13 of the said judgment, this Court has
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
held that suit could be instituted by
representative of a particular community but that
by itself was not sufficient to constitute the suit as
representative suit inasmuch as for a
representative suit, the permission of Court under
Order I Rule 8 of the CPC is mandatory.
22. In paragraph 14 of the said judgment, it was
also held that any member of a community may
successfully bring a suit to assert his right in the
community property or for protecting such
property by seeking removal of encroachment
therefrom and that in such a suit he need not
comply with the requirements of Order I Rule 8
CPC. It was further held in the said case that the
suit against alleged trespass even if it was not a
representative suit on behalf of the community
could be a suit of this category.
23. In that view of the matter and in the light of
the aforesaid legal position laid down by this
Court, we hold that the suit filed by the
plaintiff/respondent No. 1 was maintainable. "
39. So far as section 91 of the C.P.C. is concerned,
it deals with "public nuisance" which is the
combination of a civil and criminal characters and
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
no mention need be necessary that under both the
civil and criminal forums, the public nuisance could
be dealt with for actions and prosecutions.
"Nuisance" is an obstruction, risk or injury caused
to any person and if the same is caused in a public
place it becomes "public nuisance". Such a
wrongful act affecting the general public,
according to Section 91 CPC, could be challenged
or testified filing a suit for declaration and
injunction and for such other reliefs by the
Advocate General or with the leave of the Court by
two or more persons though no special damage
has been caused to such persons by reason of such
public nuisance.
40. However, clause (2) of Section 91 C.P.C. makes
it clear that this Section would not limit or
otherwise affect any right of suit which may exist
independently of its provisions thereby meaning
that if any individual gets affected by such public
nuisance being caused, he or she, would have the
same right to file a suit for declaration and
injunction and for mandatory injunction and
therefore since the plaintiffs are residing in the
same area or rather the society, they are
personally affected by the unlawful construction
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
put up by the defendant No.1 of a commercial
nature. It cannot be said that no individual will
have the right to question the validity of such a
wrongful act alleged to have been committed on
the part of the defendants in view of the fact that
section 91 CPC does not create a bar on any
individual from resorting to the Court for the
relief in such matters and, therefore, this
substantial question of law regarding the capacity
of the plaintiffs to maintain a suit of this character
has to be decided only against the defendants.
41. In Saina v. Konderi (1984 KLT 428), it was held
that a citizen has a right to institute a suit if a
person constructs a building in violation of the
Municipalities Act and Rules. It was held as
follows:-
"Having regard to the peculiar conditions relating
to the enforcement of well conceived municipal
measures, it is a liberal view that has to be
preferred and the restricted view would be a
definitely retrograde step. A citizen has a right to
institute a suit with a view to ensure effective
implementation of the Municipal Regulations, such
as the Buildings Rules in the present case, even in
the absence of a specific personal injury to the
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
person suing".
42. I may refer to and rely upon one decision of
the Kerala High Court in the case of D.L. Walton vs.
Cochin Stock Exchange Ltd. & Ors., AIR 1995
Kerala 106. P.K. Balasubramaniyan, J. (as his
Lordship then was) has very succinctly explained
the provisions of Order 1 Rule 8 and section 79 of
the CPC. I quote the relevant observations:
" The present suit is filed by the plaintiff claiming
to be a recognised Stock Exchange to enforce a
right in itself to prevent another organisation
from carrying on a similar business within the area
of its operation. The suit is filed on the basis that
by attempting to carry on similar operation within
the area of Ernakulam District the defendants are
violating the provisions of the Securities Contracts
(Regulation) Act and thereby interfering with the
exclusive right of the plaintiff and that therefore
the defendants are liable to be restrained by a
decree of injunction from so doing. It cannot be
said that the plaintiff is only one among the
numerous persons having an interest in the
subject-matter of the suit. I am not therefore in a
position to accept the argument based on Order 1,
Rule 8 of the Code of Civil Procedure to the effect
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
that the plaintiff ought to have obtained sanction
under that provision so as to enable it to maintain
the suit. The plaintiff is an incorporated company
under the Indian Companies Act and is suing
another incorporated company under that Act and
its Directors. In my view there is no impediment in
the plaintiff maintaining the suit for itself without
recourse to Order 1, Rule 8 of the Code of Civil
Procedure. It is also not possible to accept the
argument that when the plaintiff is seeking to
restrain the defendants from running a parallel
exchange they are claiming an interest in common
with others within the meaning of Order 1, Rule 8
of the Code of Civil Procedure. The argument
based on Section 91 of the Code of Civil Procedure
is also to some extent sought to be linked with the
contention based on Order 1, Rule 8 of the Code
of Civil Procedure. According to the learned
counsel when the plaintiff seeks to prevent the
defendants from carrying on their business they
are in fact seeking a relief in respect of an act that
is likely to affect the public. In my view there is no
question of any public right involved in the nature
of the present suit and therefore Section 91(1) of
the Code of Civil Procedure will also have no
application. On the other hand it appears to me
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
that even assuming that Section 91(1) of the Code
Civil Procedure is attracted this would be a case
where the plaintiff itself may have a right of suit
existing independently of Section 91(1) of the
Code of Civil Procedure. I am of the view that in
any view this will be a case coming under Section
91(2) of the Code of Civil Procedure and the
argument based on Section 91(1) of the Code of
Civil Procedure and Order 1, Rule 8 of the Code of
Civil Procedure have only to be overruled."
