SCA/23026/2007 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23026 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SOKHADA GRAM PANCHAYAT & 1 - Petitioner(s) Versus KIRITBHAI RAMANLAL PATEL & 1 - Respondent(s) ========================================================= Appearance : MR MEHUL H RATHOD for Petitioner(s) : 1 - 2. MR ANIL S DAVE for Respondent(s) : 1, MRS SHILPA R SHAH for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 04/08/2008 ORAL JUDGMENT 1. RULE. Ms.Shilpa Shah, learned advocate waives the service of notice of admission on behalf of the SCA/23026/2007 2/14 JUDGMENT respondents – original plaintiffs. 2. With the consent of the learned advocate appearing on behalf of the respective parties, the petition is taken up for final hearing today. 3. By way of this petition under Article 227 of the Constitution of India, the petitioners – original defendants have prayed to quash and set aside the judgement and order dtd.18/5/2007 passed by the learned additional District Judge and Presiding Officer, FTC No.10, in Civil Misc.Appeal No.110 of 2007 as well as order dtd.20/3/2007 passed by the learned 8th Additional Senior Civil Judge (S.D.), Vadodara below application Ex.Nos.42 and 43 in Regular Civil Suit No. 282 of 2005. 4. Few facts are necessary for the determination of the present Special Civil Application and to demonstrate how the process of Court and Court proceedings are abused and misused by the plaintiffs. 5. In the year 1987-88, City Survey Scheme came to be introduced at villge Sokhada and the land situated on the SCA/23026/2007 3/14 JUDGMENT eastern side of City Survey No.197 of Sheet No.9 was numbered as City Survey No.1576 and the same was declared as government land and an order came to be passed against the respondents herein on 30/8/1988 and it was declared that the respondents have encroached the government land. Against the order dtd.30/8/1988, the respondents preferred an appeal before the appellate court and the matter was remanded to the City Survey Officer. On remand, the City Survey Superintendent passed order dtd.2/3-12-1993 declaring that 43 sq.mtrs. of land situated on the eastern side of the City Survey No.197 is forming part of the road and the respondents have encroached upon the said land. Again the respondents preferred appeal before the appellate authority and again the same was remanded. On remand in Remand Case No.9 of 1996, the City Survey Superintendent vide order dtd.29/7/1997 declared the land bearing City Survey No.1576 of respondent No.2 and the said order was challenged by the petitioners - Panchayat before the Collector and the Collector, Vadodara vide order dtd.14/10/1999 set aside the order dtd.29/7/1997 passed by the Inquiry Officer / City Survey Superintendent and remanded the matter to the Assistant SCA/23026/2007 4/14 JUDGMENT Collector, Vadodara who, in turn, remanded the matter to the City Survey Superintendent No.2, Vadodara for fresh decision after detailed inquiry. That the City Survey Superintendent No.2, Vadodara by order dtd.14/3/2005, after detailed inquiry found that the land described as Gamthan Patrak No.689 is different than the land comprise of City Survey No.1576 and declared the said land as Government Land forming part of road and directed to remove encroachment made by the respondent No.2 herein. That thereafter immediately the petitioner – Panchayat removed the cabin and took over the possession of the land and opened the road. It is the case on behalf of the petitioners that by suppressing aforesaid facts, the order dtd.14/3/2005 and removal of cabin, the respondents – original plaintiffs instituted Regular Civil Suit No. 282 of 2005 before the learned Civil Judge (S.D.), Vadodara for declaration and permanent injunction declaring that the land in question is of the ownership of the plaintiffs and they are in possession of the said land. It was also further prayed to issue injunction restraining the petitioners – Panchayat from removing the cabin from the said land and from taking over the possession of the land in question. SCA/23026/2007 5/14 JUDGMENT Application Ex.5 was submitted praying for injunction. The learned Civil Judge (S.D.), Vadodara vide order dtd.8/5/2005 allowed the application Ex.5 and issued mandatory direction directing the petitioner – Panchayat to restore and reinstate the possession of the cabin of the respondents and not to disturb the possession till final disposal of the suit. It appears that the said order was stayed upto 13/5/2006. The petitioner – Panchayat challenged the said order passed below application Ex.5 before the learned District Judge, Vadodara by way of Misc.Civil Appeal No.114 of 2005. The learned appellate court allowed the said appeal vide order dtd.21/6/2005 and the petitioner – Panchayat was directed to remove the cabin after following due procedure, if the same is found to be encroachment and the respondents – original plaintiffs were directed to pay Rs.250=00 per month as “Upaj Dand” for occupying the land. The respondents – original plaintiffs challenged the order passed by the appellate court in Misc.Civil Appeal No.114 of 2005 before this Court by way of Special Civil Application 18932 of 2005 which came to be finally disposed of by this Court on 18/7/2006 as not pressed. Inspite of the above, the respondents – original plaintiffs submitted application SCA/23026/2007 6/14 JUDGMENT Ex.No.42 and prayed for restraining the Panchayat from removing the cabin of the respondents in view of the order of temporary injunction dtd.5/5/2005 passed by the learned trial court below application Ex.5. The respondents – plaintiffs submitted another application Ex.43 and prayed for issuance of mandatory direction directing the petitioner – Panchayat to reinstate the cabin at the same place, as according to the plaintiffs the same was removed in violation of the court's order. The learned trial court rejected both the application Ex.Nos.42 and 43 vide order dtd.28/3/2007 by observing that against the order dtd.5/5/2005 passed by the trial court below application Ex.5, appeal was preferred and the appellate court allowed the said appeal, against which Special Civil Application was preferred and the same was disposed of by this Court as not pressed and therefore, the order passed by the appellate court is in force. Being aggrieved by and dissatisfied with the order passed by the learned trial court below application Ex.Nos.42 and 43, the respondents – original plaintiffs preferred Misc.Civil Appeal No.110 of 2007 before the District Court, Vadodara, which came to be heard by the learned Additional District Judge and Presiding Officer, FTC No.10, SCA/23026/2007 7/14 JUDGMENT who vide judgement and order dtd.18/5/2007 allowed the said appeal with cost and quashed and set aside the order passed by the trial court below application Ex.Nos.42 and 43 by issuing mandatory direction directing the petitioners – Panchayat to restore the cabin of the respondents in the suit property in original situation immediately. The petitioners submitted application Ex.16 in Misc.Civil Appeal No.117 of 2007 praying to stay the impugned judgement and order passed in appeal and the said application came to be rejected by the learned appellate court on the ground that the respondents have given undertaking that they will remove the cabin if the Hon'ble High Court so directs. Being aggrieved by and dissatisfied with the judgement and order dtd.18/5/2007 passed by the learned District Judge and Presiding Officer, FTC No.10 in Misc.Civil Appeal No.110 of 2007, the petitioners – original defendants have preferred present Special Civil Application under Article 227 of the Constitution of India. 6. Mr.Mehul Rathod, learned advocate appearing on behalf of the petitioners has vehemently submitted that the appellate court has materially erred in allowing the SCA/23026/2007 8/14 JUDGMENT appeal by quashing and setting aside the order passed by the learned trial court below application Ex.Nos.42 and 43 and granting mandatory direction / injunction. It is submitted that as such the order passed by the appellate court dtd.21/6/2005 in Misc.Civil Appeal No.114 of 2005 by which the petitioner - Panchayat was permitted to remove the cabin after following due procedure of law, the petitioner – Panchayat served notice upon the respondents and after following due procedure, again the said cabin was removed and therefore, as such the suit itself has become infructuous. It is also further submitted that against the order passed by the appellate court in Misc.Appeal No.114 of 2005, Special Civil Application 18932 of 2005 was preferred before this Court and the said Special Civil Application came to be disposed of by this Court as not pressed and therefore, it was not open for the learned appellate court to take contrary view and as such the trial court was right in dismissing the application Ex.Nos.42 and 43. It is submitted that as such the cabin of the respondents came to be removed after following due procedure and subsequently surreptitiously again the cabin was put by the plaintiffs, which again came to be removed and thereafter application Ex.Nos.42 SCA/23026/2007 9/14 JUDGMENT and 43 were submitted, which were rightly rejected by the learned trial court. It is submitted that in view of the disposal of the Special Civil Application against the order passed by the appellate court in Misc.Civil Appeal No.114 of 2005, the learned appellate court while passing the impugned order has acted as if he was sitting as an appellate court over the order passed by this Court, which is not permissible. Therefore, it is requested to allow the present Special Civil Application with costs. 7. Ms.Shilpa Shah, learned advocate appearing on behalf of the respondents – original plaintiffs has vehemently submitted that in the facts and circumstances of the case when the appellate court has found that the order passed by the trial court below application Ex.Nos.42 and 43, was erroneous, the same is rightly quashed by the appellate court. It is submitted that when the appellate court has found that the order passed by the appellate court in Misc.Civil Appeal No.114 of 2005 was misinterpreted and that the suit cabin could not have been removed by giving mere notices when there is dispute between the parties regarding ownership of the disputed portion of the land and considering the same when the learned SCA/23026/2007 10/14 JUDGMENT appellate court has granted injunction/direction, the same is not required to be interfered with by this Court in exercise of the powers under Article 227 of the Constitution of India. Submitting accordingly, it is requested to dismiss the present Special Civil Application. 