43. Thus, his Lordship took the view that even
assuming that section 91(1) of the CPC is
attracted, that by itself, would not come in the
way for the plaintiff to institute the suit
independently of section 91(1) of the CPC.
44. I may also refer to and rely upon a decision of
the Madras High Court in the case of S.K.
Murugesa Mudaly vs. Baruda Arunagiri Mudaly &
Ors., reported in AIR 1951 Madras 498, wherein, in
para-6, his Lordship observed as under:-
"6. It will be seen, however, on a careful scrutiny of
that decision that in holding as it does that it is
open to an individual member of the public to
maintain a suit for removal of obstruction to a
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
public highway which constitutes a nuisance
without the sanction of the Advocate-General
under Section 91, Civil P. C., and even without
proof of special damage, it founds itself upon a
prior decision--that of Wadsworth J. to the same
effect reported in Munuswami v. Kuppusami, I. L.
Rule (1939) Mad. 870 : (A.i.r. (26) 1939 Mad. 691).
The case before Wadsworth J. was not itself a case
of a suit instituted under Order 1, Rule 8, Civil P.
C., but only in the individual capacity of the
plaintiff who was entitled to maintain the suit.
After all, the provision of Order 1, Rule 8, is only
an enabling provision, and there is no reason why
merely because the plaintiff happens to share the
same inconvenience by the obstruction to the
highway as other people do he should be debarred
of his right to seek relief, when once in view of the
Privy Council decision in Manzur Hasan v. Maham-
mad Zaman, 47 ALL. 151 : (A. I. R. (12) 1925 P. C.
36) it is realised that the distinction between
indictment and action in regard to what is done on
a highway which is a distinction peculiar to English
law ought not to be applied to India. I am of
opinion therefore that even if the damage
suffered by the plaintiff in the present case is one
which is shared by other residents of the same
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
locality he is still entitled to maintain the present
suit. I am also of opinion that the ruling in
Subbamma v. Narayanamurthi, 1949-1 M. L. J. 56 :
(A. I. R. (86) 1949 Mad. 634) governs the present
case in so far aa it lays down that even if proof of
special damage is otherwise necessary in a case of
this kind, it becomes unnecessary because the
wrong complained of in the present case does not
constitute a public nuisance. As pointed out in that
decision, once it is appreciated that infringement
of the rights of the residents of a village in respect
of a public street does not constitute a public
nuisance in the sense of a nuisance caused to the
public in general, such infringement can well be
sued upon by any member of the public who
suffers from the wrong complained of. The case
cannot, in that view, be regarded as one of public
nuisance within Section 91, Civil P. C., and the
sanction of the Advocate-General accordingly is
not required. Nor is it necessary to compel a
person that suffers from such wrong to have
recourse to the procedure prescribed by Order 1,
Rule 8, which, as already stated, is after all only an
enabling and not a compulsory provision."
45. Let me proceed on the footing that the
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
provisions of Order 1 Rule 8 of the CPC are
applicable to the case on hand and the plaintiffs
failed to obtain appropriate permission of the
court to institute the suit. Ordinarily, if the
provisions of Order 1 Rule 8 CPC are applicable,
the plaintiff is obliged to prefer an application
seeking appropriate permission from the Court to
institute the suit. If any such application is
preferred, then it is the duty of the Court to
dispose it of. However, the important principle of
law which the courts below missed to consider is
that the omission to do so can be remedied at any
stage during the trial of the suit. Ordinarily, the
leave under Order 1. Rule 8 should be sought and
its grant considered when the suit is instituted.