8. Having heard the learned advocate appearing on behalf of the respective parties and having gone through the chronological dates of events stated hereinabove as well as the order passed by the trial court below application Ex.5 dtd.5/5/2005; judgement and order passed by the appellate court in Misc.Civil Appeal No.114 of 2005; order passed by this Court in Special Civil Application 18932 of 2005; order passed below application Ex.Nos.42 and 43 in Regular Civil Suit No. 282 of 2005 and the impugned order passed by the appellate court in Misc.Civil Appeal No.117 of 2007, it appears that the impugned judgement and order passed by the appellate court in Misc.Civil Appeal No.110 of 2007 cannot be sustained. It appears that the learned Additional District Judge, FTC No.10, Vadodara has passed the impugned judgement and order as if he was sitting over the order passed by this Court as an appellate court and/or even against the order SCA/23026/2007 11/14 JUDGMENT passed in Misc.Civil Appeal No.114 of 2005, which was passed by the coordinate court. Against the order passed below application Ex.5 in Regular Civil Suit No. 282 of 2005, the petitioner – Panchayat preferred Misc.Civil Appeal No.114 of 2005 and the appellate court partly allowed the said appeal vide order dtd.21/6/2005 directing the petitioner – Panchayat to remove the cabin after following due procedure if it is found that there is encroachment by the respondents – original plaintiffs. The said order came to be challenged by the respondents before this Court by way of Special Civil Application No.18932 of 2005, which came to be dismissed by this Court as not pressed and thereafter after following due procedure i.e. issuing notice, the suit cabin came to be removed and the possession was taken over. Subsequently, the respondents submitted application Ex.Nos.42 and 43 for mandatory direction, which was rightly rejected by the trial court and the said findings came to be upset by the appellate court by the impugned judgement and order. It appears that the learned appellate court while passing the impugned judgement and order has observed that the Panchayat has misinterpreted the order passed in Misc.Civil Appeal SCA/23026/2007 12/14 JUDGMENT No.114 of 2005 and issuance of notice only was not sufficient when there is a dispute with respect to the ownership of the land. However,it is required to be noted that the order passed by the appellate court in Misc.Civil Appeal No.114 of 2005 was challenged by the respondents before this Court by way of Special Civil Application No.18932 of 2005 and it appears that as this Court was not inclined to grant any relief in favour of the respondents, the same came to be dismissed as not pressed. It appears that the cabin was already removed and again the same was put by the respondents and again the same was removed and thereafter the respondents prayed for mandatory injunction / direction, which came to be granted by the appellate court, which according to this Court, in the facts and circumstances of the case, call for interference of this Court. It appears that the respondents have misused and abused the process of Court and law. Once Special Civil Application was dismissed as not pressed by this Court and the petitioner - Panchayat has acted as per the order passed by the appellate court in Misc.Civil Appeal No.114 of 2005, it was not open for the appellate court to quash and set aside the order passed below application SCA/23026/2007 13/14 JUDGMENT Ex.Nos.42 and 43 in the suit by granting mandatory direction directing the petitioners to restore the possession of the suit cabin. Under the circumstances, the impugned judgement and order passed by the appellate court deserves to be quashed and set aside with exemplary costs, as the respondents have abused the process of Court and law. 9. For the reasons stated above, the petition succeeds. The impugned judgement and order dtd.18/5/2007 passed by the learned Additional District Judge, FTC No.10, Vadodara in Misc.Civil Appeal No.110 of 2007 is hereby quashed and set aside and the order passed by the trial court below application Ex.Nos.42 and 43 in Regular Civil Suit No. 282 of 2005 is restored and the respondents – original plaintiffs to abide by the undertaking given by them, so recorded in the order passed below application Ex.16 in Misc.Civil Appeal No.110 of 2007 to the effect that if the Hon'ble High Court directs to remove the cabin, they will remove it immediately. Accordingly, as per the said undertaking, the respondents are directed to remove the cabin immediately and if the suit cabin is not removed within a period of four week from today, the SCA/23026/2007 14/14 JUDGMENT same shall be removed by the petitioner – Panchayat after giving 24 hours notice. The petition is accordingly allowed with cost which is quantified at Rs.10,000, which the respondents shall pay to the petitioner – Panchayat within four weeks from today. Rule is made absolutely. [M.R. SHAH, J.] rafik