But the omission to obtain leave at the
commencement of the suit cannot serve as a
reason for rejecting the plaint. No question of
jurisdiction is involved. Leave can be granted at
any stage after the suit has been filed. That was
the view taken by a Full Bench of the Bombay High
Court, in Fernandez v. Rodriques, (1897) JLR 21
Bom 784 (FB), and that view was followed by the
Allahabad High Court in Baldec Bhartbi v. Bir Gir,
(1900) ILR 22 All 269, and by the Madras
High .Court in Chennu Menon v. Krishnan, (1902)
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
ILR 25 Mad 399. It was reaffirmed by the Bombay
High Court in Hubli Panjarapole v. Saraswateyya
Bayappa Kala Ghatki, AIR 1953 Bom 334. The rule
has been extended even to appeals : Mookka Pillai
v. Valavanda Pillai, AIR 1947 Mad 205.
46. I may quote the relevant observations made by
Justice P.B. Gajendragadkar (as his Lordship then
was) in Hubli Panjarapole (supra) as under:
"(4) It is true that ordinarily leave has to be and
should be obtained under Order 1, Rule 8, at the
time of, the institution of the suit. Where there are
numerous persons having the same interest in one
suit, the Court should be invited at the outset to
give leave to bring the suit in a representative
capacity. If there are numerous defendants having
the same interest, leave has to be obtained to
bring the suit against them in a representative
capacity, and when leave is granted, notice of the
institution has to be issued to all persons as may
be directed by the Court. Even so, it cannot be
disputed that the suit would not be dismissed only
on the ground that the requisite leave has not
been obtained under Order 1, Rule 8, at the
commencement of the proceedings; it would be
opon to a party to apply for such leave and to take
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
such further action as is required by Order 1, Rule
8, even during the pendency of the suit. In --
'Fernandez v. Rodrigues', 21 Bom 784 (D), a Full
Bench of this Court has held that the permission
requisite under Section 30 of the Code of 1882,
which corresponds to Order 1, Rule 8, can be
granted even after the suit was filed. The point
which was raised before the Full Bench was
whether there was jurisdiction in the Court to
entertain a suit where no leave has been obtained
previously under Section 30 of the old Code, and
the Full Bench held that there was no question of
jurisdiction involved and it would be open to the
Court to grant leave even after the suit is filed.
Incidentally we may refer to the statement made
by Mr. Justice Tyabji in his judgment wherein the
learned Judge observed (P. 786) :
"It is really a question of adding parties (when
leave is granted under the said section).
47. The object of Rule 1 Rule 8 is only to prevent
multiplicity of litigations. Because when persons
seek to represent a particular community or
association, the right and interest of others have
to be taken into account and that is why
publication is ordered and permission is also
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
sought for to represent others. In such cases,
there is a chance for multiplicity of litigation by
persons who wants to sue others, instead of the
persons who seek to represent others. In a case of
this nature where the plaintiffs are themselves
interested and are affected parties, there was no
necessity to file an appropriate application
seeking permission to obtain leave of the Court to
file the suit in a representative capacity.
48. Thus, I am convinced that the plaint could not
have been rejected on the ground of
noncompliance of the provisions of Order 1 Rule 8
of the CPC."
[29.] Applying the aforesaid legal principles in the facts of the
case, in the opinion of this Court, the learned Judge once having sense
of the grievance voiced with regard to the public nuisance and the
representative suit being preferred by the appellant-association, it
was incumbent upon ld. Judge to give an opportunity to the original
plaintiff- association to seek permission with regard to the suit filed
seeking actions with regard to public nuisance. The Court, being
guardian of rule of law, cannot ignore the violation of provisions of
law by taking technical stance, more particularly, when the citizens
approached the Court demonstrating the encroachment on public
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
property. As regards relief sought in the nature of declaratory in
nature, the plaintiffs being citizens of this country and more
particularly, the residents of the same society have established their
right to use the reserved c.s. No. 808 for garden purposes. It is also
evident from their evidence their aforesaid right was jeopardized in as
much as the encroachment is alleged by the surrounding plot holders
of c.s.no. 807 and 809. The different survey reports produced on
record at Exh. 115 and 119 clearly indicates that the deficit area of
c.s.no. 808 has been encroached by occupants and allottees of c.s.no.
807 and 809. It further evident from the letters addressed by the
plaintiff association on 13.08.2019 (Exh. 118) and 19.09.2019 (Exh.
117 ) , the grievance is voiced about corrections being made in the
original survey report dated 13.03.2019 as against the copy of survey
report issued on 30.07.2019. Admittedly, the deficit in the area of city
survey no.808 has clearly transpired on record, the burden was upon
the private respondents to demonstrate and to prove their case that
they were in lawful occupation of the area allotted and earmarked,
the occupants and the owners of city survey nos.807 and 809 being
immediately adjacent to the city survey no.808 owned, the obligation
sharing the boundaries owned an explanation in this regard.
[30.] In the opinion of this Court, the original plaintiffs having
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
demonstrated the deficit in the area of reserved government plot city
survey no.808, the onus had shifted upon the defendants to
demonstrate and to explain as to how they have not encroached.
[31.] Having opined so, this court also notices that no reasons
has been assigned by the learned Judge while analysing the issue of
encroachment. It is a settled legal position of law that reasons are the
heart of the judgment. A non speaking order not dealing with the
relevant facts of the case and the evidence brought on record in light
of the submissions made and the relevant provisions of law has always
been deprecated in various judicial pronouncements. As rightly
pointed out by learned advocate for the appellant, voluminous
documentary evidence has been brought on record, discrepancies are
highlighted in the measurement of the subject lands which is evident
on bare comparison of the different reports. The office of city survey
superintendent owns an explanation. None of the above aspects has
been dealt with by the learned Judge while deciding the issue of
encroachment. In the opinion of this Court, the burden of proof was
equally upon the private defendants to explain that they were
occupying the area to the extent earmarked. The learned Judge has
failed to appreciate that original Sanand of city survey no. 807 has not
been brought on record and on other hand the construction has
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
progressed in full swing. Essentially challenged was also the
construction permission over said plot. The question therefore
certainly arises for consideration as to how a positive opinion was
submitted by the learned Assistant Collector to the Ahmedabad
Municipal Corporation to grant permission for construction. All the
aforesaid aspects need to be examined and in absence of aforesaid
determination being gone into, the matter deserves to be remanded
back for fresh consideration.
[32.] For the reasons assigned, the present First Appeal is
allowed. The matter is remanded back to the learned trial court. The
respondents-State Authorities are directed to appear before the trial
court explaining their stance and to produce the relevant documents
with regard to the deficit found in the area of city survey no.808 is
concerned. Pending the trial, the respondents are restrained from
proceeding with the development of land in question. Considering the
fact the original suit is of year-2020, the trial court is directed to
expedite the hearing of the suit preferably within a period of one year
from the date of receipt of the order.
[33.] With these observations and directions, present appeal
stands disposed of. As regards production of additional documents, it
is a report carried out by the office of City Survey Superintendent at
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
the instance of the plaintiff association in absence of private
respondents. The same is therefore not accepted to be taken up on
record in present appeal however, it would be open for the parties to
place on record documentary evidence before the Court to meet with
the stance of the office of City Survey Superintendent. Hence,
connected civil applications also stand disposed of, accordingly.
Record and proceedings, called for, be sent back to the concerned
court forthwith.
(NISHA M. THAKORE,J)
FURTHER ORDER
After the order was pronounced, learned advocate Mr. Nandish
Thackar appearing for Mr. Abhisst Thaker, learned advocate for the
respondent no.7 and Mr. Bhavin Thakar, learned advocate for the
respondent no.8 prays for stay of the order pronounced for a period
of six weeks as they intends to challenge before the higher forum.
Mr. Ramnani, learned advocate for the appellants vehemently
objects to grant of stay as according to learned advocate the
respondent no.7, who is allotted of city survey no.807 has proceeded
with the construction over the land in question pending the
NEUTRAL CITATION
C/FA/2500/2024 JUDGMENT DATED: 03/02/2025
undefined
proceedings as it has also come on record that he has created third
parties rights. He has therefore, submitted that great hardships would
be caused in case if the construction is over and further third parties
rights are created. Issue of encroachment ultimately even found
would make exercise futile as said land would not be recoverable.
Considering the submissions made by the learned advocates for
respective parties, the order pronounced is stayed for a period of four
weeks from the date of obtaining certified copy of the order
pronounced today. However, the respondents are directed not to
progress with the construction/ development on subject lands or
create any third party rights in respect of lands in question.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
